ODE MSJ Hope v White Hat

IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO

HOPE ACADEMY : BROADWAY CAMPUS, et al : Case No. 10CVC 05 7423 : Plaintiffs : : JUDGE BENDER v. : : : WHITE HAT MANAGEMENT, : LLC, et al : :

: Defendants :

:

THE OHIO DEPARTMENT OF EDUCATION’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT THEREOF

RICHARD CORDRAY Ohio Attorney General

TODD R. MARTI (0019280) JEANNINE R. LESPERANCE (0085765) Assistant Attorneys General 30 East Broad Street, 16th Floor Columbus, OH 43215 (614) 644-7250 Attorneys for the Ohio Department of Education

TABLE OF CONTENTS

MOTION ...........................................................................................................................................1

SUMMARY OF ARGUMENT .........................................................................................................1

STATEMENT OF THE CASE .........................................................................................................2

A. Plaintiffs are public schools .......................................................................................2 B. The Plaintiff Schools entered into management agreements giving White Hat

near total control over them, and their academic performance declines...................3 C. The Schools attempt to turn things around by reclaiming control from White Hat,

but White Hat resists and seeks to oust their boards..................................................4

ARGUMENT.....................................................................................................................................5

A. The provisions in the management agreements delegating the Schools’ decision making authority should be voided .............................................................5 1. Community schools cannot delegate discretionary decision

making authority ............................................................................................8

2. The management agreements improperly delegate portions of the Schools’ discretionary decision making authority to White Hat .............8

a. The agreements delegate control over the Schools’ personnel..........8

b. The agreements delegate control over the Schools’ academics ........9

c. The agreements delegate control over the Schools’ purchasing........10

3. The agreements directly affect ODE’s ability to discharge its duties............11 B. R.C. 3314.026 cannot be applied here .......................................................................13

1. R.C. 1.48 prohibits retrospective application of statutes absent express authorization and no such authorization was given about R.C. 3314.026.....13

2. Applying 3314.026 based on preexisting management agreements would be retrospective because it would impair contractual rights...............................14

CONCLUSION……………………………………………………………………………………...14

EXHIBITS

A. Management Agreement

B. Affidavit of Kathleen Madden

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C. Plaintiffs’ Responses to ODE’s First Requests for Admissions

D. 2005 Ohio Op. Atty Gen. No. 33

E. Hamilton Local Bd. of Educ. v. Arthur (10th Dist), 1973 Ohio App. LEXIS 1777

F. 1997 Ohio Op. Atty Gen. No. 54

G. Community School Statutes & Regulations

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MOTION

The Ohio Department of Education (“ODE”) moves the Court for partial summary

judgment. More specifically, it asks the Court to:

- Grant the declaratory relief about the validity of the management agreements requested in the First Claim of ODE’s Answer, Counter, and Cross Claims.

- Declare that R.C. 1.48 bars the application of R.C. 3314.026 here.

SUMMARY OF ARGUMENT

This motion asks the Court to help a group of public schools break free from dominance

by private interests. The Plaintiffs are charter schools. They are public schools, funded entirely

by tax funds, but a group of corporations have appropriated them to the corporations’ private

interests. Those corporations (collectively “White Hat”) have done so through management

agreements that give them control of more than 96% of the Schools’ funding and all their

personnel, academics, and purchasing decisions. White Hat also claims ownership of the

property bought with the public funding that flowed to it through the Schools.

The public received very little in return for that outlay of tax dollars. Most of the schools

have received the equivalent of D’s and F’s on their State report cards and their performance has

declined during the term of the agreements.

The Schools tried to change that by changing their relationship with White Hat. They

sought an accounting of how it spent their public funding and changes to the agreements. White

Hat refused to provide anything but generalized financial disclosures and declined to make

significant changes to the agreements. It also claimed title to the property purchased with the

Schools’ public funds and sought to remove the Schools’ boards by invoking R.C. 3314.026. The

Schools sued to obtain relief. This motion presents two issues for decision.

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The first is whether the management agreements can validly delegate the Schools’

decision making authority to White Hat. Ohio law prohibits government bodies from delegating

such authority unless a statute authorizes them to do so. That bars public bodies from delegating

decisions about personnel, academics, and purchasing. The Schools are public bodies, and no

statute authorizes them to delegate decisions about those matters. The agreements purport to

delegate those matters to White Hat. The provisions to that effect are invalid.

The second is whether R.C. 3314.026 can be applied to oust the School’s boards. That

statute provides that a management company can challenge a school’s decision to not renew a

management agreement and have the school’s board removed if its challenge succeeds. Iit says

nothing about its application to agreements that predate its enactment, and R.C. 1.48 prohibits a

statute’s application based on pre-enactment matters absent explicit legislative direction. R.C.

1.48 therefore prohibits R.C. 3314.026’s application here.

STATEMENT OF THE CASE

A. Plaintiffs are public schools.

Plaintiffs are “community schools,” Ohio’s version of charter schools. Complaint at ¶¶ 1-

10, White Hat Answers at ¶¶ 1-10, ODE Answer at ¶¶ 1-10. They are required to be non-profit

corporations and operate pursuant to contracts with State approved entities known as sponsors.

See generally, State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio

St. 3d 568, 2006-Ohio-3066, ¶ 7.

Community schools are funded by tax dollars. Their operating funds are taken from the

State aid that would otherwise go to the school districts where their students live. That funding

can be supplemented by grants. R.C. 3314.08(C), (D), (F); Cincinnati City Sch. Dist. Bd. of

Educ. v. State Bd. of Educ. (1st Dist.), 176 Ohio App. 3d 157, 2008-Ohio-1434, ¶¶ 4-7.

2

Each community school is supposed to be under the direction of its “governing

authority.” Those entities act as the equivalent of a traditional school district’s school board. R.C.

3314.02(E); Adm. Code 3301-102-01(M)(reproduced in Ex. G, pp. 2, 8).

Although the governing authority is required to make the school’s discretionary

decisions, it may delegate a limited number of matters to entities known as “operators.” There

are two types of operators: not-for-profit organizations that can exercise some oversight over a

school’s programs, and for-profit entities that are limited to managing a school’s daily

operations. R.C. 3314.014(A), Ex. G, p. 1. The rights of operators were significantly enhanced

with the 2006 enactment of R.C. 3314.026. It provides that an operator may appeal a school’s

decision to not renew its contract with the operator to the school’s sponsor or the State Board of

Education and that the operator may replace the school’s governing authority if the appeal is

successful. See Ex. G, p. 2.

B. The Plaintiff Schools entered into management agreements giving White Hat near total control over them, and their academic performance declines.

In November of 2005 the Schools entered into management agreements with the various

White Hat corporations, all for profit entities. Those agreements had essentially identical terms.

As discussed more fully below, they provide that

- The Schools must turn over 96% of their operating funds and all grants to White Hat. - White Hat controls the Schools’ staffing.

- White Hat controls the Schools’ academics.

- White Hat controls the Schools’ purchasing.

The agreements ran through June 30, 2010. “Management Agreement,” attached as Ex. A;

Complaint at ¶¶ 11-21 and Exs. A through J thereto; White Hat Answers at ¶¶ 11-21; ODE

Answer at ¶¶ 11-21.

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White Hat has fully exercised that authority. Given the lack of a counterclaim from White

Hat, the Schools have presumably turned over the appropriate share of the $90,143,034 in public

funds they received over the last three school years. Affidavit of Kathleen Madden, attached as

Ex. B, at ¶2. Moreover, White Hat has exercised complete control over the Schools’ personnel

matters, academics, and purchasing. Plaintiffs’ Responses to ODE’s First Requests for

Admissions, attached as Ex. C hereto, at requests 1 through 28.

Things have not gone well under White Hat’s direction. Most of the Schools were

earning the equivalent of Cs or higher during the first school year the agreements were in effect,

but things went down hill after that. During the most recent term seven of the ten Schools

received the equivalents of Ds and Fs on their State report cards. Six did not meet “value added”

standards, meaning that they did not enable their students to make a year’s worth of academic

progress during that school year. One would have been closed under the statute mandating the

closure of chronically failing charter schools if its governing authority had not voluntarily closed

that school. Ex. B, at ¶¶ 4-6.

C. The Schools attempt to turn things around by reclaiming control from White Hat, but White Hat resists and seeks to oust their boards. The Schools respond with this suit.

The Schools’ governing authorities were dissatisfied with that and sought to revise their

relationship with White Hat. They therefore requested an accounting of how White Hat spent the

millions in public funds they paid it. They also sought to restructure the management agreements

so that they could regain control over the matters discussed above.

White Hat refused to make any accounting beyond the minimal disclosure required for

public audits. Those disclosures provided nothing other than aggregate figures for generalized

categories of expenses.

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White Hat also refused to make significant changes to the management agreements.

Instead, it threatened to invoke R.C. 3314.026 to oust the Schools’ boards if they did not agree to

its terms. Complaint at ¶ 46 and Ex. J thereto, White Hat Answers at ¶ 46. As discussed above,

that law allows a management company to appeal the non-renewal of a management agreement

and to replace the school’s governing authority if the appeal succeeds.

The Schools responded by filing this case. They seek to compel White Hat to account for

the public funds it received from them. They seek declarations about the validity of the

agreements’ provisions giving White Hat control over the Schools’ staffing, academics, and

purchasing. The Schools also seek a declaration that R.C. 3314.026 cannot be applied to them.

The parties entered into a standstill agreement extending the terms of the management

agreements until June 30, 2011. “Agreed Entry,” entered June 29, 2010.

ARGUMENT

A. The provisions in the management agreements delegating the Schools’ decision making authority should be voided.

1. Community schools cannot delegate discretionary decision making authority. “The general rule regarding the delegation of authority by a public body is that, in the

absence of specific statutory authority, a public body may delegate ministerial duties, but may

not delegate duties that require the exercise of judgment and discretion.” 2005 Ohio Op. Atty

Gen. No. 33, 2005 Ohio AG LEXIS 38 at *18 (attached as Ex. D). As the Franklin County Court

of Appeals has held, “public agencies” are not free to “bargain away their … discretion.”

Hamilton Local Bd. of Educ. v. Arthur (10th Dist), 1973 Ohio App. LEXIS 1777 at *25 (copy

attached as Ex. E).

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That rule applies to community schools because they are indisputably public bodies.

R.C. 3314.01(B) states that a “community school … is a public school.” Ex. G, p.1. They are

funded by tax dollars. Cincinnati City Sch. Dist., 176 Ohio App. 3d 157, 2008-Ohio-1434, ¶¶ 4-

7. They are subject to the same auditing, public records, open meeting, and ethics laws as school

districts. R.C. 3314.03(A)(8), (11)(d) and (e). They are public employers and their employees

participate in public retirement systems. R.C.3307.01(B)(1), 4117.01(B). The Supreme Court has

stressed that they are indeed public schools. Ohio Congress, 111 Ohio St.3d 568, 2006-Ohio-

3066, ¶¶ 5, 7, 32, 44, 72. The Revised Code identifies them as political subdivisions, and the

courts have classified them as such for a variety of purposes. R.C. 2744.01(F); R.C. 4117.01(B);

Ohio Congress, at ¶ 72 (Ohio constitutional law); State ex rel. Rogers v. New Choices Cmty. Sch.

(2d Dist.), 2009-Ohio-4608, ¶¶28, 50, 51(charitable trust law); Greater Heights Acad. v. Zelman

(C.A. 6 2008), 522 F.3d 678, 680, 681 (federal constitutional law). Community schools are

therefore subject to the same rules as other public bodies.

The decision making authority for a community school has been assigned to its

“governing authority.” By definition, a governing authority is responsible for “establishing

policies and procedures for the operation and management of a … community school and …

carrying out all of the provisions of a community school contract.” Adm. Code 3301-102-01(M),

Ex. G. p. 8. That definition tracks the Revised Code’s mandates. R.C. 3314.02(E)(1) requires that

every community school “be under the direction of a governing authority,” and R.C.

3314.03(A)(14) specifies that “[t]he governing authority … shall be responsible for carrying out

the provisions of the contract” creating the school. Ex. G, pp. 1, 4. Those laws affirmatively

require that a community school’s decisions be made by its governing authority.

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There is no statutory authorization to delegate that responsibility. Although R.C.

3314.01(B) authorizes a school to “contract for any services necessary for the operation of the

school,” it doesn’t authorize contractors to set policies or determine what services are necessary.

And although R.C. 3314.014(A)(1) authorizes charter schools to employ “operators” to manage

their “daily operations,” it doesn’t authorize operators to exercise policy making authority when,

as here, the operators are for-profit entities. That omission is significant because non-profit

operators may exercise that authority by engaging in “programmatic oversight.” R.C.

3314.014(A)(2). Ex. G, p.1.

R.C. 3314.024 doesn’t fill that gap. That is true for two reasons. Initially it is inapposite;

it deals with auditing, not decision making. More importantly it doesn’t evince the clear intent to

change the common law that would otherwise control here. As the cases and Attorney General

Opinions cited in this brief make plain, the common law clearly prohibits government bodies

from delegating their decision making authority. R.C. 3314.024 says nothing indicating that the

legislature intended to change that with regard to community schools. Given that “the legislature

will not be presumed … to have intended a repeal of the settled rules of the common law unless

… it clearly expresses … such intention,” Danziger v. Luse, 103 Ohio St. 3d 337, 2004-Ohio-

5227 ¶ 11(emphasis added), White Hat’s suggestion that R.C. 3314.024 tacitly approves a

contrary approach is insufficient to give that statute that meaning.

In sum, public bodies cannot delegate the authority to make discretionary decisions

without statutory authorization, community schools are public bodies, their discretionary

decisions are to be made by their governing authorities, and no statute authorizes the delegation

of that authority.

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2. The management agreements improperly delegate portions of the Schools’ discretionary decision making authority to White Hat.

The management agreements violate those precepts by setting a default rule giving

White Hat control over the Schools. They start by giving White Hat control over “all functions

relating to … the management and operation on the school… subject to approval by the School’s

Board of directors where indicated” (emphasis added). Ex. A at p. 1, § 2. They go on to list a

variety of subjects, indicating that governing authority approval is necessary in some, but not

most. They therefore give White Hat final authority over most areas of these public Schools’

operations. That is at odds with the mandate that governing authorities control their schools,

particularly with regard to personnel, academics, and purchasing.

a. The agreements delegate control over the Schools’ personnel.

Ohio law recognizes that the “judgment and discretion of [a] board is called into exercise

in providing for the number …of [] employees, and in determining the salaried compensation

they shall receive[.]” Kelley v. Cincinnati (Hamilton Co. C.P. 1899), 9 Ohio Dec. 611, 615. The

same is true of “determin[ing] when the number of such employees should be reduced, and …

for what cause any of them should be removed.” Id. Accord, Rieke v. Hogan (8th Dist. 1940), 34

Ohio L. Abs. 311, 313. Such matters are “within the sound discretion of the board, which [the]

board may not delegate[.]” Hamilton Local, at *22.

