Update: On September 24, 2015, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
On March 10, 2015, the Supreme Court of Ohio will hear oral argument in the case of Adam Stewart v. Board of Education of Lockland School District, 2014-0164. At issue in this case is whether for-cause public employees may require a governing body to deliberate in public when deciding to terminate an employee.
On July 25, 2012, the Appellee Board of Education of Lockland School District was informed by the Ohio Department of Education that employees of the school district had improperly reported false attendance data in order to improve the District’s State Report Card ranking for the 2010-2011 school year. Following this notice, the Board sought to determine who was responsible for this data falsification. The investigation focused on Donna Hubbard, the district superintendent, and her son, Appellant Adam Stewart, a non-teaching employee who was the district’s Data Coordinator.
The Board held a series of special meetings to discuss Stewart’s continued employment for the district. Stewart was represented by counsel at these meetings.
The first of these special meetings was held on August 1, 2012. During this meeting, the Board adjourned into an executive (private) session to discuss Stewart’s employment status. Stewart’s lawyer was invited into this executive session and was active in the discussion.
During a second special meeting, held on August 23, 2012, the Board considered a recommendation from the interim superintendent to terminate Stewart’s employment. The Board, over objection of Stewart’s counsel, passed a motion to adjourn into executive session. The Board reconvened into open session, and Stewart was allowed to present evidence and publically speak against the recommendation for his termination. After Stewart presented his case the Board, again over the objection of Stewart’s counsel, adjourned into executive session. When it reconvened, the Board passed a resolution to terminate Stewart’s non-teaching employment contract.
Stewart filed a complaint and administrative appeal of his termination alleging violation of the Open Meetings Act under R.C. 121.22(G)(1). The magistrate granted the Board’s motion for summary judgment. In upholding the magistrate’s decision, the trial court held that Stewart did not have a statutory right to a public hearing.
On appeal, the First District Court of Appeals unanimously affirmed the trial court’s adoption of the magistrate’s decision, concluding that an employee can only prohibit a public body from holding an executive session when the employee is statutorily entitled to a hearing, and that Cleveland Bd. Of Education v. Loudermill did not accord Stewart the right to require that the entire pre-termination hearing be held publically. Concurring separately, Judge DeWine expressed discomfort in the ruling, but found that the Ohio Supreme Court in Matheny v. Frontier Local Bd. Of Education limited the right of an employee to require discussion to be held in public to cases where the employee already had a statutory right to a public hearing.
Key Statutes and Precedent
R.C. 121.22 (Open Meetings Act.)(Requires public officials to take official action to conduct all deliberations upon official business only in open meetings. Unless the public employee requests a public hearing, a private executive session may be held to consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official.)
R.C. 3319.081(C) (Contracts for nonteaching employees may be terminated by a majority vote of the board of education. The contracts may be terminated only for violation of written rules and regulations as set forth by the board of education or for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, or any other acts of misfeasance, malfeasance, or nonfeasance.)
Cleveland Bd. Of Education v. Loudermill, 470 U.S. 532 (1985). (Public employees who can only be discharged for cause possess a property right in their continued employment. They are entitled, under the Due Process Clause of the U.S.Constitution, to a hearing appropriate to the nature of the case before they can be deprived of that right. Public employees must be presented with (1) oral or written notice, (2) an explanation of evidence, and (3) an opportunity to be heard. When post-termination administrative procedures are available to a public employee, in addition to judicial review of the termination, a pre-termination hearing must notify the employee of the charges against him or her, explain evidence, and provide the employee with an opportunity to present his or her side of the story.)
Local 4501, Communications Workers of America v. Ohio State University, 49 Ohio St.3d 1 (1990). (Ohio public employees have a property interest in their continued employment and cannot be terminated absent a pre-termination hearing.)
Matheny v. Frontier Local Bd. Of Education, 62 Ohio St.2d 362 (1980). (As non-tenured teachers have no expectancy of continued employment past the expiration of their contract, school boards are authorized to conduct private deliberations upon the renewal of a non-tenured teacher’s contract. However, where a hearing is authorized, statutorily or “elsewhere provided by law,” a public employee can require public deliberations under the Open Meetings Act.)
Stewart argues that the Open Meetings Act requires public officials to conduct all deliberations in open meetings. The purpose of the act is to ensure government accountability. With respect to individual employment decisions, however, the Ohio Supreme Court in Matheny limited application of the Open Meetings Act to for-cause employees, authorizing school boards to conduct private deliberations for non-tenured teachers and staff. The court in Matheny further held that the Open Meetings Act did not provide an independent basis for a public meeting, but where one was elsewhere provided by law employees had the right to a public hearing and public deliberations.
Stewart contends that the court of appeals erred in determining, that he has no right to a public hearing and public deliberations because under Matheny he has no statutory right to a public hearing. Stewart argues that he has a due process right to a public hearing under the Open Meetings Act. He argues that this right can be found in the decisions in Loudermill and Local 4501.
Loudermill and Local 4501 hold that for-cause public employees possess a property right in their continued employment. Under the Due Process Clause of the U.S. Constitution, this entitles these employees to a right to a hearing before they can be deprived of that right. Since R.C. 3319.081(C) makes Stewart a for-cause employee, Stewart argues he is entitled to such a hearing.
