[Cite as Driver v. Jefferson Twp. Local School Dist. Bd. of Edn., 2012-Ohio-1570.]

 IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO 

ERNESTINE DRIVER : 

Plaintiff-Appellee : C.A. CASE NO. 24795 

v. : T.C. NO. 10CV5777 

JEFFERSON TOWNSHIP LOCAL SCHOOL : (Civil appeal from 

DISTRICT BOARD OF EDUCATION Common Pleas Court) 

Defendant-Appellant : 

 : 

 . . . . . . . . . . 

 O P I N I O N

Rendered on the 6th day of April , 2012. 

 . . . . . . . . . . 

PETER J. RAKAY, Atty. Reg. No. 0011385 and LAURA E. RAKAY, Atty. Reg. No. 

0082440, 111 W. First Street, Suite 1100, Dayton, Ohio 45402 

Attorney for Plaintiff-Appellee 

NICHOLAS E. SUBASHI, Atty. Reg. No. 0033953, The Greene Town Center, 50 Chestnut 

Street, Suite 230, Dayton, Ohio 45440 

Attorney for Defendant-Appellant 

 . . . . . . . . . . 

DONOVAN, J. 

{¶ 1} Defendant-appellant Jefferson Township Local School District Board of 

Education (hereinafter “School Board”) appeals a judgment of the Montgomery County 
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Court of Common Pleas reversing the decision of the School Board not to renew 

plaintiff-appellee Ernestine Driver’s teaching contract. The trial court also ordered the 

School Board to re-employ Driver and awarded her backpay for the period of time beginning 

when she was discharged through when she was re-employed. The trial court’s decision 

was filed on August 1, 2011. The School Board filed a timely notice of appeal with this 

Court on August 30, 2011. 

{¶ 2} Initially, we note that beginning in the 2007-2008 school year in Jefferson 

Township schools, The Pilot Teacher Evaluation Program (hereinafter “Pilot Program”) was 

a teacher evaluation program created for implementation by the School Board. The Pilot 

Program divided the evaluation into three distinct phases. Driver was placed in Phase I of 

the Pilot Program because she had just begun teaching in Jefferson Township. The Pilot 

Program stated in pertinent part: 

The pilot program described on the following pages 

will be conducted during the 2007-2008 school year. *** [I]t 

will help prepare Jefferson Township teachers and 

administrators for formal adoption of the new program in the 

2008-2009 school year. During the pilot program period all 

teachers will be evaluated annually in the phase of the program 

that is appropriate for them based on their years of experience 

in the district. The Jefferson Township Evaluation 

Committee will collect data across the two years for the 

purpose of making final decisions about the full 
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implementation of the program beginning in the fall for 2009. 

During the pilot program period the evaluation policies and 

process described herein will superceed [sic] state law (ORC 

3319.11 and 3319.111) with regard to the teacher evaluation 

program.

{¶ 3} The School Board and the Board of Education also entered into the 

Collective Bargaining Agreement (hereinafter “CBA”), which was made effective beginning 

on July 1, 2008, through June 30, 2010, and which incorporated the Pilot Program 

evaluation procedures. The CBA stated in pertinent part: 

ARTICLE XXIX - TEACHER EVALUATION 

If there is any conflict between this Article and R.C. 3319.11 

and 3319.111, the statutory law shall prevail. The official evaluation 

instrument of the Jefferson Township Schools shall be “The Jefferson 

Township Local Schools Pilot Teacher Evaluation Program.” 

{¶ 4} Prior to her employment in Jefferson Township, Driver was a teacher for 

eleven years at Greenville and Tri-Village Schools in Ohio. Driver was employed by 

Jefferson Township for two years prior to the School Board’s decision not to renew her 

teaching contract in April of 2010. Although it is unclear whether Driver was evaluated 

pursuant to statute or the provisions of the Pilot Program, the record establishes that she was 

evaluated twice during the 2009-2010 school year. Both of Driver’s evaluations were 

conducted by Principal Mattie White. 

{¶ 5} The first evaluation was conducted on November 11, 2009, and Driver 
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received a copy of Principal White’s report on January 13, 2010. The second evaluation 

was conducted on March 11, 2010, and Driver received a copy of the evaluation report on 

March 14, 2010. Neither evaluation stated that Driver’s performance was deficient 

regarding her teaching ability, nor did Principal White offer any suggestions concerning 

areas in which Driver needed to improve. Notably, the evaluations are reasonably 

complimentary of Driver’s performance. 

