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Employment Termination: How to Fire an Employee - Ohio School

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OSBA Capital Conference & Trade Show
OCSBA School Law Seminar
Greater Columbus Convention Center
November 9, 2010
Employment Termination:
How to Fire an Employee
Daniel McIntyre
1111 Superior Avenue
Suite 1025
Cleveland, OH 44114
216 621 5900 t
216 621 5901 f
Separate Statutory Grounds
Separate statutes specify that a licensed educator's contract may be terminated or
suspended for good and just case, willfully belonging to an organization that advocates
overthrow of the U.S. or state government by force or violence; falsification of a sick or
assault leave statement; and assisting a student in cheating on a statewide achievement
Two primary statutes, O.R.C. §§ 3319.081 and 124.34, control the termination of
nonteaching employees. O.R.C. В§ 3319.081 applies to nonteaching employees in noncivil service school districts. O.R.C. В§ 124.34 applies to classified employees in civil
service school districts.
O.R.C. § 3319.16 – Termination of contract by board of education
“The contract of any teacher employed by the board of education of any
city, exempted village, local, county, or joint vocational school district
may not be terminated except for good and just cause.”
O.R.C. В§ 124.36 - Membership in organization advocating overthrow
of government, cause for removal; termination of teacher's contract
“It shall be sufficient cause for the removal of any public employees
including teachers in the public schools or any state supported educational
institution when such public employee or teacher advocates or willfully
retains membership in an organization which advocates overthrow of the
government of the United States or of the state, by force, violence or other
unlawful means.”
O.R.C. § 3319.141 – Sick leave
“Falsification of a statement is grounds for suspension or termination of
employment under sections 3319.081 and 3319.16 of the Revised Code. No sick
leave shall be granted or credited to a teacher after his retirement or termination
of employment.”
O.R.C. § 3319.143 – Assault leave granted
“Falsification of either a signed statement or a physician's certificate is ground
for suspension or termination of employment under section 3319.16 of the
Revised Code.”
O.R.C. В§ 3319.151 - Assisting student in cheating on proficiency assessment
“(A) No person shall reveal to any student any specific question that the person
knows is part of an assessment to be administered under section 3301.0711 of the
Revised Code or in any other way assist a pupil to cheat on such an assessment.”
“(C) (2) Violation of division (A) of this section is grounds for termination of a
teacher contract under section 3319.16 of the Revised Code.”
O.R.C. В§ 3319.081
“The contracts as provided for in this section may be terminated by a
majority vote of the board of education. Except as provided in section
3319.172 of the Revised Code, the contracts may be terminated only for
violation of written rules and regulations as set forth by the board of
education or for incompetency, inefficiency, dishonesty, drunkenness,
immoral conduct, insubordination, discourteous treatment of the public,
neglect of duty, or any other acts of misfeasance, malfeasance, or
nonfeasance. In addition to the right of the board of education to terminate
the contract of an employee, the board may suspend an employee for a
definite period of time or demote the employee for the reasons set forth in
this division.”
O.R.C. В§ 124.34
“The tenure of every officer or employee in the classified service of the
state and the counties, civil service townships, cities, city health districts,
general health districts, and city school districts of the state, holding a
position under this chapter, shall be during good behavior and efficient
service. No officer or employee shall be reduced in pay or position, fined,
suspended, or removed, or have the officer's or employee's longevity
reduced or eliminated, except as provided in section 124.32 of the Revised
Code, and for incompetency, inefficiency, dishonesty, drunkenness,
immoral conduct, insubordination, discourteous treatment of the public,
neglect of duty, violation of any policy or work rule of the officer's or
employee's appointing authority, violation of this chapter or the rules of
the director of administrative services or the commission, any other failure
of good behavior, any other acts of misfeasance, malfeasance, or
nonfeasance in office, or conviction of a felony.”
