attorney5 for appellee - sconet.state.oh.us favor of nbta's right to appeal. specifically, r.c....
TRANSCRIPT
IN THE SUPREME COURT OF OHIOCase No. 2009-0003
STATE OF OHIO, ex rei.NATION BUILDINGTECHNICAL ACADEMY,
Appellant,
Ori Appeal from theFranklin County Court of Appealsioth Appellate District
v. Court of Appeals Case No.a7AP-09
OHIO DEPART'MENT OFEDUCATION,
Appellee.
MERIT BRIEF OF APPELLANTNATION BUILDING TECHNICAL ACADEMY
MARC D. MEZIBOV (0019316), Counsel of RecordSTACY A. HINNERS (0076458),Law Office of Marc Mezibov401 E. Court Street, Stu.te 6ooCincinnati, OH 452021'elephone: (513)62i-88ooFacsimile: (513)621-8833
Attorneys for AppelIant
NANCY H. ROGERSSCOTT M. CAMPBELL (0071056)Office of the Ohio Attorney GeneralEducation Section30 E. Broad Street, 1611, FloorColunlbus, OH 43215Telephone: (614)728-2237
Fi1AR !1 9 I
CIFRIt UhCpURiAttorney5 for Appellee SUpREPV1E' C01JRT OF Oif^,r^„^^. ID
TABLE OT' CON'TENTS
...................................................... mTABLE OF AUTFIORI'I'IES ................................. ...
SUNIMARY OF THE ARGUMENT ...... ... ... ... ... ...... ...... ... ... ... ...... ... ... ... ...... ... ...1
S I'ATEMEN'T OF THE FACTS AND CASE ...............................................................2
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ..................................5
PROPOSI'I'ION OF LAW NO. 1: R.C. 3314.07 DOES NOT REQLTIR.E A COMMUNTTY
SCHOOL TO REQUEST AN INFORMAI., HEARING FROM ITS SPONSOR AS A
PREREQUISITE TO FOR11IALLY APPEALING THE SPONSOR'S TERMINATION
DECISION TO THE OHIO DEPART'NIENT OF EDUCATION .... ......... ,............... ,.,........5
PROPOSITION OF LAW No. 2: To THE ExI'.ENT R.C. 3314.07 IS AMBIGUOUS
REGARDINC, THE PROCEDURE A COMMUNI'IY SCHOOL MUST FOLLOW, THE RULES
OF STATUTORY CONSTRUCTION REQLTIRF^ THAT AMBIGUITI' BE RESOLVED IN
FAVOR OF ALLOWING TI-IE COMMUNITY SCHOOL TO APPEAL................................6
CONCLUSION .................................................................................................................11
CERTIFICATE OF SERVICE ........................................................................................12
APPENDIX Apx. Page
Notice of Appeal to the Ohio Supreme Court(January 2, 2009) ............... .......................... ......................................................... 1
Decision of fhe T'enth District Court of Appeals(Novelnber 18, 2008) ......... ................................. ....................................... ........... .3
.7udgment Ently from Tenth District Court of Appeals Denying Writ of Mandaznus(November 18, 2008) ................... ......................................................................... r7
Ohio Supreme Court's order permitting cause to proceed as a direct appeal ...............18
Statutes upon which Appellant relies:
R.C. 1.11 ...................................................................................................................19
R.C. 1.42 ..................................................................................................................20
R.C. 1.49 ..................................................................................................................21
R.C. 3314.015 .........................................................................................................22
ii .
R.C. 3314.02 .........................................................................................................24
R.C. 3314.07 ............... .................... ............................................................... .......... ?8
iii
TABLE OF AU'I'HORI'I'IES
Cases
Cline u.l3ureau of -Allotor Vehicles (tggt), 61 Ohio St.3d 93, 96, 573 N•E.2d 77 ................4
Dayton Power and Light Company u. Schregardus (1997), 123 Ohio App.3d 476, 704N.E.2d 589 ............................................................................................................................8
Dorfineier v. Do1 frneier (1954), 69 Ohio Law Abs. 15,123 N.E.2d 681 ..............................7
Jackson Coiu2ty Enuironn-rental Con-ini. v. Shank (tggo), 67 Ohio App.3d 635,588N.E.2d 153 ........................................................................................................................7,8
Maher, v. Baker (1913), 88 Ohio St. 165,172,102 N.E. 732 ................................................ 7
Middlebtirg Hts. v. Ohio Bd. of 13ldg. Standards (1992), 65 Ohio St.3d 51o, 514, 605N.E.2d 66 ..............................................................................................................................6
Sears u. Weimer (1944)> 143 Ohio St.312, 55 N.E.2d 413 ...................................................5
State v. Hairston, tot Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471 ...................... 5,6
State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Oluo St.3d 217,22o, 631 N.E.2d t5o ......................................................................................................5, to
State ex rel. Nation Euildirig Technical.Academy v. Ohio Department of Education, i o",Dist. Case No. 07AP-169, 2oo8-Ohio-5967 .............................................. t,4, 5> 6, 8, 9, to
Tomisak v, Tomisak, lu Ohio St.3d 481, 2oo8-Ohio-6tog, 857 N.E.2d 127 .....................5
IIBS Financial Services, Inc. v. Levin, tig Ohio St.3d 286, 2008-Ohio-3821, 893 N.E.2d811 ....................................................................................................................................... .7
Van Meter v. Segal-Shadel Co. (1966), 5 Ohi.o St.2d 185, 214 N.E.2d 664 ........................7
Waltco Truck Equipment Co. v. City qf Tallrnadge Bd, qf Zoning Appeals (199 8), 40Ohio St,3d 41, 42,531 N.E,2d 685 .......................................................................................7
iv
Statutes
R.C. i.ii .........................................................................................................................2, 7, $
R.C.1.42 ...........................................................................:............................................2,7,8
R.C. 1.49 ........................................................................................................................2, 7, 9
R.C. 3314.015 ......................................................:.................................................................2
R.C. 3314.02 .........................................................................................................................2
.............i-toR.C. 3314.07 ........................................................................................................
v
SLJMMARY OF THE ARCrUMENT
The Tenth District erroneously held that community school Natian Building
Technical Academy ("NBTA") has no right to appeal its private sporrsor's decision to
terminate the school's operation to the Ohio Department of Education ("ODE") because
the school failed to request an informal hearing before the sponsor - a step diat the
Tenth District deemed to be "statutory precondition" to formally appealhig to ODE. Yet
the statute at issue, R.C. 3314.07, does not include "any language imposing upon the
school an obligation to request the informal hearing as a prerequisite to an appeal to
ODE." State ex rel. Nation Bzrilding Tech7lical Acaderny v. Ohio Department qf
Education, io Dist. No. o7AP-169, 2oo3-Ohio-5967 at ¶ 45.' Simply put, the Tenth
District penalized NBTA for failing to follow a"statutory precondition" that does not
exist in the language of the statute.
NBTA respectfully submits this Court reverse the Tenth District in one of two
ways: First, NBTA asks this Court to simply apply R.C. 3314.07 as written. R.C. 33id..07
is not arnbiguous. It states - without qualification or preconditior-x - that a community
school may appeal a sponsor's decision directly to ODE. NB'I'A complied with its
obligation under the statute by requesting an appeal; Relator merely asks this Court to
require ODE to comply with its corresponding obligation to consider that appeal on the
merits.
Alternatively, should this Court find that R.C. 3314..07 is sonzehow ambiguous
regarding the procedure by which a conuntinity school may appeal a sponsor's dec.ision,
the applicable rules of statutory constrniction require that stacb ambiguity be resolved in
I The Magistrate's decision is incorporated into the appellate cotut's decision asAppendix A arid appears in paragraphs t9 through 45.
favor of NBTA's right to appeal. Specifically, R.C. 1.11, 1.42 and 1.49 - individually and
collectively - require that if a party's right to appeal is to be limited by a statutoiy
precondition, such precondition must be plainly set forth in the statute.
What cannot be permitted to stand is the Tenth District's wholesale re-writing of
R.C. 3314.07 that converts an option that a community school "may" take to request an
"informal hearuzg" before its private sponsor into a mandatory precondition to a
schools' right to formally appeal to an administrative agency. The 'I'enth District's
decision substantially and permanently prejudiced NBTA because the school failed to
follow a process that it had no reasonable way of knowirig existed - a process that is not
clearly set forth in a statute, but rather was crafted after the fact by the appeals court.
