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IN THE SUPREME COURT OF OHIO
STEVEN W. GEBBIE13080 Center Village RoadGalena, Ohio 43021
®'vl - ^0 7-2
Appellant,
vs.
LICKING HEIGHTS LOCALSCHOOLS BOARD OF EDUCATION,6539 Summit Rd SWPataskala, Ohio 43062,
Case No. 2008-CA-48
On Appeal from theLicking County Court of Appeals
Appellee.
MEMORANDUM IN SUPPORT OFJURISDICTION OF APPELLANT. STEVEN W. GEBBIE
Stephen C. Findley, Esq.Sandra R. McIntosh, Esq.Freund, Freeze & Arnold65 East State Street, Suite 800Columbus, Ohio 43215(614)827-7300
Attorneys for Appellee
Michael A. MosesSup. Ct. Reg. No. 0025243330 South High StreetColumbus, Ohio 43215(614)224-7291
Attomey for Appellant
FaEDJAN G q 2002
CLERK OF COURTSUPREME COURT 0FOHIO
TABLE OF CONTENTS
EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONTITUTIONAL QUESTION ........ 1-3
STATEMENT OF THE CASE AND FACTS ................................................................. 4-6
ARGUMENT IN SUPPORT OF APPEAL .........................................................7-11
Prooosition of Law No. 1 .............................................................................................. 7
THE APPELLATE COURT'S DECISION ERRONEOUS AFFIRMANCE OF THELOWER COURT'S SUMMARY JUDGMENT AND DENIAL OF APPELLANT'SMOTION FOR LEAVE TO AMEND HIS COMPLAINT RAISES A QUESTION OFGENERAL OR PUBLIC INTEREST.
CONCLUSION .............................................................................................................. 12
CERTIFICATE OF SERViCE ........................................................................................ 13
I. STATEMENT OF WHETHER THE CASE ISOF PUBLIC OR GREAT GENERAL INTEREST
The Appellant, Steven W. Gebbie, is filing his Notice of Appeal from the decision
of the Licking County Court of Appeals, Fifth Appellate District, affirming the decision of
the Licking County Common Pleas Court, issued November 26, 2008, contempora-
neously with the filing of this Memorandum in Support of Jurisdiction.
Mr. Gebbie was determined by the lower Courts to have been properly
terminated from his employment with the Appellee, Licking Heights Local School District
Board of Education, and, further, that he could not amend his complaint to include his
statutory appeal to common pleas court pursuant to O.R.C. Sec. 3319.081, despite his
prior counsel's filing a civil action under a breach of contract theory.
The Court of Appeals found that Mr. Gebbie's rights under O.R.C. Sec. 3319.081
were not timely invoked even though raised via amendment under Civil Rule 15(A)
during the pendency of the case. Noteworthy, under the facts sub judice, Mr. Gebbie
was terminated and left without payment for several months before the School District
figured out that it needed to serve him with a notice of termination by certified mail. The
Court of Appeals held that the lower Court did not err in dismissing the appeal of the
Appellant pursuant to O.R.C. Sec. 3319.081 from his termination from employment with
the Appellee, Licking Heights Local School District Board of Education.
This appeal involves O.R.C. Sec. 3319.081. The issue of whether a school
district may avoid the appeal process when it terminates a non-teaching employee who
holds a two-year contract is of great or general public interest. The General Assembly
enacted a specific statutory appeal procedure which affords non-teaching employees
under contracts with school districts a remedy for loss of employment. This statutory1
scheme is consistent with other administrative appeal processes for other public
employees who are tenured in the civil service, as envisioned by the merit and fitness
principles set forth in the Ohio Constitution. See O.R.C. Sec. 119.12, O.R.C. Sec.
124.34; Article XV, Section 10, Constitution of the State of Ohio.
In this case, the Licking Heights Local School District Board of Education
terminated Mr. Gebbie's employment without cause in June 2007, causing him to retain
legal counsel who filed a civil action under a breach of contract theory in the Licking
County Common Pleas Court. Subsequently, Mr. Gebbie received a certified mail
notice of his termination, dated September 22, 2007, as the School District should have
done three months earlier. Because of circumstances beyond his control, Mr. Gebbie's
counsel was forced to withdraw from representation due to personal misconduct for
which this Court subsequently suspended his license to practice law.
By the time the undersigned counsel was retained by Mr. Gebbie in December
2007, the 10-days statutory appeal time under O.R.C. Sec. 3319.081 had expired. Mr.
Gebbie then sought leave to amend his complaint, which permission was denied by the
Court of Common Pleas. The Court of Appeals subsequently ruled that the decision nof
the lower Court was within its discretion, and declined to reverse the Court. Such
reversal, leaving Mr. Gebbie and others similarly-situated without recourse, when a
school district improperly terminates a non-teaching employee, absent compliance with
the statutory appeal provisions of O.R.C. Sec. 3319.081 subjects such employees to
employer abuse, hence, creating a question of public or great general interest.
The broad concern in this case deals with the potential abuse of power of school
districts in the State of Ohio. O.R.C. Sec. 3319.081 provides a statutory entitlement and
protection to non-teaching school employees prior to effective relinquishment of their
employment interest. To remove the rights and protections afforded by the General
Assembly would affect numerous school employees throughout the state of Ohio, and
presents a question of public or general interest.