Secondarily, Stewart argues that even if the court were to interpret Matheny as inapplicable in this situation, public policy requires that the public hearing exception must be broadened to include instances in which an employee has either a statutory or constitutional right to a hearing. Plain reading of the statute, according to Stewart, makes clear that employees have a right to require the Board to discuss their termination in public. Stewart notes that a number of jurisdictions allow an employee to demand that hearings concerning the employee be held in public.
The Board argues that the legislative intent of the Open Meetings Act was to allow teachers to demand public hearings and that nonteaching employees are not entitled to a public hearing before termination. In addition, the Board argues that Stewart’s reliance on Loudermill is flawed, and that the U.S. Supreme Court’s holding in that case does not entitle Stewart to a public hearing. Finally, the Board argues that legislative history counteracts Stewart’s public policy argument.
The Board notes that the Open Meetings Act was not intended to grant a public employee the right to a public hearing on matters relating to his/her employment unless such a right was provided by law. This provision was meant to apply to R.C. 3319.16, which explicitly provides school teachers with the statutory right to demand a public hearing prior to termination. Pointedly, 3319.08, which governs nonteaching employees, provides no such right.
The Board further argues that the Loudermill requirements are well established and do not entitle Stewart to a pre-disciplinary public hearing in open session before the Board. The Board further contends that, even if Loudermill did require a public meeting, the August 23, 2012 meeting fulfilled all requirements of a Loudermill hearing. Further, the Board contends that it did not violate Loudermill nor the Open Meetings Act by conducting a Loudermill hearing in public and then adjourning into executive session to deliberate.
Next, the Board notes that legislative history shows that the General Assembly never intended to provide public employees with the right to demand public hearings on their termination. To support this contention, the Board points to the fact that the General Assembly has amended the open meetings act 30 times over the span of 34 years, and has not acted to grant these rights to non-teachers.
Finally, the Board argues that it adhered to the spirit and letter of the Open Meetings Act by allowing for public access while allowing for candid deliberation. The Board argues that it followed the mandates of the Open Meetings Act and struck the proper balance of entering into an executive session for the specific purpose of considering Stewart’s employment while providing Stewart with the opportunity to speak against the Board’s contemplated actions.
Stewart’s Proposed Proposition of Law No. 1
A public employee has the right to a hearing before being disciplined or terminated by a public body.
Stewart’s Proposed Proposition of Law No. 2
A public employee’s pre-termination hearing, commonly referred to as a Loudermill hearing, is a hearing “elsewhere provided by law.”
Stewart’s Proposed Proposition of Law No. 3
Because a public employee’s Loudermill hearing is a hearing “elsewhere provided by law,” the employee is entitled to demand that a public body conduct deliberations regarding his continued employment in public rather than in executive session.
Stewart’s Proposed Proposition of Law No. 4
A public body’s failure to honor a public employee’s demand for public deliberations at his Loudermill hearing is a violation of the Open Meetings Act.
In Matheny v. Frontier Local Board of Education, 62 Ohio St.2d 362 (1980), the Court correctly determined that a public employee is only entitled to demand a public hearing under R.C. 121.22(G)(1) if the employee has a statutory right to a public hearing.
Board’s Proposed Counter Proposition of Law No. 2
A pre-disciplinary Loudermill hearing is not a public hearing “elsewhere provided by law,” which entitles a public employee to demand that the governing body deliberate in public with respect to his or her employment.
Board’s Proposed Counter Proposition of Law No. 3
Since Loudermill does not require discussion or deliberation by the public employer following presentment of an employee’s “side of the story,” a public employee cannot demand a public employer discuss or deliberate upon his or her employment in open session.
Board’s Proposed Counter Proposition of Law No. 4
This Court must not rewrite R.C. 121.22(G)(1) to limit a public employer’s ability to deliberate in executive session regarding certain personnel matters.
Amicus Brief in Support of Stewart
Amicus Curiae, the Ohio Employment Lawyers Association, argues that the Matheny decision undermines the core purpose of the Open Meetings Act by transforming what was intended to be a right to privacy for public employees facing termination into a broad right of public bodies to conceal important matters from public view. It argues that executive sessions are reserved for specific, narrow purposes, and that the court in Matheny wrongly interpreted the Act to allow for executive sessions even if the employee requested that the deliberations be public, and should be overruled.
Amicus Brief in Support of Board of Education of Lockland Local School District
Amicus Curiae, the Ohio School Boards Association, argues that the Court in Matheny properly analyzed the plain language of the Open Meetings Act. It stressed that the Supreme Court should not overturn that decision. The School Boards Association argues that the General Assembly employed “public hearing” as a term of art, and that Matheny correctly interpreted the Open Meetings Act to require this statutory “public hearing” before the public deliberation exception is triggered. It also argues that nothing in the Loudermill decision requires that notice and an opportunity to be heard occur in public, and that the Supreme Court’s decision in that case only required some form of pretermination hearing. Next, the School Boards Association stresses the importance of the executive session, arguing that it allows board members to openly and honestly discuss subjects of disciplinary actions. Finally, it notes that the Open Meetings Act does not require a public body to deliberate in public merely because the body provided an employee with their Loudermill rights in a public setting.
Student Contributor: Michael Elliott