II. STATEMENT OF THE FACTS AND CASE
A. STATEMENT OF THE FACTS
Nation Building Technical Academy ("NBTA") is a non-profit Ohio corporation
that was licensed to operate as a community school under R.C. Chapter 3314. (ATerifzed
Complaint at ¶i). Dtuing the 2004-2oo5 academic year, NBTA enrolled approximately
220 inner-city Cincinnati youth and provided them with general education and
vocational training in the fields of automotive management, cosmetology and
healthcare. (Id. at ¶io).
Pursuant to R.C. 3314.02, NBTA entered into a sponsorship agreement with the
Lucas County Fducational Service Center ("LCESC") in March 2004. At that tizne,
LCESC was one of Ohio's largest conuilunity school sponsors, overseeing over ioo
schools. (Id. at ¶9).
In March 2oo5, the General Assembly amended R.C. 3314.015 to require
community school sponsors, including LCESC, to decrease the ntunber of schools they
2
sponsored by June 2oo6. For LCESC specifically, the aniendment meant that it must
drop more than 25 percent of its sponsorship load within a,year. (Id, at ¶ii).
Within a month of the law's amendnlent, LCESC notified NBTA that it intended
to suspend the school's operations for the 2005-2oo6 academic year on account of
operational concerns. (Id. at ¶12). In May 2oo5, LCESC officially suspended NBTA t.tntil
the school remedied those concerns. (Id. at ¶i3). By November 2005, NBTA had cured
all of LCESC's concerns and petitioned LCESC to lift the suspension and permit it to
restune operations. (Id. at ¶14),
Rather than lift the suspension, LCESC notified NBTA on December 2, 2005, that
it was terminating its sporisorship agreement for "good cause." (Id. at ¶15). The effect of
LCECS' "good cause" designation was not only to end NBTA's relationship with LCESC,
but also to prevent NBTA from contracting with an.y other sponsor in the fr.iture. R.C.
3314•o7(B)(6)2. In other words, LCESC's decision, if unchallenged, prevented NBTA
from ever operating as a community scl-iool in the future. (Verified Complaint at ¶i5).
Pursuant to R.C. 3314.o7(B)(4), NBT.A timely appealed LCECS' termination
decision to ODE by letter dated December 12, 2005. (Id. at ¶16). On December 27,
2005, ODE responded to NBTA's notice of appeal by identifying several concerns
regarding the adequacy of LCECS' notice of terriiination but failed to consider themer'rts
of NBTA's request for appeal. In fact, ODE did not communicate with NBTA whatsoever
between pecember 27, 2oo5 and May 20o6.
On May 8, 20o6, NBTA again requested in writing that ODE consider the merits
of its appeal. (Id. at ¶i8). On August 24, 2oo6, ODE finally responded, stating that it
" R.C. 3314.o7(B)(6) dictates that "any conununity school whose contract is terminatedtmder this division shall not enter into a contract with any other sporisor."
3
would not consider NBTA's appeal because NBTA had failed to request an informal
hearing from LCECS in December 2005. (Id. at ¶ig). On November 20, 2oo6, NBTA,
through legal counsel, asked ODE to reconsider its position. On January ro, 2007, ODE
rejected NBTA's request. (Id. at ¶21).
B. STATEMENT OF THE CASE
On Februaiy 26, 2oo8, NBTA initiated a mandamus action in the 'I'enth District
Court of Appeals requesting a writ compelling ODE to coilsider the merits of its appeal
as required by R.C. 3314.07(B)(4).
The T'enth District referred the appeal to its Magistrate who granted the writ on
January 28, 2oo8. The Magistrate found that "absent [frozn 3314•07] is AM language
imposing upon the school an obligation to request the informal hearing as a prerequisite
to an appeal to ODE." State ex rel. Nation Bldg Tech. Academy at ¶45 (emphasis
added). The Magistrate further found that to the extent R.C. 3314.07 was ambiguous
with regard to procedure, the factors set forth in R C. 1.49 required resolution in favor of
N:BTA's right to appeal. Id. at ¶¶47-48.
ODE objected to the Magistrate's decision. On November 22, 2008, the ioth
District Court of Appeals reversed the Magistrate's decision, liolding that,
Presumably, had the drafters of R.C. 3314.07 intended to allow an appealwithout a request for an ii-iformal hearing, the statute could have hticludedlanguage to the effect that the school may, with 14 days of receiving thenotice, request an informal hearing before the sponsor or appeal directlyto the state school board. iNhile the provisions of R.C. 3314.07 xnay not bea model of clarity, in construing the language of R.C. 3314.07(B)(3),(4)and (5) as a whole, we agree with [ODE] that the statute reqi.tires acommunity school to first request an informal hearing and receive awritten decision from the sponsor before appealing to the state board ofeducation." Id. at ¶17 (emphasis in original).
NBTA filed its notice of appeal to the Ohio Supreme Court on Jamrary 2, 2009.
On January 6, 2oog, the Court granted jurisdiction on the basis that it was an appeal of
right because the case originated in the court of appeals.
ARGITMENT IN SUPPORT OF PROPOSITIONS OF I.AiN
PROPOSITION O]F LAw No. z: R.C. 3314.07 does not require acominunity school to request an informal hearing from itssponsor as a prerequisite to formally appealing the sponsor'stermination decision to the Ohio Departnient of Education.
It is well-established that a court may not resort to ,statutory construction where
no ainbiguity exists, as "[a]n unambiguous statute is to be applied not interpreted."
Sears v. Weimer (1944), 143 Ohio St.312, 55 N.E.2d 413, paragraph five of the syllab.is;
see also State v. Hairston, ioa Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471 at ¶13.
A statute is not ambiguous simply because it does not answer all questions or address
every possibility. Tomisak v. Tornisak, in Ohio St.3d 481, 20o8-Ohio-6a.o9, 857 N.E.2d
127 at ¶16. "It is not for [a] court to question whal the statute accomplishes; its language
works to inform those that it affects exactly how it affects thenl." Id. Unarnbigiious
stati.ites are to be applied according to the plain ineaning of the words used; courts are
not free to delete or insert other words. State ex r•el. Cassels v. Dayton City School .7)ist.
Bd. qf Eaii. (1994), 69 Ohio St.3d 217, 22o, 631 N.E.2d t5o.
As the appeals court's Magistrate aptly obseived, "[a]hsent [from 3314.071 is
aM language imposing upon the school an obligation to request the
informal hearing as a prerequisite to an appeal to ODE." State ex rel. Nation
_Bld^q Tech. _Acadeniy at 145 (emphasis added). Indeed, the General Assembly's only
statement regarding a community school's right to appeal a sponsor's decision to ODF.
states - without qualification or precoridition - that "[a] decision by ihe sponsor to
5
terminate a contract may be appealed to the state board of education." R.C.
33i4,oa7(B)(4). NBTA iuges this Court to apply R.C. 3314.07(B)(4) just as the General
Assembly wrote it, as the statute contairis no language - ambiguous or otherwise - that
conditions a community school's right to appeal its sponsor's decision to ODE upon first
requesting an informal hearing from the sponsor.
To uphold the Tenth District's conclusion that a community school must request
an informal hearing as a statutory precondition to appealing to ODE, this Court must
read into R.C. 3314.07 "language that does not exist" - sornething this Court has
consistently refused to do. See Hairston at ¶22; citing D2iddleburg Hts. U. Ohio Bd. qf
SIdg. Standards (1992), 65 Ohio St.3d 51o, 514, 6o5 N.E.2d 66. The appeals coLut's
decision was based upon nothing other than its speculation of what the General
Assembly "prestunably" would have said liad it "intended to allow an appeal without a
request for an informal hearing." Nation Bldg. Tech. Academy at ¶17 ("the statute could
have included language to the effect that the school may, within 14 days of receiving the
notice, request an informal hearing before the sponsor or appeal directly to the state
school board")(emphasis in original). In so speculating, the appeals court ignored what
the General Assembly actually did say, namely that a sponsor's decision "may be
appealed to the state board of education" without qualification or precondition. R.C.
3314.07(B)(4)•
1'ROPOSI7-'ION OF L.Aiy No. 2: To THE F.77LTFN'r R.C. 3314.07 Is
AMBIGUOUS REGARDING THE PROCEDURE A COMMUNfrI' SCHOOL MUST
FOLLONT, THE RULES OF STATUTORY CONSTRUCTION REQUIRE TIiAT
AMBIGLTITY BE RESOLVED IN FAVOR OF ALLO4VING 'I'H. E CONIIVICRVI'I`1'
SCHOOL TO APPEAL.