I
It. STATEMENT OF THE CASE AND FACTS
This appeal arose out of the discharge of Appellant, Steven W. Gebbie, on June
21, 2007, from his non-teaching employee two-year contract with the Appellee, Licking
Heights School District Board of Education. Appellant was hired by the Appellee on
July 1, 2005, with an annual salary of $35,000.00. Mr. Gebbie was given a positive
performance evaluation and a two-year contract by the Appellee, which raised his
salary. He performed his duties as an Assistant Technology Coordinator in a
competent, workmaniNce manner, and received no discipline untif June 12, 2007, when
he was verbally notified by his supervisor, Chris Cashdollar, that he was receiving a
written reprimand for alleged attendance violations.
In April 2007 Mr. Gebbie was nofffied by Superintendent Ernest A. Husarik that
he was being non-renewed by the Board. No explanation was provided in the notice he
received on April 18, 2007. The notice stated that the Board of Education had voted to
non-renew his two-year contract for the 2007-08 school year, even though others with
2-year contracts received no such notice.
In order to ascertain his legal rights, Mr. Gebbie retained an attorney, Barry
Mentser, to assert any legal rights he may have had under the contract, and Mentser
notified the Board that their action non-renewing Mr. Gebbie's contract was unlawful.
Subsequently, on May 7, 2007, the Appellee contacted Mr. Mentser by phone
and indicated that the notice of non-renewal had been a"mistake." Mr. Gebbie was
subsequently reprimanded without cause on June 12, 2007 by Mr. Cashdollar, and told
that he would be receiving a written version of the reprimand for the alleged attendance
violations. After attempting to obtain a copy of his reprimand on the following day, he
4
was subsequently notified on June 21, 2007 that he would be terminated for alleged
violation of an unwritten policy about the proper method for obtaining personnel records.
He was not provided with any notice of a pre-disciplinary hearing or otherwise offered
an opportunity to be heard on the charges. The circumstances of his attempt to obtain
a copy of his reprimand as outlined in a supporting affidavit to the lower Court
demonstrated the arbitrary manner in which he was discharged, and the Defendant's
attempt to characterize this as a basis for termination fell well short of recognized "just
cause" standard. Nor was there any probative evidence of a written policy which could
serve as a statutory basis for discharge in this regard.
Some time after an action was filed in Licking County Common Pleas Court
against the School District for breach of contract, Mr. Gebbie received a certified letter
on September 22, 2007 from the Superintendent that his contract was terminated,
effective June 21, 2007. No explanation was contained therein, nor were any minutes
or resolution of the Board ever provided to him either with the certified letter or at any
other time.
After Mr. Gebbie received notice from Mentser that the latter was withdrawing as
counsel, he sought new representaUon. On December 7, 2007, the undersigned
counsel filed a Notice of Appearance. Subsequently, Mr. Gebbie sought leave through
counsel to file an amended complaint reflecting appeal under O.R.C. Sec. 3319.081.
On March 17, 2008, the Licking County Common Pleas Court issued a decision,
attached hereto as Appendix "A", which granted the Appellee's Motion for Summary
Judgment and denied the motion for leave to amend the complaint.
Appeal was taken to the Fifth District Court of Appeals, a decision affirming the
S
ruling of the lower Court was issued on November 26, 2008, a copy of which is attached
hereto as Appendix "B".
Appellant now respectfully asks this Court to certify the record of proceedings,
and hear his appeal on the mer+ts.
A
111. ARGUMENT IN SUPPORT OF APPEAL
Proposition of Law No. 1:
THE APPELLATE COURT'S DECISION ERRONEOUS AFFIRMANCE OF THELOWER COURTS SUMMARY JUDGMENT AND DENIAL OF APPELLANT'SMOTION FOR LEAVE TO AMEND HIS COMPLAINT RAISES A QUESTION OFGENERAL OR PUBLIC INTEREST.
A. Award of Summary Judgment
The underlying appeal came before the appellate court upon review of an order
granting summary judgment to the Appellee. An award of summary judgment is
properly granted when: (1) there is no genuine issue as to any material fact; (2) the
moving party is entitled to judgment as a matter of law; and, (3) reasonable minds can
come to but one conclusion, and that conclusion is adverse to the party against whom
the motion for summary judgment is made. Hatless v. Willis Day Warehousing Co.
(1978), 54 Ohio St.2d 64, 66. Pursuant to Civil Rule 56(C), a trial court may not grant
summary judgment if it appears a material fact is genuinely disputed.
