[Cite as May v. PSI Affiliates, Inc., 2012-Ohio-3554.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
SUE ELLEN MAY C.A. No. 26179
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE PSI AFFILIATES, INC. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Defendant CASE No. CV 2003 04 2383
and
AKRON BOARD OF EDUCATION
Appellant
DECISION AND JOURNAL ENTRY
Dated: August 8, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} After the State Teachers Retirement System Board determined that Susan May
was a member of the system, the Akron Board of Education sought mandamus relief from the
Summit County Common Pleas Court. The common pleas court determined that the school
board was not entitled to relief because there was some evidence in the administrative record to
support the retirement-system board’s decision. The school board has appealed, arguing that the
common pleas court incorrectly upheld the retirement-system board’s decision, incorrectly
granted summary judgment to Ms. May, and incorrectly struck its motion to take judicial notice. 2
We reverse because the record does not contain some evidence that Ms. May met the
requirements for membership in the state teachers retirement system.
BACKGROUND
{¶2} In July 2001, the school board entered into a contract with PSI Affiliates to
provide school nurses and health aides for a number of its schools for the coming school year.
PSI Affiliates, in turn, hired Ms. May to work as a nurse supervisor in some of the schools.
After starting her job, Ms. May asked PSI Affiliates and the school board whether she was
eligible to become a member of the state teachers retirement system. When they did not respond
to her inquiries, she contacted the retirement system directly and was told that she qualified. PSI
Affiliates fired her shortly thereafter.
{¶3} Ms. May filed a complaint against PSI Affiliates, the school board, and some of
their employees, requesting damages and declaratory relief. While her case was pending, the
school board asked the retirement-system board for a determination of whether Ms. May and the
other employees PSI Affiliates had hired under its contract with the school board were members
of the system. Regarding Ms. May, the retirement-system board concluded that she was a
member under Section 3307.01(C) of the Ohio Revised Code. The school board subsequently
filed a claim against the retirement-system board in Ms. May’s case, seeking a writ of mandamus
to prevent the retirement-system board from enforcing its decision. The common pleas court,
however, upheld the retirement-system board’s decision. It also granted summary judgment to
the retirement-system board and Ms. May. The school board has appealed, assigning three
errors. 3
STATE TEACHERS RETIREMENT SYSTEM ELIGIBILITY
{¶4} The school board’s first assignment of error is that the common pleas court
incorrectly upheld the retirement-system board’s determination that Ms. May can participate in
the state teachers retirement system. Its second assignment of error is that the court incorrectly
granted summary judgment to Ms. May. Because these assignments of error raise similar issues,
we will address them together.
{¶5} Under the version of Section 3307.01(C) of the Ohio Revised Code that was
effective at the time of the contract, “the membership of the state teachers retirement system . . .
consist[s] of all teachers and contributors as defined in divisions (B) and (D) of this section . . . .”
R.C. 3307.01(C), effective July 13, 2000. Section 3307.01(B) defines “[t]eacher.” Under that
section, if there is any doubt regarding whether an individual is a teacher, “the state teachers
retirement board shall determine whether [the] person is a teacher, and its decision shall be
final.” R.C. 3307.01(B). At the time that Ms. May sought membership in the retirement system,
the definition of teacher contained six categories, three of which, Sections 3307.01(B)(1), (4),
and (5), are potentially relevant to Ms. May.
{¶6} Although parties do not have the right to appeal a decision by the retirement-
system board under Section 3307.01(B), the Ohio Supreme Court has determined that mandamus
is an appropriate remedy to seek relief from its decisions. State ex rel. Grein v. Ohio State
Highway Patrol Ret. Sys., 116 Ohio St. 3d 344, 2007-Ohio-6667, ¶ 6; State ex rel. Pipoly v. State
Teachers Ret. Sys., 95 Ohio St. 3d 327, 2002-Ohio-2219, ¶ 14 (“[M]andamus is an appropriate
remedy where no statutory right of appeal is available to correct an abuse of discretion by an
administrative body.”). 4
{¶7} “In order to be entitled to a writ of mandamus, [the school board] must establish
that: (1) [it] has a clear legal right to the relief prayed for, (2) [the retirement-system board] is
under a clear legal duty to perform the act, and (3) [the school board] has no plain and adequate
remedy in the ordinary course of law.” State ex rel. McMaster v. School Employees Ret. Sys., 69
Ohio St. 3d 130, 133 (1994). The central question in this case is whether the school board had a
clear legal right to have the retirement-system board declare that Ms. May is not a member of the
state teachers retirement system. “A clear legal right exists [if] the board . . . enter[s] an order
which is not supported by ‘some evidence.’” Kinsey v. Bd. of Trs. of Police & Firemen’s
Disability and Pension Fund, 49 Ohio St. 3d 224, 225 (1990).