The Impact of HB 1 (2009)
House Bill 1 (2009) eliminated "gross inefficiency or immorality" and "willful and
persistent violations of reasonable regulations of the board of education" as statutory
grounds for termination of an educator's employment contract. It specifically retained
"good and just cause" as statutory grounds for termination, removing also the modifying
word "other." The act did not affect the other separate statutory grounds for termination
or suspension of an educator's employment contract discussed in the preceding section.
Nor did the act affect the statutory due process procedures.
The act states, however, that its changes to the grounds for termination of an educator's
employment contract prevail over conflicting provisions of a collective bargaining
agreement entered into after the amendment's effective date, namely, October 16, 2009.
Procedural Requirements for Termination of Teacher’s Employment
The following is a step-by-step breakdown of each of the procedural requirements of
O.R.C. В§ 3319.16:
Step 1 - Notice
Before terminating any contract, the board shall furnish the teacher a
written notice signed by its treasurer of its intention to consider the
termination of the teacher's contract with full specification of the grounds
for such consideration.
Step 2 - Determination of Suspension
The board may suspend a teacher pending final action to terminate the
teacher's contract if, in its judgment, the character of the charges warrants
such action.
Step 3 – Waiting Period
Not counting the day that the teacher receives the written notice described
in Step 1, the board shall wait at least 10 more days before proceeding
with a resolution to terminate the teacher’s employment.
Step 4 – Demand for Hearing
Within ten days after receipt of the Step 1 notice, the teacher may file with
the treasurer a written demand for a hearing before the board or before a
Step 5 – Scheduling of Hearing
If the board is demanded as the venue for the hearing, the board shall set a
time for the hearing which shall be within thirty (30) days from the date of
receipt of the written demand, and the treasurer shall give the teacher at
least twenty days' notice in writing of the time and place of the hearing.
If a referee is demanded, the treasurer also shall give twenty (20) days'
notice to the superintendent of public instruction.
If the teacher files a demand for hearing before the board, the board has
the right to request that the matter be heard by a referee.
Step 6 – Characteristics of the Hearing
No hearing shall be held during the summer vacation without the teacher's
The hearing shall be confined to the grounds given for the termination.
The hearing shall be private unless the teacher requests a public hearing.
The board shall provide for a complete stenographic record of the
proceedings, a copy of the record to be furnished to the teacher.
Both parties may be present at such hearing, be represented by counsel,
require witnesses to be under oath, cross-examine witnesses, take a record
of the proceedings, and require the presence of witnesses in their behalf
upon subpoena to be issued by the treasurer of the board.
In case of the failure of any person to comply with a subpoena, a judge of
the court of common pleas of the county in which the person resides, upon
application of any interested party, shall compel attendance of the person
by attachment proceedings as for contempt.
Any member of the board or the referee may administer oaths to
Step 7 – The Report of the Referee
After a hearing by a referee, the referee shall file a report within ten days
after the termination of the hearing.
Step 8 – The Board’s Review of Referee’s Report
After consideration of the referee's report, the board, by a majority vote,
may accept or reject the referee's recommendation on the termination of
the teacher's contract.
Step 9 – The Board’s Decision (if Board conducted the hearing)
After a hearing by the board, the board, by majority vote, may enter its
determination upon its minutes.
Step 10 – Content of Board’s Resolution regarding Termination
Any order of termination of a contract shall state the grounds for
Step 11 – Expunging the Record if Termination is not Ordered
If the decision, after hearing, is against termination of the contract, the
charges and the record of the hearing shall be physically expunged from
the minutes, and, if the teacher has suffered any loss of salary by reason of
being suspended, the teacher shall be paid the teacher's full salary for the
period of such suspension.
Step 12 – Appeal by Teacher
Any teacher affected by an order of termination of contract may appeal to
the court of common pleas of the county in which the school is located
within thirty (30) days after receipt of notice of the entry of such order.
The appeal shall be an original action in the court and shall be commenced
by the filing of a complaint against the board, in which complaint the facts
shall be alleged upon which the teacher relies for a reversal or
modification of such order of termination of contract.