The issue on review before the appellate tribunal was whether the Board of
Education properly terminated the contract of the Appellant. Ferdinand v. Hamilton
Local Bd. of Edn. (1984), 17 Ohio App.3d 165, Motion to Certify Record to Supreme
Court of Ohio, dismissed on application of appellant, August 2, 1984 (case No. 84-
1070). In that case, the Tenth District Court of Appeals held that an employee was
entitled to summary judgment against the board of education, when based on the
evidence construed most strongly in favor of the board, reasonable minds could
conclude only that the board had demonstrated no factual or legal basis for its action of
terminating the employee's contract of employment. Ferdinand, supra, 17 Ohio App.3d
at 171. O.R.C. Sec. 3319.081 vests a right of continued employment in nonteaching7
employees of a local school district during the term of their contract, and such contracts
can only be terminated upon proper notice (certified mail) specifying one or more of the
statutory reasons set forth therein. In order to comply with the statute, the board of
education was required to make findings of specific reasons and need to terminate that
contract, if the termination is for reasons other than as specified in that section. In the
underlying facts sub judice, the Appellee made no findings of any sort. The Board's
minutes for the meeting of July 10, 2007, simply indicated that the recommendation of
the Superintendent, Ernest Husarik, was moved, seconded, and approved by three
members of the Board, with two members abstaining. Moreover, neither the minutes
nor any explanation for the Board's action was ever conveyed to Mr. Gebbie by certified
mail as O.R.C. Sec. 3319.081 requires.
Further, O.R.C. Sec. 3319.081 requires that at least minimum due process rights
be afforded a non-teaching employee who is under consideration for suspension or
termination by a board of education. Minimum due process requires that the employee
be given notice of the hearing, a specification of charges, an opportunity to be heard,
and the right to offer evidence and to cross-examine adverse witnesses. Further, when
a part is not afforded due process at a hearing, any order of suspension or terrnination
emanating from the board is void ab initio. When the board failed to hold any hearing or
failed to provide notice of the specific charges made against the employee prior to the
termination of his employment, it denied the Appellant the due process of law to which
he is entitled under the statute. Pack v. West Clerrnont Local Bd. of Edn. (1985), 24
Ohio Misc. 2d 1, 492 N.E.2d 1259. While a board of education is not required to give a
full evidentiary hearing prior to termination under O.R.C. Sec. 3319.081, a non-teaching
R
employee must be provided constitutional due process rights of prior notice and an
opportunity to be heard before termination occurs. See OAPSE, AFSCME v. Lakewood
City School Dist. Bd. of Edn. (1994), 68 Ohio St.3d 175, 177, 624 N.E.2d 1043, citing
Cleveland Bal of Edn. v. Loudermi(1 (1985), 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d
494.
In this case, clearly, no pre-disciplinary hearing was afforded Mr. Gebbie.
Likewise, it does not appear that the Appellee issued any order which comports with
any of the aforementioned statutory grounds for termination. Finally, no Board notice of
any statutorily-based grounds for discharge appears in the minutes of the Board's July
10, 2007 meeting, nor, obviously, was any order or resolution reflecting such Board
action ever sent by certified mail to Mr. Gebbie.
Because a public board speaks only through its minutes, written record of
resolutions, directives or actions, action by a public board is not final until such a written
record is made and approved. Swafford v. Norwood Bd. of Edn. (1984), 14 Ohio
App.3d 346, at 348. This procedure is equally applicable to action by a board of
education, whether the action is taken by the board as a whole or by its designee. See
Kipp v. Lorain Bci of Edn. 00-LW-05110 (Nov. 22, 2000), Lorain App. No.
99CA007373; Cashdollar v. Bd. of Edn., Northridge High School, 83-LW-3582 (1983),
Licking App. No. CA 2951. See attached Appendices "D" and "E". Without such record,
the time for appeal under O.R.C. Sec. 3319.081 could not have commenced.
To the extent the Appellant's complaint chaHenged the Board's action on the
grounds of its failure to comply with the statute setting forth the procedures for
termination of a non-teaching employee, the complaint set forth a claim which
Q
established a breach of the Appellee's contractual obligation to Mr. Gebbie. The
Appellee's failure to comply with the statutory provisions of O.R.C. Sec. 3319.081 was,
improperly, a basis for denial of Mr.Gebbie's relief for the economic harm of income he
suffered as a resuft of his unlawful termination. In this regard, the lower Court
improperly considered the merits of Mr. Gebbie's termination before it had been
demonstrated that the Board of Education had properly compiied with the
aforementioned statute in effecting same.
B. Denial of Motion for Leave to Amend
While the trial Court's dismissal of the underlying action also relied on a review of
the evidence, its review was inherently incomplete since it refused to permit the
Appellant to amend his complaint. The appellate court unreasonably interpreted the
liberal construction provisions of Rule 15(A) permitting amendment of complaints,
finding that the lower Court's exercise of its discretion was not reversible error.
Disregarded was the fact that his prior counsel, Mr. Mentser, neglected to file an appeal
(or othennrise attempt to amend the pending action) pursuant to O.R.C. Sec. 3319.081,
after the Board belatedly sent a certified mail notice of the termination to Mr. Gebbie on
September 22, 2007. With the action pending, the requested amendment would not
have changed the operative nucleus of facts presented to the Court. The Ohio
Supreme Court has held that, although the grant or denial of leave to amend a pleading
is discretionary, where it is possible that plaintiff, by an amended complaint, may set
farth a claim upon which relief can be granted, and it is tendered timely and in good faith
and no reason is apparent or disclosed for denying leave, denial of leave to file such
amended complaint is an abuse of discretion. Patterson v. V. & M Auto Body, 589
in
N.E.2d 1306, 63 Ohio St.3d 573 (1992). Thus, the dismissal of the Appellant was
invalid, and the judicial determinations upholding it should be reversed.