{¶ 6} On April 27, 2010, the Superintendent of Schools, Dr. Richard Gates, 

provided Driver with notice of the School Board’s recommendation to not renew her 

teaching contract for the 2010-2011 school year. Driver subsequently requested a written 

statement from the School Board outlining the reasons for its recommendation for 

non-renewal of her contract. On May 13, 2010, Dr. Gates provided Driver with a letter 

explaining the basis for the School Board’s recommendation. Upon receipt of the letter, 

Driver demanded a hearing before the School Board. On June 16, 2010, said hearing was 

held, and on June 21, 2010, the School Board issued a decision affirming its initial 

recommendation. 

{¶ 7} We note that on October 11, 2010, the School Board filed supplemental 

evidence with the trial court primarily consisting of letters and school discipline referrals 

attempting to demonstrate Driver had extremely poor classroom management skills which 

placed her students’ safety at risk. One of the letters was from Driver, herself, in which she 

apologized for using racial slurs and stereotypes when speaking with a black student. The 

evidence submitted also established that Driver lost her composure and left her classroom in 

a fit of frustration. Without specifically citing these events, Dr. Gates alluded to these 
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incidents in his generalized rationale in support of the School Board’s decision to not renew 

Driver’s teaching contract. It is important to note that none of the incidents detailed in the 

supplemental evidence were included in the two evaluations of Driver for the 2009-2010 

school year. 

{¶ 8} Driver appealed the School Board’s decision to the Montgomery County 

Court of Common Pleas. In her administrative appeal filed on October 11, 2010, Driver 

argued that the School Board failed to comply with the evaluation procedures set forth in the 

Pilot Program that was incorporated into the CBA between the School Board and its 

employees. Driver further asserted that the evaluation procedures in the Pilot Program 

supersede the statutory requirements of R.C. 3319.11 and 3319.111 regarding non-renewal 

of teaching contracts, as well as the processes used to evaluate those teachers in danger of 

being dismissed. Driver contended that even if the evaluation provisions in the Pilot 

Program do not supersede the relevant statutes, the School Board also failed to comply with 

the statutory requirements such that she is entitled to reinstatement as a teacher and back 

pay. 

{¶ 9} The School Board argued that the evaluation procedures in the Pilot 

Program/CBA did not supersede the relevant statutory provisions. Thus, the School Board 

asserted that it was not required to comply with the evaluation procedures set forth in the 

Pilot Program/CBA. The School Board contended that the statutory requirements in R.C. 

3319.11 and 3319.111 govern teacher evaluations, and those requirements were complied 

with, thus precluding Driver from re-employment and/or back pay. 

{¶ 10} Ultimately, the trial court reversed the decision of the School Board not to 
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renew plaintiff-appellee Ernestine Driver’s teaching contract and ordered the School Board 

to re-employ Driver and awarded her backpay for the period of time beginning when she was 

discharged through when she was re-employed. Specifically, the trial court found that the 

School Board failed to comply with R.C. 3319.111(B) in evaluating Driver’s performance, 

thereby vesting the court with jurisdiction to order the School Board to re-employ Driver. 

Lastly, the trial court found that Driver was, in fact, entitled to mandatory reinstatement and 

back pay as a result of the School Board’s failure to comply with the statutory evaluation 

procedures. 

{¶ 11} It is from this judgment that the School Board now appeals. 

{¶ 12} Because they are interrelated, Driver’s first and second assignments of error 

will be discussed together as follows: 

{¶ 13} “THE COMMON PLEAS COURT ERRED BY FAILING TO FIND THAT 

THE JEFFERSON TOWNSHIP LOCAL SCHOOL DISTRICT BOARD OF EDUCATION 

COMPLIED WITH THE STATUTORY EVALUATION PROCEDURES.” 

{¶ 14} “THE COMMON PLEAS COURT ERRED BY FINDING 

REEMPLOYMENT UNDER R.C. 3319.11(G)(7) TO BE MANDATORY RATHER THAN 

DISCRETIONARY.” 

{¶ 15} Initially, we note that in an appeal of the trial court’s administrative appeal 

decision, an appellate court does not review the administrative agency’s action directly, but, 

instead, reviews the trial court’s action and factual findings for an abuse of discretion. 

