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 heard 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 a for-cause public employee can require a governing public body to deliberate in public when deciding to terminate his employment.
Adam Stewart, the Data Coordinator for the Board of Education of the Lockland School Board, was investigated for data-scrubbing to improve the District’s attendance data on the District’s State Report Card ranking for the 2010-2011 school year. 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.
During the second of these special meetings, 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 a 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, which Stewart was not. In a separate concurrence, Judge Pat DeWine expressed discomfort in the ruling, but found that Matheny v. Frontier Local Bd. Of Education compelled this result.
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.)
R.C. 121.22(G)(1)(creates a personnel deliberations exception to the open meetings requirement and authorizes a public body to meet in executive session to consider matters relating to the employment of a public employee, unless the public employee requests a public hearing, in which case, an open session must be held.)
R.C. 3319.081(C)(Contracts for nonteaching employees may only be terminated for cause as set forth in the statute.)
R.C. 3319.16 (provides tenured school teachers with the statutory right to demand a public hearing prior to termination.)
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.)
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.)
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.)
Ryan J. McGraw, Kircher Law Office, LLC, Cincinnati, For Plaintiff-Appellant Adam Stewart
Kate V. Davis, Bricker & Eckler LLP, West Chester Office, for Defendant-Appellee Board of Education of Lockland Local School District
At Oral Argument
The Open Meetings Act is clear. A public employee who has a constitutional right to a due process hearing before being terminated can demand public deliberations at it, and a public body, here the Lockland school board, must honor that demand. Stewart is such an employee. At his Aug 23 due process hearing, Stewart made two such demands. Lockland ignored both and deliberated on his continued employment during two executive sessions, eventually emerging to pass a resolution terminating his contract. Because this resolution resulted from deliberations which were conducted in violation of the Open Meetings Act, it is invalid.
In Matheny, the Ohio Supreme Court examined the Open Meetings Act and held that while it did not provide an independent basis for the hearing, where one was elsewhere provided by law, a public employee could demand public deliberations at it. Matheny predates the recognition of a property interest in continued employment in public employees—unlike the non-tenured teachers in Matheny, Stewart had a property interest in his continued employment.
Alternatively, if the court believes that Matheny applies only when a public employee has a statutory right to a hearing, the personnel deliberation exception should be expanded to include instances where a public employee has either a statutory or a constitutional right to a hearing.
Stewart’s constitutional right to a hearing before the Board terminated his contract enabled him to demand public deliberations at the Board Meeting pursuant to the Open Meetings Act. Public deliberations and personnel exceptions are meant to be limited rights for employees, not a broad right for public bodies. One of the strengths of American government is for the public to know and understand the reasons behind the decisions that their elected officials make.
Three things should happen in this case. The resolution terminating Stewart’s contract should be found to be invalid, an injunction should be granted ordering the Board to comply with the Open Meetings Act, and Stewart should receive $500 pursuant to the statute. He is not seeking his job back.
School Board’s Argument
Stewart is asking the court to change its longstanding precedent in Matheny, which the court does not need to do. Both sides in the case agree that Stewart’s rights under Loudermill were not violated. The Open Meetings Act does not entitle Stewart to public deliberations. Stewart received all the process that was due to him. Furthermore, this case isn’t just about Adam Stewart—there is a spillover effect here, involving other employees who also have privacy rights.
If the court were to find that the Board violated the Open Meetings Act, it would fundamentally shift what Loudermill means. Loudermill doesn’t require that any of what happened in this case be public, and that is what public bodies all across the state have relied on. The fact that the Board had a public hearing here exceeded what Loudermill required, and didn’t violate Loudermill.
In this case, the Board didn’t have to do what it did. It allowed Stewart to come to the public board meeting to present his side of the story, but reserved its right to deliberate privately. It was perfectly permissible to have an executive session at the public hearing in this case, in order to deliberate about Stewart’s continued employment. Teachers have a pre-existing statutory right to demand a public hearing under R.C. 3319.16; employees like Stewart do not have an equivalent right under R.C. 3319.081.
In this case, the court need not write anything new. It should simply re-affirm Matheny and hold that Matheny means that a public employee may only demand that a public body deliberate in public on an employment decision if that public employee has a statutory right to a public hearing, which Stewart did not. Nothing in Loudermill changes the holding in Matheny.
What Was On Their Minds
Is the question about public deliberations covered in Matheny asked Justice O’Donnell? Can anyone claim that all deliberations must be in public? ( answer from Stewart’s counsel-yes, anyone who has a due process right prior to being terminated.) Does Matheny cover this case? Does the court need to write anything here?
What about R.C. 3319.081, which governs Stewart’s employment—doesn’t that preclude his right to request a public pre-termination hearing, as the appeals court found, asked Chief Justice O’Connor?
Does Matheny cover the executive session part of the Open Meetings Act, asked Justice Lanzniger? Is Matheny totally controlling here?
Doesn’t the court have to say something about what Matheny means now that we have Loudermill, asked Justice French? Shouldn’t the court at least conform Matheny to Loudermill?
Loudermill and Due Process Rights
What in Loudermill requires public deliberations, asked Justice French?
From now on, will all deliberations always be in public because of Loudermill asked Justice O’Donnell?
Doesn’t due process involve notice and the opportunity to be heard, asked Justice Lanzinger? Didn’t Stewart have both here?
Can due process be met behind closed doors, asked Justice O’Neill?
If these hearings are typically just in front of an administrator –what is public about that, asked Justice Pfeifer?
