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Judicial Guidance For Terminating School Employees

In Fox v. Huron City School Dist. Bd. of. Edn., 2017-Ohio-7984, a school board’s decision to terminate a superintendent was affirmed by an Ohio appellate court. This must read case is very important because it emphasizes the importance of (1) considering the recommendation of the referee as the school board determines whether to order the termination of teachers, administrators, treasurers, and – as in this case – superintendents; (2) explaining – in detail – the rationale for ordering termination including, but not limited to, the Code of Professional Conduct for Ohio Educators; and (3) deferring to the school board’s decision in whether to terminate its employees pursuant to the R.C. 3319.16 termination process.

As a preliminary matter, we disclose – in advance – that McGown & Markling was retained by the Huron City School District Board of Education (“Huron”) to investigate alleged misconduct by Superintendent Frederick Fox (“Fox”) that ultimately led to the Huron’s decision to terminate the employment contract of Fox, as well as the Ohio Attorney General’s decision to indict Fox for alleged criminal misconduct. See Fox at ¶ 30 (referencing the investigation). The criminal indictment was ultimately dismissed because the Ohio Attorney General filed its criminal charges against Fox seven months after the two-year statute of limitations expired – the appellate case of which can be read in our blog by clicking here. This blog focuses exclusively on this must read appellate court decision affirming the termination of Superintendent Fox by Huron as it contains a roadmap for successfully terminating employees pursuant to R.C. 3319.16.

Consider The Referee’s Recommendation

It is of paramount importance that any school board terminating an employee under R.C. 3319.16 must (1) consider the referee’s report – to the extent the employee requests a hearing before a referee, (2) either accept or reject the referee’s recommendation, and (3) formally take action on the termination decision stating the grounds for termination and memorializing the termination decision upon the board minutes. Here, Huron did just that with respect to Fox. As explained by the appellate court:

[O]n March 11, 2013, the referee issued a 50-page, double-spaced report and recommendation to Huron that Fox’s employment contract should not be terminated. [O]n April 2, 2013, a majority of Huron voted to terminate Fox’s employment contract in a 15-page, single-spaced Resolution No. 6472 containing findings of fact and conclusions which rejected the analysis and conclusions of the referee’s report and recommendation.

***

Huron’s lengthy Resolution No. 6472 supporting Fox’s termination order contained nine findings of fact with 29 subfindings of fact. Huron’s Resolution No. 6472 states, in part, “The referee chose to discount the significance of Fox’s admissions. The Board does not.” Huron’s Resolution No. 6472 also contains a specific section analyzing ten aspects of the referee’s determinations of witness and evidence credibility and the lack of explanations by the referee as to why he did not credit some testimony and documentary evidence. Interpreting the significance of the referee’s facts was precisely Huron’s duty under R.C. 3319.16, and Huron met that duty in Resolution No. 6472. Huron’s Resolution No. 6472 also contains a section of twelve conclusions ***.

Fox at ¶¶ 14, 23.

Explain – In Detail – The Termination Grounds

When considering the referee’s report and recommendation, a school board should explain – in detail – why the school board is accepting and/or rejecting all aspects of the report and recommendation. And Huron did just that in this case. As explained by the appellate court:

Huron’s Resolution No. 6472 gave due deference to the referee’s report and recommendation by providing pointed responses to the facts and conclusions made therein. As a result of Huron’s analysis, it dropped certain subcharges against Fox, which are reflected in the twelfth conclusion.

Fox at ¶ 36.

To highlight just how well Huron considered the referee’s report and recommendation, the appellate court took the time to explain each of Huron’s twelve conclusions in support of its decision to terminate Fox as follows:

Huron’s first of twelve conclusions specifically states, “The Board of Education rejects the analysis and conclusions contained in the referee’s ‘Report and Recommendation,’ including but not limited to his recommendation that the Board not proceed with the termination of Fox’s contract at this time.”

The second conclusion states[:]

It is the conclusion of the Board that Fox’s substantial abuse of the District’s email system to conduct his affair violated Board policy EDE and EDE-R. It also violated Fox’s employment contract which required him to perform his duties consistent with Board policy. Fox’s misconduct is not excused with an “everybody does it” attitude because as the District’s leader he should have held himself to a high standard of compliance with Board policy, because it was his responsibility to cause employees to stop or to initiate disciplinary action if necessary if he was aware of [an] employee violating the policy, and because there was no evidence in the record that any other employee deliberately and persistently abused the email system in the manner that Fox did.

 The third conclusion states[:]

The referee’s finding that Fox was eligible for compensatory time is against the manifest weight of the evidence. Fox was a salaried employee. Compensatory time is permitted under federal law to compensate hourly public employees under an agreement reached before the work was performed in lieu of paying them at 1½ times their hourly rate of pay when they work in excess of 40 hours per week. 29 CFR 553.21(c)(2). Past practice only qualifies as an agreement if the person was hired before April 15, 1986. 29 CFR 553.21(o)(2)(B). Fox was not entitled to compensatory time for his weekend travel. His contract does not provide for compensatory time as a benefit, and the undisputed testimony established that no Board policy provides for it.