{¶8} We note that in reviewing Section 3307.01 we “must give due deference to an
administrative interpretation [of a statute] formulated by an agency which has accumulated
substantial expertise, and to which the legislature has delegated the responsibility of
implementing the legislative command.” State ex rel. McLean v. Indus. Comm’n, 25 Ohio St. 3d
90, 92 (1986); see also Lorain City Sch. Dist. Bd. of Educ. v. State Employment Relations Bd., 40
Ohio St. 3d 257, 260 (1988) (concluding that courts had to give deference to administrative
body’s interpretation of statute “[o]therwise, there would be no purpose in creating a specialized
administrative agency . . . to make determinations.”). We also note that “pension provisions . . .
must be liberally construed in favor of the public employees and their dependents who the
statutes were designed to protect.” State ex rel. Mallory v. Pub. Employees Ret. Bd., 82 Ohio St.
3d 235, 240 (1998).
OHIO REVISED CODE SECTION 3307.01(B)(1)
{¶9} At the time of the contract, the definition of teacher under Section 3307.01(B) of
the Ohio Revised Code included “[a]ny person paid from public funds and employed in the 5
public schools of the state under any type of contract described in section 3319.08 of the Revised
Code in a position for which the person is required to have a license issued pursuant to sections
3319.22 to 3319.31 of the Revised Code[.]” R.C. 3307.01(B)(1), effective July 13, 2000. This
Court has held that the definition of teacher under Section 3307.01(B)(1) includes “any person
who . . . (1) is paid from public funds; (2) is employed in the public schools of the state; (3) is
under any type of contract described in R.C. 3319.08; and (4) occupies a position for which a
certificate is required under R.C. 3319.22 to 3319.31.” Bd. of State Teachers Ret. Sys. v.
Cuyahoga Falls City Sch. Dist. Bd. of Educ., 26 Ohio App. 3d 45, 46 (9th Dist. 1985).
{¶10} In its brief, the school board has “assume[d] . . . that [Ms. May] was paid from
public funds” and “that [she] was employed in a public school of the state.” It has limited its
argument to asserting that the record did not contain any evidence that Ms. May was employed
“under any type of contract described in R.C. 3319.08” or that she “occupie[d] a position for
which a certificate [was] required under R.C. 3319.22 to 3319.31.” Bd. of State Teachers Ret.
Sys. v. Cuyahoga Falls City Sch. Dist. Bd. of Educ., 26 Ohio App. 3d 45, 46 (9th Dist. 1985); see
R.C. 3307.01(B), effective July 13, 2000.
{¶11} Regarding whether Ms. May worked under a type of contract described in Section
3319.08 of the Ohio Revised Code, Section 3319.08(A) provided that “[t]he board of education
of each city . . . shall enter into written contracts for the employment and reemployment of all
teachers. . . . Contracts for the employment of teachers shall be of two types, limited contracts
and continuing contracts.” Section 3319.08(A)(3) defined “limited contract,” in part, as “a
contract for a term not to exceed five years.” R.C. 3319.08(A)(3), effective July 13, 2000. A
continuing contract, on the other hand, was defined as “a contract that remains in effect until the 6
teacher resigns, elects to retire, or . . . is terminated or suspended . . . .” R.C. 3319.08(B),
effective July 13, 2000.