The agreements fly in the face of those principles by giving White Hat total control over

the Schools’ personnel. They provide that “[a]ll personnel … shall be employed by” White Hat.

They give White Hat the authority to “determine staffing levels, and to select, evaluate, hire,

assign, discipline, transfer, and terminate personnel[.]” They also provide that White Hat “shall

determine the number and functions of support staff[.]” Ex A, pp. 6-7, §§ 3(a) and (d).

8

White Hat has exercised that control. The Schools have not hired or fired any staff, taken

any disciplinary actions regarding them, or set their compensation/benefits. All such matters

have been controlled by White Hat. Ex. C, p. 2, Adm. 1-4.

“It is clear that … the appointment of [] personnel and the determination of staff

compensation involve the exercise of judgment.” 1997 Ohio Op. Atty Gen. No. 54, 1997 Ohio

AG LEXIS 56 at ** 12-13 (attached as Ex. F). Further, a public body “may not, in the absence of

statute, contract away its rights to make the ultimate determination of … of salary, program,

personnel [and] fringe benefits.” Hamilton Local, at *26. No statute authorizes community

schools to delegate such matters, so the provisions giving White Hat control over the Schools’

personnel are invalid.

b. The agreements delegate control over the Schools’ academics.

It is hard to imagine an area involving more discretion than the formulation of academic

policies. Courts in other states have therefore recognized that a contract which “delegate[s] …

the subject of courses of study… is ultra vires and unenforceable.” Board of Education v.

Rockaway Twp. Education Assoc. (N.J. Superior Ct. 1972), 295 A. 2d 380, 384. The Franklin

County Court of Appeals has reached the same conclusion, opining that “in the absence of

statute,” a school’s governing body cannot “contract away its rights to … determination of

school policies, including [] matters of [] program[.]” Hamilton Local at *26.

Ohio’s charter school laws make it clear that a community school’s academic discretion

is to be exercised by its governing authority. R.C. 3314.03(A)(2) and (3) provide that a school’s

“education program,” the “focus of [its] curriculum,” its “academic goals,” and the

“measurement[s] … used to determine progress toward those goals,” are to be set by the school’s

contract with its sponsor. Ex. G. p. 2. R.C. 3314.03(A)(14) makes the governing authority

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“responsible for carrying out the provisions of [that] contract.” Ex. G. p. 4. No provision

authorizes a governing authority to delegate control over those matters except R.C.

3314.014(A)(2)’s authorization for non-profit operators to exercise programmatic oversight, a

provision that does not apply to the for-profit White Hat entities.

The Agreements defy that rule. They give White Hat control over the Schools’ curricula.

They give it control over student assessments. They give it free reign to “select and supervise the

School Principal[s],” to “hold [them] accountable for the success of the School,” and evaluate

their performance. They give White Hat the authority to “determine the number of teachers and

the applicable grade levels.” Ex A, p. 3, § 2(d)(ii); p. 4, § 2(d)(iv); p. 5, § 2(f); pp. 6-7, §§ 3(b)

and (c). None of those decisions are subject to governing authority approval.

White Hat has fully exercised that control. It has not sought the Schools’ approval

concerning curricula, student assessments, student discipline, or academic personnel. Ex. C, pp.

2-4, Adm. 5-12. The provisions allowing White Hat to usurp that control are invalid.

c. The agreements delegate control over the Schools’ purchasing.

One cannot make purchases without entering into contracts. “It is generally established

that the development of contract terms and the decision to enter into a contract require the

exercise of judgment and discretion and that a public body cannot delegate these functions

without specific statutory authority.” 2005 Ohio Op. Atty Gen. No. 33, 2005 Ohio AG LEXIS 38

at **19-20 (attached as Ex. D); Cb Transp. v. Butler County Bd. (1979), 60 Ohio Misc. 71, 82.

No such authority exists for community schools to delegate such matters.

The Agreements violate this rule. They provide that White Hat “shall purchase or lease

all … personal property necessary for the operation of the School[s].” Ex. A, p. 2, § 2(b). White

Hat has exercised that authority. It has not sought approval of any purchases of furniture,

10

computers, software, related equipment, school supplies or art supplies. Nor has it sought the

approval of any equipment leases related to the Schools. Ex C at pp. 4-5, Adm. 13-19.

3. The agreements’ directly affect ODE’s ability to discharge its duties.

ODE is not raising hypothetical questions. The provisions at issue have real world

impacts that ODE cannot ignore. Three are of particular import.

First, they impact grant administration. The Schools’ grants are conditioned on their

complying “with applicable … State statutes, regulations … and … policies[.]” Ex. B, p. 1, ¶3

and p. 8, Cond. 3. ODE cannot disburse grant funds if the Schools are out of compliance with

those laws, and there are large sums of money involved—$9,556,602 during the last year alone.

Ex. B. at pp. 3-7. There are real questions about whether the agreements allow the Schools to

comply with R.C. 3314.02(E)(1), 3314.03(A)(14), Adm. Code 3301-102-01(M), and the

common law on delegating government authority.

Moreover, the Schools’ federal grants are subject to specific conditions, including the

condition that “the control of funds provided to the SUBGRANTEE under each program and title

to property acquired with those funds will be in a designated eligible recipient and that a

designated eligible recipient will administer those funds and property.” Ex. B, p. 1, ¶3 and p. 8,

Cond. 2. ODE is the grantee, and Schools are subgrantees. ODE has a legal obligation to ensure

that the grant conditions are met.1 The federal grants require the Schools to administer the grant

1 Thus, White Hat’s argument that ODE lacks standing to seek a declaration regarding the legality of the agreements is not well taken. White Hat argues that ODE cannot seek a declaration of its rights vis-à-vis the federal grants because the United States Department of Education has not yet made a money claim against ODE for return of the grant funds. White Hat’s argument ignores the fact that ODE, as the grantee, has an independent obligation to ensure that grant conditions are satisfied. ODE has the legal right, and standing, to avoid liability to the federal government by performing its legal duties as a federal grantee. A declaration regarding the legality of the management agreements is necessary for ODE to determine whether it can continue to subgrant to the Schools. If White Hat’s argument were

11

funds, but the agreements delegate that duty to White Hat. White Hat is not a “designated

eligible recipient.” Due to serious questions arising under state and federal law, ODE must know

whether the agreements are valid.

Second, the agreements affect the disbursement of operating funds. As discussed at p. 3

of ODE’s Sept. 21, 2010, memorandum in opposition to White Hat’s motion to dismiss, ODE

must certify that the Schools are complying with “all applicable laws” before it can authorize

payment of operating funds. The authorities discussed above raise significant questions about

whether it can make that certification.

Third, the agreements affect the overall success of the community school program.

Approximately 3,000 students attend the Schools. 2008-2009 Annual Report: Community

Schools (ODE 2009), table 2. White Hat’s control does not seem to benefitting them. Most of the

Schools earn Ds and Fs on their report cards, most fail to give their students a year’s worth of

growth during a school year, and one could not even meet the basic of standards required for

continued operation. Ex. B at ¶¶ 4, 5, 6. ODE is required by R.C. 3314.11 to take action to

facilitate the success of the community school program, and the agreements appear to be

impeding the program’s success, so ODE cannot ignore the questions about the agreements’

apparent invalidity.

accepted, ODE would be powerless to satisfy its legal obligations under the federal grants and would be forced, instead, to breach the grant conditions and expose Ohio taxpayers to federal liability before seeking any legal relief.

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B. R.C. 1.48 bars application of R.C. 3314.026.

White Hat claims R.C. 3314.026 allows it to seek the governing authorities removal. That

statute cannot be applied because the agreements that trigger its operation predate its enactment.

1. R.C. 1.48 prohibits retrospective application of statutes absent express authorization and no such authorization was given about R.C. 3314.026.

R.C. 1.48 provides that “[a] statute is presumed to be prospective in its operation unless

expressly made retrospective” (emphasis added). That instruction is taken seriously. The

Supreme Court instructs that “to overcome the presumption that a statute applies prospectively, a

statute must ‘clearly proclaim’ its retroactive application.” Hyle v. Porter, 117 Ohio St.3d 165,

2008-Ohio-542 ¶ 10. The Franklin County Court of Appeals holds that “[a] statute may not be

applied retrospectively unless the General Assembly specifically states it in the statute,” and

requires “explicit language permitting retroactive application.” Korn v. Ohio Medical Bd. (10th

Dist. 1988), 61 Ohio App. 3d 677, 687; In re Kerry Ford, Inc. (10th Dist. 1995), 106 Ohio

App.3d 643, 648 (emphasis added).

What satisfies that requirement? Mere inference is not enough. Hyle at ¶ 10. The courts

instead require explicit reference to pre-enactment matters. Smith v. Ohio Valley Ins. Co. (1971),

27 Ohio St.2d 268, 276 and n.3; Smith v. Smith (2006), 109 Ohio St. 3d 285, ¶ 8-9; State v. Cook

(1998), 83 Ohio St. 3d 404, 410. Further, the legislature’s use of present tense is evidence that it

intended only prospective operation. Hyle at ¶ 22.

Those criteria indicate that R.C. 3314.026 cannot be applied retrospectively. It makes no

reference to matters preceding its enactment, and it certainly says nothing about preexisting

contracts. It is phrased exclusively in the future tense. There is simply no indication that R.C.

3314.026 is to be retrospectively applied.

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2. Applying 3314.026 based on the preexisting management agreements would be retrospective because it would impair contractual rights.

Given that, the question becomes whether R.C. 3314.026 would have retrospective effect

if applied. “[E]very statute which takes away or impairs vested rights, acquired under existing

laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to

transactions or considerations already past, must be deemed retrospective.” Herrick v. Lindley

(1979), 59 Ohio St. 2d 22, 25. Applying R.C. 3314.026 based on the preexisting agreements

underlying this case would be retrospective.

R.C. 3314.026 would directly impair the Schools’ rights under the management

agreements. The agreements give the Schools an unqualified right to make unencumbered

separations from White Hat after a series of mandatory extensions. Ex. A , p. 1, § 1. In contrast,

R.C. 3314.026 requires the schools to convince a third party that they should be able to go their

separate ways, upon pain of a complete change in their governing authorities. That is a very

significant—and adverse—change.

Laws changing contractual termination provisions “affect[] substantive, vested rights.” In

re Kerry Ford, Inc., 106 Ohio App.3d at 648. R.C. 3314.026 does just that. Its application is

therefore barred by R.C. 1.48.

CONCLUSION

It is beyond dispute that “public agencies” are not free to “bargain away their …

discretion.” Hamilton Local at *25. R.C. 3314.01(B) unambiguously states that a “community

school … is a public school[.]” R.C. 3314.02(E)(1) mandates that those public bodies “shall be

under the direction of a governing authority[.]” No statute authorizes governing authorities to

delegate that clearly stated responsibility. The management agreements do precisely that, giving

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White Hat control over discretionary matters that government bodies are not free to delegate.

They are therefore invalid.

R.C. 1.48 prohibits the application of new statutes to matters predating their enactment

unless that new statutes expressly authorize that application. R.C. 3314.026 contains no such

authorization. It therefore may not be applied based on the pre-enactment agreements underlying

this case.

Respectfully Submitted,

RICHARD CORDRAY Ohio Attorney General

TODD R. MARTI (0019280) JEANNINE R. LESPERANCE (0085765) Assistant Attorneys General 30 East Broad Street, 16th Floor Columbus, OH 43215 (614) 644-7250 Attorneys for the Ohio Department of Education

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing will be forwarded to the following persons

via e-mail and regular U. S. Mail, postage prepaid, this 19th day of October, 2010:

James D. Colner Charles Saxbe Shumaker, Loop, & Kendrick Chester, Wilcox, & Saxbe Suite 2400 65 East State Street 41 South High Street Columbus, Ohio 43215 Columbus, OH 43215 TODD R. MARTI

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ODE EX. A Management Agreement1
















ODE EX. C Admissions 1











LEXSEE 2005 OHIO OP. ATTY GEN. NO. 33

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF OHIO

Opinion No. 2005-033

2005 Ohio Op. Atty Gen. No. 33; 2005 Ohio AG LEXIS 38

August 22, 2005

SYLLABUS:[*1]

1. Pursuant to R.C. 121.22(H), R.C. 3313.33(B), and R.C. 3314.02(D), in order for an educational service center tosponsor a community school, there must be a majority vote of the governing board of the educational service center toadopt a contract, and the contract must be made or authorized at a regular or special meeting of the governing board thatis open to the public. The governing board is not empowered to delegate these specific duties to the superintendent ofthe educational service center.

2. The governing board of an educational service center may lawfully ratify and adopt any contract made in thename of the governing board by its superintendent, if the governing board could have entered into the contract when thecontract was made. Proper ratification requires compliance with relevant statutes, including R.C. 121.22, R.C. 3313.33,and R.C. 3314.02. A contract that is properly ratified is effective as if the governing board had entered [*2] into thecontract at the time the contract was made.

REQUESTBY:

Susan Tave ZelmanSuperintendent of Public InstructionOhio Department of Education25 South Front StreetColumbus, Ohio 43215

OPINIONBY:

JIM PETRO, Attorney General

OPINION:

We have received your request for an opinion concerning the authority of the Governing Board of the LucasCounty Educational Service Center ("Lucas County ESC") to enter into contracts to sponsor community schools. Youhave asked about the Governing Board's attempt to delegate to the superintendent of the Lucas County ESC theGoverning Board's authority to enter into those contracts, and about the validity of contracts made by the superintendentpursuant to that attempted delegation, as follows:

Page 1

ODE EX D2005 Ohio Op. Atty Gen. No. 33

1. Is the Lucas County ESC Governing Board empowered to delegate to its superintendent itsauthority to enter into contracts to sponsor community schools?

2. If an attempted delegation of that contracting authority is not valid, does the Lucas County ESChave the authority to ratify its superintendent's actions, and what impact does ratification have uponcommunity school contracts entered into by the superintendent?

For the reasons below, we conclude that, pursuant to R.C. 121.22(H) [*3] , R.C. 3313.33(B), and R.C. 3314.02(D),in order for an educational service center to sponsor a community school, there must be a majority vote of the governingboard of the educational service center to adopt a contract, and the contract must be made or authorized at a regular orspecial meeting of the governing board that is open to the public. The governing board is not empowered to delegatethese specific duties to the superintendent of the educational service center. We conclude, further, that the governingboard of an educational service center may lawfully ratify and adopt any contract made in the name of the governingboard by its superintendent, if the governing board could have entered into the contract when the contract was made.Proper ratification requires compliance with relevant statutes, including R.C. 121.22, R.C. 3313.33, and R.C. 3314.02. Acontract that is properly ratified is effective as if the governing board had entered into the contract at the time thecontract [*4] was made.