The fourth conclusion states[:]

The referee’s finding regarding Fox’s failure to use his vacation time for February 28 and March 1, 2011 is against the manifest weight of the evidence. Fox was not working on either of those dates. Fox’s contract provides him with vacation days which he can use or cash out. By failing to use his vacation days, he was able to retain those days for his future use or to cash-out. The Board concludes that by failing to use vacation leave for those dates, he acquired a benefit of financial value to which he was not entitled under his contract, and violated § 3(b) [Accurate Reporting] of the Ohio Licensure Code of Professional Conduct for Educators.

The fifth conclusion states[:]

The referee’s finding that the Board approved reimbursing Fox for his car rental is against the manifest weight of the evidence, based on the evidenced discussed above in ¶¶ 6a through 6f regarding Findings of Facts. None of the five witnesses who were Board members at the time of the trip testified that the car rental was discussed, and Fox admitted that he did not discuss it. Fox’s contract did not permit reimbursement for the purposes he testified he wanted to rent the car. Neither did the Board policy. It was also undisputed that Fox claimed reimbursement for two night [sic] of his hotel stay in Arizona that were not conference-related, and that he did not repay the District until Green raised the matter during her review of reimbursement records in February 2012. It is the Board’s conclusion that by obtaining these reimbursements, Fox violated his contract, Board policy and § 7(g) [Accepting Compensation for Self Promotion or Personal Gain], of the Ohio Licensure Code of Professional Conduct for Educators.

The sixth conclusion states[:]

It is the conclusion of the Board that, as part-owner and President of Kalahari Sandusky, Nelson was in a business relationship with the District and was a beneficiary of tax arrangements with the District for which Fox was involved through discussions and voting; and, that the District conducted business with Nelson’s enterprises and purchased goods and services from them repeatedly from 2006 through 2010. It is the further conclusion that as part-owner and President of Kalahari Dells and the business that owned its affiliated golf courses, Nelson was in a position to provide Fox with free or reduced rate lodging at the Dells resort as well as complimentary golf at its affiliated course. It is the conclusion of the Board that the preponderance of reliable, probative and substantial evidence shows that Fox obtained something of value from Nelson when he was given half price lodging with golf compliments of Nelson for his 2010 golf trip to the Wisconsin Dells, and when he accepted free lodging for two nights while attending the wedding of one of Nelson’s children. The referee appears to excuse Fox’s participation in the golf trip by noting that the subordinate administrators who Fox invited to accompany him on the 2010 Dells golf trip have not been punished. The Board concludes that nothing in the record shows that those subordinate administrators were aware of the arrangements that Fox had made. Similarly, the Board concludes that the acceptance of free lodging by private citizens or Wisconsin public officials does not excuse Fox’s acceptance of such a thing of value in violation of R.C. 102.03 and § 7(b) [Accepting Compensation for Self Promotion or Personal Gain], of the Ohio Licensure Code of Professional Conduct for Educators.

The seventh conclusion states[:]

It is the conclusion of the Board that the preponderance of evidence in the record shows that Fox plotted against and attempted to intimidate Green. It is also the conclusion of the Board that the record shows that Fox supported efforts to intimidate Slocum by supporting efforts alleging criminal misconduct, although Fox’s attempt at intimidation of Slocum was unsuccessful because the alleged misconduct had never happened. The record also shows that Fox’s plotting and attempts to undermine Green were made in front of subordinate employees who were concerned about similar retaliatory conduct being directed against them if they made statements against Fox. And, the record shows that immediately before employees were to be interviewed by the investigator Markling, Fox made statements that caused the employees to be concerned that they could be questioned by Fox’s attorneys based on whatever they might say during the investigative interviews. It is the conclusion of the Board that, through such actions, Fox engaged in unprofessional conduct.

The eighth conclusion states[:]

The Licensure Code of Conduct for Professional Educators (Bd. Ex. 6) was adopted by the State Board of Education pursuant to H.B. 190 (127th Gen. A.). §9, and states (at page 14): “The Licensure Code of Professional Conduct for Ohio Educators applies to all individuals licensed by the Ohio Department of Education. The presumptive ranges are only applicable for disciplinary actions involving an educator’s licensure or application for licensure. The presumptive ranges are not applicable for any discipline imposed at the local level. Possible discipline at the local level must follow all local contractual provisions, including but not limited to due process, progressive discipline, and just cause. However, an educator who violates one or more of the principles may be subject to discipline at both the state level and local level.” (Underlining and bold added.) The Board therefore concludes that Fox may be subject to contractual termination for his multiple violations of that Code, as well as his violations of his contract and Board policies and other unprofessional conduct.

