Opinion
No. 77-995
Decided April 19, 1978.
Schools — Teacher's employment under limited contract — Notice of non-reemployment not timely received, when.
APPEAL from the Court of Appeals for Ashtabula County.
The following facts have been stipulated by the parties:
Aliene E. Curry, relator herein, is a certified teacher under the laws of the state of Ohio. In August of 1973, relator was hired by the Grand Valley Local Schools Board of Education (hereinafter "the board") under a one-year limited contract. At the expiration of that contract, she was reemployed by the board pursuant to a two-year limited contract covering the 1974-1975 and 1975-1976 school years. During her employment with the Grand Valley Local Schools District, relator served as a supervisory principal at an elementary school.
On April 19, 1976, the board voted not to reemploy relator after the expiration of her existing contract. Relator was aware of the board's action before the following events occurred.
On April 23, 1976, relator, while on sick leave, attempted to notify Ann Hibbs, secretary to the superintendent, of a planned trip to Washington, D.C., to begin the next day. It was customary for employees of the school district to report their absences to Ann Hibbs.
Unable to contact Ann Hibbs by telephone that day, relator called Ann Hibbs after her arrival in Washington, D.C. on April 26, 1976. She reported that she was calling from Washington, D.C. and would return to Grand Valley on May 2, 1976.
Although written notice of the board's action was drafted by the president and clerk of the board subsequent to the April 19th meeting, relator did not receive written notification of her non-reemployment until May 3, 1976, when the assistant superintendent personally delivered the notice to her at her home.
On June 28, 1976, relator filed a complaint in mandamus in the Court of Appeals requesting that court to order the board to issue relator a written contract of employment for the academic year 1976-1977 pursuant to R.C. 3319.11, or, in the alternative, to show cause why it had failed to provide her a contract of reemployment. The court granted relator the alternative writ, and after an oral hearing on the pleadings, stipulations, and briefs of the parties, ordered that the appellant issue to relator a contract of employment for the 1976-1977 academic year. The board's motion for stay of execution was subsequently denied.
The cause is now before this court upon an appeal as a matter of right.
Messrs. Green, Schiavoni, Murphy Haines, Mr. Eugene Green and Mr. Barry R. Laine, for appellee.
Messrs. Petersen Pasqualone and Mr. Terry G. Pasqualone, for appellant.
The only issue to be resolved in this cause is whether the written notification of non-reemployment received by relator on May 3, 1976, comes within the holding of this court in State, ex rel. Peake, v. Bd. of Edn. (1975), 44 Ohio St.2d 119, wherein it is held:
"A teacher employed under a limited contract shall automatically be deemed reemployed for the ensuing school year, absent his timely receipt of notice of the action of the board of education of its intention not to reemploy him."
"Notice," as that term was used in Peake, specifically was defined as actual notice.
The board contends that the holding in Peake does not control, because the board of education in that cause, unlike the board in the present cause, failed to act expediently in providing the statutory notice to its employee; i.e., but for the means chosen by the board to effect written notice of its decision not to reemploy the teacher, the teacher would have received timely notice. As opposed to the situation in Peake, the board contends that because relator in this cause was out-of-state at an unknown address, it was unable to provide the proper notice; thus, but for the voluntary act of the relator in leaving the state, the board would have complied with the notice requirements of R.C. 3319.11.
This court is not persuaded by the board's interpretation of the holding in Peake as applied to the facts presently under consideration. In Peake, there was no indication that had the board chosen a more expedient means of service, such as personally delivering the notice, the board would have complied with the notice requirement of R.C. 3319.11. The facts therein do not reveal where the teacher was located at the time the board attempted to provide notice. Thus, even if the board had delivered written notice to the teacher by hand, it is unclear whether the teacher would have received the notice prior to the April 30th deadline.
Furthermore, this court specifically noted in Peake, at page 122, that R.C. 3319.11 does not require a specific mode or manner of service. The statute only requires that written notice be provided the teacher on or before April 30th.
Therefore, the ratio decidendi of Peake does not rest on the fact that the board failed to choose the most expedient means of providing written notice to the teacher. Rather, it rests on the fact that irrespective of the method chosen by the board to serve notice, the teacher was not timely informed of the board's action.
This court recognizes that the statutory protection afforded teachers under R.C. 3319.11 will not obtain in situations where a teacher is shown to have deliberately evaded receipt of the written notice of non-reemployment. Thus, before this court held, in Peake, that the teacher was automatically re-employed, we specifically noted that there was nothing either in the record or the agreed statement of facts to show that the teacher deliberately prevented delivery of the requisite notice.
Likewise, in the instant cause, we find nothing in the record or the stipulation of facts to support a finding that relator deliberately attempted to avoid receipt of the board's written notice of her non-reemployment. Between April 19th, the date of the board's decision, and April 23rd, the day before relator embarked on her trip, relator, although on sick leave, was available to be served written notice of her non-reemployment for the following year. Furthermore, between April 24th and April 30th, there is nothing to show that the board made any effort to determine relator's exact whereabouts. When relator placed her call to Ann Hibbs on April 26th, no questions were asked in regard to her present address and no concern was shown over the trip itself. The fact that relator knew of the board's action before her trip to Washington, D.C. is in itself of no consequence absent additional proof of an intentional evasion on relator's part of the board's written notice.
Because relator did not receive timely notice of the board's action not to re-employ her for the 1976-1977 school year, it was proper for the Court of Appeals to issue a writ of mandamus ordering the board to grant relator a contract of employment for that school year.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, P. BROWN, SWEENEY and LOCHER, JJ., concur.
O'NEILL, C.J., HERBERT and STEPHENSON, JJ., dissent.
STEPHENSON, J., of the Fourth Appellate District, sitting for W. BROWN, J.
As I view the record in this case, including the fact that the Board made certain daily trips to appellee's residence in an attempt to serve the required notice, appellee's conduct was sufficient to deprive her of the protection afforded by R.C. 3319.11.
O'NEILL, C.J., and STEPHENSON, J., concur in the foregoing dissenting opinion.