Assuming arguendo that R.C. 3314.07 can somehow be deerued "ambiguous,"
such ambiguity must be resolved consistent with applicable statutory rules of
6
con.struction. See UBS Financial Services, Inc. v. Levin, ii9 Ohio St.3d 286, 2oo8-Ohio-
;82i, 893 N.E.2d 811 at ¶34 ("To construe the ambiguous ternl, we must ascertain the
rule of construction that we should apply.") Here, R.C. z.i-1, R.C. 1.42 and R.C. 1.49 all
required the appeals court to resolve any ambiguity in favor of a commLuzity school's
right to appeal to ODE.
1. R.C. 3314.07 is a remedial law silbject to R.C. i.iz.
R.C. r.ri instructs a court that "[r]emedial laws and all proceedings under them
shall be liberally construed in order to promote their object and assist the parties in
obtaining justice." Accordingly, statutory appeal procedures are re.medial in nature and
"should be given a liberal interpretation in favor of appeal." Waltco Tri.rck
Equipment Co. v. G`ity of Tallmadge Bd. of Zoning Appeals (1998), 4o Ohio St.3d 41, 42,
531 N.E.2d 685; citirrg Van Meter v. Segal-Shadel Co. (1966), 5 Ohio St.2d 185, 214
N.E.2d 664., paragraph one of syllabus (emphasis added).
"A liberal construction of a statute is one which is reasonable, consistent tiith
language used, and conducive to the purpose to be accomplished by enactmerrt of the
statute." Dorfineier v. Dorfmeier (1954), 69 Ohio Law Abs. 15, 123 N.E.2d 681, 686,
citing Maher v. Baker• (1913), 88 Ohio St. 165, 172, 1o2 N.E. 732. For example, in
Jackson Counh.j Environmental Comm. v. Shank (r99o), 67 Ohio App.3d 635, 588
N.E.2d 153, the Tenth District Court of Appeals reversed a decision by the Ohio
Environmental Board of Revi.ew dismissing for want of jurisdiction a comiTzunity
environmental group's appeal from a decision of the Director of Environmental Review.
In so doing, the court noted that the Board's decision was based upon an
inappropriately narrow reading of the statute and that "we believe that the intent of the
General Asseznbly was not to preclude others adversely affected from challenging [the
7
Director's decision]." Id, at 639. In so deciding, the Court noted that "statutory appeal
procedures,..should be liberally construed," and that "the decision to allow appellants to
seek appeal before the board is in accord" with that principle. Id. See also Dayton
Potver and Light C.ompang v. Schregardus (1997), 123 Ohio App.3d 476, 7o4 . N.E.2d
589, 591 ("Statutory appeal procedures are remedial in nature and therefore mtLst be
liberally construed in favor of permitting appeals").
As applied here, R.C. i.ii required the Tentli District to interpret R.C. 3314.07 in
a manner that pronloted NBTA's right to appeal to ODE. The Tentli District, however,
did exactly the opposite. The appeals court held that NBTA wces not entitled any appeal
because the school failed to request an informal hearing from LCESC prioi to appealing
to ODE. The appeals court did not - because it cannot - point to any clear language in
any provision of R.C. 3314.07 that requires a c.ommunity school to submit to an informal
hearing as a precondition to exercising its right to appeal to ODE set forth in R.C.
3314•o7(B)(4). Nevertheless, the Tenth District penalized NBTA, for failing to adhere to
this unwritten procedural requirement. The result of the decision is plainly
inconsistent with promoting the right to appeal and/or assisting parties in obtah7ing
justice as reqtiired by R.C. r.ii.
b. R.C.1.42
R.C. 1.42 provides that "[w]ords and phrases shall be iead in context and
consti^.ted according the rules of gramnlar and common usage." Although the appeals
court claimed to have "constitx[ed] the language of R.C. 3314.o7(B)(3), (4) and (5) as a
whole," State ex rel. Nation Bldg. Tech. Academy at 1117, its decision ignored the
language actually set forth by the General Assembly, namely that "the school mav,
within fourteen days of receivi.ng the notice, request an i.nfoxnixal hearing before the
8
sponsor" (emphasis added). 'I'he General Assenibly's use of permissive language such as
"may" in referring to the informal hearing hardly suggests the existence of mandatory
statutory precondition. Moreover, the statute's consistent reference to the procedure
before the sponsor as an "informal hearing" further militates against the court's position
that such a step is a mandatory precondition to a community's school's formal appeals
process.
c. R.C.1.49
R.C. 1.49 provides that "[i]f a statute is anibiguous, the court, in determining the
intention of the legislature, may consider among other matters: (A) The object souglit to
be attained; (B) The circumstances tu7der which the statute was enacted; (C) 'The
legislative history; (D) The common law or former statutory provisions, including laws
u.pon the same or similar subjects; (E) The consequence of a partic.ular construction;
and (F) the administrative constztzction of the statute."
In tlxis case, the appeals court ignored the Magistrate's careful application of R.C.
1.49 to determine whether the word "decision" used in R.C. g314.07 referred to the
initial decision of the sponsor to terminate the contract ("the proposed action"
contemplated in R.C. 3314.07(B)(3)), the written decision either affirming or rescinding
the decision after an informal hearing, or both. State ex rel. Nation Bldg. T'ech.
Academy at 111f4o-41. Considering the list set forth in R.C. 1.49, the Magistrate noted
that neither the legislative history, the common law, nor ODE's administrative rules
offered any clarity on the issue. 1'd. at 1142• He further considered the context of the
"informal hearing" references in the statute, noting that the General Assembly did not
include them among the requireinents to be fulfilled by the school, brlt rather among
the notice requirements that the sponsor must include wheri terminating a school's
9
contract. Id. at ¶45. He also noted that "[a]bsent [from R.C. 3314.07] is any language
imposing upon the school an obligation to request the informal hearing as a prerequisite
to an appeal to ODE." Id.
Finally, the Magistrate considered "[t]he consequence of a partictilar
constrvction" as encouraged by R.C. 1.49. He noted that the iiiformal hearing referred
to in the statute was little more than a request for the sponsor to reconsider a decision it
had already reached. Id. at ¶46; see also R.C. 3314.07(B)(3)("the sponsor shall issue a
written decision either affirming or rescinding the decision to ternlinate or not renew
the contract"). He also found that requiring the infoimal hearing could delay a final
resolution by ODE given that a sponsor cari effectively delay the process for up to 70
days. Id. at W. Ultimately, the Magistrate concluded that "the consequences of
accepting [ODE's] constr~txction of the statute is to penalize a school for failing to
appreciate the statute's ambiguity and to create.more delay when a school inay feel that
it has already exhausted its discussions with its sponsor." Id. at 1147• Coz1versely, if R.C.
3314•o7(B)(4) is construed to permit a direct appeal to ODE, a cornmunit,y school would
have the benefit of a prompt and independent review of the sponsor's decision to
permanently discontinue its operations.
The appeals court ignored all of these rizles of statutory construction. indeed, its
holding was based on neither the language of the statute nor the applicable rtrle..s of
coi-istruction, but solely upon its asstimption that if the Ge.neral. Assembly had intended
for a community school to appeal directly to ODE, it would have said so. In so holding,
the appeals cotirt imposed a new and purely judicially-crafted precondition into R.C.
3314.o7(B)(4) - the veiy type of judic.ial lawmaking expressly proliibited by this Court in
State ex rel. C"assels.
10
The potential impact of this decision is not limited to R.C. 3314.07 or the more
than 3oo Ohio charter schools which it governs. The appeals court's,judicially-imposed
"statutory precondition" threatens to destabilize this Cotut's long line of decisions
regarding the fundamental principles governing the interpretation of Ohio statutes. A
pai-ty should not have to guess what a statute reqltires, nor should a party's entitlement
to an appeal be denied for failing to satisfy a statutory precondition that is not apparent
from the express language of the statute itself.
CONCLUSION
For these reasons, NBTA respectfully requests the Tenth District's decision be
reversed and NBTA's writ of mandamus to compel ODE to consider the merits of the
school's appeal be granted.
Respectfl.dly submitted,
MARC D. MEZIBOV (001931.6)STAC'Y A. I-IINNERS (0 076458)401 E. Court Street, Suite 6ooCincinnati, OH 45202'felephone: (513)62i-88ooTelecopier: (513)621-8833minezibov [email protected]
Attorneys forAppellairt/RelatorNation Building Techriical Academy
CERTIFICATE OF SERVICE
A true copy of the foregoing Memorandum in Support of Jurisdiction was sent via
electronic and regular mail to Counsel for Appellee Ohio Department of Education,
Scott M. Campbell, 3o E. Broad Street, 16th Floor, Co,
of March 2009.