Sturdivant v. Toledo Bd. of Edn., 157 Ohio App.3d 401, 407-408, 2004-Ohio-2878, 811 

N.E.2d 581 (6th Dist.). The abuse of discretion standard, however, is not applied to the trial 
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court’s determinations of law. Id., citing In re Kralik, 101 Ohio App.3d 232, 235-236, 655 

N.E.2d 273 (10th Dist. 1995). Rather, an appellate court must determine, pursuant to R.C. 

2506.04, whether, as a matter of law, the trial court has correctly applied the law to the facts 

as determined by the agency and the trial court. Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 

N.E.2d 848 (1984). 

{¶ 16} Additionally, R.C. 3319.11(G)(7) allows an appeal to the trial court only on 

the grounds that a board of education has not complied with R.C. 3319.11 or 3319.111.

Sturdivant, 157 Ohio App.3d at 408, 811 N.E.2d 581. Where a CBA supersedes those 

sections, however, the standard of review is governed by R.C. 2506.04. Id. Under this 

standard, the trial court is obliged to consider the entire record, including any new or 

additional evidence admitted under R.C. 2506.03, and determines whether the law was 

properly applied and whether the administrative order is unconstitutional, illegal, arbitrary, 

capricious, unreasonable, or unsupported by a preponderance of substantial, reliable, and 

probative evidence. Id., citing Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 

142, 147, 735 N.E.2d 433 (2000). 

{¶ 17} In the instant case, we note that with respect to which evaluation procedures 

were to be followed, the relevant provisions in the Pilot Program and the CBA contradict 

each other. Specifically, the Pilot Program stated that its evaluation procedures would 

supersede R.C. 3319.11 and 3319.111. Conversely, the CBA stated in Article XXIX that 

if there was any conflict between it and R.C. 3319.11 and 3319.111, the statutory law would 

prevail. The trial court, however, found that it was unnecessary to address whether the 

provisions of the Pilot Program as incorporated into the CBA superseded R.C. 3319.11 and 
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3319.111. The trial court found that the School Board did not comply with either the Pilot 

Program or the relevant statutes regarding teacher evaluation. On appeal, neither party 

disputes the primary issue before the trial court. That is, whether the School Board 

complied with R.C. 3319.11 and 3319.111. 

{¶ 18} In its first assignment of error, the School Board contends that the trial court 

erred when it found that the Board had not complied with the statutory evaluation procedures 

when it decided to not renew Driver’s teaching contract in 2010. Specifically, the School 

Board argues that the clear and unambiguous language of R.C. 3319.11(G)(7) requires that 

the Board must only comply with the evaluation procedures set forth in R.C. 3319.111(A) 

when determining whether to renew a teaching contract. Moreover, the School Board 

asserts that it did, in fact, comply with the evaluation requirements set forth in R.C. 

3319.111(A). Accordingly, the School Board asserts that it was not required to comply 

with R.C. 3319.111(B), and the trial court erred when it focused on that section of the 

statute. We note that the School Board does not dispute on appeal the trial court’s finding 

that it did not comply with the teacher evaluation requirements set forth in R.C. 

3319.111(B). 

{¶ 19} R.C. 3319.11(G)(1)-(7) sets forth the procedure to be followed by a school 

district when it decides to not renew the contract of a limited contract teacher. In Evans 

Marshall v. Bd. of Edn. of Tipp City Exempted Village School Dist., 2d Dist. Miami No. 

03CA2, 2003-Ohio-4977, we stated as follows: 

R.C. 3319.11(G)(7) states that “[a] teacher may appeal an order affirming the 

intention of a board not to re-employ the teacher to the court of common pleas . . . on the 
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grounds that the board has not complied with section 3319.11 or 3319.111 of the Revised 

Code.” However, appeals pursuant to R.C. 3319.111 are limited to a determination of 

procedural errors. A court can order a teacher to be re-employed only if it finds that a 

board of education has failed to evaluate a teacher in accordance with R.C. 3319.111, or has

failed to provide a teacher with timely notice of nonrenewal pursuant to R.C. 3319.11(B), 

(C)(3), (D)(4) or (E). The section further clearly states that the determination of whether 

or not to reemploy a teacher is at the board’s discretion and not a proper subject of judicial 

review. (Emphasis added). 

{¶ 20} R.C. 3319.111(A) provides that when a board of education enters into a limited contract with a teacher the board 

must evaluate that teacher in any school year in which the board may wish to declare its intention not to renew the teacher’s contract. 

