Opinion
No. 45633
Decided July 20, 1967.
Schools — Board of Education — Body politic and state agency — Contract for private school transportation — Duty of board — Section 3327.011, Revised Code — Public hearing and notice — Mandamus.
1. A local board of education is a body politic and a state agency created for the purpose of administrating a public school system. As such it is subject to the requirements of administrative due process.
2. Section 3327.011, Revised Code, requiring that a board of education "shall give preference if economically feasible" to a pre-existent contract providing private school transportation imposes a mandatory duty upon a board of education to hold a public hearing, to grant notice to the contracting party and to give it an opportunity to appear and be heard on the question of whether it is economically feasible to continue the contract.
3. While the Court of Common Pleas cannot dictate the exercise of the board's discretion in answering this question, it may require it to be exercised by the holding of a hearing under a writ of mandamus.
Messrs. Clair Wiles, for relator.
Messrs. Squire, Sanders Dempsey and Mr. E. W. Mastrangelo, for respondent.
Respondent has demurred to the petition claiming that neither cause of action states a proper cause of action against it. The first cause of action asks for a writ of mandamus against respondent ordering it to give preference to relator's contract as described within the petition. On application of relator an alternative writ was granted June 6, 1967.
The second cause of action asks for money damages from the respondent.
After consideration of the demurrer, briefs pro and contra and the law, the demurrer is overruled as to the first cause of action and sustained as to the second cause. The second cause of action is, therefore, dismissed. Corbean, a Minor, v. Xenia City Board of Education, 10 Ohio Misc. 153.
The alternative writ previously issued is modified by ordering that the respondent hold a public hearing and make a determination of the economic feasibility of giving relator preference to relator's contract with Notre Dame Academy, referred to within the petition.
Respondent is further ordered to give relator, and such other persons as it deems appropriate, notice of such hearing and an opportunity to present such matters to the board as the board shall deem relevant to the question. Respondent is ordered to comply with this order by August 4, 1967, or show cause to the court why it has not done so.
IT IS SO ORDERED.
It is axiomatic that the remedy of mandamus is available where a public body enjoined by law to take specific action, fails to take such action and the relator has no other adequate specific remedy. Relator has no other adequate remedy and has status to seek mandamus. Even were Chapter 2506, Revised Code, applicable to this fact pattern and these parties, as respondent suggests, it is clear that no resort to it could have been made by relator because of the alleged failure of the board to do what this writ orders, i. e., to hold a hearing and make a determination of economic feasibility.
Respondent claims that mandamus is inappropriate because relator is advancing mere private rather than public interest.
The State, ex rel. Sibarco Corp. case which has been cited ( 7 Ohio St.2d 85) contains the opinion of only one judge who believes such a distinction is meaningful. An examination of earlier cases cited in the opinion of Judge Herbert shows that any denial of the writ for the reason that it would preserve a private right rests on a most dubious legal foundation. The distinction seems to have evolved out of the necessity that the relator establish an interest in the specific relief requested. If the right is a public one then he need only be a taxpayer, while if it is a private right he must show a direct involvement in the subject matter.
Section 3327.011, Revised Code, requires that respondent board of education "shall give preference if economically feasible" to the contract described within this petition, assuming, as the court must, that the allegations are true.
The petition alleges further that respondent made no determination that the granting of preference to it would not be economically feasible. In the absence of such a determination the board was confronted with a mandatory duty spelled out in the statute of granting such preference. The petition alleges further that preference was not granted relator but, in fact, a new contract was entered into by respondent directly with Redifer Bus Company.
Relator prays for a writ ordering respondent to give its contract preference. It is not entitled to, and the court has no power to grant, such a sweeping remedy, for such order would pre-empt the exercise of the board's required decision-making power. But relator is entitled to, and the court must grant, an order requiring respondent to make the determination referred to, for this merely orders it to perform a duty clearly incumbent upon it. Cincinnati, Wilmington and Zanesville Rd. Co. v. Commissioners of Clinton County, 1 Ohio St. 77; State ex rel, Taylor, v. Lease, 105 Ohio App. 509.
While the court cannot control the board's discretion in the making of its decision, it may compel it to be exercised State, ex rel. Scott, v. Masterson, 173 Ohio St. 402.
In what manner must the determination come? Counsel for respondent suggests it was made by virtue of the very act of granting the contract to Redifer. This court believes that it cannot be made as a mere incident to such an act.
It seems apparent from the phraseology used by the Legisture that existing contracts were to be given every protection, unless to do so meant financial hardship. Can a board simply say that no preference shall be given without affording an opportunity to the contracting party affected to be heard, and without making a finding in support of its determination? I think it cannot.
The board of education is a body politic. It is an agent of the state for the purposes of carrying on the affairs of state education. It is an agency of the state for the administration of a public school system. State, ex rel Board of Education of Morgan Twp. v. Board of Education of Riley Twp., 7 C. C. 152; Cline v. Martin, 94 Ohio St. 420.
As a state agent it is subject to the requirements of administrative due process. This requires that before contract rights are eroded there must be a hearing, with notice and an opportunity to appear on all persons subject to possible deprivation. Ohio Constitution, Section 1, Article I; McArthur v. Kelly et al., Commrs., 5 Ohio 139; Citation in 11 Ohio Jurisprudence 2d 66, Constitutional Law, Section 720. Where an administrative adjudication is required of a state agency, notice and hearing are required by virtue of due process, and a court is competent to order same, in their absence, by a writ of mandamus. State, ex rel. Wright, v. Morrison, 80 Ohio App. 135.
It is So Ordered.