Based on the foregoing argument and the existence of a question of public or
general interest, the Court is respectfully urged to oertify the record in this case as a
quesfion of public or general interest.
11
CONCLUSION
For the foregoing reasons, the Appellant, Steven W. Gebbie, respectfully urges
the Court to certify the record in this case as a question of public or general interest.
Respectfully submitted,
Michael A. Moses (#0025243)330 South High StreetColumbus, Ohio 43215(614) 224-7291
Attorney for Appellant
t17
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent by regular U.S.
Mail, postage prepaid, to Appellee, Licking Heights Local School District Board of
Education, 6539 Summit Rd SW, Pataskala, Ohio 43062, and Stephen C. Findley, Esq.
and Sandra R. Mclntosh, Esq., Freund, Freeze & Arnold, 65 East State Street, Suite
800, Columbus, Ohio 43215, this ^Yday of January, 2009, at Columbus, Ohio.
I2
kppendix "A"
IN THE COURT OF COMMON PLEAS, LICKING COUNTY, OHIO
Steve Gebbie,
Plaintiff,
V.
UL r^ PAgEM. 07 CV 01017
ED"'.LT ERS
Licking Heights Local Schools XMGMENT ENTRYBoai-d of Education,
Defendant.
1. NATURE OF THE PROCEEDINGS
Tlus matter is before the Court on defendant's anotion for suimnary judgLTient,
plaintiff's menloranduin in opposition and cross motion for partial summary judgment, and
defendant's reply in suppoi-t of its motion for sununaryjudgment.
H. FACTS
Plaintiff was a non-teaching employee at Liclting Heights Local Schools. He had a
two-year contract as A.ssistant Technology Coordinator for the 2006-2007 and 2007-2008
school years. On June 12, 2007, plaintiff was issued a written reprimand by his superior for
tardiness, absences, inefficiency, neglect of duty, and dishonesty. The following day plaintiff
was observed entering the schools' district office after business hours and after the building
had been locked for the day. Plauitiff gained entry to the building with the key he was issued
to perform his job duties. Plaintiff clairns he went to the office to view his persoimel file and
retrieve a copy of his repiirnand. Shortly after the district office incident, the school
superintendent reconnnended plaiuitiff's tennination to the Board of Education. On July 10,
2007, the Board voted to tenninate plaintiff's employment one year before his contract
expired.
I
That sanie day, plaintiff filed the iiistant suit for breach of contract and tortious
violation of pnblic policy. Plaintiff subsequently vohmtarily dismissed the tortious violation
of public policy claim according to Civ.R. 41(A). On September 22, 2007, plaintiff received
notice as required by R.C. 3319.081 of the Board's action tenninating his employinent. On
February 19, 2008, plaintiff filed for leave to amend his complaint to include an appeal of the
Board's action pursuaut to R.C. 3319.081. This Court stayed briefing on the nlotion for leave
to anend on February 27, 2008, pending judgment on the summary judgment motions.
III. STANDARD OF REVIEW
Rule 56(C) of the Ohio Rules of Civil Procedure sets forth the standard this Court
applies when constiuiuig a motion of slmmlaiy judgrnent:
Sumrnary judgment shall be rendered forthwith if the pleadings, depositions,answers to inteirogatories, written adnissions, affidavits, transcripts ofevidence, and written stipulations of fact, if any, tunely filed in the action,show that there is no genuine issue as to any material fact and that the movingparty is entitled to judginent as a matter of law.
Surnrnay judgment is proper if, after construing the evidence inost strongly in favor of the
nomnoving party, reasonable minds cot id conie to but one conclusion in favor of the moving
party. Civ.R. 56; Horton v. Hardwick Cheni. Corp. (1995), 73 Ohio St.3d 679, 686-687. The
party moving for suinmary judgment bears the burden of showing that there is no genuine
issue of material fact and that it is entitled to judgnent as a matter of law. Dresher v. Burt
(1996), 75 Ohio St.3d 280, 292-293.
Once the moving party satisfies its irutial burden, the nomnoving party "may not rest
upon the inere allegations or denials of the party's pleadings, but the party's response, by
affidavit or as otheiwise provided in fllis rule, must set forth specific facts showing that there
is a genuine issue for trial." Civ.R. 56(E); Mootispaw v. Eclcstein (1996), 76 Ohio St.3d 383,
2
385. Doubts znust be resolved in favor of the nonmoving party. Murphy v. Rey ioldsbimg
(1992), 65 Ohio St.3d 356, 358-359.
1V. CONCLUSIONS OF LAW
While R.C. 3319.081 provides for an adnuiustrative appeal of a decision by a Board of
Education, Ohio couits have allowed plaintiffs to file separate claims on contracts and otl er
einploynient-related allegations. See Sebest v. Carnpbell City School Dist. Bd. of Eciir., 7th
Dist. No. 03 MA 87, 2004-Ohio-1550; and Bolek v. Chardon Bd. ofEcbi. (October 8, 1982),
11th Dist. No. 1014. A court may proceed separately as to the appeal and other claims.
Bolelc, supra. "[A]n appeal does not contemplate the filing of a conlplaiuit, but a notice of
appeal. Appeals and originral actions are, by their appellation, not similar legal proceedings."