We have been informed that, after you submitted your opinion request, the Governing Board of the Lucas CountyESC took action at a public meeting to ratify the community school sponsorship contracts previously entered into by itssuperintendent. Therefore, we find it unnecessary, at this time, to address issues concerning the effect of unauthorizedcontracts that are not subsequently ratified, or remedies relating to those contracts.

Background regarding matters at issue

Your questions concern certain actions taken by the Lucas County ESC as the sponsor of new start-up communityschools in Ohio. The Lucas County ESC was granted sponsor status initially in section 50.52 of Am. Sub. H.B. 215 ofthe 122nd General Assembly as part of a pilot project, see 1997-1998 Ohio Laws, Part I, 909, 2041-58 (Am. Sub. H.B.215, eff. June 30, 1997) (sec. 50.52, uncodified), amended in 1997-1998 Ohio Laws, Part III, 5609, 5794, 5796-5802(Am. Sub. H.B. 770, eff. June 17, 1998) (sec. 4, uncodified), and now acts pursuant to the codified provisions of R.C.Chapter 3314. See R.C. 3314.02(A)(2); R.C. 3314.15 [*5] ; note 3, infra. n1

n1 An educational service center (created as the successor to a county school district) consists of territorythat is not located within city or exempted village school districts but, rather, comprises local school districts.R.C. 3311.05(A); see R.C. 3311.01; R.C. 3311.053; 1999 Op. Att'y Gen. No. 99-023 at 2-150 n.1. Theeducational service center provides services and support of various types for the local school districts that itserves, and may provide services to other school districts by agreement. See, e.g., R.C. 3313.60; R.C. 3313.843;R.C. 3315.07; R.C. 3317.11; R.C. 3319.07; 2001 Op. Att'y Gen. No. 2001-043 at 2-267; 1999 Op. Att'y Gen. No.99-023 at 2-150 n.1. The governing board of an educational service center consists of elective officials andconstitutes a body corporate and politic. R.C. 3313.01; R.C. 3313.17; see also R.C. 3311.054; R.C. 3311.056.

[*6]

Pursuant to R.C. 3314.01(B), community schools are public schools, independent of any school district, and are partof the state's program of education. You have informed us that community schools vary in their configurations, withsome including grades K to 12 and others limited to elementary or secondary grades. Approximately 60,000 studentsare enrolled in Ohio's community schools. Community schools are generally funded by state foundation moneys, basedupon student enrollment and the school district of residence of the students. The Department of Education administersthe funding process in accordance with R.C. 3314.08.

A community school may be created either as a conversion school or as a new start-up school, in accordance with

Page 22005 Ohio Op. Atty Gen. No. 33; 2005 Ohio AG LEXIS 38, *2


an appropriate contract with a sponsor. See R.C. 3314.01(A); R.C. 3314.02; R.C. 3314.03. A conversion school iscreated when a board of education permits all or part of any of the schools under its control to become a communityschool, upon the request [*7] of a proposing person or group that meets statutory requirements. R.C. 3314.01(A)(1).New start-up schools are created anew, rather than being converted from existing schools. R.C. 3314.01(A)(2). Acommunity school sponsorship contract may extend for no more than five years and may then be renewed. R.C.3314.03(A)(13) and (E); R.C. 3314.07. There are various statutory limits governing the permissible numbers ofcommunity schools of various types and the numbers that certain entities may sponsor. R.C. 3314.013; R.C. 3314.014;R.C. 3314.015(B); see R.C. 3314.02(D) ("subject to sections 3314.013 and 3314.014 of the Revised Code, an unlimitednumber of community schools may be established in any school district provided that a contract is entered into for eachcommunity school pursuant to this chapter").

Various public entities, including the governing board of an [*8] educational service center, may serve as a sponsorof a community school. R.C. 3314.02(A)(1) and (C). An educational service center is considered a school district forpurposes of R.C. Title 33 whenever the term "school district" is used "without expressly referring to city, local,exempted village, or joint vocational school districts, or some specific combination thereof," and the governing board ofan educational service center is considered a board of education in the same circumstances. R.C. 3311.055. Hence, thegoverning board of an educational service center has many of the same powers and duties as the board of education of aschool district.

The Ohio Department of Education is responsible for the approval and oversight of sponsors of community schools.The Department also provides technical assistance to the schools and sponsors in their compliance with applicable lawsand contracts and in their development of community schools. R.C. 3314.015; see also R.C. 3314.02(A)(1).

In connection with its oversight of community [*9] school sponsors, the Department of Education learned that theGoverning Board of the Lucas County ESC adopted a resolution in which it delegated to its superintendent the authorityto enter into agreements to sponsor community schools. The resolution was adopted on or about January 20, 2004, andstates:

NOW, THEREFORE, BE IT RESOLVED, that Thomas B. Baker, Superintendent to [sic] authorized toenter into and execute, on behalf of the Governing Board of the Lucas County Educational ServiceCenter, all Ohio community school contracts; and all such acts are hereby ratified and approved.

Following the adoption of this resolution, the superintendent of the Lucas County ESC executed 78 contracts to sponsorcommunity schools.2 We have been informed that the members of the Governing Board of the Lucas County ESC hadno involvement with those contracts until it recently included them in its ratification of all 114 of the Lucas CountyESC's community school sponsorship contracts. Questions have arisen concerning the validity of the action taken by theGoverning Board to delegate its contractual authority and the consequences of that action. You have requested ourassistance in resolving [*10] this matter.

n2 The large number of contracts may be explained by the fact that Sub. H.B. 364, effective April 8, 2003,eliminated the authority of the State Board of Education to sponsor community schools (except for the ability toassume sponsorship under R.C. 3314.015(C) upon the failure of the school's sponsor to comply with itsobligations) and required existing State Board-sponsored schools to find new sponsors within two years. See2001-2002 Ohio Laws, Part V, 10175, 10210, 10275-76 (Sub. H.B. 364, eff. Apr. 8, 2003) (amendment to R.C.3314.02(C)(1)(d) and sec. 6, uncodified). We have been informed that the Lucas County ESC's resolution wasintended to facilitate the expeditious transfer of contracts from the Ohio Department of Education to the LucasCounty ESC, and that the Lucas County ESC did, in fact, take over the sponsor functions that the Departmenthad been performing with regard to numerous existing community schools by assuming the provisions ofexisting contracts, rather than negotiating new contractual terms. Sub. H.B. 364 allowed existing sponsors(including the Lucas County ESC) to enter into new contracts to sponsor community schools without being



approved as sponsors by the Department of Education as required under newly-enacted R.C. 3314.015, "as longas the contracts conform to and the entity complies with all other provisions of Chapter 3314. of the RevisedCode as amended by this act." Id. at 10276 (sec. 6, uncodified). There is no indication in the legislation that newsponsor relationships may be made without contracts that comply with the requirements established by statute.

[*11]

We are not able, through the exercise of the opinions function, to make findings of fact or to determine the validityor effect of particular contracts or resolutions. Those matters must be determined in a particular case by the personsinvolved, or by the courts. See, e.g., 2004 Op. Att'y Gen. No. 2004-022 at 2-186; 1986 Op. Att'y Gen. No. 86-039 at2-198 (the Attorney General is "unable to use the opinion-rendering function of this office to make determinationsconcerning the validity of particular documents, or the rights of persons under such documents"); 1983 Op. Att'y Gen.No. 83-057 at 2-232 ("this office is not equipped to serve as a fact-finding body; that function may be served by youroffice or, ultimately, by the judiciary"). We are able, however, to set forth a discussion of general principles of law thatmay be applied to particular situations as appropriate.

Contractual powers of the governing board of an educational service center

The governing board of an educational service center is a creature of statute and, as such, has only the powers it isgranted by statute, either expressly or by clear implication. See Wolf v. Cuyahoga Falls City Sch. Dist. Bd. of Educ., 52Ohio St. 3d 222, 223, 556 N.E.2d 511 (1990) [*12] ("school boards are creations of statute and have no more authoritythan what has been conferred on them by statute or what is clearly implied therefrom"). Governing boards ofeducational service centers have been given general powers to acquire and hold property and to enter into contracts.R.C. 3313.17; R.C. 3313.33; 1999 Op. Att'y Gen. No. 99-023. With regard to the authority of a board of education(including the governing board of an educational service center) to enter into contracts, R.C. 3313.33(B) states: "Nocontract shall be binding upon any board unless it is made or authorized at a regular or special meeting of such board."See also R.C. 3311.055.

Like other public bodies, the governing board of an educational service center is subject to the public meetingprovisions of R.C. 121.22, which "require public officials to take official action and to conduct all deliberations uponofficial business only in open meetings unless the subject matter is specifically excepted by [*13] law." R.C. 121.22(A);see R.C. 121.22(B)(1)(a) (defining "public body" to include a board of a school district); Piekutowski v. S. Cent. OhioEduc. Serv. Ctr. Governing Bd., 161 Ohio App. 3d 372, 2005-Ohio-2868 (Adams County). R.C. 121.22 providesgenerally that "all meetings of any public body are declared to be public meetings open to the public at all times." R.C.121.22(C). It requires, further, that a member of a public body be present in person at a meeting open to the public inorder to be considered present or to vote at the meeting. Id. Although certain limited matters may be considered inexecutive session, see R.C. 121.22(G) and (J), "[a] resolution, rule, or formal action of any kind is invalid unlessadopted in an open meeting of the public body." R.C. 121.22(H); see also 2000 Op. Att'y Gen. No. 2000-010 at 2-55("formal action of the public body, such as voting, may be taken only at an open [*14] meeting"). In addition, "[a]resolution, rule, or formal action adopted in an open meeting that results from deliberations in a meeting not open to thepublic is invalid" unless the deliberations were conducted at a lawful executive session for a statutorily-authorizedpurpose. R.C. 121.22(H); see Piekutowski v. S. Cent. Ohio Educ. Serv. Ctr. Governing Bd.

The governing board of an educational service center is given express authority to enter into contracts withcommunity schools that the educational service center sponsors. R.C. 3314.02(D) prescribes the manner in which acontract to sponsor a community school must be made, as follows: "A majority vote of the board of a sponsoring entityand a majority vote of the members of the governing authority of a community school shall be required to adopt acontract and convert the public school to a community school or establish the new start-up school." (Emphasis added.)

In accordance with the provisions outlined above, a contract by which an educational service center sponsors acommunity school must be adopted by a majority vote of the governing [*15] board of the educational service center.



R.C. 3314.02(D). In order to be binding upon the educational service center, the contract must be made or authorized ata regular or special meeting of the governing board. R.C. 3313.33(B). In addition, the governing board's formal actionmust take place at an open meeting. R.C. 121.22(H). It thus appears that, in order for an educational service center tosponsor a community school, there must be a majority vote of the governing board to adopt a contract, and the contractmust be made or authorized at a regular or special meeting of the governing board that is open to the public.

General powers of the superintendent of an educational service center

The governing board of an educational service center is required to appoint a properly-qualified person to serve assuperintendent. The appointment must be made at a regular or special meeting of the board and must be implemented bymeans of a written contract of employment. R.C. 3319.01. The superintendent is given certain responsibilities [*16] bystatute, including the authority to direct and assign teachers and other employees of the service center. R.C. 3319.01; seealso, e.g., R.C. 3319.02; R.C. 3319.07; R.C. 3319.11. The superintendent also has the general responsibility ofperforming "such other duties as the board determines." R.C. 3319.01. See Deryck v. Akron City Sch. Dist., No. 14660,1990 Ohio App. LEXIS 5461, * 4 (Summit County Dec. 12, 1990) (the superintendent's duties "are determined both bystatute and the board itself").

The superintendent of an educational service center is named as the executive officer for the governing board of thecenter. R.C. 3319.01. This means that the superintendent is an employee of the board, is subject to the direction of theboard, and is responsible for implementing policies and management decisions made by the board. Rumora v. Bd. ofEduc. of Ashtabula Area City Sch. Dist., 43 Ohio Misc. 48, 54-59, 335 N.E.2d 378 (C.P. Ashtabula County 1973). [*17]No statute expressly authorizes the superintendent to enter into contracts on behalf of the governing board. In general,the superintendent is responsible for implementing management decisions made by the board. Id. at 56; Wolf v.Cuyahoga Falls City Sch. Dist. Bd. of Educ., 52 Ohio St. 3d at 224; Walker v. Lockland City Sch. Dist. Bd. of Educ., 69Ohio App. 2d 27, 429 N.E.2d 1179 (Hamilton County 1980). n3

n3 As mentioned above, the Lucas County ESC was initially granted authority to sponsor communityschools as part of a pilot project in 1997. See 1997-1998 Ohio Laws, Part I, 909, 2041-58 (Am. Sub. H.B. 215,eff. June 30, 1997) (sec. 50.52, uncodified), amended in 1997-1998 Ohio Laws, Part III, 5609, 5794, 5796-5802(Am. Sub. H.B. 770, eff. June 17, 1998) (sec. 4, uncodified). Those initial provisions gave the superintendent ofthe Lucas County ESC various powers and duties. For example, they authorized the superintendent of the LucasCounty ESC to award planning and start-up grants to community schools. See 1997-1998 Ohio Laws, Part I,2042 (sec. 50.52) and 1997-1998 Ohio Laws, Part III, 5796 (sec. 50.52, as amended). They also authorized thesuperintendent of the Lucas County ESC to review and accept or reject preliminary agreements submitted bypotential sponsors of community schools to ensure that the start-up schools provided diverse educationalmissions. See 1997-1998 Ohio Laws, Part I, 2043-44 (sec. 50.52, subsec. 2(B)) and 1997-1998 Ohio Laws, PartIII, 5797 (sec. 50.52.2, as amended).

However, the authority to exercise the Lucas County Educational Service Center's capacity to enter into acontract to sponsor a particular community school was granted to the Governing Board of the Lucas CountyESC. See 1997-1998 Ohio Laws, Part I, 2045-46 (sec. 50.52, subsec. 4(B)) and 1997-1998 Ohio Laws, Part III,5798-5800 (sec. 50.52.4(B), as amended) (proposals for the establishment of community schools may be madeto various sponsors, including the Governing Board of the Lucas County ESC, and the Governing Board mayenter into preliminary agreements and negotiate the terms of contracts); 1997-1998 Ohio Laws, Part I, 2046 (sec.50.52, subsec. 4(C)) and 1997-1998 Ohio Laws, Part III, 5800 (sec. 50.52.4(C), as amended) ("[a] majority voteof the appropriate public entity [including the Governing Board of the Lucas County Educational ServiceCenter] and a majority vote of the members of the governing authority of a community school shall be requiredto adopt a contract and establish the community school"); see also 1997-1998 Ohio Laws, Part I, 2042 (sec.50.52) and 1997-1998 Ohio Laws, Part III, 5796 (sec. 50.52, as amended) (the Governing Board of the LucasCounty Educational Service Center may enter into an agreement to provide services to a community school, as



mutually agreed by the school's governing authority and the Service Center Board). Thus, the provisionsgoverning the pilot project did not provide the superintendent of the Lucas County ESC with authority to enterinto sponsorship contracts on behalf of the Lucas County ESC.