{¶12} The definition of “teacher,” as that term is used in Section 3319.08, is found in
Section 3319.09 of the Ohio Revised Code. “As used in sections 3319.08 to 3319.18, inclusive,
of the Revised Code: (A) ‘Teacher’ means all persons licensed to teach and who are employed
in the public schools of this state as instructors, principals, supervisors, superintendents, or in any
other educational position for which the state board of education requires licensure under
Sections 3319.22 to 3319.31 of the Revised Code . . . .” R.C. 3319.09(A), effective Oct. 29,
1996. Accordingly, in order to qualify as a teacher under Section 3319.08, Ms. May had to be
(1) “licensed to teach” and (2) employed in one of the specified positions. R.C. 3319.09(A).
{¶13} According to the administrative record, Ms. May worked in the Akron public
schools as a school nurse supervisor. She, therefore, worked in a position for which the state
board required licensure and satisfied the second part of Section 3319.09(A). There is no
evidence in the record, however, to suggest that she was “licensed to teach.” At the time of the
contract, Section 3319.22 of the Ohio Revised Code empowered the “state board of education” to
“adopt rules establishing the standards and requirements for obtaining temporary, associate,
provisional, and professional educator licenses of any categories, types, and levels the board
elects to provide.” R.C. 3319.22(A) effective Sept. 28, 1999. Exercising that power, the state
board of education created several kinds of licenses including the “provisional teacher license,”
the “provisional principal license,” the “professional teacher license,” the “professional pupil
services license,” the “professional administrator license,” the “associate license,” the
“professional school business manager or the professional school treasurer license,” the 7
“educational aide permit,” and the “adult education permit.” Ohio Adm. Code 3301-24-05,
effective Jan. 1, 1998.
{¶14} Of the types of licenses created by the state board of education, the one that was
required of school nurses was the professional pupil services license. Ohio Adm. Code 3301-24-
05(E)(1)(f). It was issued to individuals “of good moral character” who had “completed an
examination prescribed by the state board of education,” who possessed a “Baccalaureate
degree,” and who were “license[d] to practice as a registered nurse . . . by the Ohio board of
nursing.” Id. While there is no evidence in the administrative or common-pleas-court record to
indicate that Ms. May had a professional pupil services license, because she was employed as a
school nurse in a public school, we will assume that she did. See R.C. 3313.68, effective Apr.
10, 2001 (limiting the school board’s power to employing registered nurses who are “licensed as
school nurses under section 3319.22 of the Revised Code.”).
{¶15} Although we must give deference to the retirement-system board’s interpretation
of Section 3307.01, it cannot reasonably be argued that a professional pupil services license is a
“license[ ] to teach” under Section 3319.09(A), effective Oct. 29, 1996. In rule 3301-24-05, the
state board of education drew a distinction between teacher licenses and other forms of licenses
and permits. Unlike teacher licenses, which were “valid for teaching” children of various ages,
the professional pupil services licenses were merely “valid . . . for working with learners at all
levels.” Ohio Adm. Code 3301-24-05(C), (E). A teacher license also was not a prerequisite to a
professional pupil services license like it was for a provisional principal license or professional
administrator license. See Ohio Adm. Code 3301-24-05(B), (F).
{¶16} Because there is no evidence in the administrative record that Ms. May had a
license to teach, her hiring could not have involved a “contract[ ] for the employment . . . of [a] 8
teacher” under Section 3319.08 of the Ohio Revised Code. Consequently, she was not
“employed in the public schools under any type of contract described in section 3319.08” and,
therefore, did not meet the definition of a teacher under Section 3307.01(B)(1), effective July 13,
2000.
OHIO REVISED CODE SECTION 3307.01(B)(4)
{¶17} Under the version of Section 3307.01(B)(4) of the Ohio Revised Code that was in
effect at the time of the contract, the definition of teacher included “[a]ny person having a license
issued pursuant to sections 3319.22 to 3319.31 of the Revised Code and employed in a public
school in this state in an educational position, as determined by the state board of education,
under programs provided for by federal acts or regulations and financed in whole or in part from
federal funds, but for which no licensure requirements for the position can be made under the
provisions of such federal acts or regulations[.]” The retirement-system board appears to have
relied on this section in determining that Ms. May met the definition of teacher, explaining in its
letter to the school board that the definition of teacher “includes any person having a license
issued pursuant to sections 3319.22 to 3319.31 of the Revised Code and employed in a public
school in this state in an educational position.”
