Opinion
No. 30929
Decided July 2, 1947.
Schools — Teacher employed under limited contract — May withdraw written notice not to accept re-employment, when — Section 4842-8, General Code — Teacher deemed re-employed for ensuing school year, when — Failure of board of education to give proper notice not to re-employ.
1. A teacher employed under a limited contract, having given, in accordance with Section 4842-8, General Code, a written notice to his board of education to the effect that he will not accept employment as a teacher for the ensuing year, may withdraw such notice provided he makes such withdrawal before the board of education has acted upon such notice, and before the first day of June in the year of his employment.
2. A teacher employed under a limited contract shall automatically be deemed re-employed for the ensuing school year, where his board of education has failed to give him on or before the 31st day of March in the year of his employment a written notice of its intention not to re-employ him for the succeeding year, as permitted by Section 4842-8, General Code, which notice was authorized by a resolution expressing a determination of such intention.
APPEAL from the Court of Appeals for Summit county.
This is an action in mandamus originally filed in the Court of Appeals for Summit county, to compel the respondent board to tender the relator a "limited" contract to teach in the Barberton schools for the school year 1946-47.
The relator was employed under a limited contract as a teacher in the Barberton schools for the school year 1945-46, and was not eligible for a continuing contract. On February 26, 1946, the relator wrote a letter to the respondent board in which he said: "Unless you can correct the deplorable and destructive administrative practices in Washington Elementary School, please terminate my present contract at your earliest convenience."
On February 27, 1946, the superintendent of the Barberton schools replied to relator by letter as follows:
"With the approval of the board of education, I am accepting your resignation as expressed to me in your letter of February 26, 1946, said resignation to be in effect as of Monday, March 4, 1946."
At the time the superintendent of schools wrote this letter to relator, the respondent board had not met, had not been presented with relator's tendered resignation and had not adopted a resolution accepting relator's offer to resign, but all the members of the board, individually, had been apprised of and had approved the contents of the superintendent's letter to relator, dated February 27, 1946.
On March 2, 1946, the relator sent a letter to the respondent board as follows:
"Regarding my resignation dated February 26, 1946, I have reconsidered the matter and hereby withdraw said resignation."
Thereafter, the relator continued to teach to the end of the 1945-46 school year and was paid for his services in accordance with his contract for that year. On March 19, 1946, after a special meeting of the respondent board, at which no action was taken regarding relator's contract for the ensuing year, the superintendent stated to the relator, in the presence of some but not all of the members of the respondent board, that he, the superintendent, did not intend to retain the relator for the succeeding school year. On March 27, 1946, the superintendent wrote a letter to the relator, the pertinent part of which is as follows:
"It is with regret that I inform you of my decision not to renew your contract for the school year 1946-47."
No other written or verbal communication was given by the superintendent or the respondent board to the relator, prior to March 31, 1946, to the effect that his contract would not be renewed for the school year 1946-47.
On April 9, 1946, the respondent board held a regular meeting at which, by resolution, the resignation of the relator was accepted, effective as of June 7, 1946, and his withdrawal of resignation rejected. On April 10, 1946, the clerk-treasurer of respondent board notified relator by letter that his resignation had been accepted and his withdrawal of resignation had been rejected on the previous day by action of the respondent board.
This cause was submitted to the Court of Appeals on an agreed statement of facts, and that court found in favor of the relator and issued a peremptory writ of mandamus as prayed for.
The case is now before this court on appeal from the Court of Appeals as a matter of right.
Messrs. Buckingham, Doolittle Burroughs and Mr. Dwight Parsons, for appellee.
Mr. Harold J. Eckroate, city solicitor, for appellant.
The questions presented to the court are whether the relator could withdraw his resignation as a teacher before it was accepted by resolution of the board of education and whether relator was notified prior to March 31, 1946, of the intention of the board of education not to renew his contract for the year 1946-47, as required by statute.
This court holds that the relator could withdraw his resignation at any time before it was acted upon by the board of education and, relator having done so before March 31, 1946, it remained incumbent upon the respondent board to notify relator prior to March 31, 1946, that his contract would not be renewed for the ensuing year if the board desired to terminate the right of relator to a renewal contract.
The remaining question is whether such notice was given. Section 4842-8, General Code, provides in part as follows:
"Any teacher employed under a limited contract shall at the expiration of such limited contract be deemed re-employed under the provisions of this act at the same salary plus any increment provided by the salary schedule unless the employing board shall give such teacher written notice on or before the thirty-first day of March of its intention not to re-employ him. Such teacher shall be presumed to have accepted such employment unless he shall notify the board of education in writing to the contrary on or before the first day of June * * *."
Since, under the statute, a teacher holding a limited contract is automatically deemed re-employed unless the "employing board shall give such teacher written notice on or before the thirty-first day of March of its intention not to re-employ him," it would seem to follow that the determination not to re-employ must be reached by the same formality and solemnity as was required to effect his original employment. In other words, it would require board action at a regular meeting, or a special meeting for that purpose, followed by written notice to the teacher of the action so taken to prevent the automatic renewal of his contract. See McCortle v. Bates, 29 Ohio St. 419, 422, 23 Am. Rep., 758. In the instant case the respondent board took such action on April 9, 1946, but failed to do so within the time required by statute.
It is claimed by the respondent board that, since the superintendent of schools is by Section 4842, General Code, made an executive officer of the board, his notification to the relator of an intention not to re-employ him was sufficient, and that by reason of the superintendent's position he could act for the board and did so act. However, the employment of teachers was beyond the scope of the function of the superintendent as indicated by the terms of the statute itself (Section 4842-6, General Code).
It is also claimed by the respondent that the superintendent of schools in this respect acted in accordance with the custom and practice prevailing throughout the state, and that his action constituted a due compliance with the statute. This court takes the view that the terms of the statute are not satisfied by such attempted compliance.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.
TURNER, J., dissents.