[*18]

Authority of the governing board of an educational service center to delegate to its superintendentthe authority to enter into a contract to sponsor a community school

The first question for our consideration is whether the governing board of an educational service center isempowered to delegate to its superintendent the authority to enter into contracts to sponsor community schools. Thegeneral rule regarding the delegation of authority by a public body is that, in the absence of specific statutory authority,a public body may delegate ministerial duties, but may not delegate duties that require the exercise of judgment anddiscretion. See, e.g., 1997 Op. Att'y Gen. No. 97-054 at 2-332; 1994 Op. Att'y Gen. No. 94-030 at 2-135; 1993 Op. Att'yGen. No. 93-026 at 2-135; 1987 Op. Att'y Gen. No. 87-083 at 2-558 to 2-559 n.1; 1987 Op. Att'y Gen. No. 87-034 at2-237; 1979 Op. Att'y Gen. No. 79-067 at 2-223. There is a presumption that "the board or officer whose judgment anddiscretion is required, was chosen because they were deemed fit and competent to exercise that judgment and discretionand unless power to substitute another in their place has been given, such board [*19] or officer cannot delegate theseduties to another." CB Transp., Inc. v. Butler County Bd. of Mental Retardation, 60 Ohio Misc. 71, 82, 397 N.E.2d 781(C.P. Butler County 1979); see also, e.g., Burkholder v. Lauber, 6 Ohio Misc. 152, 216 N.E.2d 909 (C.P. Fulton County1965); Kelley v. City of Cincinnati, 7 Ohio N.P. 360, 362 (C.P. Hamilton County 1899); 1991 Op. Att'y Gen. No.91-048 at 2-251; 1979 Op. Att'y Gen. No. 79-067 at 2-223 ("it would contravene the legislative intent . . . to allow ajudgmental and discretionary act to be delegated to an entity other than the entity originally entrusted with the duty bystatute"). Thus, the governing board of an educational service center may direct its superintendent to perform ministerialacts and to assist the board in carrying out its discretionary duties, but, absent specific statutory authority, the board isnot permitted to allow the superintendent to perform discretionary duties that have been entrusted to the board.

It is generally established that the development of contractual terms and the decision to enter [*20] into a contractrequire the exercise of judgment and discretion, and that a public body cannot delegate these functions without specificstatutory authority. See, e.g., 2004 Op. Att'y Gen. No. 2004-031. In the instant case, no statute expressly authorizes thegoverning board of an educational service center to delegate to its superintendent the authority to enter into contracts tosponsor community schools. The only statute that arguably might include this authority is R.C. 3319.01, which permitsthe superintendent to "perform such other duties as the board determines." This language is general and may beconstrued to include a variety of duties prescribed by the board. See, e.g., Deryck v. Akron City Sch. Dist., at * 5 ("whilethe General Assembly has decreed that no contract is binding upon a school board unless approved by it, R.C. 3313.33,there is no prohibition against allowing an officer of the board to terminate such agreements. certainly [sic], this is aduty that can be delegated to the superintendent pursuant to R.C. 3319.01"). R.C. 3319.01 [*21] does not, however,provide specific statutory authority for the delegation of the governing board's duties regarding the process ofcontracting for the sponsorship of community schools.

As discussed above, the governing board's contractual authority may be exercised only in accordance with thestatutes granting it that authority. See Walker v. Lockland City Sch. Dist. Bd. of Educ., 69 Ohio App. 2d at 29 (thesuperintendent of a school district cannot enter into an oral contract that binds the board of education if the board hasnot authorized the contract pursuant to R.C. 3331.33 and R.C. 121.22); State ex rel. Steinbeck v. Treasurer of LibertyTownship, 22 Ohio St. 144 (1871). The statutes granting the governing board authority to enter into contracts to sponsorcommunity schools restrict the board's authority to delegate that authority.

The statutes governing contracts to sponsor community schools clearly indicate that the determination to enter intoa contract of that nature is a matter of judgment and discretion granted to the board, and that the authority to make [*22]that determination is a function that cannot be delegated. In particular, the language of R.C. 3314.02(D) providing that"[a] majority vote of the board of a sponsoring entity . . . shall be required to adopt a contract and convert the public



school to a community school or establish the new start-up school" requires that the governing board of an educationalservice center vote upon a contract to sponsor a community school. Further, the language of R.C. 3313.33(B) statingthat "no contract shall be binding upon any board unless it is made or authorized at a regular or special meeting of theboard" requires that the board members take action at a regular or special meeting to make or authorize a contract tosponsor a community school. In addition, R.C. 121.22(H) provides that formal action of the governing board is invalidunless adopted in an open meeting of the governing board.

The statutes thus impose upon the governing board of an educational service center specific duties that the boarditself must perform. The governing board is not empowered to modify the statutory [*23] requirements or to delegatethese specific statutory duties to its superintendent. Although the governing board of an educational service center hasbroad authority pursuant to R.C. 3319.01 to direct the superintendent to perform various duties to implement its policiesand management decisions, the governing board does not have authority to delegate to the superintendent theresponsibility of deciding whether to enter into a contract to sponsor a particular community school, or the function ofcarrying out the statutorily-mandated meetings of the board.

We conclude, accordingly, that, pursuant to R.C. 121.22(H), R.C. 3313.33(B), and R.C. 3314.02(D), in order for aneducational service center to sponsor a community school, there must be a majority vote of the governing board of theeducational service center to adopt a contract, and the contract must be made or authorized at a regular or specialmeeting of the governing board that is open to the public. The governing board is not empowered to delegate thesespecific duties to [*24] the superintendent of the educational service center.

Authority of the governing board of an educational service center to ratify the actions of itssuperintendent

Your remaining question concerns the ratification by the Governing Board of the Lucas County ESC of contractsmade by its superintendent pursuant to an attempted delegation of authority that may have been invalid. Although weare aware that the contracts in question were ratified by the Governing Board of the Lucas County Educational ServiceCenter after you submitted your opinion request, we are not considering the validity of that action or the status of anyparticular contract. Rather, this opinion addresses in general terms the authority of the governing board of aneducational service center to ratify contracts, and the general effect of that ratification.

By definition, the "ratification" of a contract is "[a] person's binding adoption of an act already completed but eithernot done in a way that originally produced a legal obligation or done by a third party having at the time no authority toact as the person's agent." Black's Law Dictionary 1268-69 (7th ed. 1999); see also Garrison v. Daytonian Hotel, 105Ohio App. 3d 322, 326, 663 N.E.2d 1316 (Montgomery County 1995) [*25] ("[a] ratification is a confirmation of aprevious, voidable act that operates to give the act the effect it was originally intended to have. It is equivalent to aprevious authorization and relates back in time to when the act ratified was done").

The general rule regarding ratification of a contract by a public body was set forth in Monarch Construction Co. v.Ohio School Facilities Commission, 150 Ohio App. 3d 134, 2002-Ohio-6281, 779 N.E.2d 844, P 53 (Franklin County)(quoting State v. Executor of Buttles, 3 Ohio St. 309, 322-23 (1854)), as follows:

When the agents of the State exceeded their authority, the State had its option to ratify their acts orrepudiate the contract they had made in its name; but when it elected to ratify, it assumed all theobligations of the contract from its reception [was "inception" intended?], and was entitled to all itsbenefits. If the State could have lawfully made the contract at the time and under the circumstances itwas made, it could lawfully adopt the one made in its name by those who assumed to act as its agents. ** * In short, any contract [*26] that an individual, or body corporate or politic, may lawfully make,they may lawfully ratify and adopt, when made in their name without authority; and when adopted, it hasits effect from the time it was made, and the same effect as though no agent had intervened. (Emphasisadded.)



Accord Sys. Automation Corp. v. Ohio Dep't of Admin. Servs., 2004-Ohio-5544, P 24 (Ct. App. Franklin County) (in theMonarch case, "this court determined that contracts made on behalf of the state by allegedly unauthorized persons werevoidable, not void ab initio, and could be ratified"); Hersberger v. Ohio Aviation Bd., 58 Ohio L. Abs. 432, 434, 97N.E.2d 41 (Ct. App. Franklin County 1950). The Monarch court applied this rule to action of the Ohio School FacilitiesCommission taken to ratify a contract for school construction. It is applicable also to action of the governing board of aneducational service center taken to ratify contracts executed by a superintendent who lacked authority to enter into thecontracts.

Pursuant to the rule set forth in Monarch, the governing board of an educational service center may lawfully ratifyand [*27] adopt any contract made in the name of the board by the superintendent, if the board could have entered intothe contract when the contract was made. The contract is then effective as if the board itself had entered into thecontract at the time the contract was made. By ratifying a contract, the governing board becomes subject to theobligations of the contract from its inception, and entitled to all its benefits.

It is necessary, however, for the ratification of a contract to comply with applicable law. Where particularrequirements govern the execution of a contract, the contract cannot be ratified unless those requirements are met.Walker v. Lockland City Sch. Dist. Bd. of Educ., 69 Ohio App. 2d at 29 (finding that there was no ratification and, thus,no contract, when the board of education "did not ratify the superintendent's representations in a manner comportingwith the requirements of R.C. 3313.33 and 121.22(H)"); see also State ex rel. Steinbeck v. Treasurer of LibertyTownship, 22 Ohio St. at 149 (contract not properly [*28] executed by board of education imposed no obligation"unless ratified by the corporate body"); State v. Executor of Buttles, 3 Ohio St. 309, 323-24 (the ratification of acontract requires no less power than the power to have bound the public body by the contract at the time it was made).Hence, the governing board of an educational service center can ratify a community school sponsorship contract enteredinto by its superintendent only by complying with the provisions of relevant statutes, including R.C. 121.22, R.C.3313.33, and R.C. 3314.02.

We conclude, accordingly, that the governing board of an educational service center may lawfully ratify and adoptany contract made in the name of the governing board by its superintendent, if the governing board could have enteredinto the contract when the contract was made. Proper ratification requires compliance with relevant statutes, includingR.C. 121.22, R.C. 3313.33, and R.C. 3314.02 [*29] . A contract that is properly ratified is effective as if the governingboard had entered into the contract at the time the contract was made.

Conclusions

For the reasons discussed above, it is my opinion, and you are advised, as follows:

1. Pursuant to R.C. 121.22(H), R.C. 3313.33(B), and R.C. 3314.02(D), in order for an educational servicecenter to sponsor a community school, there must be a majority vote of the governing board of theeducational service center to adopt a contract, and the contract must be made or authorized at a regular orspecial meeting of the governing board that is open to the public. The governing board is not empoweredto delegate these specific duties to the superintendent of the educational service center.

2. The governing board of an educational service center may lawfully ratify and adopt any contract madein the name of the governing board by its superintendent, if the governing board could have entered intothe contract when the contract was made. Proper ratification requires compliance with relevant statutes,including R.C. 121.22 [*30] , R.C. 3313.33, and R.C. 3314.02. A contract that is properly ratified iseffective as if the governing board had entered into the contract at the time the contract was made.

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LEXSEE 1973 OHIO APP. LEXIS 1777

Hamilton Local Board of Education, Plaintiff-Appellant, v. Mrs. Judith Arthur etal., Defendants-Appellees

No. 73AP-179

Court of Appeals of Ohio, Tenth Appellate District, Franklin County

1973 Ohio App. LEXIS 1777

July 24, 1973

NOTICE:

PURSUANT TO RULE 2(G) OF THE OHIOSUPREME COURT RULES FOR THE REPORTINGOF OPINIONS, UNPUBLISHED OPINIONS MAY BECITED SUBJECT TO CERTAIN RESTRAINTS,LIMITATIONS, AND EXCEPTIONS.

COUNSEL: [*1] Mr. George C. Smith, ProsecutingAttorney, Mr. William B. Shimp and Mr. Daniel M.Hunt, Assistants, and Pickrel, Schaeffer & Ebeling, Mr.John P. McHugh and Mr. David L. Hall, of Counsel, forPlaintiff-Appellant

Topper, Alloway, Goodman, DeLeone & Duffey, Mr.John J. Duffey, Mr. N. Victor Goodman and Mr. James F.DeLeone, and Mr. Phillip D. Cameron, forDefendants-Appellees

JUDGES: HOLMES, J., STRAUSBAUGH andWHITESIDE, JJ., concur.

OPINION BY: HOLMES

OPINION

DECISION

HOLMES, J.

This matter involves an appeal from an order of theCommon Pleas Court of Franklin County, which orderrequired the appellant, Hamilton Local Board ofEducation, to proceed to follow certain bindingarbitration procedures as contained in a so-calledProfessional Negotiations Agreement which hadpreviously been entered into by and between the Boardand the Hamilton Local Teachers Association.

The facts giving rise to this controversy, the eventstranspiring within the Common Pleas Court, and theissues as raised herein, are briefly as follows:

The record will show that on October 4, 1967, theBoard and the Teachers Association entered into aProfessional Negotiations Agreement, wherein, amongother things, the Board [*2] recognized the TeachersAssociation as the sole negotiating agent of all of thecertified teaching staff employed by the Board, andfurther the terms of such agreement provided that theBoard would negotiate with the Teachers Association onmatters such as working conditions, personnel policies,programs, salaries, fringe benefits and grievanceprocedures.

Such agreement had a specific provision whichprovided for the procedures to be followed in the eventthat an agreement could not be reached by the parties,which provisions we set forth as follows:

"Disagreement

Page 1

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"In the event that an agreement cannot be reached onan issue, being negotiated, the following procedure shallexist:

"1. An advisory committee shall be established bythe Board within 10 days after written request is received.The Association and the Board shall each appoint onemember to the committee. These two members shallappoint a third, who shall serve as chairman of thecommittee. Costs for the services of this advisorycommittee shall be shared by both parties.

"2. The advisory committee shall promptly study thesituation, make a public report of fact, withrecommendations, and send [*3] to the Association, theSuperintendent, and the Board, a copy within 15 days.Both parties are required to act at their next regularmeeting on these recommendations or by a date agreedupon by the two parties.

"3. Continuation of negotiations by the Associationand the Board shall resume within 10 days of the issuanceof the report."

Such agreement was for a term of three years.

The aforesaid agreement, with some rathersignificant changes, was renewed in November 1970 fora three-year period, which agreement, pursuant to suchrenewal, was to run through October 1973.

