Can you avoid granting a nonteaching employee a continuing contract if you re-employ him under a one-year limited contract pursuant to a settlement agreement after the employee has been nonrenewed? The answer is “no” according to a 2-1 decision by the Eleventh District Court of Appeals in the case of Brannon v. Lakeview Local School Dist. Bd. of Edn., 2016-Ohio-1367. Educational service centers (“ESCs”) should pay particular attention to this decision, as they routinely employ nonteaching employees under limited contracts after three-years of employment.
In Brannon, the school board hired Brannon to a one-year R.C. 3319.081 nonteaching contract as a bus driver and subsequently re-employed Brannon under a two-year R.C. 3319.081 nonteaching contract. The school board then non-renewed Brannon at the expiration of his two-year contract. Brannon filed a grievance regarding his nonrenewal. Ultimately, Brannon and the school board entered into a settlement agreement resolving the grievance and granting Brannon a one-year limited contract subject to renewal. The school board granted Brannon two additional one-year limited contracts before once again non-renewing him. Brannon sued the school board in response.
On appeal, the appellate court held that the school board had only two options at the end of Brannon’s third year of employment with the board: it could either non-renew him or re-employ him under a continuing contract. The court explained that “R.C. 3319.081 is a prophylactic statute enacted to provide job security to non-teacher employees within a school district” and that, by re-employing Brannon, even through the settlement agreement, Brannon automatically received a continuing contract.
The appellate court found that the school board had a policy of “automatic non-renewal” of all nonteaching employees at the conclusion of their initial three years of employment. The appellate court explained that “[t]he ‘automatic non-renewal’ policy has the effect of compelling an employee, like Brannon, to file a grievance which, to the extent the decision not to renew was not a result of the employee’s misconduct, more likely than not, will result in a settlement. And, from the Board’s perspective, such an employee will always be a new hire and, as a result, nonteaching school district employees will never reach continuing employment status.” The appellate court concluded that the automatic non-renewal policy “creates job instability for nonteaching school district employees, it fundamentally subverts the inherent purpose of R.C. 3319.081. Accepting the Board’s argument would be tantamount to endorsing a practice inconsistent with the statute and would render R.C. 3319.081 a nullity.” Accordingly, the court held that the first non-renewal “did not interrupt Brannon’s continuous employment because he was subsequently retained by operation of the settlement.”
On appeal, the school board also argued that Brannon’s lawsuit should have been dismissed because he failed to grieve his second non-renewal. The appellate court rejected this argument as well, holding that the applicable collective bargaining agreement did not contain language that specifically superseded a nonteaching employee’s R.C. 3319.081 statutory rights. In fact, the applicable collective bargaining agreement expressly incorporated a nonteaching employee’s rights under R.C. 3319.081. Additionally, the appellate court held that because Brannon grieved his initial nonrenewal and was not awarded a continuing contract as result, it would have been futile for him to grieve the same issue once again.
There was a dissenting opinion in this case that disagreed with the majority’s holding that the school board could not have, and did not, hire Brannon to a one-year limited contract pursuant to the settlement agreement and that the grievance procedure did not provide Brannon with an adequate remedy at law. Specifically, the dissent held that the parties had the right to reach a settlement of their choosing, including rehiring Brannon under a one-year limited contract. The dissent also believed that the collectively bargained grievance procedure did provide Brannon with an adequate remedy at law, explaining that if it was adequate at the time of the Brannon’s first nonrenewal, it was certainly adequate at the time of the second. As the dissent stated: “The rule if not nullified merely because Brannon did not obtain the relief to which he or the majority believes he was entitled.” The dissent further explained that the grievance procedure provided an adequate remedy at law precisely because the collective bargaining agreement incorporated R.C. 3319.081.
This case provides an important reminder to all school boards: If you re-employ a nonteaching employee after the employee has received an initial contract not exceeding one-year and a subsequent two-year contract, the employee is employed under a continuing contract regardless of how the contract is actually styled by the parties. This is particularly relevant to school boards that have policies of annually non-renewing all of their employees and awarding only one-year employment contracts. Under this decision, any nonteaching employee who receives a contract after already working three-years for the board is employed under a containing contract by operation of law.
To read this case, please click here.
Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.