Id. The civil i-ules are inapplicable to ai appeal of a decision by a Board of Education. Civ.R.
1(C); Bolek, supra.
All that the Court may now address by sunnnary judpnent is plaintiff's breach of
contract claim. Allegations that the Board denied plaintiff due process-raised in plaintiffls
memoranduin in opposition-are issues tliat would more properly be raised on an
administrative appeal. Plaintiff did not assert violations of due process in his complaint for
breach of contract.
Plaintiff's two-year contract stated that plaintiff agreed "to abide by the rules and
regulations adopted by [the Board of Education] for the maintenance and goveniance of the
schools" in the district. Further, plaintiff's contract is governed by RC. 3319.081(C), which
states:
The contracts as provided for in this section may be terminated by a inajorityvote of the board of education. Except as provided in sections 3319.0810 and3319.172 of the Revised Code, the contracts may be terminated only for
3
violation of written rules and regulations as set forth by the board of educationor for incompetency, inefficiency, dishonesty, drunkermess, nzunoral conduct,insubordination, discourteous treatment of the public, neglect of duty, or anyother acts of misfeasance, matfeasance, or nonfeasance.
It is undisputed tlzat the Board of Education tenninated plaintiff's contract by majority
vote. The nunutes of the Board meeting documenting the vote were properly authenticated by
affidavit and proffered with defendant's motion. Plaintiff asserts that defendant did not have
cause, however, to tenninate his ernployment prior to the expiration of his contract.
Defendant subniittcd copies of written Board policies concerning staff conduct,
attendance, staff etliics, buildings and grotmds security, and staff disrnissal. These policies
were properly authenticated by the affidavit of Jennifer Vanover, treasm'er of Liclang Heights
Local School District. Defendant fiu-ther submitted a written repriunand of plaintiff
doctmienting plaintiff's tardiness, absences, inefficiency, and neglect of duty. This docmnent
was authenticated by the affidavit ofplaintifPs supervisor, Chris Cashdollar. Mr. Cashdollar
furiher testified to plaintiff's job perfonnance in his affidavit. Finally, defenduit submitted an
affidavit from Becky Morrison, who witnessed plaintiff entering the district office affer homs
wlule she was working late on Jtiuie 13, 2007, and the affidavit of Superintendent Ernest
Husarilc testifying that the doors to the district office were loclced after business hours on June
13, 2007.
The written reprimand, and the affidavit of Mr. Cashdollar set forth repeated
nicidences of tardiness, absences, inefficiency, neglect of duty, nonfeasance, and misfeasance.
Subsequent to the reprimand, plaintiff was infonned that he was being fired after he entered
the district office without a reason related to his job duties. Plaintiff asserts he wanted to
retiieve a copy of his reprimand, but this could easily have been done during business hours.
Plaintiffls entrance into the office around 6:30 P.M. was suspicious at best and malfeasauce at
4
least. Plaintiff s work schedule was from 8:00 A.M. to 4:30 P.M. It was a violation of school
policy for plaintiff to gain access to the office after hours. Fur-ther, Supeiintendent Husarik, in
his affidavit, characterized the entrance as unauthorized.
Plaintiff s affidavit does not dispute the behavior cited in his reprimand. Irr fact,
defendant signed the reprimand along with his supervisor. Plaintiff only disputes the
characterization of his entryinto the district office after hotus. Nonetheless, defendalt has
presented the court with nzultiple vioiations of the Board's written policies and behavior that
amoLUits to at least inefficiency and neglect of duty. Even construing the evidence in favor of
plaintiff, defezdant has established gounds for tenninating plaintiff s employinent according
to the contract and R.C. 3319.081.
V. CONCLUSION
For the reasons set forth above, defendant's motion for si.uiunaryjudgment is
GRANTED. Plaurtiff's motion for partial smrunary judgment is DENIED. Costs to plaintiff.
It is so ORDERED. There is no just cause for delay. This is a final appealable order.
Thomas M. Marcelain, Judge
Copies of the 7udginent EntLy were mailed by ordinary U.S. Mail to all persons listedbelow on the date of filing.
Stephen C. Findley, Esq. and Sazdra R. Mclntosh, Esq., Attoineys for Defendant,Licking Heights Local School Boards of EducationFreund, Freeze & Amold, 65 E. State St., Ste. 800, Columbus, OH 43 2 1 5-4247
\1.Michael A. Moses, Esq., Attorney for Plaintiff330 S. High St., Colutnbus, OH 43215
5
IN THE COURT OF COMMON PLEAS, LICKING COUNTY, OHIO
Steve Gebbie,
?0N Ir P., I `I ^ ^ cPlaiutiff, ^AS^ ^O. 07 CV 01017
v.
Licidng Heights Local SchoolsBoard of Education,
Defendant.
1. NATURE OF THE PROCEEDINGS
This matter is before the Court on planitiff's inotion for leave to file an amended
complaint.
II. FACTS
On July 10, 2007, the Licking Heights Local Schools Board of Education voted to
tenninate plaintiff's employment one year before his contract expired. That same day,
plaintiff filed the instant suit for breach of contract and tortious violation ofpublic policy.