The significant changes in this agreement were in theprovisions dealing with disagreements. The newprovisions, as contained in the renewal agreement, are asfollows:

"Disagreement

"In the event that an agreement cannot be reached onan issue, being negotiated, the following procedure shallexist:

"1. An advisory committee shall be established bythe Board within 10 days after written request is received.The Association and the Board shall each appoint onemember to the committee. These two members shallappoint a third, who shall serve as chairman of thecommittee. Costs for the services [*4] of this advisorycommittee shall be shared by both parties.

"2. The advisory committee shall promptly study thesituation, make a public report of fact, with

recommendations, and send to the Association, theSuperintendent, and the Board, a copy within 15 days.Both parties are required to act at their next regularmeeting on these recommendations or by a date agreedupon by the two parties.

"3. Continuation of negotiations by the Associationand the Board shall resume within 10 days of the issuanceof the report.

"4. If after continuation of negotiations an agreementstill cannot be reached, either party may petition forarbitration procedures.

"5. A list of names shall be requested from theAmerican Arbitration Association. The parties shallselect from this list one name which will then serve asfactfinder.

"6. Hearing dates shall be set by the fact-finder andfacts gathered relevant to the impasse.

"7. Upon completion of hearings the fact-finder shallsubmit written findings for resolution of case. Hisdecision shall be binding on all parties.

"8. Costs of expenses for arbitration shall be sharedequally by both parties."

Thus, it may be seen [*5] that the renewalagreement contained a provision for binding arbitrationon any issues wherein the parties are in disagreement, andhad reached an impasse. This is to be distinguished fromthe procedures of establishing an "advisory committee"under the prior agreement.

It appears that a misunderstanding or disagreementarose between the parties and, on or about February 11,1973, the Board rescinded such agreement, and made itknown to members of the Teachers Association that theBoard would not recognize the terms of the agreement.

A number of teachers at the Hamilton Local School,including the defendant Mrs. Judith Arthur, being at oddson various points at issue with the Board refused to reportfor their teaching duties on February 12 and February 13,1973.

The Board did, on February 13, 1973, file this actionin the Common Pleas Court against Mrs. Arthur and aconsiderable number of other teachers, as well as theHamilton Local Teachers Association and the Ohio

Page 21973 Ohio App. LEXIS 1777, *2

ODE EX. E

Education Association.

The complaint sought a temporary restraining ordercompelling the teachers to return to their school duties, aswell as praying for a preliminary and permanentinjunction as against the defendant [*6] teachers andtheir representative associations; such injunctions toprohibit further alleged picketing, public advertising ofthe local differences, and interference with the normaloperations of the school as set forth by the plaintiff insuch complaint.

Upon the hearing for the temporary restraining orderas moved for by the plaintiff in the complaint, theCommon Pleas Court of Franklin County did, onFebruary 14, 1973, enter what was entitled "ConsentOrder" which order contained the following provisions:

"1. The Court requires the individual defendants, andeach of them, to return to their respective positions asteachers and employees of plaintiff-Hamilton LocalBoard of Education;

"2. The Court Orders the parties hereto to resumetheir negotiations as soon as practicable after the entry ofthis Order, but in no event later than February 20, 1973;

"3. The Court further Orders that such negotiationsbetween the parties are to resume on all questions at issuebetween the parties prior to February 10, 1973, under thegeneral procedures in use between the parties prior toFebruary 10, 1973, and that each of the parties are toreport to the Court on or before March [*7] 1, 1973, as tothe progress of their negotiations;

"4. It is further Ordered that the plaintiff and thedefendant, The Hamilton Local Teachers' Associationmay have, in addition to their regular NegotiatingCommittees, one additional representative of theirchoice."

The parties proceeded to negotiate the points at issue,and made a number of reports on such negotiations anddiscussions to the Common Pleas Court.

On March 8, 1973, the defendants-appellees filedtheir answer to the complaint; also the defendants filed across-complaint seeking a mandatory injunction requiringthe Board to abide by the Professional NegotiationsAgreement theretofore entered into by the Board and theTeachers Association. Such cross-complaint further

sought specific performance of all of the terms of suchagreement.

On April 23, 1973, defendants-appellees filed amotion in the Common Pleas Court seeking to require theplaintiff Board to show cause why it should not be held incontempt of the court's order of February 14, 1973. Aftera hearing on such motion, the trial court found, by orderentered April 30, 1973, that the appellant Board had notbeen in contempt.

Additionally, the court ordered [*8] the parties toproceed to arbitration pursuant to the specific clausestherefor as set forth in the Professional NegotiationsAgreement. The specific wording of the court's decisionin this regard is as follows:

"It is further ORDERED that to further implementthe Consent Order of February 14, 1973, the partiesproceed to dispose of the issue of salary and fringebenefits by means of the arbitration procedures set forthin paragraphs 5 through 8 under DisagreementProcedures of the Professional Negotiations Agreement,said arbitration to be undertaken within ten days of April27, 1973."

On May 3, the Board filed its notice of appeal hereinfrom the trial court's order relative to the arbitrationprocedures.

On May 5, the Board moved the court to stay thatpart of the court's order which had required the parties toproceed to arbitration according to the ProfessionalNegotiations Agreement. On May 8, the trial courtoverruled such motion.

The appellant Board, on May 9, filed a motion hereinto stay the order of the trial court which had orderedarbitration. Later, on May 17, the appellees, TeachersAssociations, filed a motion to dismiss the appeal, andalso a motion to consolidate [*9] the motion to dismissand the motion to stay. The motion to consolidate havingbeen sustained, and after a consolidated hearing upon thematters presented, this court by order of May 22, 1973,sustained the motion to stay, and by order of May 29,1973, overruled the motion to dismiss.

The Board sets forth two assignments of error on thisappeal upon the merits, and they are as follows:

"1. Whether the order of the Court below of April 27,


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1973, entered April 30, 1973, is an appealable order.

"2. Whether the order of the Court below orderingthe Hamilton Local Board of Education to proceed tobinding arbitration is contrary to law."

The first assignment of error was previously raisedupon the appellees' motion herein to dismiss this action,and was briefed and argued by both parties upon suchmotion prior to the ruling by this court on such motion.

The question of the appealability of the trial court'sdecision and order relating to the arbitration provisionshave again been set forth in the briefs to this court on themerits, and therefore we shall, for purposes of continuityof these proceedings, set forth basically that which westated previously in our decision herein [*10] of May 29,1973.

The defendants-appellees herein had filed across-complaint seeking a mandatory injunction requiringthe plaintiff Board to abide by the ProfessionalNegotiations Agreement as previously entered into by theBoard and the Teachers Association. Also, suchcross-complaint sought specific performance of all of theterms of such agreement.

The plaintiff Board filed a motion in the trial court todismiss the defendants' cross-complaint upon the basisthat such Board had no legal right to delegate its authorityas specifically granted by the legislature to one of thepolicy-making bodies for the school system of Ohio.Further, it was the position of the Board, within theframework of such pleading, that if the Board had, byway of any clause of such agreement, bound itself tounlawfully delegate its policy-making authority, then, andin that event, such agreement would have to fail, andcould not be enforced against such Board.

In our decision of May 29, 1973, upon the motion todismiss, we stated as follows:

"Article IV, Section 3, of the Ohio Constitutionpermits appeals to the Courts of Appeals from 'judgmentsor final orders of courts of record inferior to the [*11]Court of Appeals within the district.'

" R.C. 2505.02 sets forth the definition of a finalorder, which section, in pertinent part, is as follows:

"'An order affecting a substantial right in an actionwhich in effect determines the action and prevents a

judgment, an order affecting a substantial right made in aspecial proceeding or upon a summary application in anaction after judgment, or an order vacating or settingaside a judgment and ordering a new trial is a final orderwhich may be reviewed, affirmed, modified, or reversed,with or without retrial.'

"We feel that such order of the Common Pleas Courtrequiring the school board to proceed to arbitration is afinal appealable order for a number of reasons.

"It is our view that such an order does, in fact,presume to determine the key issue of the proceeding,i.e., the enforceability of the various terms of the'Professional Negotiations Agreement,' and, moreparticularly, the arbitration section within suchagreement.

"The court, in its decision of April 27, refers to thefact 'that the parties have indeed reached an impassebeyond the reach of the disagreement procedures found inthe Professional Negotiations [*12] Agreement upon avery fundamental issue; that of salary and fringe benefits.'Then the court ordered that the parties 'dispose of theissue of salary and fringe benefits by means of arbitrationprocedures as set forth in numbered paragraphs 5 through8 under "Disagreement Procedures" of the ProfessionalNegotiations Agreement, * * *.'

"Such is, in effect, a determination of the validity ofthe agreement, and its provisions.

"It is true, as the appellees argue, that a subsequentjudgment as to the validity of such contract after a trialupon the merits could conceivably invalidate that whichhad been done under the so-called temporary order of thetrial court. However, there are many factors whichmilitate against this argument.

"First, there are attendant costs and charges of sucharbitration procedure which could not be recouped by theschool board.

"Further, in view of the position taken by the schoolboard that the board's policy-making authority could not,by law, be delegated to an arbitrator, such an ordercontinues to compound the alleged illegality."

It is our conclusion that the order of the trial courtregarding the arbitration clause is an order affecting [*13]a substantial right, i.e., the right of the Board to make its


ODE EX. E

own policy decisions according to law, which right is notonly inherently that of the Board, but a right which inuresto the benefit of the public.

Further, we conclude that the effect of such orderwas to determine the action and prevent a judgment. Themain contention here is the enforceability of thearbitration clause, the Teachers Association on the onehand asserting the validity of same and seeking equitablerelief as to its enforcement. The Board conversely arguesthat it has no authority by law to enter into such anagreement.

The court, by its order requiring adherence to theterms of the agreement relating to arbitration, has, ineffect, predetermined the central issue of the controversy.

For the purposes of this decision upon the merits, wereassert the legal conclusions as set forth heretofore insuch prior decision, and hold that the order of theCommon Pleas Court of April 30, 1973, was a finalappealable order.

The second assignment of error, as asserted by theappellant Board, is to the effect that the order of the courtof April 30, 1973, which ordered the parties to proceed tobinding arbitration, [*14] was contrary to law.

It will be remembered that the specific words of thetrial court's order were:

"It is further ORDERED that to further implementthe Consent Order of February 14, 1973, the partiesproceed to dispose of the issue of salary and fringebenefits by means of the arbitration procedures set forthin paragraphs 5 through 8 under DisagreementProcedures of the Professional Negotiations Agreement,said arbitration to be undertaken within ten days of April27, 1973."

Although such order of April 30 was referred to bythe court as a further implementation of the consent orderof February 14, 1973, it cannot be seriously contestedthat the decision of April 27 and order of April 30 were inessence not only recognizing the validity of thenegotiation proceedings being engaged in by the partiespursuant to such consent order, but also there wasinherently within such April 30 order the recognition andlegal acceptance of the Professional NegotiationsAgreement, as well as the specific provisions within suchagreement.

The court's order not only recognizes the provisionsof such agreement which encompass the generalnegotiations procedures concerning the stated items for[*15] negotiations, including salaries and fringe benefits,but also such order recognized the provisions whichprovide for procedures that go beyond the negotiatingstage, i.e., provisions that provide for disagreements ofthe parties, culminating in procedures for bindingarbitration.

Such recognition of this agreement by the trial courtwas then, in effect, an approval of the policy of a schoolboard to establish by contract procedures for thenegotiation with its professional employees of specificitems such as salary, fringe benefits, programs, andpersonnel policies. Also such recognition of theagreement involved in this case was, in effect, anapproval of the policy of a school board to provide bycontract that in the event of an impasse in professionalemployee negotiations, third-party arbitration could makebinding determinations of the specified issues. Suchconclusions of the trial court raise some interestingquestions as to the legal capacity of school boards in thisregard pursuant to our current Ohio laws.

There have been many states in recent years thathave amended their laws to provide for public employeegroup representation recognition for dealing withproblems [*16] of employee grievances, methods andprocedures and for negotiating or bargaining for matterssuch as pay, working conditions, personnel questions, andthe like. Such has been true in the field of publicemployees generally, as well as with certified andnoncertified school employees.

Ohio law, however, has no provisions for recognitionof public employee organizations, includingorganizations representing school teachers. Additionally,there are no laws in Ohio specifically authorizinggovernmental entities to negotiate with employeerepresentatives, be they in the employ of school districtsor otherwise.

The furthest that the legislature has gone in regard tothe enactment of a law related to representative groupsfor public employees, was in the passage of R.C. 9.41,which section permits the checkoff of organization duesfrom the wages of public employees.

Parenthetically, it might be noted that the OhioGeneral Assembly has, for many sessions, including the


ODE EX. E

current one, wrestled with the general subject, but to datethere has been no public employee collective bargaininglaw enacted in Ohio.

There is sparse case law on the subject of the poweror authority of public entities, [*17] in the absence ofspecific enabling legislation, to enter into contracts forthe recognition of representative organizations for publicemployees or contracts regarding public employeenegotiation rights and procedures.

However, we do not find it necessary to review thissubject, nor pass upon the validity, or nonvalidity, ofsuch contracts or agreements generally, in that such issuewas not briefed nor argued herein, therefore, is notsquarely before this court. What we feel is squarelybefore this court is the question of the authority of aboard of education to enter into a contract which haswithin it a provision for binding arbitration, whichprovision, in its implementation, gives over unto acompletely different party the right to make bindingpolicy decisions, which policy decisions have been bylaw placed within the jurisdiction of the various boards ofeducation in Ohio.

The organizational structure of the public schoolsystem in the state of Ohio is by school districts, and eachdistrict is governed by its own board of education. Theprovision for the establishment of such districts, and thepowers and duties of the school boards therein, is vestedwithin the legislature [*18] pursuant to Article 6, Section3 of the Ohio Constitution.

It has been stated that school district boards ofeducation are purely creations of statute, State, ex rel.Clarke, v. Cook (1921), 103 Ohio St. 465, Perkinsv.Bright (1923), 109 Ohio St. 14, and that such boardshave only such jurisdiction as the statutes confer, Boardof Education v. Best (1894), 52 Ohio St. 138, Verberg v.Board of Education (1939), 135 Ohio St. 246.

The power as granted to the school boards in Ohio isgenerally quite broad. In addition to a number of specificgrants of power the law, by way of R.C. 3313.47,provides that each city, exempted village, or local boardof education shall have the management and control of allthe public schools in the respective districts.

Commenting upon the nature, status and powers ofboards of education of school districts within Ohio wefind the following in 48 Ohio Jurisprudence 2d, Schools,

at Section 59, page 749:

"* * * While boards of education wield the power ofthe state in their field, they are organizations subject tothe control of the state legislature and constituteinstruments by which the legislature administers the[*19] department of the civil administration of the statewhich relates to education and the schools. Such boardsare agents of the state for the purpose of carrying on theaffairs of the state, and they may be characterized aspublic school agents -- that is, they are the arms,agencies, or instrumentalities of the state for thepromotion of education throughout the state by theestablishment of a statewide system of common schools,or agencies of the state for the organization,administration, and control of the public school system ofthe state separate and apart from the usual political andgovernmental functions of other subdivisions of thestate."

