Court of Appeals of Ohio, Second District, Montgomery
STATE OF OHIO ex rel. CRAIG A. JONES, et al. Plaintiffs-Appellants
BOARD OF EDUCATION OF THE DAYTON PUBLIC SCHOOLS Defendant-Appellee
Appeal from Common Pleas Court Trial Court Case No.
L. PERGRAM, Attorney for Plaintiffs-Appellants.
L. WILDERMUTH, LAUREN K. EPPERLEY Attorneys for
1} This case is before us on the appeal of
Plaintiff-Appellant, Craig Jones, from a judgment rendered in
favor of Defendant-Appellee, Board of Education of the Dayton
Public Schools ("Board"). Jones contends that the
trial court erred in finding that the Board complied with
R.C. 3313.16, R.C. 121.22, and Board Policy BDDA when it
refused to renew his contract. According to Jones, the
nonrenewal of his contract exceeded the scope of the purpose
set forth in the Board's special meeting notice, and was
2} In addition, Jones contends that the trial court
erred in failing to grant summary judgment in his favor on
the issue of the Board's violation of R.C. 121.22(G), and
in failing to require the Board to strictly comply with R.C.
3} We conclude that the Board's special meeting
notice failed to comply with R.C. 121.22(F), because the
Board failed to properly state the purpose of the open
session of the meeting. The Board's resolution not to
renew Jones' contract, therefore, was invalid, and the
trial court erred in rendering summary judgment in the
4} Although the Board also failed to comply with
certain requirements of R.C. 3313.16 when it sent out the
notice for the special meeting, the trial court did not err
in finding a lack of prejudice, because Jones had actual
notice of the meeting. In addition, the Board's motion to
go into executive session facially complied with R.C.
121.22(G)(1). Whether the Board improperly disguised its
intentions in calling the meeting and in moving into
executive session do not need to be considered, due to the
invalidity of the resolution adopted at the special meeting.
Accordingly, the judgment of the trial court will be
reversed, and this cause will be remanded for further
Facts and Course of Proceedings
5} The facts in the case before us were largely
stipulated and are not disputed. On May 7, 2013, Craig Jones
and the Board entered into an employment contract, pursuant
to which the Board employed Jones as Treasurer for the Dayton
City School District ("DCSD") for a period of three
years. The contract began on August 1, 2013, and was to last
until July 31, 2016, unless terminated earlier by the
parties' mutual agreement, by Jones' retirement,
disability, or death, by a majority vote of the Board, or by
Jones' failure to maintain a valid license as statutorily
6} Under the contract, Jones acted as financial
advisor to the Board and the Board's administration on
matters pertaining to DCSD, and was to advise the Board on
any actions taken on the Board's behalf. Ex. A to the
complaint, p. 2.
7} Concerning employment of treasurers, R.C.
3313.22(A) provides that:
At the expiration of a treasurer's current term of
employment, the treasurer is deemed re-employed for a term of
one year at the same salary plus any increments that the
board may authorize, unless the board, on or before the first
day of March of the year in which the contract of employment
expires, either re-employs the treasurer for a succeeding
term as provided in division (C) of this section or gives to
the treasurer written notice of its intention not to
re-employ the treasurer.
8} The Board did not terminate Jones'
employment; instead, the Board held a special meeting on
February 23, 2016, and voted not to renew his contract. At
the same meeting, the Board also voted not to renew the
contract of the DCSD Superintendent. The Board notified Jones
in writing of the non-renewal on February 25, 2016.
9} On September 9, 2016, Jones filed a complaint
seeking both a declaratory judgment and a writ of mandamus
against the Board. In the first claim for relief, Jones asked
for a declaration that he was entitled to be re-employed by
the Board under a one-year contract for 2016-2017, due to the
Board's failure to comply with statutory requirements and
the Board's own policies pertaining to scheduling special
meetings. The second claim for relief alleged that the
Board's special meeting notice failed to comply with R.C.
121.22, and that actions taken at the February 23, 2016 Board
meeting were invalid. Finally, the third claim for relief
asserted that Jones was a public official and that the
Board's executive session on February 23, 2016, was
unlawful because the Board's special meeting notice
stated that the purpose of the executive session was to
consider "employment of public employees, " rather
than to consider the employment of a public official.
10} After the Board filed its answer, the trial
court set a schedule for filing stipulations, briefs, and
reply briefs. For the most part, the parties were able to
agree on the facts, and filed stipulations on January 30,
2017. The briefing concluded on February 13, 2017.
Subsequently, on June 27, 2017, the trial court rendered
summary judgment in the Board's favor.