The ninth conclusion states[:]

The referee relies on Bertolini v. Whitehall City School District Board of Education, 139 Ohio App. 3d 595 (10th Dist. 2000) to conclude that Fox’s conduct does not warrant termination. The referee’s reliance is misplaced. Bertolini concerned a charge of sexually harassing conduct that rested, in part, on emails sent to a subordinate employee. However, the alleged victim of the administrator’s conduct testified that his conduct did not affect her work, and that district’s board policy allowed personal email messages. Bertolini, 139 Ohio App. 3d at 607. By contrast, Huron’s Board policy EDE-R states that its email system “shall only be used for purposes related to education or administration of the school district,” and “personal use of the system is strictly prohibited.” Additionally, there was evidence that Vonthron was upset that Fox’s conduct caused her to be rumored to be his paramour, that Fox grossly violated the Board policy with hundreds of emails to his paramour and often did so during working hours, and that Fox was distracted or away from his office, thus allowing a confusing shared power structure to develop because of Fox’s leadership vacuum.

The tenth conclusion states[:]

While the Board may weigh Fox’s performance history, it is not required to do so, especially where the disciplinary charges involve multiple incidents of misconduct. Hykes v. Board of Education of the Bellevue City School District, (6th Dist.) 2012-Ohio-6059, ¶¶ 23-24. However, if the Board does consider Fox’s performance history, it chooses to consider the entire history. The referee attributed the District’s excellent rating and good facilities solely to Fox, then used that attribution to suggest that the Board must weigh that record against the disciplinary charges and proven violations of Board policy and the Licensure Code. The Board also notes that the referee cited Vonthron’s testimony as support for his position that the District has thrived under Fox’s leadership. (Report pages 22, 45). However, the referee ignored the full context of the questions posed and her responses. She was asked whether the District had prospered between 2010 and 2012, setting aside the problems with her building’s boiler and “the educational stuff,” specifically with respect to test scores. She responded that [the] District’s scores had gone up in some areas, but not in others, and it was rated excellent in some areas but not others. When asked if the District had prospered, Vonthron responded that it [had] done so in spite of the things going on with Fox, a reference not limited to his inappropriate relationship. (T. 470-471) The Board considers that this District has long been a very good District academically, and that it remains so because of the efforts of many staff members, this Board and the support of the students, parents and community. Evidence in the record shows that while facilities improvements like windows and boilers were made during Fox’s tenure, he failed to ensure that his Director of Maintenance pursued correction of deficiencies in those improvements, or other problems. Evidence in the record also shows that Fox has failed to focus on academic leadership and technology planning to support students’ academic performance. The record also shows poor leadership through Fox’s focus on threats of retaliation and “killing the messenger,” rather than fixing the problem that the message concerned – whether it was about maintenance issues, or allegations of improprieties in the bus garage. Finally, the Report ignores the evidence about Fox’s role in sending the District into difficult financial straits several years ago.

The eleventh conclusion states[:]

Ohio law authorizes the superintendent to suspend and expel students who violate policies, rules and conduct codes. Fox’s job description (Bd. Ex. 2) assigns the superintendent responsibility for recommending disciplinary action against personnel, and the responsibility to “serve as a role model for students in how to conduct themselves as citizens and as responsible, intelligent human beings,” and “to instill in students belief in and practice of ethical principles.” By his conduct, as evidenced in the record of these proceedings – including, as examples, pursuit of a personal relationship using the District’s non-private email system, failing to record use of vacation, obtaining improper reimbursements, and accepting gifts or things of value – Fox violated his duties and responsibilities as superintendent and his contractual duty (see Bd. Ex. 1) “to perform the duties specified in the Job Description” and “to perform all duties as prescribed by law and consistent with Board Policy.” It is the conclusion of the Board, in light of Fox’s conduct as reflected in the record of the hearing, that Fox can neither effectively lead the District, nor be a role model for ethical conduct, nor be an effective disciplinarian for students or employees.

The twelfth conclusion [explains the charges of misconduct against Fox that were dropped by Huron].

Fox at ¶¶ 24-35. See Fox at ¶¶ 15, 36 (explaining that Huron dropped charges of misconduct against Fox).

Courts Must Defer To School Board’s Termination Decision

Perhaps the most significant aspect of this case is the fact that the appellate court reiterated the fact that a court simply cannot substitute its judgment for that of the school board in employee termination cases. Specifically, the appellate court found that:

It is well settled the common pleas court cannot substitute its judgment for the judgment of the board where a fair administrative hearing is had and there is substantial and credible evidence in the record to support the board’s decision.

***

In Resolution No. 6472 Huron addressed and resolved the evidentiary conflicts from the referee’s report and recommendation. The court of common pleas “must give due deference to the administrative resolution of evidentiary conflicts.”

Fox at ¶¶ 18, 20.

While terminating any employee for engaging in misconduct is never an enjoyable task, this case provides important guidance as to how to ensure that such termination decisions will ultimately be upheld in court.

To read this case, please click here.

To read a recent blog providing further guidance on terminating employees under R.C. 3319.16, as well as the school board’s right and duty to make independent termination decisions, please click here.

To read the blog on the case dismissing the criminal indictment against Fox, 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.

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