MARC D. MEZIBOV (Ohio Bar No. 0019316)
12
IN T'-HE SUPREME COURT OF OHIO
STATE OF OT-IiO ex rel.NXTION SUIT.I:DINC'̂ 'L'ECT-IIV".It',AI,.Is.CADEMCX,
V V.
A.ppellant, On appeal from thel? ranklan County Court of Appeals,Tenth Appellate District
OHIO DEPARTMENT OFEIIUCATION,
Pi.I3pellee.
NOTICE OII APPEAL OFRELATOR NATION .EiJIL1311VG'I'EC]HNICt1J, ACADEMY
MARC D. MEZIBC}V (0019316), Counsel of R.ecordSTACY A. HINNERS (oo764 58),Law Office of Marc Mezibov401 E. Court Street, Suite 6ooCincinnati, OH 45202Telephone: (5x;i)6v1-88ooFacsimile; (513)[email protected] @n7ezibov. com
.A.ttornegsforAppellant/Relator National Building Te.chnical Acaclemy
NANCY H.. ROGERSSCOTT M. CAMPBELL (oo71o56)Office of the Ohio Attorney GeneralEducation Section30 Fast Broad Street, 16th FloorCohtnabus, OH 4.3215Telephozze: (67.4)728-2237Facsimile: (614)644-7634
Attor'neysforAppellee Ohio Depcrrtment ofT.chication
JAN 0 2 609
CLERK OF COURTSUPREME COURT CPONIO
1
NOTICE OFAPPF'AI.
Appellant/Relator Nation Building Technical Academy hereby gives notice of
appeal to the Supreme Court of Ohio from the juclgnient of the _Franki_in County Courtof
Appeals, Tenth Appellate District, entered ir- Case No. o7AP-76q on November 18,
2008.
This case .raises a substantial constitutional question and is one of public or great
general iuzterest.
Respectfully submitted,
7A:VtT OFFICE OF MARC MEZIBOV
IA94-
1V1ARC^ EZIBOV ( 0019316), Coimset of.RecordSTACYA! HIPdNE,RS (0076458)401 E. Court Street, Suite 600Cincinnati, OH 45202Telepb.one: (513)62i-•88ook'acsimile: (51.3)621:[email protected] @mezibov.con?.
Attorneys forAppetIant/IZe.IatorNcction Building Technical Academ y
CER7'IFdCAa'E OF S&'RViCl?,
A tzve and. correct copy of this Notice Appeal was sent by electronic mail and
ordinaxy U,S. mail to counsel for A.ppellce CJbio vepartmcnt of Education, Scott M.
Campbell, 3o E, Broad Street; 16th Floor, Colurnbus, UH 43215 on January 2, 2oo9,
e'-23̂-STAC'Y NNERS (0076458)
2
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Nation BuildingTechnical Academy,
Relator,
V.
Ohio Department of Education,
Respondent.
^^•,..` ^^...'^i ^^ uur.. r),° A
1T3 ,if1U tS F'p
^^tR f Gr CpliRrS
No. 07AP-169
(REGULAR CALENDAR)
D E C I S I 0 N
Rendered on November 18, 2008
Law Office of Marc Mezibov, Marc D. Mezibov, and Stacy A.Hinners, for relator.
Nancy H. Rogers, Attorney General, and Scott M. Campbell,for respondent.
IN MANDAMUSON OBJECTIONS TO THE MAGISTRATE'S DECISION
BROWN, J.
f¶1} Relator, Nation Building Technical Academy, has filed an original action
requesting that this court issue a writ of mandamus ordering respondent, Ohio
Department of Education, to hear relator's appeal pursuant to R.C. 3314.07(B)(4).
{¶2} This matter was referred to a magistrate of this court pursuant to Civ.R.
53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a
3
No. 07AP-169 2
decision, including findings of fact and conclusions of law, recommending that this court
issue a writ of mandamus ordering respondent to determine relator's appeal, (Attached
as Appendix A.)
{¶3} Respondent has filed objections to the magistrate's decision. In its
objections, respondent argues that relator: (1) failed to exhaust administrative remedies;
(2) seeks to compel a vain act; and (3) failed to properly appeal the decision of the
sponsor under the plain language of R.C. 3314.07.
{¶4} The followings facts, which are essentially not in dispute, are drawn
primarily from the magistrate's decision. Relator is an Ohio non-profit corporation. The
Lucas County Educafional Services Center ("LCESC") is an approved statewide sponsor
of community schools pursuant to R.C. 3314.015. In March 2004, relator entered into a
written contract with LCESC, whereby LCESC agreed to sponsor relator's establishment
of a cdmmunity school in Hamilton County, Ohio, to begin operation by September 1,
2004.
t¶5} In March 2005, LCESC notified relator that its community school was being
placed on probation pursuant to R.C. 3314.073. On May 17, 2005, LCESC conducted an
on-site'visit of relator's community school. On May 25, 2005, LCESC notified relator that
its community school was suspended pursuant to R.C. 3314.072.
{¶6} By letter dated December 2, 2005, LCESC informed relator that its contract
was being terminated. That letter provided in part: "The Governing Authority *' * may,
within fourteen (14) days of receipt of this Notice, request in writing an informal hearing
before LCESC's Governing Board." The letter further stated: "Upon receipt of proper
written notice, LCESC will hold an informal hearing within seventy (70) days ***[and]
4
No. 07AP-169 3
LCESC will issue a written decision either affirming or rescinding the decision to terminate
the contract. LCESC's decision to terminate the contract may be appealed to the State
Board of Education."
{17} On December 12, 2005, relator filed an appeal with respondent from the
decision of LCESC. In a letter to relator dated December 27, 2005, respondent's
associate director outlined respondent's posiNon that R.C. 3314.0.7(B)(3) sets forth a
procedure whereby, once a request for an informal hearing is made, and a written
decision is rendered either affirming or rescinding a sponsor's decision to terminate a
contract, the school then has a right to appeal the decision to respondent. In a letter by
the director of LCESC to respondent's executive director, dated January 10, 2006,
LCESC represented that it had provided relator with . notice of the relevant statutory
procedures, and that, "[t]o date, there has been no request for an informal hearing before
LCESC regarding its decision to terminate the contract with '**[relator]."
{18} By letter dated May 8, 2006, relator requested that respondent hear its
appeal. On August 24, 2006, respondent informed relator that an appeal was not
available because relator had failed to request an informal hearing pursuant to R.C.
3314.07(B)(3). By letter dated November 20, 2006, counsel for relator challenged
respondent's position that relator was not entitled to an appeal. On January 10, 2007,
respondent informed relator that its position remained unchanged. Relator subsequently
commenced the instant mandamus action.
{19} R.C. 3314.07 deals with the termination or non-renewal of a contract
between a community school and its sponsor. R.C. 3314.07(B) states in part:
5
No. 07AP-169 4
(B)(1) A sponsor may choose not to renew a contract at itsexpiration or may choose to terminate a contract prior to itsexpiration for any of the following reasons:
(a) Failure to meet student performance requirements statedin the contract;
(b) Failure to meet generally accepted standards of fiscalmanagement;
(c) Violation of any provision of the contract or applicablestate or federal law;
(d) Other good cause.
(3) At least ninety days prior to the termination or nonrenewalof a contract, the sponsor shall notify the school of theproposed action in writing. - The notice shall include thereasons for the proposed action in detail, the effective date ofthe termination or nonrenewal, and a statement that theschool may, within fourteen days of receiving the notice,request an informal hearing before the sponsor. Suchrequest must be in writing. The informal hearing shall be heldwithin seventy days of the receipt of a request for the hearing.Promptly following the informal hearing, the sponsor shallissue a written decision either affirming or rescinding thedecision to terminate or not renew the contract.
(4) A decision by the sponsor to terminate a contract may beappealed to the state board of education. The decision by thestate board pertaining to an appeal under this division is final.If the sponsor is the state board, its decision to terminate acontract under division (B)(3) of this section shall be final.
{110} In his decision, the magistrate found potential ambiguity in the statute as to
whether the word "decision" in R.C. 3314.07(B)(4) (i:e., providing that "[a] decision by the
sponsor to terminate a contract may be appealed to the state board of education") refers
exclusively to the written decision of the sponsor that follows an informal hearing, or
whether it refers to both the written decision following the hearing and the "proposed
6
No. 07AP-169
action" of the sponsor referenced in R.C. 3314.07(B)(3). The magistrate concluded that,
in light of the statute's ambiguity, the consequences of accepting respondent's
interpretation of the statute would be to penalize a school as a result of such ambiguity.