11} The court rejected Jones' arguments about
defects in the Board's procedure for calling a special
meeting under R.C. 3313.16, because Jones had "actual
knowledge" of the special meeting. In addition, the
court concluded that the Board's notice of the special
meeting did not violate R.C. 121.22(F). And finally, the
court held that even if the court "humored" Jones
by referring to him as a "public official, " the
definition of public official included employees; as a
result, Jones' "argument asserted a distinction
without a difference." Doc. # 23, p. 8.
12} Jones now appeals from the court's decision
rendering summary judgment in the Board's favor and
overruling Jones' motion for summary judgment.
Special Meeting Notice
13} Jones' First Assignment of Error states
The Trial Court Committed Prejudicial Error by Finding That
the Board Complied With Ohio Rev. Code § 3313.16, Ohio
Rev. Code § 121.22, and Board Policy BDDA[, ] and Erred
by Not Granting Summary Judgment as to Liability for Mr.
Jones Because the Board's Nonrenewal of Mr. Jones's
Contract Exceeded the Scope of the "Purpose" Set
Forth in the Special Meeting Notice (Trial Court's
14} Under this assignment of error, Jones contends
that the Board failed to comply with statutory requirements
under R.C. 3313.16 and R.C. 121.22(F), and with its own Board
policy concerning special meetings. Jones notes that the
special meeting notice did not indicate that the Board would
be voting on Jones' contract; instead, the notice
misinformed the public that the Board may act on
recommendations of the superintendent and/or treasurer when,
in fact, no recommendations were going to be made and the
Board knew that. Additionally, Jones argues that the Board
disguised the purpose of the special meeting by omitting any
mention of possible non-renewal, and then retroactively
revised the agenda the following day (February 24, 2016) to
reflect the nonrenewal of the contracts of Jones and the
15} According to Jones, the trial court erred by
failing to recognize the purpose of a special meeting notice,
and further erred by concluding that such purpose was
satisfied by a notice indicating that the Board would go into
executive session to consider the employment of public
16} We noted in the statement of facts that R.C.
3313.22(A) states that "[a]t the expiration of a
treasurer's current term of employment, the treasurer is
deemed reemployed for a term of one year at the same salary
plus any increments that the board may authorize, unless the
board, on or before the first day of March of the year in
which the contract of employment expires, either re-employs
the treasurer for a succeeding term as provided in division
(C) of this section or gives to the treasurer written notice
of its intention not to re-employ the treasurer." R.C.
3313.22(D) further states that:
Each board shall adopt procedures for the evaluation of its
treasurer and shall evaluate its treasurer in accordance with
those procedures. The board shall consider an evaluation
based upon those procedures in deciding whether to renew the
treasurer's contract. The establishment of an evaluation
procedure shall not create an expectancy of continued
employment. Nothing in this division shall prevent a board
from making the final determination regarding the renewal or
nonrenewal of a treasurer's contract.
17} If a treasurer's contract is terminated,
R.C. 3313.22(E) indicates that termination shall be in
accordance with R.C. 3319.16, which pertains to termination
for cause of teaching and non-teaching employees. Of course,
here, Jones was not terminated; instead, his contract was not
18} "[T]he appropriate procedural vehicle for a
school administrator to seek reemployment, damages, and back
pay for the nonrenewal of his or her employment contract is a
petition for a writ of mandamus." (Citations omitted.)
State ex rel. Jones v. Sandusky City Schools, 6th
Dist. Erie No. E-05-041, 2006-Ohio-188, ¶ 7. "In
order for a writ of mandamus to issue, a relator must
demonstrate that (1) he or she has a clear legal right to the
relief prayed for; (2) respondent is under a corresponding
legal duty to perform the requested act; and (3) relator has
no plain and adequate legal remedy." (Citations
omitted.) State ex rel. Cassels v. Dayton City School
Dist. Bd. of Edn., 69 Ohio St.3d 217, 218-219, 631
N.E.2d 150 (1994).
19} As was noted, this case was decided on cross
motions for summary judgment. "A trial court may grant a
moving party summary judgment pursuant to Civ. R. 56 if there
are no genuine issues of material fact remaining to be
litigated, the moving party is entitled to judgment as a
matter of law, and reasonable minds can come to only one
conclusion, and that conclusion is adverse to the nonmoving
party, who is entitled to have the evidence construed most
strongly in his favor." Smith v. Five Rivers
MetroParks, 134 Ohio App.3d 754, 760, 732 N.E.2d 422 (2d
Dist.1999), citing Harless v. Willis Day Warehousing
Co., 54 Ohio St.2d 64, 375 N.E.2d 46 (1978). "We
review decisions granting summary judgment de novo, which
means that we apply the same standards as the trial
court." (Citations omitted.) GNFH, Inc. v. W. Am.