Plaintiff subsequently voluntarily dismissed the tortious violation of public policy claiun
according to Civ.R. 41(A). On September 22, 2007, plaiutiffreceived notice by certified mail
as required by R.C. 3319.081 of the Board's action termiuating lus employment. On February
19, 2008, plaintiff filed for leave to amend his complaint to include an appeal of the Board's
action pursuant to R.C. 3319.081.
III. CONCLUSIONS OF LAW
An appeal, pnrsuant to R.C. 3319.081(C), is for the purpose of having thecourt of connnon pleas review the action of a board of education intenninating the contract of a non-teaching ernployee. After such a review, thecourt may affsmn, disaffuni, or modify the action of the school board.
The procedLUe establislled by Civ. R. 7 and Civ. R. 8 contemplates acomplaint as a pleading which sets forth a claim for relief.
Clearly, an appeal does not conternplate the filing of a con7plaint, but a noticeof appeal. Appeals and original action.s are, by their appellation, not similarlegal proceedings.
Therefore, the Civil Rules are, by their nature, clearly inapplicable to appealsfi-om the action of a school board in tenninating the employment contract of anon-teaching employee of a school district. That procedure is govemed solelyby R.C. 3319.081.
Bolek v. Ch.ardon Bd. of Edn. (October 8, 1982), l lth Dist. No. 1014.
R.C. 3319.081(C) states:
The action of the board of education tem7inatnig the contract of an employeeor suspending or demoting the employee shall be served upon the eniployee bycertified mail. Within ten days following the receipt of such notice by theemployee, the employee may file an appeal, in writing, with the court ofconmion pleas of the coin-ity in which such school board is situated.
Plaintiff originally filed a complaint for breach of contract. Plaintiff now seeks to
amend that complaint to include an appeal under R.C. 3319.081(C). Plaintiff did not file a
notice of appeal. Fiu-ther, plaintiff received notice of his tennination according to R.C.
3319.081(C) on September 22, 2007, and he did not move this Court to anend his complaint
to include an appeal tmtil February 19, 2008, well beyond the ten days allowed by the statute.
Plaintiff should have filed a notice of appeal separate from his coinplaint for breach of
contract within the time provided by R.C. 3319.081(C) for an appeal. Even if the Com-t treats
plaintiff's motion to amend as a notice of appeal, such notice is untimely.
IV. CONCLUSION
For the reasons set forth above, plaintiff's motion for leave to arnend his complaint is
DENIED. Costs to plaintiff.
2
It is so ORDERED. There is no just cause for delay. This is a final appealable order.
Thomas M. Marcelain, Judge
Copies of the Judgment Entry were niailed by ord'niary U.S. Mail to all persons listedbelow on the date of filing.
Stephen C. Findley, Esq. and Sandra R. Mcliitosh, Esq., Attoineys for Defendant,Lickin; Heights Local School Boards of EducationFreund, Freeze & Anold, 65 E. State St., Ste. 800, Columbus, OH 43215-4247
Michael A. Moses, Esq., Attoniey for Plaintiff330 S. Higli St., Columbus, OH 43215
3
Appendix "B"
. rF.
(N THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
STEVEN W. GEBBIE
-vs-
FIFTH APPELLATE DISTRICT
Plaintiff-Appeffant
-':U1,^^r._.... ..^
JUDGMENT ENTRY
LICKdNG HEIGHTS LOCALSCHOOLS BOARD OF EDUCATION
Defendant-Appelfee CASE NO, 2008-CA-48
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Licking County, Ohio, is affirmed. Costs to appe(Iant.
H{SN. JO!-iN IN-WiSE
COURT OF APPEALSLICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STEVEN W. GEBBIEJUDGES: C ; ' rHon. William B. Hoffmah'P:J.::Hon. W. Scott Gwin, J.Hon: John W. Wise, J.
^T
Plaintiff-Appellant
-vs-Case No. 2008-CA-48
LICKING HEIGHTS LOCALSCHOOLS BOARD OF EDUCATION
Defendant-Appe{leeOPfNtON
CHARACTER OF PROCEEDING:
JUDGMENT:
DATE OF JUDGEVIENT ENTRY:
APPEARANCES:
For Plaintiff-Appellant
MICHAEL A. MOSES330 South High StreetColumbus, OH 43215
Civil appeal from the Licking County Courtof Common Pleas, Case No. 07 CV 01017
Affirmed
For Defendant-Appellee
STEPHEN C. FINDLEYSANDRA R. MCINTOSH65 E. State Street, Suite 800Columbus, OH 43215-4247
Licking County, Case No. 2008-CA-48 2
Gwin, J.,
{¶1} Pfainfdf-appe8ant Steven W. Gebbie appeals two judgments of the Court of
Common Pleas of Licking County, Ohio, which granted summary judgment in favor of
defendant-appeliee Licking Heights Local Schools Board of Education, and overruled
appellant's motion to amend his complaint. Appellant assigns a single error to the trial
court:
{72} "i. THE LOWER COURT'S DEClSION ERRONEOUSLY GRANTED THE
APPELLEE'S MOTION FOR SUMMARY JUDGMENT, AND DENIED APPELLANT'S
MOTION FOR LEAVE TO AMEND HfS COMPLAINT, CONSTITUTING AN ABUSE OF
DISCRETION."