Commenting further upon the powers and duties ofboards of education such article on schools to be foundwithin 48 Ohio Jurisprudence 2d, at Section 80, page 778,is as follows:

"Boards of education in Ohio are creatures of statuteand their duties as well as their authority are clearlydefined by the state legislation on the subject. Theirauthority or jurisdiction is derived solely from statute andis limited strictly to such powers as are clearly andexpressly granted to them or are clearly implied andnecessary for the execution [*20] of the powersexpressly granted. They have special powers which are tobe strictly construed, and which they cannot exceed; andsince boards of education have only such authority as isconferred by law, when they take action outside of andagainst the plain provisions of the law, such action isabsolutely void."

It is true that a school board of each school district isa body politic and corporate and is, pursuant to R.C.3313.37, capable of contracting and being contractedwith.

However, the overriding premise remains controllingthat boards of education have only such powers as areexpressly granted by statute, or as are necessarily impliedfrom those powers expressly granted, and the board hasno power to bind the school district to a contract notauthorized by law, Board of Education v. Volk (1905), 72Ohio St. 469; Schwing v. McClure (1929), 120 Ohio St.


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335.

The powers as granted to boards of education maygenerally be classified within the broad categories ofnondiscretionary ministerial power, and the discretionarypowers. The latter discretionary powers may, accordingto the function, be in either of the forms ofadministrative, quasi-legislative, or quasi-judicial [*21]powers.

An example of the nondiscretionary powers, or moreparticularly duties, as given school boards are those thatrelate to the carrying out of certain minimum statestandards which have been established by the legislature.Such minimum state standards include those of schoolterm, days, and hours, school records and reports, healthand safety standards, the provision of required subjectsand courses of instruction, the number of pupils perclassroom as well as many others.

The discretionary powers as bestowed upon theschool boards by the state legislature involve thepolicy-making authority of the boards, which authoritymay not be delegated. Such matters involving theexercise of discretion of the board encompass the verybasic operation, control and protection of the schoolsystem in the school districts, and must be exercised bythe school board.

As relates to contracts for the employment of thepublic school teachers for the school district, R.C.3319.31 requires the school board to employ thenecessary teachers. R.C. 3319.08 requires the board toenter into written contracts for the employment of allnecessary teachers.

The Supreme Court of Ohio has held that the [*22]employment of teachers rests within the sound discretionof the board, which board may not delegate its power inthat respect, State, ex rel. Werden, v. Williams (1876), 29Ohio St. 161. Such case held that a contract with ateacher that permits such teacher to employ and pay anassistant is void.

R.C. 3313.18, 3317.13, and 3317.14, provide for thefixing of teachers' salaries by the school board throughthe adoption of salary schedules. R.C. 3319.17 grants theboard authority to reduce the number of teachers understated circumstances.

Members of boards of education are elected in their

various districts to represent the local citizenry incarrying out the requirements of the law in the provisionof a public school program in the various school districts.The election of such officials carries with it theresponsibility for the exercise of the legislative grant ofdiscretionary policy-making powers.

One such policy matter certainly would be theemployment and the establishment of the salaries andbenefits related to those teaching in the school system.

R.C. 3317.14, in part, provides:

"Any board of education participating in fundsdistributed under Chapter 3317. [*23] of the RevisedCode shall annually adopt a teacher's salary schedulewith provisions for increments based upon training andyears of service. * * *"

This section as well as the other sections pertainingto the employment and salaries of teachers do not permita board of education to delegate to a private person thepower to determine such salary schedule which the boardis required by law to adopt.

In a similar vein, relating to the authority of theGeneral Assembly to delegate powers bestowed upon itby the Constitution to fix certain salaries of localofficials, the Supreme Court has held that the GeneralAssembly may not delegate such powers. See State, exrel. Godfrey, v. O'Brien (1917), 95 Ohio St. 166, and Neffv. County Commissioners (1957), 166 Ohio St. 360.

It may well be that in the exercise of theirdiscretionary powers, the board may well desire toconsult with the professional certified staff in arriving atpolicy decisions in the matters of program, personnelmanagement and development, teacher-board relations,teacher-parent relations, and many others.

We believe it to be highly probable that continueddiscussion, close communication and cooperation [*24]between the board and the professional personnel in theseregards, would greatly facilitate the proper exercise bythe Board of its statutory powers in providing a publicschool program throughout Ohio.

However, matters which are squarely within theprovince and power as granted to the school boards bythe legislature such as the power to establish teachers'salaries, may not be delegated to others for the purpose of


ODE EX. E

policy or decision making.

It was recently held by the Court of Appeals of theSeventh District, Mahoning County, Ohio, that certainpolicies relating to the management of the school system,which policies were contained within a so-called "MasterAgreement," as entered into by and between theYoungstown City Board of Education and theYoungstown Education Association, were of no force andeffect as such policies were in conflict with policies aslater adopted by such board of education.

In such case, Youngstown Education Assoc. v.Youngstown City Board of Education, case No. 72 C of A54, dated February 27, 1973, Judge George Jones, of theEleventh Appellate District, stated that "Judge Jenkins(the trial judge) did not pass upon the issue of the right ofcollective [*25] bargaining. He was correct in thisregard. We need not pass upon the issue for the reasonthat, Master Agreement or no Master Agreement, theYoungstown City Board of Education is charged bystatute to manage and control the schools. The policiesadopted by them were in response to that obligation. TheBoard cannot back away from nor delegate thisresponsibility."

A very pertinent statement in this same regard is tobe found within a New Jersey Superior Court case, ascited by the appellant Board. Such case is that of Boardof Education v. Education Association (1972), 81 LRRM2462, in which the court held that an arbitrator may notarbitrate the question of whether a seventh grade teachercould conduct a debate on abortion in his classroom. Thecourt, at page 2465 of the report of such decision, statedthat:

"The courts have recognized that public employeescannot make contracts with public agencies that arecontrary to the dictates of the Legislature. Lullo v.International Association of Fire Fighters, 55 N.J. 409, 73LRRM 2680 (1970). Nor can public agencies such as aboard of education 'abdicate or bargain away theircontinuing legislative or executive obligations [*26] ordiscretion.' Lullo, supra, 440, 73 LRRM at 2693.

"It is concluded therefore that if the contract is readto delegate to a teacher or to a teacher's union the subjectof courses of study, the contract in that respect is ultravires and unenforceable. It must follow therefore that theAmerican Arbitration Association cannot be thesub-delegee of the Board and of the teachers. * * *"

We feel that the same principle is applicable in Ohioand must be applied to the facts in the case before thiscourt. A board of education may not, in the absence ofstatute, contract away its rights to make the ultimatedetermination of school policies, including those mattersof salary, program, personnel, fringe benefits and othersas set forth in the professional agreement with theattendant binding arbitration provisions as we havebefore us.

The question thence becomes whether Ohio has aspecific statute permitting contracts providing for bindingarbitration between school boards and teachers.

Counsel for appellees upon the oral argument of thismatter conceded the necessity of such an enabling statute,but argues that Ohio indeed has such a statute in R.C.2711.01, the arbitration [*27] law of Ohio.

Such R.C. 2711.01 provides as follows:

"A provision in any written contract, except ashereinafter provided, to settle by arbitration a controversythereafter arising out of such contract, or out of therefusal to perform the whole or any part thereof, or anyagreement in writing between two or more persons tosubmit to arbitration any controversy existing betweenthem at the time of the agreement to submit, shall bevalid, irrevocable, and enforceable, save upon suchgrounds as exist at law or in equity for the revocation ofany contract.

"Sections 2711.01 to 2711.15, inclusive, of theRevised Code shall not apply to controversies involvingthe title to or the possession of real estate, with thefollowing exceptions:

"(A) Controversies involving the amount ofincreased or decreased valuation of the property at thetermination of certain periods, as provided in a lease;

"(B) Controversies involving the amount of rentalsdue under any lease;

"(C) Controversies involving the determination ofthe value of improvements at the termination of anylease;

"(D) Controversies involving the appraisal ofproperty values in connection with making or renewing[*28] any lease;


ODE EX. E

"(E) Controversies involving the boundaries of realestate."

It is true that when originally enacted R.C. 2711.01excepted from its operation "collective or individualcontract between employers and employees in respect toterms or conditions of employment." This exception wasdeleted by amendment in 1955. However, neither thatamendment, nor the language of R.C. 2711.01 indicatesthat the section grants authority to a school board tocontract for binding arbitration with respect to a matterwhich the board has a statutory duty to exercisediscretion.

First, it is our view that a school board was not an"employer," and the teachers were not "employees"within the meaning of those words as used in the formerexception contained in R.C. 2711.01. In this regard, thethird and fourth paragraphs of the syllabus of Hagermanv. Dayton (1947), 147 Ohio St. 313, are as follows:

"3. A municipal corporation of the state of Ohio does notcome within the meaning of 'employers' as used inSection 6346-13, General Code (118 Ohio Laws, 656).(Present R.C. 2711.01.)

"4. Civil service appointees do not come within thedefinition of 'employe' as used in Section [*29] 6346-13,General Code (118 Ohio Laws, 656)."

The Supreme Court proceeded to renounce adelegation of the cities' or the civil service employees'authority as follows, in the sixth and seventh paragraphsof the syllabus.

"6. The appointment, tenure, promotion, removal,transfer, lay-off, suspension, reduction, reinstatement ordismissal and working conditions of persons in theclassified civil service of the state, the several counties,cities and city school districts thereof, are regulatedexclusively by Section 10 of Article XV of the OhioConstitution and the laws, rules and regulations enactedin pursuance thereof.

"7. There is no authority for the delegation of anypowers or functions of either a municipality or its civilservice appointees to any organization of any kind."

While Hagerman dealt with municipal corporationsand civil corporations and civil service employees of thecities, we feel that the principles announced would be

equally applicable to boards of education.

Further, R.C. 2711.01 is a law of general application.Conversely, the statutory provisions imposing the dutyupon boards of education to fix the salaries of teachers byschedules, are specific [*30] statutes dealing with schoolmatters. Such specific statutes are controlling over thegeneral provisions of R.C. 2711.01.

To hold otherwise could result in any governmentalagency contracting away its governmental powersinvolving the exercise of discretion merely by agreeing todelegate such power to arbitrators. R.C. 2711.01 cannothave such effect, nor is there any indication whatsoeverthat such was the intent of the legislature. R.C. 2711.01applies to citizens generally, and is not designed to dealwith the powers and duties of school boards.

Additionally, it should be noted that R.C. 3319.14was enacted subsequent to R.C. 2711.01, and applyingthe general statutory construction and interpretation,where the earlier conflicts in major degree with the latter,the latter enactment must prevail.

The appellees do not suggest that there are othersections of Ohio law authorizing the school board tocontract for binding arbitration with its employees. Wefind no such section in Ohio law, therefore, we mustconclude, based upon all of the foregoing, that theauthority as granted by the arbitration clause, ascontained in the Professional Negotiations Agreementherein, was an [*31] unlawful delegation of thepolicy-making power of the Board of Education.

Therefore, we hold that such delegation of powermust be declared null and void and of no effect.

The order of the Court of Common Pleas relative toenforcement of the arbitration provision of theProfessional Negotiations Agreement is hereby reversed,and this matter remanded to the Court of Common Pleasof Franklin County for further proceedings according tolaw.

CONCUR BY: WHITESIDE

CONCUR

WHITESIDE, J., concurring.

While I concur in the opinion by Judge Holmes, andalthough implicit therein, additional explicit comment is


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in order concerning the intimation by the trial court andthe contention by appellees that the order to proceed toarbitration was one "implementing the consent order" ofFebruary 14, 1973.

That the order to proceed to arbitration could not beone "implementing" the consent order is clearlydemonstrated by the record.

The consent order was entered on February 14, 1973.As indicated therein, it was predicated upon plaintiff'smotion for a temporary restraining order, the affidavit ofR. J. Clabaugh, and the representations of counsel of theparties. No mention was made of the Professional [*32]

Negotiations Agreement. Neither did the complaint makeany reference thereto. Said agreement was first broughtinto the case by the cross-complaint of defendants filedMarch 8, 1973, more than three weeks after the consentorder was entered. Thus, the agreement, as such, was notbefore the court at the time of the consent order.

Furthermore, the consent order ordered negotiationsto resume "under the general procedures in use betweenthe parties prior to February 10, 1973." Of necessity,arbitration can commence only where negotiations haveended without success.


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Page 1

LEXSEE 1997 OHIO OP ATTY GEN NO 054

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF OHIO

Opinion No. 97-054

1997 Ohio Op. Atty Gen. No. 54; 1997 Ohio AG LEXIS 56

December 29, 1997 SYLLABUS: [*1]

1. Pursuant to R.C. 6117.01, the registered professional engineer in charge of the county sanitary engineering de-partment and the board of county commissioners are, for purposes of R.C. Chapter 124, the "appointing authority" of the employees of the sanitary engineering department. The authority of the county commissioners with respect to the appointment of sanitary engineering department employees is limited to approval of any such appointments. 2. R.C. 6117.01 does not permit the board of county commissioners to delegate to the person performing the duties of sanitary engineer, or to anyone else, the duties imposed upon the board by R.C. 6117.01 with respect to the supervision of the sanitary engineering department and the appointment and compensation of the department's personnel. 3. R.C. 315.14 does not authorize the board of county commissioners to enter into an agreement with the county engi-neer whereby the county engineer will perform, in addition to the duties of the sanitary engineer, the duties imposed upon the county commissioners by R.C. 6117.01 regarding the operation and personnel of the sanitary engineering de-partment. REQUESTBY: The Honorable William A. Bish Williams County [*2] Prosecuting Attorney 1210 West High Street Bryan, Ohio 43506 OPINIONBY:

BETTY D. MONTGOMERY, Attorney General OPINION:

You have requested an opinion regarding the operation of a county sanitary engineering department. You specifi-cally ask:

1. Where a Board of County Commissioners creates a Sanitary Engineering Department pursuant to Ohio Revised Code § 6117.01 and enters into an agreement pursuant to Ohio Revised Code § 315.14 with a County Engineer to serve as Sanitary Engineer, who is the appointing authority of the department for purposes of Ohio Revised Code [Chapter] 124?

ODE Ex. F 1997 Ohio Op. Atty. Gen. No. 54

Page 2 1997 Ohio Op. Atty Gen. No. 54; 1997 Ohio AG LEXIS 56, *

2. If the Board of County Commissioners is the appointing authority of the Sanitary Engineering De-partment, is the Board permitted to delegate this authority to the Sanitary Engineer through an agreement pursuant to Ohio Revised Code § 315.14 or by any other means?