{111} In order to be entitled to a writ of mandamus, a relator must demonstrate a
clear legal right to the relief prayed for, that respondent has a clear legal duty to perform
the acts, and that relator has no plain and adequate remedy in the ordinary course of law.
State ex reL Manson v. Morris (1993),66 Ohio St.3d.440, 441.
{1[12} While respondent raises three objections, we focus upon its contention that
relator failed to follow the requirements of R.C. 3314.07 in order to appeal the decision to
terminate the contract. Respondent argues that, while the magistrate focused upon the
language of R.C. 3314,.07(B)(3) and (4), a consideration of R.C. 3314.07(B)(5) is pertinent
to the issue of whether a school may, following notice from the sponsor of the proposed
action, directly appeal without first requesting an informal hearing. Specifically,
respondent argues that R.C. 3314.07(B)(5)(a) and (b), dealing with the issue of when the
termination of a contract is effective, clarifies any perceived ambiguity under R.C.
3314.07(B)(4).
{1131 R.C. 3314.07(B)(5) provides as follows:
(5) The termination of a contract under this section shall beeffective upon the occurrence of the later of the followingevents:
(a) Ninety days following the date the sponsor notifies theschool of its decision to terminate the contract as prescribedin division (B)(3) of this section;
(b) If an informal hearing is requested under division (B)(3) ofthis section and as a result of that hearing the sponsor affirmsits decision to terminate the contract, the effective date of the
No. 07AP-169 6
termination specified in the notice issued under division (B)(3)of this section, or if that decision is appealed to the stateboard under division (B)(4) of this section and the state boardaffirms that decision, the date established in the resolution ofthe state board affirming the sponsor's decision.
{114} According to respondent, the language of R.C. 3314.07(B)(5)(a) would
control in circumstances in which a community school does not request an informal
hearing; conversely, respondent argues, R.C. 3314.07(B)(5)(b) addresses the termination
date when a community school pursues its administrative remedies.
{115} We find persuasive respondents argument that the contract termination
events set forth under R.C. 3314.07(B)(5) are relevant in considering the intent and scope
of R.C. 3314.07(B)(4) regarding the right of appeal to the state board of education. As
noted by respondent, the language of R.C. 3314.07(B)(5)(a) does not address extending
the time by which a termination becomes effective assuming a direct appeal is taken;
stated otherwise, the statute does not appear to provide for a terminaiion event (or date) if
the community school, instead of requesting an informal hearing within 14 days of
receiving notice (a scenario addressed under R.C. 3314.07[B][5][b]), attempts to directly
appeal the proposed action.
{116} Upon review, we agree with respondent that R.C. 3314.07(B)(5)(a)
addresses termination of a contract in instances where a sponsor provides written notice
to a school of the proposed adverse action, but the school fails to request an informal
hearing within 14 days of such notice (i.e., the contract terminates "[n]inety days following
the date the sponsor notifies the school of its decision to terminate the contract"). Further,
the language of R.C. 3314.07(B)(5)(b) addresses the termination events for the following
remaining scenarios: (1) "[i]f an informal hearing is requested" by the school and,
8
No. 07AP-169 7
following the hearing, the sponsor affirms its decision to terminate the contract, the
contract terminates as of the date specified in the notice, or (2) if "that decision" is
appealed to the state board and the state board affirms that decision, the termination of
the contract is the date established in the resolution of the state board.
(117} Presumably, had the drafters of R.C. 3314.07 intended to allow an appeal
without a request for an informal hearing, the statute could have included language to the
effect that the school may, within 14 days of receiving the notice, request an informal
hearing befoPe the sponsor or appeal directly to the state school board. While the
provisions of R.C. 3314.07 may not be a model of clarity, in construing the language of
R.C. 3314.07(B)(3), (4), and (5) as a whole, we agree with respondent that the statute
requires a community school to first request an informal hearing and receive a written
decision from the sponsor before appealing to the state board of education. Thus, we
conclude that relator has failed to state a claim upon which relief in mandamus can be
granted, and respondent's objection on this issue is well-taken.
{118} Based upon this court's independent review, we sustain respondent's
objection to the extent provided above, rendering respondent's remaining objections
moot. Further, we adopt the magistrate's findings of fact, but reject the magistrate's
conclusions of law. Relator's request for a writ of mandamus is hereby denied.
Objection sustained and objections moot; writ of mandamus denied.
McGRATH, P.J., and FRENCH, J., concur.
9
No. 07AP-169
APPENDIX A
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Nation BuildingTechnical Academy,
Relator,
V.
Ohio Department of Education,
Respondent.
No. 07AP-169
(REGULAR CALENDAR)
MAGISTRATE'S DECISION
Rendered on January 25, 2008
Mezibov & Jenkins, Co. LPA, Marc D. Mezibov and Stacy A.Hinners, for relator.
Marc Dann, Attorney General, and Scott M. Campbell, forrespondent.
IN MANDAMUS
{y[19} In this original action, relator, Nation Building Technical Academy ("relator"
or "NBTA"), requests a writ of mandamus ordering respondent, Ohio Department of
Education ("respondent" or "ODE"), to hear relator's appeal pursuant to R.C.
3314.07(B)(4).
10
No. 07AP-169 9
Findings of Fact:
{9[20} 1. Relator.is an Ohio nonprofit corporation.
{1211 2. Lucas County Educational Services Center ("LCESC") is an ODE-
approved state-wide sponsor of community schools under R.C. 3314.015.
{122} 3. In March 2004, relator entered into a written contract with LCESG.
Under the terms of the contract, LCESC agreed to sponsor relator's establishment of a
'community school to begin operation by September 1, 2004, in Hamilton County, Ohio.
{123} 4. In March 2005, LCESC notified relator that its community school was
being placed on probation pursuant to R.C. 3314.073.
{9[24} 5. On May 17, 2005, LCESC conducted a site visit of relator's aommunity
school.
{125} 6. On May 25, 2005, LCESC notified relator that its community school was
suspended pursuant to R.C. 3314.072. -
{126} 7. By letter dated December 2, 2005, LCESC notified relator that its
contract was terminated pursuant to R.C. 3314.072. The letter advised:
The Governing Authority of [NBTA] may, within fourteen (14)days of receipt of this Notice, request in writing an informalhearing before LCESC's Governing Board. Upon receipt ofproper written notice, LCESC will hold an informal hearingwithin seventy (70) days thereafter. LCESC will issue awritten decision either affirming or rescinding the decision toterminate the contract. LCESC's decision to terminate thecontract may be appealed to the State Board of Education.
{y[27} 8. By letter dated December 12, 2005, NBTA appealed to ODE.
{128} 9. By letter dated May 8, 2006, relator requested that ODE hear its appeal.
In support, relator attached a copy of its December 12, 2005 letter.
ii
No. 07AP-169 10
{129} 10. By letter dated August 24, 2006, ODE informed relator that an appeal
was not available because relator had failed to request an informal hearing pursuant to
R.C. 3314.07(B)(3).
{130} 11. By letter dated November 20, 2006, relator's counsel questioned ODE's
position that relator was not entitled to an ODE appeal.
11311 12. By letter dated January 10, 2007, ODE informed relator that ODE's
position remained unchanged.
{g[32} 13. On February 26, 2007, relator filed this original action.
Conclusions of Law:
11[33} The issue is whether a request for an infonnal hearing under R.C.
3314.07(B)(3) is a prerequisite to R.C. 3314.07(B)(4)'s grant of a right to an ODE appeal
of the sponsor's notice of contract termination.
{134} Finding that the informal hearing is not a prerequisite to R.C.
3314.07(B)(4)'s grant of a right to an ODE appeal, it is the magistrate's decision that this
court issue a writ of mandamus, as more fully explained below.
{135} R.C. 3314.07(B)(2) provides that a sponsor may choose to terminate a
contract if the sponsor has suspended the operation of the contract under R.C.
3314.07(B)(2).
{136} R.C. 3314.07(B)(3) states:
At least ninety days prior to the termination or nonrenewal ofa contract, the sponsor shall notify the school of theproposed action in writing. The notice shall include thereasons for the proposed action in detail, the effective dateof the termination or nonrenewal, and a statement that theschool may, within fourteen days of receiving the notice,request an informal hearing before the sponsor. Such
12
No. 07AP-169 11
request must be in writing. The informal hearing shall beheld within seventy days of the receipt of a request for thehearing. Promptly following the informal hearing, the sponsorshall issue a written decision either affirming or rescindingthe decision to terminate or not renew the contract.