{¶18} To meet the definition of “[t]eacher” under the plain language of Section
3307.01(B)(4), an individual had to (1) have a license issued under Sections 3319.22 to 3319.31,
(2) be employed in a public school in an educational position, (3) be employed under a program
provided for by federal acts or regulations, and (4) be employed under a program that was
financed in whole or in part by federal funds. Although the retirement-system board specifically
found that Ms. May satisfied the first two requirements, it did not mention anything in its
decision about the other requirements. This Court has reviewed the administrative record and 9
has been unable to find any evidence that Ms. May’s employment as a school nurse was under a
federal program that was at least partially funded by federal funds. The parties also did not
direct the common pleas court or this Court to any federal acts or regulations regarding school
nurses that were in effect at the time of the contract. Accordingly, we conclude that there was
not “some evidence” in the record to support a determination that Ms. May was a teacher under
Section 3307.01(B)(4).
OHIO REVISED CODE SECTION 3307.01(B)(5)
{¶19} In 2001, section 3307.01(B)(5) of the Ohio Revised Code defined “[t]eacher” as
“[a]ny other teacher or faculty member employed in any school, college, university, institution,
or other agency wholly controlled and managed, and supported in whole or in part, by the state
or any political subdivision thereof, including Central state university, Cleveland state university,
the university of Toledo, and the medical college of Ohio at Toledo.” In this case, it is not
disputed that Ms. May was employed in a school controlled, managed, and supported by the
Akron school board. The question, therefore, is whether she was a “teacher” or “faculty
member” under that section.
{¶20} In State ex rel. Chavis v. Sycamore City School District Board of Education, 71
Ohio St. 3d 26 (1994), the Ohio Supreme Court interpreted the definition of teacher under
Section 3317.13(A)(2). That section provided that “[t]eacher means all teachers employed by
the board of education of any school district.” Id. at 30 (quoting R.C. 3317.13(A)(2)). Noting
that the definition was “somewhat circular,” the Court determined that the second use of the
word teacher was “in its ordinary sense, not as a term of art.” Id. It explained that the ordinary
meaning of the word teacher is “one who teaches or instructs.” Id. (quoting Black’s Law
Dictionary 1463 (6th ed. 1990)). Similar to that case, we conclude that, to the extent that Section 10
3307.01(B)(5) defined “[t]eacher” as a teacher, the second use of the word was in the ordinary
sense of the word.
{¶21} The contract between PSI Affiliates and the school board detailed Ms. May’s
responsibilities as a school nurse supervisor. Under the agreement, Ms. May was required to “be
knowledgeable in school health related procedures,” “maintain overall responsibility for school
health records,” “direct, supervise and monitor all work done by the Health Aide,” “maintain
daily statistical records,” “conduct appropriate follow-up conferences, paperwork, etc., as
required (e.g., with psychologists, parents, teachers, principal),” “maintain current school health
records,” “submit written policies and procedures . . . describing the School Health Program,”
and “be properly attired in an appropriate lab coat.”
{¶22} None of Ms. May’s school-nurse supervisor duties required her to instruct or
teach students. There also was no other evidence in the administrative record to suggest that she
taught or instructed students. We, therefore, conclude that she was not a teacher under Section
3307.01(B)(5).
{¶23} Regarding whether Ms. May was a “faculty member,” the contract between PSI
Affiliates and the school board established that Ms. May was an employee of PSI Affiliates, not
an employee of the school board. She also was not assigned to a specific school building, but
performed her duties at a number of different schools. We conclude that there was no evidence
in the administrative record to establish that Ms. May was a “faculty member employed in any
school” under Section 3307.01(B)(5).