{13} Civ. R. 56 states in pertinent part:
{14} "Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and wriften stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party's favor. A summary
judgment, interlocutory in character, may be rendered on the issue of liability atone
although there is a genuine issue as to the amount of damages."
Licking County, Case No. 2008-CA-48 3
{15} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor'rf, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts, Houndshell v. American States Insurance Company (1981), 67 Ohio
St. 2d 427. The court may not resolve ambiguities in the evidence presented, Inland
Refuse Transfer Company v. Browning-Ferris Industries of Ohio, Inc. (1984), 15 Ohio
St. 3d 321. A fact is materiaf ff it affects the outcome of the case under the appiicable
substantive law, Russell v. Inferim Personnel, Inc. (1999), 135 Ohio App. 3d 301.
{16} When reviewing a trial court's decision to grant summary judgment, an
appellate court applies the same standard used by the trial court, Smiddy v. The
Wedding Parfy, Inc. (1987), 30 Ohio St. 3d 35. This means we review the matter de
novo, Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186.
{17} The party moving for summary judgment bears the initial burden of
informing the triat court of the basis of the motion and identifying the portions of the
record which demonstrate the absence of a genuine issue of fact on a materia( element
of the non-moving party's claim, Drescher v. Burt (1996), 75 Ohio St. 3d 280. Once the
moving party meets its initial burden, the burden shifts to the non-moving party to set
forth specific facts demonstrating a genuine issue of material fact does exist, Id. The
non-moving party may not rest upon the allegations and denials in the pleadings, but
instead must submit some evidentiary materiai showing a genuine dispute over material
facts, Henkle v. Henkle (1991), 75 Ohio App. 3d 732.
{1(8} R.C. 3319.081 states in pertinent part:
Licking County, Case No. 2008-CA-48 4
{19} "(C) The contracts as provided for in this section may be terminated by a
majority vote of the board of education. Except as provided in Sections 3319.0810 and
3319.172 of the Revised Code, the contracts may be terminated only for violation of
written rules and regulations as set forth by the board of education or for incompetency,
inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous
treatment of the public, neglect of duty, or any other acts of misfeasance, ma(feasance,
or nonfeasance. In addition to the right of the board of education to terminate the
contract of an employee, the board may suspend an employee for a definite period of
time or demote the employee for the reasons set forth in this division. The action of the
board of education terminating the contract of an employee or suspending or demoting
the employee shall be served upon the employee by certified mail. Within ten days
foiiowing the receipt of such notice by the employee, the employee may file an appeal,
in writing, with the court of common pleas of the county in which such school board is
situated. After hearing the appeal, the common pleas court may affirm, disaffirm or
modify the action of the school board."
{130Y The trial court set out the facts which gave rise to this case in its March
17, 2008 judgment entry. Appellant was a non-teaching employee at Licking Heights
Local Schools, He had a two-year contract as an assistant technology coordinator for
the 2006-2007 and 2007-2008 s0hool years. On June 12, 2007, appellant's superior
issued him a written reprimand for tardiness, absences, inefficiency, neglect of duty,
and dishonesty. The following day appellant was observed entering the school's district
office after business hours and after the building had been locked up for the day.
Appellant gained entry to the building with the key he was issued to perform his job
Licking County, Case No. 2008-CA-48 5
duties. Appellant stated he went to the office to view his personnel file and retrieve a
copy of the reprimand. Shortly after this incident the school superintendent
recommended the Board of Education tenrinate appellant's employment. On July 10,
2007, the Board voted to terminate his employment one year before his contract
expired.
(111} The same day, appellant filed this action for breach of contract and
tortious violation of public policy. Subsequently, appellant dismissed the tortious
violation of public policy claims.
(112) On September 22, 2007, appellant received notice of the Board's action in
terminating his employment as required by R.C. 3319.081. On February 19, 2008,
appellant filed for leave to amend his complaint to include an appeal of the Board's
actions pursuant to R.C. 3319.081.
(113) The trial court found R.C. 3319_081 provides for an administrative appeal
of a decision by a Board of Education, but Ohio courts have sometimes allowed
plaintiffs to file separate claims on contracts or other employment-related allegations.
The court found it could proceed separately as to claims other than an appeal, citing
Bolak v. Chardon Board of Education (October 8, 1982), 11 th Dist. No. 1014.
(114) Both in the trial court and before us, appellant argues appellee did not
have cause to terminate his employment prior to the expiration of the contract.
{115} The trial court found in support of its motiori for summary judgment,
appellee presented the minutes of the Board meeting documenting the vote, as well as
copies of written Board policies concerning staff conduct, attendance, ethics, buildings
and grounds security, and staff dismissal. In addition, appellee submitted a copy of the
Licking County, Case No. 2008-CA-48 6
written reprimand documenting appellant's tardiness, absences, inefficiency, and
neglect of duty. Appellant had signed the reprimand along with his supervisor.
{116} Appelfee also presented the affidavit of the person who witnessed
appellant entering the district office after hours and the affidavit of the superintendant
testifying the doors to the district office were locked after business hours. The
superintendant characterized appellant's entrance into the office after hours as
"unauthorized."