{137} R.C. 3314.07(B)(4) states: "A decision by the sponsor to terminate a
contract may be appealed to the state board of education. The decision by the state
board pertaining to an appeal under this division is final."
{138} Some observations regarding the statutory language are in order. To
begin, the first and second sentences of R.C. 3314.07(B)(3) speak of the "proposed
action" of the sponsor who intends to terminate the contract. Neither of those two
sentences speak of the "decision" of the sponsor even though the second sentence
requires that the sponsor's notice specify the effective date of the termination.
Presumably, where a sponsor has decided to issue notice of the contract's, termination,
the sponsor has reached a decision to terminate the contract. However, unexplainedly,
the word "decision" does not appear until the last sentence of R.C. 3314.07(B)(3).
{y[39} In the last sentence of R.C. 3314.07(B)(3), it is stated that promptly
following the informal hearing, the sponsor shall issue "a written decision either affirming
or rescinding the decision to terminate." Thus, the word "decision" is used to refer to both
the "proposed action" and the written decision that follows an informal hearing.
[140} Given the above analysis, an ambiguity occurs when, in the next paragraph,
R.C. 3314.07(B)(4) provides that "[a] decision by the sponsor to terminate a contract may
be appealed to the state board of education." Does the word "decision" in R.C.
3314.07(B)(4) refer to either decision of the sponsor referenced in the previous
13
No. 07AP-169 12
paragraph, or to only the "written decision either affirming or rescinding the decision to
terminate"?
{141} If the word "decision" in R.C. 3314.07(B)(4) refers to either decision of the
sponsor, then a request for an informal hearing cannot be a prerequisite for an ODE
appeal. On the other hand, if the word "decision" in R.C. 3314.07(B)(4) refers exclusively
to the written decision that follows an informal hearing, then a request for an informal
hearing is a prerequisite for an ODE appeal.
{9[42} The magistrate further observes that ODE has not endeavored to clarify the
ambiguity by promulgation of an administrative rule. See Ohio Adm.Code 3301-102-101
et seq. Thus, ODE's administrative rules do not aid this court in the interpretation to be
given to the statute at issue here. See Ohio Civ. Serv. Emp. Assn. v. Univ. of Cincinnati
(1982), 3 Ohio App:3d 302.
{143} How then shall this court resolve the ambiguity created by the statute's
failure to specify which decision of the sponsor may be appealed to ODE.
{144} R.C. 1.49 provides:
If a statute is ambiguous, the court, in determining theintention of the legislature, may consider among othermatters:
(A) The object sought to be attained;
(B) The circumstances under which the statute was enacted;
(C). The legislative history;
(D) The common law or former statutory provisions,including laws upon the same or similar subjects;
(E) The consequences of a particular construction;
(F) The administrative construction of the statute.
14
No. 07AP-169 13
{145} The magistrate observes that R.C. 3314.07(B)(3)'s reference to an "informal
hearing" is contained in the requirements for the sponsor's notice to the school. Absent is
any language imposing upon the school an obligation to request the informal hearing as a
prerequisite to an appeal to ODE.
{146} The magistrate also observes that neither the statute nor the administrative
rules specify how the informal hearing is to be conducted or in what manner evidence or
information is to be submitted at an informal hearing. Moreover, the adjudicator at the
informal hearing is the same party who just issued notice of the contract's termination. In
addition, a request for an informal hearing could delay a final resolution by the ODE given
that the sponsor can delay the informal hearing up to 70 days after receipt of the request.
{147} Given the above analysis, it is the magistrate view that, under R.C. 1.49, the
consequences of accepting respondent's construction of the statute is to penalize a
school for failing to fully appreciate the statute's ambiguity and to create more delay when
a school may feel that it has already exhausted its discussions with its sponsor.
{148} Accordingly, for all the above reasons, it is the magistrate's decision that
this court issue a writ of mandamus ordering respondent to forthwith determine relator's
appeal.
/s/ Kenneth W. MackeKENNETH W. MACKEMAGISTRATE
15
No. 07AP-169 14
NOTICE TO THE PARTIESCiv.R. 53(D)(3)(a)(iii) provides that a party shall not assignas error on appeal the court's adoption of any factual findingor legal conclusion, whether or not specifically designatedas a finding of fact or conclusion of law under Civ:R.53(D)(3)(a)(ii), unless the party timely and specificallyobjects to that factual finding or legal conclusion as requiredby Civ.R. 53(D)(3)(b).
16
20564 - T15
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rei. Nation BuildingTechnical Academy,
7.-73 t,Jv ! a ^q 3: 2 2CLERK OF COURTS
Relator,
v. No. 07AP-169
Ohio Department of Education, (REGULAR CALENDAR)
Respondent.
JUDGMENT ENTRY
For the reasons stated in the decision of this court rendered herein on
November 18, 2008, we sustain' . respondent's objection to the extent provided, and
render respondent's remaining objections moot. Further, we adopt the magistrate's
findings of fact, but reject the magistrate's conclusions of law. Therefore, this court
concludes that the requested writ of mandamus be denied. Costs are assessed equally
agafnst the parties.
Within three (3) days from the filing hereof, the clerk of this court is hereby
ordered to serve upon all parties not in default for failure to appear, notice of this
judgment and its date of entry upon the joumai.
Judge S san Bro
Judge•Petrick M. McGrath, P.J.
r^^ P.^^rL---Judge Judith L. French
11
State oi' Clhio e.x rel. Nation Buiidin-, Crtse No. 2009-0003TecI3€tic<i1 Academy
E N'1:" R l'L^.
Ohio laelaztetfoe)7t.qf Eci€t
't his uauwe is ps:xisthic bi*:{'€r.ra th6C::otU't as a dist.retirana)•;r appeal rtrtd cttii.mt:ct appeal of
r1g17t. Upon c(3ri"7:dflr 3.€if)Ft of jUY1SC1Si:t7:t)n^FI.IYIt'.T]7i3i'8.17t1ti537., 7.ti3 dt:tNrJTtl.ntd. by
the Court that tl7ii eALltiC t7t'1!?,113:TC0d.41 tl2s:'cX.1Urt ii{" %lf1(.?L'Eil;tiz74)i:l Sb2A"ll proceed «i;+;3 direct
a[71x:a1.
It. is ordered by the Cnuit that the CtE.t"k shall isstte an <.al det fnr the t)•a.nsirtittttl of therecord frorn t}te Corirt of Appeals to Frmnklin. Ccxinty. .tl7.rl+ell:iitt 43ctll i7le. its merit brief^,vithirt forty d€ry^, c>1` the fiPnW of ti2E, fae ortt %'itll the C'lw•1< oS this C'vztrt, oancl the pit.rtirsshall vtheruFise proaeed in accoxdame with S.Ct..Prsec.Ft. VI,
(t~'rattl:fin Cvuzity Cc=urC t:sf .R1} l>eals; Nck. tJ7r1P 169)
'I`Ei(7N1AS J. MOYk:[ZZ.11k;1^.lllStb::i'.
18
1.11 Liberal construction of remedial laws
Remedial laws and all proceedings under them shall be liberally construed in order to promote their object and assistthe parties in obtaining justice. The rule of the common law that statutes in derogation of the common law must bestrictly construed has no application to remedial laws; but this section does not require a liberal construction of lawsaffecting personal liberty, relatuig to amercement, or of a penal nature.
19
0 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
1.42 Common and technical usage
Words and phrases shall be read in context and construed according to the rules of grammar and common usage.Words andphrases that have acquired a technical or particular meaning, whether by legislative definition or other-wise, shall be constiued accordingly.
20
© 2009 Thomson Reuters/West. No Clairn to Orig. US Gov. Works.
1.49 Aids in construction of ambiguous statutes
If a statute is ambiguous, the court, in determining the intention of the legislature, may consider among othcr mat-ters:
(A) The object sought to be attained;
(B) The circumstances under which the statute was enacted;
(C) The legislative history;
(D) The connnon law or former statutoty provisions, including laws upon the same or similar subjects;
(E) The consequences of a particular construction;
(F) The administrative construction of the statute.