Upon service or waiver of summons in that appeal, the board immediately
shall transmit to the clerk of the court for filing a transcript of the original
papers filed with the board, a certified copy of the minutes of the board
into which the termination finding was entered, and a certified transcript
of all evidence adduced at the hearing or hearings before the board or a
certified transcript of all evidence adduced at the hearing or hearings
before the referee, whereupon the cause shall be at issue without further
pleading and shall be advanced and heard without delay.
The court shall examine the transcript and record of the hearing and shall
hold such additional hearings as it considers advisable, at which it may
consider other evidence in addition to the transcript and record.
Step 13 – Decision by Common Pleas Court
Upon final hearing, the court shall grant or deny the relief prayed for in
the complaint as may be proper in accordance with the evidence adduced
in the hearing.
Step 14 – Appeal of Common Pleas Court’s Decision
Either the teacher or the board may appeal from the decision of the court
of common pleas pursuant to the Rules of Appellate Procedure and, to the
extent not in conflict with those rules, Chapter 2505 of the Ohio Revised
Procedural Requirements for Termination of Nonteacher’s Employment
O.R.C. В§ 3319.081
Step 1 - Notice
Before terminating any contract, the board shall furnish the
nonteaching employee a written notice of the Board’s intent to
consider the termination of the nonteacher's contract with full
specification of the grounds for such consideration.
Step 2 – Pre-termination Due Process/Opportunity to Respond
to the Charges and to be Represented
The principles of due process must be observed in the termination
process, which require that the nonteaching employee be given an
opportunity to be respond to the charges prior to separation from
employment. The board should provide an explanation of its
evidence relating to the employee’s alleged misconduct. The
board should also provide the nonteaching employee with an
opportunity to be represented in any such meeting or hearing.
Step 3 – Delivery of Notice of Termination
The action of the board of education terminating the contract of a
nonteaching employee or suspending or demoting the employee
shall be served upon the employee by certified mail.
Step 4 – Appeal by Nonteaching Employee
Within ten days following the receipt of such notice by the
employee, the employee may file an appeal, in writing, with the
court of common pleas of the county in which such school board is
situated. After hearing the appeal the common pleas court may
affirm, disaffirm, or modify the action of the school board. The
board should also provide the nonteaching employee with an
opportunity to be represented in any such meeting or hearing.
O.R.C. В§ 124.34 (Non-Probationary Civil Service Employees)
Step 1 – Notice
The board is required to furnish the employee an order setting forth
the reasons for the removal.
Step 2 – Pre-termination Due Process
Prior to the actual removal of the employee, the board should
provide an opportunity for the employee to respond to the charges
and explain himself before the board or an appropriate
administrative officer. The board should provide an explanation of
its evidence relating to the employee’s alleged misconduct.
Step 3 – Order of Removal
The board shall serve the employee with a copy of the order of removal,
which order shall state the reasons for the termination of the nonteaching
employee’s discharge.
Step 4 – Appeal by Employee
An employee who has received an order of removal may appeal to
the civil service commission. Such appeal may be taken even
though the employer has failed to file an order of removal with the
commission. The appeal must be in writing and filed within ten
days (10) from the filing of the order.
Step 5 – Appeal Hearing
A hearing on the appeal must be conducted within thirty days.
Either the employer or employee may appeal the decision of the
civil service commission to the court of common pleas in a
procedure prescribed by statute.
What is Good and Just Cause: Using Arbitral Decisions as a Guide
The standard of "good cause" or just cause "mandates that the punishment
assessed be reasonable in light of all the circumstances." City of Portland,
77 Lab. Arb. Rep. (BNA) 820, 824 (Axon, 1981). The just cause standard
cannot be defined absolutely, as has generally recognized for a long time.
In applying the test of "just cause," labor determine two factors: (1) has
the act of misconduct, offense or dereliction of duty, upon which the
discipline administered was grounded, been adequately established by the
proof; and (2) if proven, or admitted, the reasonableness of the
disciplinary penalty imposed in the light of the nature, character, gravity,
and any mitigating circumstances thereof. Bevill State Community
College, 121 Lab. Arb. Rep. (BNA) 609, 616-617 (Howell, 2005).