{¶24} The retirement-system board’s conclusion that Ms. May was a teacher under
Section 3307.01(B) and, therefore, a member of the system under Section 3307.01(C) was not
supported by “some evidence.” Accordingly, we conclude that the common pleas court 11
incorrectly determined that the school board was not entitled to a writ of mandamus. State ex
rel. McMaster v. School Employees Ret. Sys., 69 Ohio St. 3d 130, 133 (1994). The school
board’s first and second assignments of error are sustained. Its third assignment of error is moot
and is overruled on that basis. See App. R. 12(A)(1)(c).
CONCLUSION
{¶25} The common pleas court incorrectly denied the school board’s request for a writ
of mandamus because there is no evidence in the administrative record to support the retirement-
system board’s determination that Ms. May was a teacher under Section 3307.01(C) of the Ohio
Revised Code. The judgment of the Summit County Common Pleas Court is reversed.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30. 12
Costs taxed to Appellee.
CLAIR E. DICKINSON FOR THE COURT
WHITMORE, P. J. CONCURS.
MOORE, J. DISSENTING.
{¶26} I would affirm the judgment of the trial court because it did not abuse its
discretion in finding “some evidence” in the record to support STRB’s determination that May is
a “teacher” who qualifies for membership in STRS pursuant to R.C. 3307.01(B).
{¶27} The issue here hinges on the definition of “teacher” as provided in R.C. Chapter
3307, which governs the administration of STRS. “Under this system, it is readily apparent that
the term ‘teacher’ must be defined in order to determine exactly who qualifies for membership in
STRS.” State ex rel. State Teachers Retirement Bd. v. W. Geauga Local School Dist. Bd. of Edn.,
131 Ohio App.3d 150, 158 (11th Dist.1998). For purposes of R.C. Chapter 3307, the word
“teacher” is defined in R.C. 3307.01(B)(1) as “[a]ny person paid from public funds and
employed in the public schools of the state under any type of contract described in section
3319.08 of the Revised Code in a position for which the person is required to have a license
issued pursuant to sections 3319.22 to 3319.31 of the Revised Code[.]” Ohio courts have
concluded that:
[b]ased on a plain reading of the statute, there are four requirements that must be satisfied before an individual can be considered a teacher for purposes of STRS eligibility: 13
(1) the individual must be paid from public funds,
(2) the individual must be employed in the public schools of the state,
(3) the individual must be employed under any type of contract described in R.C. 3319.08, and
(4) the individual must occupy a position for which a certificate is required under R.C. 3319.22 to 3319.31.
W. Geauga at 159. Further, R.C. 3307.01(B) provides that, “[i]n all cases of doubt, the state
teachers retirement board shall determine whether any person is a teacher, and its decision shall
be final.” (Emphasis added.)
{¶28} The application of this criteria to the present facts does not support the majority’s
conclusion that May is not a “teacher” pursuant to R.C. 3307.01(B)(1).
{¶29} In addressing this issue, the majority improperly focuses on the definition of
“teacher” as defined in R.C. 3319.09(A), which is expressly applicable to R.C. 3319.08 to
3319.18. The plain language of R.C. 3307.01(B)(1) provides that, in order to qualify as a
“teacher”, the individual must be employed under “any type of contract described in section
3319.08 of the Revised Code.” However, R.C. 3319.08 speaks only to the type of employment
contract and not to the definition of “teacher” for purposes of STRS qualification. The majority
suggests that in order to be considered a “teacher” for purposes of STRS eligibility, an individual
must meet the definition of teacher set forth in R.C. 3307.01(B) and R.C. 3319.09(A).
{¶30} R.C. 3319.09(A) states that:
“[t]eacher” means all persons licensed to teach and who are employed in the public schools of this state as instructors, principals, supervisors, superintendents, or in any other educational position for which the state board of education requires licensure under sections 3319.22 to 3319.31 of the Revised Code and employed in an educational position, as determined by the state board of education, under programs provided for by federal acts or regulations and financial in whole or in part from federal funds, but for which no licensure requirements for the position can be made under the provisions of such federal acts or regulations. 14
The majority concludes that, even if May qualifies as a “teacher” under R.C. 3307.01(B)(1),
because she does not also qualify as a “teacher” under R.C. 3319.09(A), she is not eligible for
enrollment in STRS. However, for the following reasons, I disagree.