21
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
3314.015 Department of education to oversee and assist community school sponsors
(A) The department of education shall be responsible for the oversight of sponsors of the community schools estab-lished under this chapter and shall provide technical assistance to schools and sponsors in their compliance withapplicable laws and the terms of the contracts entered into under section 3314.03 of the Revised Code and in thedevelopment and start-up activities of those schools. In carrying out its duties under this section, the departmentshall do all of the following:
(1) In providing technical assistance to proposing parties, govetning autlrorities, and sponsors, conduct ttaining ses-sions and distribute informational materials;
(2) Approve entities to be sponsors of conununity schools and monitor the effectiveness of those sponsors in theiroversight of the schools with which they have contracted;
(3) By December thirty-first of each year, issue a report to the governor, the speaker of the house of representatives,the president of the senate, and the chairpersons of the house and senate committees principally responsible for edu-cation matters7egarding the effectiveness of academic programs, operations, and legal compliance and of the finan-cial condition of all community schools established under this chapter;
(4) From time to time, make legislative recommendations to the general assembly designed to enhance the operationand performance of community schools.
(B)(1) No entity listed in div sion (C)(1) of sect on 3314 02 of the Revised Code shall enter into a preliminaryagreement under division (C)(2) of section 3314.02 of the Revised Code until it has received approval from the de-partment of education to sponsor community schools under this cliapter and has entered into a written agreementwith the department regarding the manner in which the entity will conduct such sponsorship. The department shalladopt in accordance with Chapter 119. of the Revised Code rules containing criteria, procedures, and deadlines forprocessing applications for such approval, for oversight of sponsors, for revocation of the approval of sponsors, andfor entering into written agreements with sponsors. The rules shall require an entity to submit evidence of the en-tity's ability and willingness to comply with the provisions of division (D) of section 3314.03 of the Revised Code.The rules also shall require entities approved as sponsors on and after June 30, 2005, to demonstrate a record of fi-nancial responsibility and successful implementation of educational programs. If an entity seeking approval on orafter June 30, 2005, to sponsor cotnmunity schools in this state sponsors or operates schools in another state, at leastone of the schools sponsored or operated by the entity must be comparable to or better than the performance of Ohioschools in need of continuous improvement under section 3302.03 of the Revised Code, as determined by the de-partment.
An entity that sponsors community schools may enter into preliminaty agreernents and sponsor schools as follows,provided each school and the contract for sponsorship meets the requirements of this chapter:
(a) An entity that sponsored fifty or fewer scliools that were open for operation as of May 1, 2005, may sponsor notmore than fifty schools.
(b) An entity that sponsored more than fifty but not more than seventy- five schools that were open for operation asof May 1, 2005, may sponsor not more than the number of schools the entity sponsored that were open for operationas of May 1, 2005.
22,
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
(c) l:Jntil June 30, 2006, an ettity that sponsored more than seventy-five schools that were open for operation as ofMay 1, 2005, may sponsor not more than the number of schools the entity sponsored that were open for operation asof May 1, 2005. After June 30, 2006, such an entity may sponsor not more than seventy-five schools.
Upon approval of an entity to be a sponsor under this division, the depattment shall notify the entity of the numberof schools the entity may sponsor.
The lin it imposed on an entity to which division (13)(1) of this section applies shall be decreased by one for eachschool sponsored by the cntity that permanently closes.
If at any time an entity exceeds the numberpf schools it niay sponsor under this division, the department shall assistthe schools in excess of the entity's limit in securing new sponsors. If a scbool is unable to secure a new sponsor, thedepartment shall assume sponsorship of the school in accordance with division (C) of this section. Those schools forwhich another sponsor or the department assumes sponsorship shall be the schools that most recently entered intocontracts with the entity under section 3314.03 of the Revised Code.
(2) The department of education shall determine, pursuant to criteria adopted by tule of the department, whether themission proposed to be specified in the contract of a community school to be sponsored by a state university boardof trustees or the board's designee under division (C)(1)(e) of section 3314.02 of he Revised Code complies withthe requirements of that division. Such deterniination of the department is final.
(3) The department of education shall detetmine, pursuant to criteria adopted by rule of the department, if any tax-exempt entity under section 501f c)(3) of the Internal Revenue Code that is proposed to be a sponsor of a communityschool is an education-oriented entity for purpose of satisfying the condition prescribed 'm division C1Z(t^[iii) ofsection 3314.02 of the Revised Code. Such determination of the department is fmal.
(C) If at any time the state board of education finds that a sponsor is not in compliance or is uo longer wIlling tocomply with its contract with any community school or with the department's rules for sponsorship, the state boardor designee shall conduct a hearing in accordance with Chapter 119. of the Revised Code on that matter. If after thehearing, the state board or designee has confirmed the original finding, the department of education may revoke thesponsor's approval to sponsor community schools and may assume the sponsorship of any schools with which thesponsor has contracted until the earlier of the expiration of two school years or until a new sponsor as described indivision (C)(1) of section 3314.02 of the Revised Code is secured by the school's governing authority. The depart-ment may extend the term of the contract in the case of a school for which it has assumed sponsorship under thisdivision as necessary to accommodate the term of the deparhnent's authorization to sponsor the school specified inthis division:
(D) The decision of the department to disapprove an entity for sponsorship of a community school or to revoke ap-proval for such sponsorship, as provided in division (C) of this section, may be appealed by the entity in accordancewith section 119.12 of the Revised Code.
(E) The departtnent shall adopt procedures for use by a community school governing authority and sponsor when theschool permanently closes and ceases operation, which sball include at least procedures for data reporting to thedepartment, handling of student records, distribution of assets in accordance with section 3314.074 of the RevisedCode, and other matters related to ceasing operation of the school.
(F) In carrying out its duties under this chapter, the departtnent shall not impose requirements on community schoolsor their sponsors that are not permitted by law or duly adopted rules.
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© 2009 Thomson Reutets/West. No Claim to Orig. US Gov. Works.
3314.02 Definitions; proposal for conversion to community school
(A) As used in this chapter:
(I) "Sponsor" means an entity listed in division (C)(1) of this section, which has been approved by the departmentof education to sponsor community schools and with which the governing authority of the proposed communityschool enters into a contract pursuant to this section.
(2) "Pilot project area" means the school districts included in the territory of the former community school piloproject establishedby former Section 50.52 of Am. Sub. H.B. No. 215 of the 122nd general assembly.
(3) "Challenged school district" means any of the following:
(a) A school district that is part of the pilot project area;
(b) A scliool district that is either ht a state of acadeniic emergency or in a state of academic watch under section3302.03 of the Revised Code;
(c) A big eight school district.
(4) "Big eight school district" means a school district that for fiscal year 1997 l ad both of the following:
(a) A percentage of children residing in the district and participating in the predecessor of Ohio works first greaterthan thirty per cent, as reported pursuant to section 3317.10 of the Revised Code;
(b) An average daily membership greater than twelve thousand, as reported pursuant to former division (A) of sec-tion 3317.03 of the Revised Code.
(5) "New start-up school" means a community school other than one created by converting all or part of an existingpublic school or educational service center building, as designated in the school's contract pursuant to division(A^(17) of section 3374.03 of the Revised Code.
(6) "Urban school district" means one of the state's twenty-one urban school districts as defined in division (0) ofsection 3317.02 of the Revised Code as that section existed prior to July 1, 1998.
(7) "Internet- or computer-based community school" means a community school established under this chapter inwhich the enrolled students work primarily from their residences on assignments in nonclassroom-based learningopportuniCies provided via an internet- or other computer-based instructional method that does not rely on regularclassroom instruction or via comprehensive instructional methods that include internet-based, othcr computer-based,and noncomputer-based leaming opportunities.
(B) Any person or group of individuals may initially propose under this division the conversion of all or a portion ofa public school or a building operated by an educational service center to a community school. The proposal shall bemade to the board of education of the city, local, or exempted village school district in which the public school isproposed to be converted or, in the case of the conversion of a build'uig operated by an educational service center, tothe goveming board of the service center. Upon receipt of a proposal, a board may enter into a preliminary agree-ment with the person or group proposing the conversion of the public school or service center building, indicatingthe intention of the board to support the conversion to a community school. A proposing person or group that has apreliminary agreement under this division may proceed to finalize plans for the school, establish a goveming
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authority for the school, and negotiate a contract with the board. Provided the proposing person or group adheres tothe preliminary agreement and all provisions of this chapter, the board shall negotiate in good faith to enter into acontract in accordance with section 3314.03 of the Revised Code and division (C) of this section.