The Public Board Meeting
Did Stewart have the chance to present anything to the Board in the open meeting, or not, asked Justice O’Donnell? What did he present?
What kind of hearing did Mr. Stewart have, asked Chief Justice O’Connor? Was he represented by counsel (yes).
Where does this right come from, asked Justice O’Donnell? Is it a Constitutional Due Process right? Is the limited issue in this case that the deliberations must be conducted in public?
What language in the statute entitles a public employee to public deliberations, asked Justice Lanzinger?
What is the compelling reason for us to expand this option, asked Chief Justice O’Connor? Would these public deliberations include such things as commenting on the credibility of the witnesses? Then this key exchange occurred in rebuttal:
The Chief, to Mr. McGraw: Would you envision that you would sit in as his lawyer at the deliberations along with Mr. Stewart?
Answer: The entire public would sit in on the deliberations.
The real hearing is happening behind closed doors, and the person whose ox is being gored is saying he has the right to be there. Why don’t we, mused Justice O’Neill?
Property Right in Continued Employment
Does a public employee have a property interest in his employment, asked Justice O’Neill? (absolutely yes, said Stewart’s counsel.)
Is it the executive session Stewart is objecting to, asked Chief Justice O’Connor? (answer: yes)
Where in the statute is an executive session prohibited, asked both Justice Lanzinger and Chief Justice O’Connor?
Is there a record taken of this hearing, asked Chief Justice O’Connor? Doesn’t an employee have the right to appeal the decision made in executive session?
Can a public hearing still have an executive session, asked Justice Lanzinger? What is the purpose of such a session? Can this be analogized to a jury, which goes back and deliberates and then comes and delivers its verdict?
Privacy of Other Employees
What about the concern for co-workers and other employees that would have to be discussed in ways that may or may not be complimentary to them in order to resolve this case, asked Chief Justice O’Connor? (answer: refer to them by number rather than by name) So the Board could speak in code during the deliberations, she added?
Open Meetings Act
In a key question of the day, Justice Lanzinger asked, how should the court interpret the language in (G)(1)(the personnel exception to the Open Meetings Act), which says “the members of a public body may go into executive session except if the public employee requests a public hearing?” Doesn’t that language sound like if there is a request for a public hearing by the employee, the public body does not go into executive session?
The Remedy in this Case
What happens if Stewart wins, asked Chief Justice O’Connor? Does he just get a do-over on his termination? Or does he get his job back?
Suppose the case gets sent back to the Board, and the Board is told to deliberate in public. So the Board meets and someone says I vote to terminate, and everyone agrees. Is that it, asked Justice O’Donnell? What insight does that provide, asked the Chief?
If the order of termination is invalidated, has Stewart then been employed this whole time, asked Justice O’Neill? If the court were to find that this was an invalid termination, isn’t Mr. Stewart still employed?
How it Looks From the Bleachers
To Professor Bettman
Like a win for the school board. It is a bit of a puzzlement exactly why the court took this case, but it was clear that a majority, the Chief and Justice O’Donnell in particular, but also Justices Lanzinger and French, were not buying Stewart’s argument that his constitutional right to due process was the launch that entitled him to public deliberations in this case. If retired Justice Andy Douglas were still on the bench, he’d eat that argument up, and Justices Pfeifer and O’Neill may go that way. But the majority seemed convinced that private deliberations in executive session were proper here, with an employee other than a tenured teacher. Since Matheny was decided well before Loudermill, I think the court may do as Justice French suggested, and say something more about Matheny in light of Loudermill, even if it is just to say nothing in Loudermill changes Matheny.
Since I am a law professor at the University of Cincinnati College of Law, I want to give a special shout out to Ryan McGraw, counsel for Mr. Stewart. Mr. McGraw is a 2012 graduate of our law school, and we are all very proud of him. He showed much poise in the face of some very difficult questioning.
To Student Contributor Michael Elliott
This doesn’t look good for Stewart. The justices seemed skeptical of Stewart’s arguments and grilled his counsel. By contrast, the questions directed at the Board’s counsel were mostly softballs.
The Chief Justice and Justice O’Donnell appeared to be the most hostile to Stewart’s arguments. They both appear to believe that a ruling for Stewart would require an expansion of the rights given under the Open Meetings Act and seemed to be equally convinced that such a ruling would do little good for Stewart. Chief Justice O’Connor noted that neither Stewart nor his counsel have a role in the executive session, and both justices noted that the board could simply move to fire Stewart again if the board were to be forced to revisit their decision in a public setting. The Chief Justice also repeatedly honed in on the fact that Stewart still had a right to appeal remaining. Finally, Justices French and Lanzinger questioned Stewart’s counsel on whether Stewart was given more than was required under Loudermill.
On the other side, the justices really didn’t seem to challenge the School Board’s arguments. Several of the justices simply re-stated Stewart’s arguments, allowing counsel the opportunity to challenge them. Justice O’Neill questioned whether holding for Stewart would require Stewart and other similarly terminated employees the right to take back their positions, and seemed to be troubled at the assertion. Justice Lanzinger likened the school board’s executive sessions to a jury deliberation. Justice Pfeifer questioned whether a normal Loudermill hearing is a public hearing, but in doing so, seemed to suggest that he believed the hearing in this case was public. Finally, the Chief Justice simply asked counsel for the school board if she agreed with the Court of Appeals ruling that a statutory basis was required to authorize a public hearing under the Open Meetings Act, and left it at that.