{¶31} In Wood v. Trotwood Madison Bd. of Edn., 2d Dist. No. CA 11836, 1990 WL
80622, *2 (June 12, 1990), the Second District Court of Appeals held that the definition of
“teacher” in R.C. 3319.09 is not applicable to R.C. 3317.13 and 3317.14 because the definition
of “teacher” in R.C. 3319.09 is “expressly limited to Sections 3319.08 to 3319.18” and “does not
extend to Chapter 3317.”
{¶32} Similarly, there is no statutory language extending the definition of “teacher” in
R.C. 3319.09(A) to Chapter 3307, as R.C. 3307.01(B) expressly provides its own definition of
“teacher” for purposes of that Chapter. As such, the focus here should be on whether May fits
the definition of “teacher” pursuant to R.C. 3307.01(B).
{¶33} As the majority correctly states, “[a] writ of mandamus may issue only where the
[Akron Board of Education] shows (1) a clear legal right to the relief prayed for, (2) a clear legal
duty upon respondent to perform the act requested, and (3) that relator has no plain and adequate
remedy in the ordinary course of the law.” State ex rel. Consol. Rail Corp. v. Gorman, 70 Ohio
St.2d 274, 275 (1982). “A clear legal right exists where the board abuses its discretion by
entering an order which is not supported by ‘some evidence.’” Kinsey v. Bd. of Trustees of the
Police and Firemen’s Disability and Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990). As
such, we must determine whether STRB’s determination that May is a “teacher” pursuant to R.C.
3307.01(B), and eligible for retirement benefits through STRS, is supported by “some evidence.”
{¶34} As stated above, in order to qualify as a “teacher” pursuant to R.C. 3307.01(B)(1),
one must: 15
(1) be paid from public funds,
(2) be employed in the public schools of the state,
(3) be employed under any type of contract described in R.C. 3319.08, and
(4) occupy a position for which a certificate is required under R.C. 3319.22 to
3319.31.
{¶35} Here, the trial court found STRB’s determination that May be permitted to
participate in the STRS pension fund to be supported by “some evidence” because (1) May was
paid from public funds, (2) May was employed in Akron public schools, (3) May was employed
under a contract described in R.C. 3319.08, and (4) May’s position as a registered nurse required
a certificate under R.C. 3319.22 to 3319.31.
{¶36} The record indicates that the Akron Board of Education of the Akron Public
Schools entered into contract number 608 with PSI Associates Affiliates, Inc. for school
nurse/health aide services for Akron Public Schools. The contract includes provisions stating
that: (1) monthly invoices shall be sent to the Akron Board of Education indicating the amount of
hours or days for the invoice period, (2) the limited term would be from July 1, 2003, through
June 30, 2004, and school nurses would be paid $23.63 per hour, with an option for renewal, (3)
under R.C. 3307.01, any person performing work under this contract shall be considered a
member of the STRS, and (4) PSI Associates Affiliates, Inc. shall provide proof of certification
in the areas of CPR and basic First Aid.
{¶37} Based upon a careful review of the record, there is “some evidence” in the record
that, pursuant to R.C. 3307.01(B)(1), May was: (1) paid with public funds, (2) employed in
Akron Public Schools, (3) employed under a limited contract (608) pursuant to R.C.
3319.08(C)(3), and, (4) required to have a certificate pursuant to R.C. 3319.221 as a school
nurse. As such, May meets R.C. 3307.01(B)(1)’s definition of “teacher.” 16
{¶38} For the foregoing reasons, the trial court correctly found STRB’s determination
regarding May’s allowed participation in STRS to be supported by “some evidence.”
{¶39} Accordingly, I disagree with the majority and would affirm the judgment of the
trial court.
APPEARANCES:
RONALD J. HABOWSKI, Attorney at Law, for Appellant.
MICHAEL DEWINE, Attorney General, and JOHN E. PATTERSON and CATHERINE J. CALKO, Assistant Attorneys General, for Appellee.
DENNIS R. THOMPSON and CHRISTY B. BISHOP, Attorneys at Law, for Appellee.