Let us begin by examining the statutory scheme for the establishment and operation of a county sewer district. Pur-suant to R.C. 6117.01, a board of county commissioners may establish one or more sewer districts within the county outside of municipal corporations. Concerning the employment of a sanitary engineer and the creation of a sanitary en-gineering department, [*3] R.C. 6117.01 states in pertinent part:

Any such board [of county commissioners] may employ a registered professional engineer for such time and on such terms as it deems best, and may authorize such registered professional engineer to employ necessary assistants upon such terms as are fixed by said board. The board may create and maintain a sanitary engineering department, to be under its supervision and in charge of a registered professional engineer, to be appointed by such board, for the purpose of aiding it in the performance of its duties un-der [R.C. 6117.01-.45], or its other duties regarding sanitation provided by law. Said board shall provide suitable rooms for the use of such department and shall provide for and pay the compensation of such registered professional engineer and all necessary expenses of such registered professional engineer and department which are authorized by such board. Any such registered professional engineer in charge of such department, with the approval of the board, may appoint necessary assistants and clerks and the compensation of any such assistants and clerks shall be fixed and paid by such board. (Emphasis added.)

[*4] Thus, a board of county commissioners that establishes a sewer district under R.C. 6117.01 may also create a sanitary engineering department. In accordance with R.C. 6117.01, any such department is to be under the supervision of the board of county commissioners and "in charge of a registered professional engineer, to be appointed by such board." The engineer so appointed is commonly referred to as the county sanitary engineer. See R.C. 6117.06. The appointment of sanitary engineering department employees is also provided for in R.C. 6117.01, which authorizes the sanitary engi-neer, "with the approval of the board," to appoint necessary assistants and clerks. As specified by R.C. 6117.01, the compensation of such assistants and clerks "shall be fixed and paid by such board."

With this background in mind, let us turn to your first question in which you ask who constitutes the appointing au-thority of the employees of the sanitary engineering department for purposes of R.C. Chapter 124. As used in R.C. Chapter 124, the term "appointing authority" means "the officer, commission, board, or body having the power of ap-pointment to, or removal from, positions in any office, department [*5] , commission, board, or institution." R.C. 124.01(D) (emphasis added). R.C. Chapter 124 imposes various duties and confers certain powers upon appointing au-thorities with respect to their employees. See, e.g., R.C. 124.27 (appointment of employees in the classified civil ser-vice); R.C. 124.30 (interim, temporary, or intermittent appointments); R.C. 124.321 (reduction in work force by layoff or abolishment of positions); R.C. 124.38 (establishment of alternative sick leave schedules by county appointing au-thorities). n1

n1 Certain of the powers and duties conferred upon appointing authorities by R.C. Chapter 124 may, of course, be subject to the terms of a collective bargaining agreement. See generally City of Cincinnati v. Ohio Council 8, AFSCME, 61 Ohio St. 3d 658, 576 N.E.2d 745 (1991) (syllabus, paragraph one) ("the provisions of a collective bargaining agreement entered into pursuant to R.C. Chapter 4117 prevail over conflicting laws, in-cluding municipal home-rule charters enacted pursuant to Section 7, Article XVIII of the Ohio Constitution, ex-cept for those laws specifically exempted by R.C. 4117.10(A)").

[*6]

Pursuant to R.C. 6117.01, the employees of a sanitary engineering department are appointed by the county sanitary engineer, "with the approval of" the board of county commissioners. The question thus arises as to whether, pursuant to R.C. 6117.01, the sanitary engineer, the board of county commissioners, or both are the "appointing authority" of the employees of the county sanitary engineering department.

A similar question was addressed in 1983 Op. Att'y Gen. No. 83-023, concerning the appointment of county wel-fare department (currently county human services department) employees. As are employees of the sanitary engineering ODE Ex. F

1997 Ohio Op. Atty. Gen. No. 54


department, employees of a county department of human services are appointed by an individual, "with the approval of the board of county commissioners." R.C. 329.02. In discussing "whether the board's power of approval includes the power to interview all candidates before a selection is made," Op. No. 83-023 explained the scope of the county com-missioners' power of "approval" over the appointment of county human services employees, as follows:

Appointment of a candidate from a certified eligibility list or a promotional list involves [*7] the se-lection of one individual from three whose names are certified. n2 R.C. 329.02 clearly contemplates that the [human services] director, who is given the power of appointment (subject to approval), is the one who will make that selection. The board of county commissioners may approve or disapprove the selec-tion, but it may not assume the director's authority to exercise his discretion, subject to the requirement that his selection meet with the board's approval. Since the board of county commissioners is authorized by statute only to approve or disapprove appointments, and not to interview or select appointees itself, I conclude that its authority does not extend to establishing a procedure under which it must interview all candidates before it will approve an appointment from a certified eligibility list or promotional list.

Op. No. 83-023 at 2-85 through 2-86 (footnote added; various citations omitted). Op. No. 83-023 thus acknowledges that, although the role of the county commissioners in the appointment of human services employees is limited to that of approval, such approval is part of the appointment procedure. State ex rel. Belknap v. Lavelle, 18 Ohio St. 3d 180, 181, 480 N.E.2d 758, 759 n.1 (1985) [*8] (R.C. 329.02 places the county commissioners within the definition of "appointing authority," as defined in R.C. 124.01(D), with respect to employees of the county welfare (now human services) de-partment); 1956 Op. Att'y Gen. No. 6316, p. 152 (concluding that R.C. 329.02 grants the power of appointment jointly to the director and the board of county commissioners). Thus, where a board of county commissioners is given the power of "approval" over the appointment of certain employees, such power is part of the "appointment" process, with-out which an appointment is not complete.

n2 R.C. 124.27 and R.C. 124.31 provide, in part, that the "appointing authority" is to make appointments to positions in the classified service from among the persons appearing on the list certified to it by the Director of Administrative Services. See generally R.C. 124.14(G)(2) (in a county that has established a county personnel department, the "board of county commissioners may, by a resolution adopted by a majority of its members, des-ignate the county personnel department of the county to exercise the powers, duties, and functions of the de-partment of administrative services and the director of administrative services specified in [R.C. 124.01-.64 and R.C. Chapter 325], except for the powers and duties of the state personnel board of review, which powers and duties shall not be construed as having been modified or diminished in any manner by division (G)(2) of this section, with respect to the employees for whom the board of county commissioners is the appointing authority or co-appointing authority").

[*9]

The foregoing analysis also applies to the situation about which you ask. R.C. 6117.01 authorizes the sanitary engi-neer, "with the approval of the board [of county commissioners]," to appoint employees of the sanitary engineering de-partment. Because the appointment of sanitary engineering department employees is not complete without the approval of the board of county commissioners, R.C. 6117.01, the sanitary engineer and the county commissioners jointly exer-cise the power of appointment of such employees. Although the county commissioners, in the appointment of sanitary engineering department employees, exercise only the power of approval, see Op. No. 83-023, that approval is an essen-tial part of the appointment process. Thus, both the sanitary engineer and the county commissioners are, for purposes of R.C. Chapter 124, the "appointing authority" of the employees of the sanitary engineering department. See generally R.C. 124.14(G)(2) (making reference to the board of county commissioners as an appointing authority or "co-appointing authority" of various county employees).

Your second question concerns the authority of the board of county commissioners to delegate to the sanitary [*10] engineer the board's responsibilities with respect to the personnel of the sanitary engineering department. The back-ground information you have provided suggests that the board of county commissioners would like to have the sanitary engineer exercise full authority, without oversight by the county commissioners, over the hiring of sanitary engineering department employees and the terms and conditions of their employment. For the reasons that follow, however, we con-



clude that the county commissioners are without authority to relinquish the duties imposed upon them by R.C. 6117.01 in regard to the sanitary engineering department.

Concerning the authority of a public body to delegate its duties, 1994 Op. Att'y Gen. No. 94-030 at 2-135, states:

It is a general rule that "the authority of a public body to delegate official duties to another entity, whether public or private, is limited, and, in the absence of specific statutory authority therefor, may only be exercised with respect to purely ministerial duties." 1987 Op. Att'y Gen. No. 87-083 at 2-558 n.1; ac-cord 1987 Op. Att'y Gen. No. 87-034 at 2-237; [*11] 1979 Op. Att'y Gen. No. 79-067 at 2-223. The rule is based on the presumption "that the General Assembly has delegated duties to a public body or agency named in a statute because that body or agency 'is deemed competent to exercise the judgment and discretion necessary for performance of the duties.'" Op. No. 87-083 at 2-559 n.1 (quoting Op. No. 79-067 at 2-223); accord Op. No. 87-034 at 2-237.

R.C. 6117.01 expressly provides for the involvement of the board of county commissioners in the establishment and operation of a sanitary engineering department in a variety of ways. We must, therefore, examine those duties in order to determine whether such duties are ministerial or discretionary in nature.

First, the board of county commissioners is authorized to establish a sanitary engineering department "for the pur-pose of aiding it in the performance of its duties under [R.C. 6117.01-.45], or its other duties regarding sanitation pro-vided by law." R.C. 6117.01 (emphasis added). In establishing a sanitary engineering department, the board of county commissioners is required to place such department "under its supervision." Id. As discussed above, [*12] R.C. 6117.01 specifically requires the county commissioners' approval in order to effect the appointment of sanitary engi-neering department employees. Moreover, R.C. 6117.01 expressly reserves the duty to fix and pay the compensation of the sanitary engineering department employees to the board of county commissioners, rather than the sanitary engineer. The scheme established by R.C. 6117.01, therefore, indicates that the General Assembly intended the county commis-sioners not only to exercise supervision of the entire sanitary engineering department, but also to discharge specific du-ties with respect to the appointment and compensation of sanitary engineering department employees. See generally Dorrian v. Scioto Conservancy Dist., 27 Ohio St. 2d 102, 271 N.E.2d 834 (1971) (syllabus, paragraph one) ("[i]In statu-tory construction, ... 'shall' shall be construed as mandatory unless there appears a clear and unequivocal legislative in-tent that they receive a construction other than their ordinary usage").

It is clear that supervision of the sanitary engineering department, approval of the appointment of department per-sonnel, and the determination [*13] of staff compensation involve the exercise of judgment and are, therefore, discre-tionary, rather than merely ministerial, acts. Accordingly, in the absence of express authorization by the General As-sembly to delegate the duties imposed upon the board of county commissioners by R.C. 6117.01 with respect to the board's supervision of the sanitary engineering department and its duties regarding department personnel, we must con-clude that the board of county commissioners may not delegate such duties to the person performing the duties of sani-tary engineer, or to anyone else. See CB Transportation, Inc. v. Butler County Bd. of Mental Retardation, 60 Ohio Misc. 71, 82, 397 N.E.2d 781, 788 (C.P. Butler County 1979) ("the presumption is that the board or officer whose judgment and discretion is required, was chosen because they were deemed fit and competent to exercise that judgment and dis-cretion and unless power to substitute another in their place has been given, such board or officer cannot delegate these duties to another").

Both your questions ask us to assume that the duties of the sanitary engineer are being performed by the county en-gineer [*14] pursuant to an agreement entered into with the county commissioners in accordance with R.C. 315.14. n3 Whether or not the county engineer is hired to act as sanitary engineer, however, the respective duties of the sanitary engineer and the county commissioners concerning the operation and personnel of the sanitary engineering department remain the same.

n3 See generally 1996 Op. Att'y Gen. No. 96-025 (syllabus) ("pursuant to R.C. 315.14, a board of county commissioners is authorized to enter into an agreement with the county engineer whereby the board compen-sates the county engineer for performing the duties of a county sanitary engineer").



The authority of the county commissioners to enter into an agreement with the county engineer for the performance of the duties of the sanitary engineer is established by R.C. 315.14, which describes various duties of the county engi-neer and states in pertinent part:

[The county engineer] shall make all surveys required by law and perform all necessary [*15] services to be performed by a registered surveyor or registered professional engineer in connection with the con-struction, repair, or opening of all county roads or ditches constructed under the authority of the board and shall perform such other duties as the board requires, provided that the duties described in [R.C. Chapters 343, 6103, and 6117] shall be performed only pursuant to an agreement between the county engineer and the board. The board shall determine the compensation for performance of the duties de-scribed in [R.C. Chapters 343, 6103, and 6117] and shall pay the county engineer from funds available under such chapters or from the general fund of the county. (Emphasis added.)

Accordingly, although R.C. 315.14 authorizes the board of county commissioners to assign the county engineer such other duties as it may prescribe, R.C. 315.14 specifically conditions the county engineer's performance of "the duties described in [R.C. Chapter 6117]" upon agreement between the county engineer and the county commissioners as to the performance of such duties.

Because one of the qualifications of the position of county engineer is that the person be a registered professional [*16] engineer, R.C. 315.02, and because the only qualification for the position of sanitary engineer is that the person be "a registered professional engineer," R.C. 6117.01, it is logical to assume that "the duties described in [R.C. Chapter 6117]" for which the county commissioners may engage the county engineer are those duties described in R.C. Chapter 6117 that are required to be performed by "a registered professional engineer." Whether or not the "registered profes-sional engineer" in charge of the sanitary engineering department is also the county engineer, R.C. 6117.01 requires the county commissioners to maintain the sanitary engineering department under its supervision. R.C. 6117.01 does not provide for the county engineer's assumption of the duties of the county commissioners when the county engineer is also appointed to serve as sanitary engineer. Moreover, nothing in R.C. 315.14 suggests that the General Assembly in-tended to permit the county commissioners to relinquish their duties under R.C. 6117.01 with respect to the sanitary engineering department when they appoint the county engineer to serve as the county's sanitary engineer. See generally City of Parma Heights v. Schroeder, 26 Ohio Op. 2d 119, 122, 196 N.E.2d 813, 816 (C.P. Cuyahoga County 1963) [*17] ("one cannot do indirectly what he cannot lawfully do directly"). We conclude, therefore, that R.C. 315.14 does not authorize the board of county commissioners to enter into an agreement with the county engineer whereby the county engineer will perform, in addition to the duties of the sanitary engineer, the duties imposed upon the county commissioners by R.C. 6117.01 regarding the operation and personnel of the sanitary engineering department.

Based on the foregoing, it is my opinion, and you are hereby advised that:

1. Pursuant to R.C. 6117.01, the registered professional engineer in charge of the county sanitary engi-neering department and the board of county commissioners are, for purposes of R.C. Chapter 124, the "appointing authority" of the employees of the sanitary engineering department. The authority of the county commissioners with respect to the appointment of sanitary engineering department employees is limited to approval of any such appointments. 2. R.C. 6117.01 does not permit the board of county commissioners to delegate to the person performing the duties of sanitary engineer, or to anyone else, the duties imposed upon the board by R.C. 6117.01 with respect [*18] to the supervision of the sanitary engineering department and the appointment and compensation of the department's personnel. 3. R.C. 315.14 does not authorize the board of county commissioners to enter into an agreement with the county engineer whereby the county engineer will perform, in addition to the duties of the sanitary engi-neer, the duties imposed upon the county commissioners by R.C. 6117.01 regarding the operation and personnel of the sanitary engineering department.