This evaluation is to be conducted at least twice in the school year in which the board may wish to declare its intention not to renew the 

teacher’s contract. Id. Following the evaluation, the teacher is to be provided a written evaluation. Id. 

{¶ 21} R.C. 3319.111(B) states: 

Any board of education evaluating a teacher pursuant 

to this section shall adopt evaluation procedures that shall be 

applied each time a teacher is evaluated pursuant to this 

section. These evaluation procedures shall include, but not be 

limited to:(1) Criteria of expected job performance in the areas 

of responsibility assigned to the teacher being evaluated; 

(2) Observation of the teacher being evaluated by the person 
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conducting the evaluation on at least two occasions for not less 

than thirty minutes on each occasion; 

(3) A written report of the results of the evaluation that 

includes specific recommendations regarding any 

improvements needed in the performance of the teacher being 

evaluated and regarding the means by which the teacher may 

obtain assistance in making such improvements. R.C. 

3319.111(B).

{¶ 22} Driver argued, and the trial court found, that the School Board failed to 

comply with R.C. 3319.111(B)(2) and (3), because she was only observed twice during the 

school year, only once for each evaluation. Moreover, the written reports failed to provide 

areas in Driver’s performance needing improvement, respective recommendations, or the 

means by which assistance could be obtained in making any improvements. 

{¶ 23} Our prior holding in Evans Marshall does not limit reinstatement of a 

non-renewed teacher to a situation where only a violation of R.C. 3319.111(A) exists. 

When a violation of the evaluation procedures set forth in R.C. 3319.111(B) has occurred, 

R.C. 3319.11(G)(7) vests the trial court with jurisdiction to order reinstatement of the 

teacher whose contract was not renewed. Evans Marshall v. Bd. of Edn. of Tipp City 

Exempted Village School Dist., 2d Dist. Miami No. 03CA2, 2003-Ohio-4977. Our holding 

in Evans Marshall comports with the holdings of the Ohio Supreme Court in Farmer v. 

Kelleys Island Bd. Of Edn., 69 Ohio St.3d 156, 630 N.E.2d 721 (1994) (“Farmer I”), and 

Farmer v. Kelleys Island Bd. Of Edn., 70 Ohio St.3d 1203, 638 N.E.2d 79 (1994) (“Farmer 
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II”). In Farmer I and II, the Ohio Supreme Court held that the procedures set forth in R.C. 

3319.111(B) must be followed by a school board in order to effectuate a statutorily proper 

evaluation prior to implementing the decision to non-renew a teacher’s contract. 

{¶ 24} In the instant case, the School Board does not dispute the trial court’s 

finding that it failed to comply with the evaluation procedures set forth in R.C. 

3319.111(B). The School Board only asserts that it was not required to adhere to the 

requirements of R.C. 3319.111(B). In light of the foregoing analysis, the School Board was 

clearly required to comply with the evaluation procedures set forth in R.C. 3319.111(B), and 

its failure to do so properly resulted in the reinstatement of Driver to her original teaching 

position. “In resolving the instant appeal, we are guided by the standard that R.C. 3319.11 

and 3319.111 are remedial statutes that must be liberally construed in favor of teachers.” 

Naylor v. Cardinal Local School Dist. Bd. of Edn., 69 Ohio St.3d 162, 630 N.E.2d 725 

(1994). 

{¶ 25} In its second assignment, the School Board argues that the trial court erred 

by finding that the decision ordering re-employment of Driver was mandatory, rather than 

discretionary. Specifically, the School Board points out that R.C. 3319.11(G)(7) states that 

“*** the court may order a board to reemploy a teacher *** when the court determines that 

evaluation procedures have not been complied with ***.” Id. Based on the statute’s use of 

“may” rather than “shall,” the decision to re-employ a teacher is discretionary, not 

mandatory. 

{¶ 26} In Farmer I, the Ohio Supreme Court stated in pertinent part: 

The failure of the board to comply with the observation 
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requirements of R.C. 3319.111(B)(2) constitutes a failure to 

comply with the evaluation requirements of former R.C. 

3319.111(A). Such a failure constitutes a ground upon which 

a court reverses the board’s decision not to reemploy Farmer 

under to [sic] R.C. 3319.11(G)(7). 

*** R.C. 3319.11(G)(7) provides that when a board of 

education improperly terminates a teacher by not complying 

with the evaluation procedures required by former R.C. 

3319.111(A), a court should order the board to reemploy the 

teacher. 