The basic elements of "just cause" which different arbitrators have
emphasized have been reduced by Arbitrator Carroll R. Daugherty to
seven tests. The seven tests for "just cause" are:
1. NOTICE: "Did the Employer give to the employee forewarning
or foreknowledge of the possible or probable consequences of the
employee's disciplinary conduct?" A fundamental component of
the just cause standard is that employees must be told what kind of
conduct will lead to discipline--especially if the penalty is to be
discharge. On the other hand, common sense should tell employees
that some misconduct is so serious that summary discharge for the
first offense is likely to result.
2. REASONABLE RULE OR ORDER: "Was the Employer's rules
or managerial order reasonably related to (a) the orderly, efficient,
and safe operation of the Employer's business, and (b) the
performance that the Employer might properly expect of the
employee?" However, rules must be reasonable not only in their
content but also in their application.
3. INVESTIGATION: "Did the Employer, before administering
the discipline to an employee, make an effort to discover whether
the employee did in fact violate or disobey a rule or order of
management?" Arbitrators with few exceptions have taken the
position that the employer must observe certain basic standards of
fairness in dealing with employees. This has been called a "version
of due process." Therefore, in most circumstances, the employee
should be talked with before proposing and/or effecting
disciplinary action.
4. FAIR INVESTIGATION: "Was the Employer's investigation
conducted fairly and objectively?" For an investigation to be
successful (from the point of view of both proof and due process),
it must be objective. For it to be objective, someone from
management must make sure that as much available evidence as
possible is collected and that evidence gets a careful look. And for
a disinterested evaluation to be conducted, some management
official other than the supervisor who imposed discipline is
generally required.
5. PROOF: "At the investigation, did the Employer obtain
substantial evidence or proof that the employee was guilty as
charged?" The Employer must supply convincing evidence that the
employee committed the offense for which he/she was discharged.
A discharge cannot be based upon conjecture, surmise, suspicion,
or anything but hard, material, and known facts. (See Borden's
Farm Products, Inc., 3 Lab. Arb. Rep. (BNA) 607 ).
6. EQUAL TREATMENT: "Has the Employer applied its rules,
orders and penalties even-handedly and without discrimination to
all employees?" This means that two employees who have
committed the same offense, and when everything else (past
record, etc.) is comparable, they must receive the same penalty, in
either summary discharge or progressive discipline steps.
Inconsistent or discriminatory treatment is when one employee is
given a more severe penalty for the same offense than another
employee when everything else is the same.
7. PENALTY: "Was the degree of discipline administered by the
Employer in a particular case reasonably related to (a) the
seriousness of the employee's proven offense, and (b) the record of
the employee in his/her service with the Employer? Were there any
mitigating circumstances?" It is said to be "axiomatic that the
degree of penalty should be in keeping with the seriousness of the
offense." (See Capital Airlines, 25 Lab. Arb. Rep. (BNA) 13 ). In
cases of extremely serious offenses, arbitrators are usually willing
to recognize the need for enforcing penalties that meet the
seriousness of the offense, including summary discharge. (See
Essroc Materials, 99 Lab. Arb. Rep. (BNA) 664). In the less serious
cases, arbitrators prefer to apply progressive discipline, and/or
modify disciplinary penalties imposed by management when there
are mitigating circumstances.
See Summit Cty. Children Services Bd. v. Communication Workers of America,
Local 4546, 113 Ohio St. 3d 291; 2007 Ohio 1949; 865 N.E.2d 31; 2007 Ohio
LEXIS 1129 (2007) (The Ohio Supreme Court determines that arbitrator’s use of
Daugherty test was justified).