Ins. Co., 172 Ohio App.3d 127, 2007-Ohio-2722, 873
N.E.2d 345, ¶ 16 (2d Dist.).
20} In the statement of facts, we noted that the
Board could have terminated Jones' contract based on the
provisions in the contract, or it could have chosen
nonrenewal under R.C. 3313.22(A), by giving written notice to
Jones prior to March 1, 2016. Failure to provide written
notice would have resulted in automatic renewal for another
year. The Board chose the latter course, and called a special
meeting at which it adopted a nonrenewal resolution. The
Board then notified Jones of the nonrenewal.
21} Concerning special meetings, R.C. 3313.16
A special meeting of a board of education may be called by
the president or treasurer thereof or by any two members, by
serving a written notice of the time and place of such
meeting upon each member of the board at least two days prior
to the date of such meeting. Such notice must be signed by
the official or members calling the meeting. For the purpose
of this section, service by mail is good service.
22} DCSD has adopted its own policies regarding
special meetings and notification requirements. Board policy
BDDA is entitled "Notification of Meetings, " and
Due notice of all meetings of the Board and Board-appointed
committees is given to the press and the public who have
requested notification and to all Board members. Any person
may learn the time and place of regularly scheduled meetings
and the time and place and purpose of special meetings by
calling the District's administrative offices or
accessing the District's web site or television station.
Special Meetings: A special meeting may be called by the
President, the Treasurer, or any two members of the Board by
serving written notice of the time and place of the meeting
upon each Board member at least two days before the date of
the meeting. The notice must be signed by the officer or
members calling the meeting. Notice by mail is authorized.
Notice of the time, place and purpose must also be given at
least 24 hours in advance of the meeting to all news media
and individuals who have requested such notice.
Ex. B attached to the Complaint, p. 1; Doc. #16, Stipulations
at No. 2.
23} In the case before us, it is clear that the
Board failed to comply with statutory requirements and with
its own policy. Notice of a special meeting to be held on
February 23, 2016, was emailed to various individuals on
February 11, 2016, by Cherisse Kidd, who was not the Board
president or a Board member, nor was she the DCSD treasurer.
Instead, Kidd handled administrative duties for the Board.
The email from Kidd stated that "I hereby call
for a special meeting of the Board of Education of the City
of Dayton School District * * * to be held on Tuesday,
February 23, 2016 * * * ." (Emphasis added.) Doc. #16,
Stipulations at No. 3, and Ex. C-1 attached to the
Stipulations. Thus, the undisputed evidence indicates that
the individual calling the meeting was Kidd, who was not a
proper party under either R.C. 3313.16 or the Board's own
24} Kidd's affidavit indicated that her routine
practice was to call Board members about special meetings,
and that she followed her routine practice on February 23,
2016, although she actually had no particular recollection of
how she was asked to do this. Doc. #18, Kidd Affidavit,
¶ 3-4 and 9. Kidd also stated that the Board
president's routine practice was to notify her of the
time, place, and purpose of Board meetings so that she could
send a special Board meeting notice. Id. at ¶
7. However, regardless of "routine" practices, the
fact is that the email did not comply with either R.C.
3313.16 or Board policy.
25} The email was also not sent to two Board
members, John McManus and Ronald Lee. McManus did attend the
February 23, 2016 special meeting, so he apparently received
some type of notice (although that is not addressed in the
record). Lee did not attend; however, Lee stated in an
affidavit that he was aware of the meeting and had a
conflicting personal appointment. Doc. #18, Lee Affidavit,
¶ 6-7. Again, these failures indicate that the special
meeting notice did not comply with R.C. 3313.16 or the
Board's own policy.
26} Kidd's email was sent on February 11, 2016,
and included an attached document dated February 19, 2016.
The document was labeled "F.Y.I." and "Special
Meeting." Doc. #16, Stipulations at No. 3, and Ex. C-2
attached to the Stipulations. The letterhead of this document
stated "Dayton Board of Education, " and included
the names of the President, Vice-President, and all Board
Members. In the trial court, the Board argued that this
constituted compliance with the statute and policy. Clearly,
it did not. Both the statute and Board policy require that
the notice be signed by the officer or members
calling the meeting. The fact that the Board president's
name is on a letterhead does not constitute a
"signature." Several other names are on the
letterhead, including, as Jones points out, the Board's