{¶ 27} The only court to have directly addressed the potential discretionary issue in 

R.C. 3319.11(G)(7) was the Eleventh District in Tulley v. Wickliffe City Sch. Dist. Bd. of 

Edn., 11th Dist. Lake No. 95-L-014, 1996 WL 648743 (July 12, 1996), wherein the court 

concluded that once a procedural violation of R.C. 3319.111 has been established , a trial 

court was required to reinstate the teacher. We note that the Ohio Supreme Court chose not 

to accept Tulley for review. Id. at 77 Ohio St.3d 1494, 673 N.E.2d 149 (1996).

{¶ 28} Other than describing the Tulley decision as making no sense, the School 

Board fails to distinguish the case in any way. More importantly, the School Board fails to 

cite any case wherein a school district failed to comply with the statutorily mandated 

evaluation procedures, and a court did not order reinstatement of the improperly terminated 

teacher, either at the trial level or appellate level. Simply put, the School Board has not 

provided any legal authority wherein a court has exercised its discretion and refused to order 
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reinstatement. We note that to find that failure to comply with the evaluation procedures 

does not mandate re-employment would severely undermine the force and effect of the 

statutory requirements. In such a case, a teacher who was found to have been improperly 

terminated would have no real avenue for relief if reinstatement were not mandatory. 

{¶ 29} Accordingly, we find that the trial court did not err when it found that its 

decision ordering Driver to be reinstated was mandatory, rather than discretionary. 

{¶ 30} The School Board’s first and second assignments of error are overruled. 

{¶ 31} The School Board’s third assignment of error is as follows: 

{¶ 32} “THE COMMON PLEAS COURT ERRED BY ORDERING THE 

JEFFERSON TOWNSHIP LOCAL SCHOOL DISTRICT BOARD OF EDUCATION [TO] 

PAY ERNESTINE DRIVER BACKPAY WHILE JEFFERSON WAS IN FISCAL 

EMERGENCY.” 

{¶ 33} In its third assignment, the School Board argues that the trial court erred by 

awarding Driver back pay when Jefferson Township was in a state of fiscal emergency. 

{¶ 34} At the time that the trial court issued its decision ordering that Driver be 

reinstated and awarded back pay, the School Board had not raised any issue regarding 

Jefferson Township being in a state of fiscal emergency. If Jefferson Township was in a 

state of fiscal emergency at the time when Driver was awarded back pay, that matter is 

outside the record in the instant appeal. Thus, we will not address the issue of Driver’s 

award of back pay in regards to Jefferson Township’s purported state of fiscal emergency. 

{¶ 35} The School Board’s fourth and final assignment of error is as follows: 

{¶ 36} “THE COMMON PLEAS COURT ERRED IN HOLDING THAT 
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JEFFERSON MUST PAY BACK PAY TO ERNESTINE DRIVER WITHOUT SET OFF 

FOR INTERIM EARNINGS OR REDUCTION REFLECTING OTHER 

CIRCUMSTANCES LIMITING DRIVER’S ENTITLEMENT TO BACKPAY.” 

{¶ 37} “It is well settled that a public employee *** who is wrongly excluded from 

his position and sues to recover compensation for the period of exclusion is subject to have 

his claim reduced by the amount he earned, or in the exercise of due diligence, could have 

earned in appropriate employment during the period of exclusion.” State ex rel. Martin v. 

Columbus Dept. of Health, 58 Ohio St.2d 261, 389 N.E.2d 1123 (1979). 

{¶ 38} To the extent that the School Board is entitled to a set off regarding Driver’s 

award of back pay, this matter is reversed and remanded to the trial court for a hearing in 

order to determine the amount of back pay to which Driver is entitled and to assess the 

amount, if any, of set off which would limit the amount that Driver could recover in back 

pay. 

{¶ 39} The School Board’s fourth assignment of error is sustained. 

{¶ 40} The School Board’s fourth assignment of error having been sustained, this 

matter is reversed and 

remanded to the trial 

court for a hearing to 

determine the amount of 

back pay to which Driver 

is entitled and the 

amount of set off, if any, 
15

Jefferson Township is 

entitled to with respect to 

Driver’s award of back 

pay. In all other 

respects, the judgment of 

the trial court is 

affirmed. 

 

 . . . . . . . . . . 

GRADY, P.J. and HALL, J., concur. 

Copies mailed to: 

Peter J. Rakay 

Laura E. Rakay 

Nicholas E. Subashi 

Hon. Dennis J. Langer