Grounds for Termination Considered by Ohio Courts - Teachers
Good and Just Cause
What constitutes "good and just cause" under O.R.C. 3319.16 depends on
the context and the unique facts of each case. Consideration of the
teacher’s history of repeated insubordination and classroom-management
deficiencies, along with the current acts of misconduct of using
unreasonable force to discipline a fifth-grade student (i.e., taking the
student by the arm, forcing the student to stand, pulling the student to the
front of the classroom, and moving the student’s head toward the video
being viewed in the classroom), amounted to good and just cause for
terminating the teacher’s contract of employment. Lanzo v. Campbell City
Sch. Dist. Bd. of Educ., 2010 Ohio 4779; 2010 Ohio App. LEXIS 4039
The board's determination that a teacher's inappropriate conduct provided
good and just cause for termination was not a clear abuse of its authority.
Oleske v. Hilliard City Sch. Dist. Bd. of Educ., 146 Ohio App. 3d 57, 764
N.E.2d 1110, 2001 Ohio App. LEXIS 4298 (2001).
An adulterous affair by an associate superintendent with another employee
was not grounds for termination absent evidence that it created hostility in
the school community or had a serious impact on the administrator's
professional duties. Because of the potential abuse of the standard that the
administrator is a role model for children, that standard should not be
used. Bertolini v. Whitehall City Sch. Dist. Bd. of Educ., 139 Ohio App. 3d
595, 744 N.E.2d 1245, 2000 Ohio App. LEXIS 4401 (2000).
After adjudication that renewal of a teaching contract is required by law,
the school board may terminate the contract on the statutory ground of
gross inefficiency, based on inefficiency existing before the renewal.
Sylvania Edn. Assn. v. Sylvania City Schools, 44 Ohio App. 3d 140, 541
N.E.2d 1060 (1988).
When, as part of a labor dispute, a teacher willfully and deliberately
refuses, over a period of several days, to report for work and to perform
the various duties set forth in the contract of employment, while ignoring a
school board's order to return to work, this constitutes "other good and just
cause" for the termination of the teaching contract within the meaning of
O.R.C. В§ 3319.16. Wheeler v. Mariemont Dist. Bd. of Edn., 12 Ohio App.
3d 102, 467 N.E.2d 552 (1983).
In order to justify termination of a contract of a teacher or superintendent
pursuant to O.R.C. В§ 3319.16, insubordinate conduct must be of a similar
nature and gravity as willful and persistent violation of board regulations,
and inefficiency must be gross, which means flagrant, extreme or
complete. Rumora v. Board of Ed. of Ashtabula, 43 Ohio Misc. 48, 335
N.E.2d 378 (CP 1973).
Where a teacher knows that the fender of the automobile that he is driving
has had a slight collision with the fender of an unoccupied parked
automobile but denies this to a witness and to a police officer and leaves
the scene of the collision without stopping and leaving his name and
address, and is convicted under a city ordinance for doing so, such
conduct, together with some inefficient but not grossly inefficient
classroom conduct, will not amount to cause for terminating his contract
as a teacher: Hale v. Board of Education, 13 Ohio St. 2d 92, 234 N.E.2d
583 (1968).
The discharge of a school teacher upon the sole basis that he wrote two
private letters containing vulgar language contravenes a constitutionallyprotected area of freedom of speech and right of privacy and is contrary to
law, in the absence of evidence showing some public injury: Jarvella v.
Board of Education, 12 Ohio Misc. 288, 233 N.E.2d 143 (CP 1967).
Immorality & Gross Inefficiency under Previous Version of O.R.C. В§
In order to constitute "immorality" and "good and just cause" within the
meaning of those terms of O.R.C. В§ 3319.16, as it relates to the
termination of a teacher's contract, the conduct complained of must be
hostile to the school community and cannot be some private act which has
no impact on the teacher's professional duties. Florian v. Highland Local
Bd. of Edn., 24 Ohio App. 3d 41, 493 N.E.2d 249 (1983).
The term "immorality" given as a ground for dismissing a public school
teacher in this section refers to conduct which is hostile to the welfare of
the school community: Jarvella v. Board of Education, 12 Ohio Misc.
288, 233 N.E.2d 143 (CP 1967).