{117} The trial court found appellant's affidavit did not dispute the behavior cited
in the reprimand, but only disputed the characterization of his entry into the district office
after hours. The court found nonetheless, appellee had presented the court with
evidence of multiple violations of its written policies, and evidence of behavior that
amounts to at least inefficiency and neglect of duty. The court found construing the
evidence in favor of appellant, appellee had established grounds for terminating
appellant's employment.
{118} Appellant urges R.C. 3319.081 requires the Board to state specific
reasons why his employment was terminated, if the termination is for reasons other than
that set out in the statute. Appellant argues the minutes of the Board's meeting do not
explain its action, nor was any explanation for the action ever conveyed to him by
certified mail. Finally, appellant argues minimum due process requires the employee to
be given notice of the hearing, specification of the charges, an opportunity to be heard,
and right to offer evidence and to cross examine adverse witnesses,
{1119} Appellee argues appellant reads into the statute requirements which are
simply not there.
Licking County, Case No. 2008-CA-48 7
{120} Appellant cites us to Ferdinand v. Hamilton Local Board of Education
(1984), 17 Ohio App. 3d 165. In Ferdinand, the court held: "Since R.C. 3319.081 vests
a right of continued employment in a non-teaching employee of a local school district
having a continuing contract, it is necessary that a Board of Education makes findings of
specific reasons and need to terminate the continuing contract if it is to do so for
reasons other than as specified in that section," Syllabus by the court, paragraph three.
(¶E1) The Ferdinand court also held: "A non-teaching continuing contract of an
employee of a locai schooi district may ordinarily be terminated only for the reasons set
forth in R.C. 3319.081. In extraordinary circumstances, a non-teaching continuing
contract may be terminated for what is in the nature of impossibility of performance,
such as lack of work or lack of funds, but, when a contract is to be terminated by a
board of education for such extraordinary reasons, the burden is upon the board to
demonstrate the existence of the necessity of terminating the continuing contract."
Syllabus by the court, paragraph four.
{122} Ferdinand invoived a situation where an employee with a continuing
contract was terminated because her job was abolished. The Board in Ferdinand stated
the termination was because of economic reasons, which is not one of the reasons set
out in R.C. 3319.081. Here, appellant did not have a continuing contract, and his
employment was terminated for reasons set out in the statute. We conclude the Board
of Education was not required to make specific findings of fact.
{123} Appellee concedes an employee is entitled to some kind of notice of the
charges against him and an opportunity to respond before formal action is taken to
terminate his employment. Appellee presented evidence appellant was given notice of
Licking County, Case No. 2008-CA-48 8
the charges against him and an opportunity to respond at a meeting discussing the
formal reprimand.
{124} We find the trial court did not err in finding reasonable minds could not
differ regarding whether appellee had sufficient reason to terminate appellant's
employment, or whether appellee complied with the proper procedures in terminating
appellant's employment contract. We conclude the trial court did not err in granting
summary judgment.
{125} Appellant also argues the court abused its discretion in overruling his
motion for leave to amend his complaint. A trial court has discretion in determining
whether to grant leave to amend a complaint, see Edmondson v. Sfeelman (1992), 87
Ohio App. 3d 447. This court may not reverse a trial court's exercise of discretion
unless we find the court abused its discretion. The Supreme Court has repeatedly held
the term abuse of discretion implies the court's attitude is unreasonable, arbitrary or
unconscionable, see, e.g., Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217. In
applying the abuse of discretion standard, we may not substitute our judgment for that
of the trial court. Pons v. Ohio State Medical Board (1993), 66 Ohio St, 3d 619.
{126} In a separate judgment entry filed March 17, 2008, the trial court explained
its reasoning for overruling appellant's motion for leave to amend his complaint. The
court found appellant's original complaint was for breach of contract and other tortious
behavior, but did not include a notice of appeal from the Board's decision. The court
found appellant received notice of his termination on September 22, 2007, but did not
move the court to amend the complaint to include an appeal until February 19, 2008.
The court found this was well beyond the ten days allowed by statute. The court found
Licking County, Case No. 2008-CA-48 9
appellant should have filed a notice of appeal separate from the comp4aint for breach of
contract, and concluded even if it treated the motion to amend as a notice of appeal, the
notice was untimely.
{127} A motion for leave to amend a pleading should be granted freely when
justice requires. Noover v. Surnlin (1984), 12 Ohio St. 3d 1. In f-fo/linghead v. Sey (July
21, 2000), Lucas App. No. L-99-1351, the Court of Appeals for the Sixth District found
where a trial court's denial of aMotion for a leave to amend is based upon the
determination that the amended complaint woufd not withstand a motion to dismiss, the
denial presents a legal question which is reviewed de novo, rather than reviewed using
the abuse of discretion standard, Hollinghead at 8, citations deleted.
{128} We find the trial court did not abuse its discretion or err as a matter of law
in overruling appellant's motion to amend his complaint.
{129} The assignment of error is overruled.
Licking County, Case No. 2008-CA-48 10
{130} For the foregoing reasons, the judgment of the Court of Common Pleas of
Licking County, Ohio, is affirmed.
By Gwin, J.,
Hoffma.n, P.J., and
Wise, J., concur
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HON. W. SCOTT GWIN. .1 -
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