(C)(1) Any person or group of individuals may propose under this division the establishment of a new start-upschool to be located in a challenged school district. The proposal may be made to any of the following entities:
(a) The board of education of the district in which the school is proposed to be located;
(b) The board of education of any joint vocational school district with territory in the county in which is located themajority of the territory of the district in which the scltool is proposed to be located;
(c) The board of education of any other city, local, or exempted village school district having territory in the samecounty where the district in which the school is proposed to be located has the major portion of its territoty;
(d) The governing board of any educational service center, as long as the proposed school will be located in a countywithin the territory of the service center or in a county contiguous to such county;
(e) A sponsoring authority designated by the board of trustees of any of the thirteen state universities listed insection 3345.011 of the Revised Code or the board of trustees itself as long as a mission of the proposed school to bespecified in the contract under division (A)(2) of section 3314.03 of the Revised Code and as approved by the de-partment of education under division (B)(21 of seetion 3314.015 of the Revised Code will be the practical demon-stration of teaching methods, educational technology, or other teaching practices that are included in the curriculumof the university's teacher preparation program approved by the state board of education;
(f) Any qualified tax-exempt entity under section 501 (c)(3) of the Internal Revenue Code as long as all of the fol-
lowing conditions are satisfied:
(i) The entity has been in operation for at least five years prior to applying to be a community school sponsor.
(ii) The entity has assets of at least five hundred thousand dollars and a demonstrated record of financial responsi-bility.
(iii) The department of education has determined that the entity is an education-oriented entity under division (B)(3)of section 3314.015 of the Revised Code and the entity has a demonstrated record of successful impleinentation ofeducational programs.
(iv) The entity is not a conununity school.
Any entity described in division (C)(1) of this section may enter into a preliminary agreement pursuant to division(C)(2) of this section with the proposing person or group.
(2) A prelimh ary agreement indicates the intention of an entity described in division (C)(1) of this section to spon-sor the community school. A proposing person or group that has such a preliminary agreement may proceed to fi-nalize plans for the school, establish a governing authority as described in division (E) of this section for the school,and negotiate a contract with the entity. Provided the proposing person or group adheres to the preliminary agree-ment and all provisions of this chapter, the entity shall negotiate in good faith to enter into a contract in accordancewith section 3314.03 of the Revised Code.
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(3) A new start-up school that is established in a schoot district while that district is either in a state of academicemergency or in a state of academic watch under section 3302.03 of the Revised Code may continue in existenceonce the school district is no longer in a state of academic emergency or acadentic watch, provided there is a validcontract between the scltool and a sponsor.
(4) A copy of every preliminary agreement entered into under this division shall be filed with the superintendent ofpublic instruction.
(D) A majority vote of the board of a sponsoring entity and a majority vote of the members of the governing author-ity of a conununity school shall be required to adopt a contract and convert the pubhc school or educational setvicecenter building to a community school or establish the new start-up school. Beginning Septetnber 29, 2005, adoptionof the contract shall occur not later than the fifteenth day of March, and signing of the contract shall occur not laterthan the fifteenth day of May, prior to the school year in which the school will open. The governing authority shallnotify the department of education when the contract has been signed Subject to sections 3314.013, 3314.014,3314.016, and 3314.017 of the Revised Code, an unlimited number of community schools may be established in anyschool district provided that a contract is entered into for each community school pursuant to this chapter.
(E)(1) As used in this division, "immediate relatives" are limited to spouses, children, parents, grandparents, sib-lings, and in-laws.
Each new start-up community school established under this chapter shall be under the direction of a govemingauthority which shall consist of a board of not less than five individuals.
No person shall serve on the governing authority or operate the community school under contract with the govemingauthority so long as the person owes the state any money or is in a dispute over whether the person owes the stateany money concerning the operation of a community school that has closed.
(2) No person shall serve on the governing authorities of more than two start-up commnnity schools at the sametime.
(3) No present or former member, or imtnediate relative of a present or foriner member, of the governing authorityof any connnunity school established under this chapter shall be an owner, employee, or consultant of any nonprofitor for-profit operator of a community school, unless at least one year has elapsed since the conclusion of the person'smembership.
(F)(1) A new start-up school that is established prior to August 15, 2003, in an urban school district that is not also abig-eight school district may continue to operate after that date and the contract between the school's governingauthority and the school's sponsor may be renewed, as provided under this chapter, after that date, but no additionalnew start-up schools may be established in such a district unless the district is a challenged school district as definedin this section as it exists on and after that date.
(2) A community school that was established prior to June 29, 1999, and is located in a county contiguous to thepilot project area and in a school district that is not a challenged school district tnay continue to operate after thatdate, provided the school complies with all provisions of this chapter. The contract between the school's governingauthority and the school's sponsor may be renewed, but no additional start-up cotnmunity school may be establishedin that district unless the district is a challenged school district.
(3) Any educational service center that, on June 30, 2007, sponsors a conununity school that is not located in acounty within the territory of the service center or in a county contiguous to such county may continue to sponsorthat community school on and after June 30, 2007, and may renew its contract with the school. Ilowever, the educa-
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tional service center shall not enter into a contract with any additional community school unless the school is locatedin a county within the territory of the service center or in a county contiguous to such county.
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3314.07 Expiration or nonrenewal of contracts; informal hearing; civil immunities
(A) The expiration of the contract for a community school between a sponsor and a school shall be the date providedin the contract. A successor contract may be entered into pursuant to division (E) of section 3314.03 of the RevisedCode unless the contract is terminated or not renewed pursuant to this section.
(B)(1) A sponsor may choose not to renew a contract at its expiration or may choose to terminate a contract prior toits exph'ation for any of the following reasons:
(a) Failure to meet student performance requirements stated in the contract;
(b) Failure to meet generally accepted standards of fiscal management;
(c) Violation of any provision of the contract or applicable state or federal law;
(d) Other good cause.
(2) A sponsor may choose to terminate a contract prior to its expiration if the sponsor has suspended the operation ofthe contract under section 3314.072 of the Revised Code.
(3) At least ninety days prior to the termination or nonrenewal of a contract, the sponsor shall notify the school ofthe proposed action in writing. The notice shall include the reasons for the proposed action in detail, the effectivedate of the termination or nonrenewal, and a statement that the school may, within fourteen days Qf receiving thenotice, request an infonnal bearing before the sponsor. Such requestmust be in writing. The informal hearing shallbe held within seventy days of the receipt of a request for the hcaring. Promptly following the informal hearing, thesponsor shall issue a written decision either affirming or rescinding the decision to terminate or not renew thecontract.
(4) A decision by the sponsor to terminate a contract may be appealed to the state board of education The decisionby the state board pertaining to an appeal under this division is fmal. If the sponsor is the state board, its decision toterminate a contract under division (B)(3) of this section shall be final.
(5) The terrtiination of a contract under tl-iis section shall be effective upon the occurrence of the later of thefollowing events:
(a) Ninety days following the date the sponsor notifies the school of its decision to terminate the contract asprescribed in division (B)(3) of this section;
(b) If an informal hearing is requested under division (B)(3) of this section and as a result of that hearing the sponsoraffirms its decision to.tenninate the contract, the effective date of the tertnination specified in the notice issued underdivision (B)(3) of this section, or if that decision is appealed to the state board under division (B)(4) of this sectionand the state board affirms that dccision, the date established in the resolution of the state board affirming thesponsor's decision.
(6) Any community school whose contract is terminated m der this division shall not enter into a contract with anyother sponsor.
(C) A child attending a community school whose contract has been terminated, nom-enewed, or suspended or thatcloses for any reason shall be admitfed to the schools of the district in which the child is entitled to attend undersection 3313.64 or 3313.65 of the Revised Code. Any deadlines established for the purpose of admitting studentsunder section 3313.97 or 3313.98 of the Revised Code shall be waived for students to whom this division pertains.
(D) If a community scltool does not intend to retrew a contract with its sponsor, the community school shall notifyits sponsor in writing of that fact at least one hundred eighty days prior to the expiration of the contract. Such a
community school may enter into a contract with a new sponsor in accordance with section 3314.03 of the RevisedCode upon the expiration of the previous contract.
(E) A sponsor of a community school and the officers, directors, or employees of such a sponsor are not liable indamages in a tort or other civil action for harm allegedly arising from either of the following:
(1) A failure of the community school or any of its officers, directors, or employees to perform any statutory orcommon law duty or responsibility or any other legal obligation;
(2) An action or oinission of the conununity school or any of its officers, directors, or employees that results inharm.
(F) As used in this section:
(1) "Harm" means injury, death, or loss to person or property.
(2) "Tort action" means a civil action for damages for injury; death, or loss to person or property other than a civilaction for damages for a breach of contract or another agreement between pesons.
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