A board of education has jurisdiction to terminate a continuing contract of
a teacher pursuant to the provisions of this section, on the ground of the
teacher's gross inefficiency, even though such ground is based solely upon
the conduct of the teacher prior to the effective date of such contract,
provided such inefficiency was existent at the time of termination, even
though no opportunity had been given for teaching thereunder. Fowler v.
Young, 77 Ohio App. 20, 65 N.E.2d 399 (1945).
Grounds for Termination Considered by Ohio Courts – Nonteachers
O.R.C. В§ 3319.081
When a board of education fails to conduct a full hearing, complete with
transcript (RC В§ 2506.03), in terminating a nonteaching employee's
contract, it is the same as if that board did nothing, and its judgment is
void ab initio. In re Sergent, 49 Ohio Misc. 36, 360 N.E.2d 761 (CP
Trial court was required to consider the whole record, including any new
or additional evidence, in determining whether an administrative decision
was unconstitutional, illegal, arbitrary, capricious, unreasonable, or
unsupported by a preponderance of the evidence, and, thus, its failure to
consider either the employee's affidavit regarding her termination or the
transcript of the termination hearing because the board did not file it meant
that the trial court's judgment upholding the decision to terminate the
employee had to be reversed and the case had to be remanded for further
proceedings. Bay v. Gallia-Vinton Educ. Serv. Ctr., 2003 Ohio App.
LEXIS 6665, 2003 Ohio 7335, (2003).
O.R.C. В§ 124.34 (Non-Probationary Civil Service Employees)
Employee was properly removed where he used his state position to
engage in a fraudulent act, violated employer standards concerning
computer usage, and was untruthful during the investigation. He did not
provide sufficient evidence of disparate treatment. Long v. Ohio Dep't of
Job & Family Servs., 180 Ohio App. 3d 772, 907 N.E.2d 373, 2009 Ohio
App. LEXIS 519, 2009 Ohio 643, (2009).
The dishonesty for which removal of a civil service employee may be
justified under O.R.C. В§ 124.34 need not be job-related or the basis for
criminal punishment. Watson v. Schwenker, 8 Ohio App. 3d 294, 456
N.E.2d 1243 (1982).
Revised Code В§ 124.34, providing for the removal of public employees for
immoral conduct, and В§ 3b, Article II, of the Rules and Regulations of the
State Highway Patrol, requiring off-duty associations to be of a "quality
acceptable by good social standards that assure the member of
exemplifying stability, fidelity and morality," establish no higher
standards than those prevalent among the general public. Risner v. Bd. of
Review, 56 Ohio App. 2d 21, 381 N.E.2d 346 (1978).
Appellant's conviction for trafficking in drugs is sufficient evidence of
failure of good behavior under RC В§ 124.34 to sustain dismissal as
assistant auditor of state. McIlwain v. Ferguson, 1996 Ohio App. LEXIS
349 (12th Dist. 1996).
The employee's inexcusable delay of months before depositing checks
received was sufficient cause for discharge. Rei v. Rhodes, 108 Ohio App.
3d 225, 670 N.E.2d 522, 1995 Ohio App. LEXIS 5791 (1995).
Referee’s Report
In terminating a teacher's contract pursuant to O.R.C. В§ 3319.16, the board of education
may not merely "rubber stamp" the referee's conclusion; rather, the board must make an
independent decision based on the needs and requirements of the students and the
community that it serves. Florian v. Highland Local Bd. of Edn., 24 Ohio App. 3d 41,
493 N.E.2d 249 (1983).
When a proceeding regarding the termination of a school district employee's contract is
conducted by a referee pursuant to O.R.C. В§ 3319.16, a board of education must accept
the referee's findings of fact unless the board is against the greater weight, or
preponderance, of the evidence. Kitchen v. Bd. of Educ., 2007 Ohio App. LEXIS 2643,
2007 Ohio 2846, (June 11, 2007). The board has the discretion to accept or reject the
referee’s recommendation unless such acceptance or rejection is contrary to law, but both
the findings and recommendations of the referee are accorded due deference because it is
the referee who is best able to observe the demeanor and credibility of the witnesses. Id.
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