ODE Ex. F

1997 Ohio Op. Atty. Gen. No. 54

COMMUNITY SCHOOL STATUTES & REGULATIONS R.C. 3314.01(B)

(B) A community school created under this chapter is a public school, independent of any school district, and is part of the state’s program of education. A community school may sue and be sued, acquire facilities as needed, contract for any services necessary for the operation of the school, and enter into contracts with a sponsor pursuant to this chapter. The governing authority of a community school may carry out any act and ensure the performance of any function that is in compliance with the Ohio Constitution, this chapter, other statutes applicable to community schools, and the contract entered into under this chapter establishing the school.

R.C. 3314.014(A)

(A) As used in this chapter, “operator” means either of the following:

(1) An individual or organization that manages the daily operations of a community school pursuant to a contract between the operator and the school’s governing authority;

(2) A nonprofit organization that provides programmatic oversight and support to a community school under a contract with the school’s governing authority and that retains the right to terminate its affiliation with the school if the school fails to meet the organization’s quality standards.

R.C. 3314.02(E)(1)

(E)(1) As used in this division, “immediate relatives” are limited to spouses, children, parents, grandparents, siblings, and in-laws.

Each new start-up community school established under this chapter shall be under the direction of a governing authority which shall consist of a board of not less than five individuals.

No person shall serve on the governing authority or operate the community school under contract with the governing authority so long as the person owes the state any money or is in a dispute over whether the person owes the state any money concerning the operation of a community school that has closed.

R.C. 3314.024

A management company that provides services to a community school that amounts to more than twenty per cent of the annual gross revenues of the school shall provide a detailed accounting including the nature and costs of the services it provides to the community school. This information shall be included in the footnotes of the financial statements of the school and be subject to audit during the course of the regular financial audit of the community school.

ODE Ex. G Community School Statutes & Regulations 1

R.C. 3314.026

If the governing authority of a community school intends to terminate its contract with the school’s operator prior to expiration or intends not to renew that contract upon expiration, the governing authority shall notify the operator of that intent. The operator may appeal the contract termination or nonrenewal to the school’s sponsor, if the sponsor has sponsored the school for at least twelve months, or to the state board of education, if the sponsor has sponsored the school for less than twelve months. Upon appeal, the sponsor or state board shall determine whether the operator should continue to manage the school. In making its determination, the sponsor or state board shall consider whether the operator has managed the school in compliance with all applicable laws and terms of the contract between the sponsor and the governing authority entered into under section 3314.03 of the Revised Code and whether the school’s progress in meeting the academic goals prescribed in that contract has been satisfactory. The sponsor or state board shall notify the governing authority and operator of its determination. If the sponsor or state board determines that the operator should continue to manage the school, the sponsor shall remove the existing governing authority and the operator shall appoint a new governing authority for the school. The new governing authority shall assume responsibility for the school immediately and shall exercise all functions assigned to it by the Revised Code or rule in the same manner as any other community school governing authority.

R.C. 3314.03

A copy of every contract entered into under this section shall be filed with the superintendent of public instruction.

(A) Each contract entered into between a sponsor and the governing authority of a community school shall specify the following:

(1) That the school shall be established as either of the following:

(a) A nonprofit corporation established under Chapter 1702. of the Revised Code, if established prior to April 8, 2003;

(b) A public benefit corporation established under Chapter 1702. of the Revised Code, if established after April 8, 2003.

(2) The education program of the school, including the school’s mission, the characteristics of the students the school is expected to attract, the ages and grades of students, and the focus of the curriculum;

(3) The academic goals to be achieved and the method of measurement that will be used to determine progress toward those goals, which shall include the statewide achievement assessments;

(4) Performance standards by which the success of the school will be evaluated by the sponsor;


(5) The admission standards of section 3314.06 of the Revised Code and, if applicable, section 3314.061 of the Revised Code;

(6)(a) Dismissal procedures;

(b) A requirement that the governing authority adopt an attendance policy that includes a procedure for automatically withdrawing a student from the school if the student without a legitimate excuse fails to participate in one hundred five consecutive hours of the learning opportunities offered to the student.

(7) The ways by which the school will achieve racial and ethnic balance reflective of the community it serves;

(8) Requirements for financial audits by the auditor of state. The contract shall require financial records of the school to be maintained in the same manner as are financial records of school districts, pursuant to rules of the auditor of state. Audits shall be conducted in accordance with section 117.10 of the Revised Code.

(9) The facilities to be used and their locations;

(10) Qualifications of teachers, including the following:

(a) A requirement that the school’s classroom teachers be licensed in accordance with sections 3319.22 to 3319.31 of the Revised Code, except that a community school may engage noncertificated persons to teach up to twelve hours per week pursuant to section 3319.301 of the Revised Code;

(b) A requirement that each classroom teacher initially hired by the school on or after July 1, 2013, and employed to provide instruction in physical education hold a valid license issued pursuant to section 3319.22 of the Revised Code for teaching physical education.

(11) That the school will comply with the following requirements:

(a) The school will provide learning opportunities to a minimum of twenty-five students for a minimum of nine hundred twenty hours per school year.

(b) The governing authority will purchase liability insurance, or otherwise provide for the potential liability of the school.

(c) The school will be nonsectarian in its programs, admission policies, employment practices, and all other operations, and will not be operated by a sectarian school or religious institution.

(d) The school will comply with sections 9.90, 9.91, 109.65, 121.22, 149.43, 2151.357, 2151.421, 2313.18, 3301.0710, 3301.0711, 3301.0712, 3301.0715, 3313.472, 3313.50, 3313.536, 3313.608, 3313.6012, 3313.6013, 3313.6014, 3313.6015, 3313.643, 3313.648, 3313.66, 3313.661, 3313.662, 3313.666, 3313.667, 3313.67, 3313.671, 3313.672, 3313.673, 3313.69,


3313.71, 3313.716, 3313.718, 3313.719, 3313.80, 3313.814, 3313.816, 3314.817, 3313.86, 3313.96, 3319.073, 3319.321, 3319.39, 3319.391, 3319.41, 3321.01, 3321.041, 3321.13, 3321.14, 3321.17, 3321.18, 3321.19, 3321.191, 3327.10, 4111.17, 4113.52, and 5705.391 and Chapters 117., 1347., 2744., 3365., 3742., 4112., 4123., 4141., and 4167. of the Revised Code as if it were a school district and will comply with section 3301.0714 of the Revised Code in the manner specified in section 3314.17 of the Revised Code.

(e) The school shall comply with Chapter 102. and section 2921.42 of the Revised Code.

(f) The school will comply with sections 3313.61, 3313.611, and 3313.614 of the Revised Code, except that for students who enter ninth grade for the first time before July 1, 2010, the requirement in sections 3313.61 and 3313.611 of the Revised Code that a person must successfully complete the curriculum in any high school prior to receiving a high school diploma may be met by completing the curriculum adopted by the governing authority of the community school rather than the curriculum specified in Title XXXIII of the Revised Code or any rules of the state board of education. Beginning with students who enter ninth grade for the first time on or after July 1, 2010, the requirement in sections 3313.61 and 3313.611 of the Revised Code that a person must successfully complete the curriculum of a high school prior to receiving a high school diploma shall be met by completing the Ohio core curriculum prescribed in division (C) of section 3313.603 of the Revised Code, unless the person qualifies under division (D) or (F) of that section. Each school shall comply with the plan for awarding high school credit based on demonstration of subject area competency, adopted by the state board of education under division (J) of section 3313.603 of the Revised Code.

(g) The school governing authority will submit within four months after the end of each school year a report of its activities and progress in meeting the goals and standards of divisions (A)(3) and (4) of this section and its financial status to the sponsor and the parents of all students enrolled in the school.

(h) The school, unless it is an internet- or computer-based community school, will comply with sections 3313.674 and 3313.801 of the Revised Code as if it were a school district.

(12) Arrangements for providing health and other benefits to employees;

(13) The length of the contract, which shall begin at the beginning of an academic year. No contract shall exceed five years unless such contract has been renewed pursuant to division (E) of this section.

(14) The governing authority of the school, which shall be responsible for carrying out the provisions of the contract;

(15) A financial plan detailing an estimated school budget for each year of the period of the contract and specifying the total estimated per pupil expenditure amount for each such year. The plan shall specify for each year the base formula amount that will be used for purposes of funding calculations under section 3314.08 of the Revised Code. This base formula amount for any year shall not exceed the formula amount defined under section 3317.02 of the Revised


Code. The plan may also specify for any year a percentage figure to be used for reducing the per pupil amount of the subsidy calculated pursuant to section 3317.029 of the Revised Code the school is to receive that year under section 3314.08 of the Revised Code.

(16) Requirements and procedures regarding the disposition of employees of the school in the event the contract is terminated or not renewed pursuant to section 3314.07 of the Revised Code;

(17) Whether the school is to be created by converting all or part of an existing public school or educational service center building or is to be a new start-up school, and if it is a converted public school or service center building, specification of any duties or responsibilities of an employer that the board of education or service center governing board that operated the school or building before conversion is delegating to the governing authority of the community school with respect to all or any specified group of employees provided the delegation is not prohibited by a collective bargaining agreement applicable to such employees;

(18) Provisions establishing procedures for resolving disputes or differences of opinion between the sponsor and the governing authority of the community school;

(19) A provision requiring the governing authority to adopt a policy regarding the admission of students who reside outside the district in which the school is located. That policy shall comply with the admissions procedures specified in sections 3314.06 and 3314.061 of the Revised Code and, at the sole discretion of the authority, shall do one of the following:

(a) Prohibit the enrollment of students who reside outside the district in which the school is located;

(b) Permit the enrollment of students who reside in districts adjacent to the district in which the school is located;

(c) Permit the enrollment of students who reside in any other district in the state.

(20) A provision recognizing the authority of the department of education to take over the sponsorship of the school in accordance with the provisions of division (C) of section 3314.015 of the Revised Code;

(21) A provision recognizing the sponsor’s authority to assume the operation of a school under the conditions specified in division (B) of section 3314.073 of the Revised Code;

(22) A provision recognizing both of the following:

(a) The authority of public health and safety officials to inspect the facilities of the school and to order the facilities closed if those officials find that the facilities are not in compliance with health and safety laws and regulations;

(b) The authority of the department of education as the community school oversight body to suspend the operation of the school under section 3314.072 of the Revised Code if the


department has evidence of conditions or violations of law at the school that pose an imminent danger to the health and safety of the school’s students and employees and the sponsor refuses to take such action;

(23) A description of the learning opportunities that will be offered to students including both classroom-based and non-classroom-based learning opportunities that is in compliance with criteria for student participation established by the department under division (L)(2) of section 3314.08 of the Revised Code;

(24) The school will comply with sections 3302.04 and 3302.041 of the Revised Code, except that any action required to be taken by a school district pursuant to those sections shall be taken by the sponsor of the school. However, the sponsor shall not be required to take any action described in division (F) of section 3302.04 of the Revised Code.

(25) Beginning in the 2006-2007 school year, the school will open for operation not later than the thirtieth day of September each school year, unless the mission of the school as specified under division (A)(2) of this section is solely to serve dropouts. In its initial year of operation, if the school fails to open by the thirtieth day of September, or within one year after the adoption of the contract pursuant to division (D) of section 3314.02 of the Revised Code if the mission of the school is solely to serve dropouts, the contract shall be void.

(B) The community school shall also submit to the sponsor a comprehensive plan for the school. The plan shall specify the following:

(1) The process by which the governing authority of the school will be selected in the future;

(2) The management and administration of the school;

(3) If the community school is a currently existing public school or educational service center building, alternative arrangements for current public school students who choose not to attend the converted school and for teachers who choose not to teach in the school or building after conversion;

(4) The instructional program and educational philosophy of the school;

(5) Internal financial controls.

(C) A contract entered into under section 3314.02 of the Revised Code between a sponsor and the governing authority of a community school may provide for the community school governing authority to make payments to the sponsor, which is hereby authorized to receive such payments as set forth in the contract between the governing authority and the sponsor. The total amount of such payments for oversight and monitoring of the school shall not exceed three per cent of the total amount of payments for operating expenses that the school receives from the state.


(D) The contract shall specify the duties of the sponsor which shall be in accordance with the written agreement entered into with the department of education under division (B) of section 3314.015 of the Revised Code and shall include the following:

(1) Monitor the community school’s compliance with all laws applicable to the school and with the terms of the contract;

(2) Monitor and evaluate the academic and fiscal performance and the organization and operation of the community school on at least an annual basis;

(3) Report on an annual basis the results of the evaluation conducted under division (D)(2) of this section to the department of education and to the parents of students enrolled in the community school;

(4) Provide technical assistance to the community school in complying with laws applicable to the school and terms of the contract;

(5) Take steps to intervene in the school’s operation to correct problems in the school’s overall performance, declare the school to be on probationary status pursuant to section 3314.073 of the Revised Code, suspend the operation of the school pursuant to section 3314.072 of the Revised Code, or terminate the contract of the school pursuant to section 3314.07 of the Revised Code as determined necessary by the sponsor;

(6) Have in place a plan of action to be undertaken in the event the community school experiences financial difficulties or closes prior to the end of a school year.

(E) Upon the expiration of a contract entered into under this section, the sponsor of a community school may, with the approval of the governing authority of the school, renew that contract for a period of time determined by the sponsor, but not ending earlier than the end of any school year, if the sponsor finds that the school’s compliance with applicable laws and terms of the contract and the school’s progress in meeting the academic goals prescribed in the contract have been satisfactory. Any contract that is renewed under this division remains subject to the provisions of sections 3314.07, 3314.072, and 3314.073 of the Revised Code.

(F) If a community school fails to open for operation within one year after the contract entered into under this section is adopted pursuant to division (D) of section 3314.02 of the Revised Code or permanently closes prior to the expiration of the contract, the contract shall be void and the school shall not enter into a contract with any other sponsor. A school shall not be considered permanently closed because the operations of the school have been suspended pursuant to section 3314.072 of the Revised Code. Any contract that becomes void under this division shall not count toward any statewide limit on the number of such contracts prescribed by section 3314.013 of the Revised Code.


Adm. Code 3301-102-02(M)

(M) “Governing authority” means a board of not less than five individuals who are charged with the responsibility of establishing policies and procedures for the operation and management of a new start-up or conversion community school and responsible for carrying out all of the provisions of a community school contract.


Documents

ODE MSJ Hope v White Hat