In Ohio, a school district’s authority to terminate a teacher’s employment through action by its Board is governed by ORC 3319.16. Pursuant to the statute, a teacher may only be terminated for “good and just cause.” Moreover, a Board may only follow through with the termination after sending advance notice of “its intention to consider the termination of the teacher’s contract with full specifications of the grounds for such consideration” to the affected teacher. A teacher then has ten days to demand an administrative hearing before the Board or a third-party referee. If the hearing is selected and goes forward before a referee, the Board then considers the referee’s findings and determines whether the teacher’s actions warrant termination. Although a Board is not bound by the referee’s determination, it must take the referees findings of fact as true unless it finds “they were unsupported by the greater weight of the evidence.”
Recently, Ohio’s 11th District Court of Appeals made several clarifications as to what is required for a Board when proceeding with a teacher-contract termination when a hearing referee’s recommendation is not to terminate the contract. In Ellsworth v. Streetsboro City Sch. Dist. Bd. of Educ., 2019-Ohio-4731 (11th Dist.), two Ohio teachers were suspected of facilitating and promoting hazing of underclass music students at summer band camp.[1] Following the allegations, Streetsboro City School District Board (“the Board”) initiated an investigation. After the investigation was completed, the Board served the teachers a notice of their intention to terminate. The two teachers promptly demanded a hearing in front of a referee pursuant to ORC 3319.16.
At the hearing, the referee found that all of the facts surrounding the allegations against the teachers were true, but did not believe any of the teacher’s actions amounted to a “fairly serious matter or good and just cause for termination," nor did it create a “substantial risk of mental or physical harm,” and thus, did not constitute hazing. The Board disagreed and found that the referee’s determinations were against the greater weight of the evidence. The Board terminated the teachers, indicating that the teachers’ actions amounted to hazing and thus termination was justified. The teachers timely appealed. The 11th District affirmed the Board’s decision.
First, the court affirmed that the Board’s authority to terminate a teacher’s employment under ORC 3319.16 is composed of two parts: “(1) they must consider the referee’s factual findings related to the allegations; and (2) the board makes a judgment as to whether the facts, as found by the referee, constitute good cause for termination.” Therefore, while the Board may not disagree with the referee’s factual findings unless they are against the greater weight of the evidence, i.e. by a preponderance of the evidence, the Board is not bound to the disciplinary recommendation of the hearing officer. In that regard, the court determined that whether certain actions constituted “hazing” was a factual determination, but nevertheless, found that the Board proved the referee’s determination that the teachers' actions were not hazing was against the greater weight of the evidence because the teachers’ ratified the students’ activities by allowing them to continue for over twelve years.
Next, the court reasoned that the referee erred when he used the “Daugherty test” in his evaluation as to whether “good and just cause” existed.[2] The court ruled that the Daugherty test – a test frequently used in employment termination disputes - is particularly inapplicable in a teacher-contract termination case because “good and just cause” is not an undefined term under ORC 3319.16; it has been defined through prior case law. The court cited other Ohio courts and determined that “good and just cause” under ORC 3319.16 has been defined as “a fairly serious matter which includes matters that are hostile to the school community, including conduct that could have a negative impact on students or their parents.”
Finally, the court explained that a showing of “good and just case” only requires “flagrant, severe, or persistent misconduct” when the case involves only a single instance of misconduct or did not affect the health or safety of the kids. Thus, the Board was free to consider that the referee incorrectly viewed each of the teachers’ actions in isolation and determined that, taken as a whole, the teachers’ conduct amounted to “good and just cause” for termination.
The Ellsworth decision is useful in that it provides clear guidance on the definition of “good and just cause” in teacher-contract termination matters, and expressly rules inapplicable the “Daugherty test” when analyzing a case under ORC 3319.16. Notably, a Board can take all a teacher’s actions, as a whole, into account when determining whether the conduct amounts to a fairly serious matter which includes matters that negatively impact students or their parents. If you have any questions concerning this decision, or teacher contract terminations in general, or any other issue involving rights and liabilities of educational institutions and students, please call any member of Reminger’s Education Law Liability Practice Group.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.
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[1] Among the allegations of hazing were that the teachers allowed demeaning skits to be acted out by the students, underclassmen had to wake up in the middle of the night to clean up after upperclassmen, underclassmen were forced or pushed into the lake, and underclassmen would be wrapped together with saran wrap; at least once unwillingly. ⁋ 20-25
[2] The “Daugherty test” is commonly used by labor arbitrators in employment termination disputes. The test analyzes seven factor to determine whether “just cause” exists for terminating a contract. Although the referee in Ellsworth didn’t refer to any of the seven factors, he cited the Daugherty test as the controlling test adopted by the Ohio Supreme Court, and that, in sum, the Daugherty test asks whether “(1) the alleged actions upon which the proposed discipline is based has been adequately established by the evidence; and (2) if so established, whether the proposed discipline to be imposed is reasonable in light of the nature and gravity of the alleged actions and any mitigating circumstance.” ⁋ 38.
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