[Cite as Kent State Univ. v. Hannam, 2019-Ohio-2971.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    PORTAGE COUNTY, OHIO


KENT STATE UNIVERSITY,                                  :   OPINION

                 Appellee,                              :
                                                            CASE NO. 2018-P-0109
        - vs -                                          :

WILLIAM B. HANNAM, et al.,                              :

                 Appellant.                             :


Appeal from the Portage County Court of Common Pleas, Case No. 2017 CV 01056.

Judgment: Affirmed.


John N. Childs and Bryan E. Meek, Brennan, Manna & Diamond, LLC, 75 East Market
Street, Akron, OH 44308 (For Appellee).

Michelle Wrona Fox, Community Legal Aid Services, 11 Central Square, 7th Floor,
Youngstown, OH 44503 (For Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, William B. Hannam, appeals the November 30, 2018 judgment

of the Portage County Court of Common Pleas reversing the Ohio Unemployment

Compensation Review Commission’s decision to award appellant unemployment

benefits for a certain period in August 2017. For the reasons discussed herein, the

decision of the Portage County Court of Common Pleas is affirmed.

        {¶2}     The facts are undisputed. Mr. Hannam was employed by the Kent State

University as a part-time adjunct professor in the Music Department for the Spring 2017
semester, which ended on May 15, 2017. On June 13, 2017, Mr. Hannam received a

letter from the University offering “reasonable assurance,” pursuant to the University’s

employment practices, that Mr. Hannam would be needed for the following “fall and/or

spring semester(s)” (the “Reasonable Assurance Letter” or the “Letter”). The Letter did

not specify which classes Mr. Hannam would teach but Mr. Hannam testified that he

knew in the spring of 2017 that he was listed as a professor on the fall class schedule.

The Letter stated that his continued employment was subject to the University’s

“employment practices.” Both the University and Mr. Hannam understood this to mean

that Mr. Hannam’s employment was contingent on sufficient student enrollment, with

priority to full-time faculty pursuant to the faculty Collective Bargaining Agreement, and

budget approval.    Ultimately, the University confirmed Mr. Hannam’s classes had

sufficient enrollment for the fall semester on August 11, 2017, and on August 28, 2017,

Mr. Hannam began teaching.

      {¶3}   Shortly after receiving the Reasonable Assurance Letter, Mr. Hannam

applied to the Ohio Department of Job and Family Services (ODJFS) for unemployment

benefits. On July 7, 2017, ODJFS determined that Mr. Hannam was totally unemployed

due to lack of work and allowed his application for benefits. The University timely

appealed and, upon reconsideration, ODJFS modified the decision to allow benefits

from May 15, 2017 through June 17, 2017, but determined that starting the week of

June 18, 2017, Mr. Hannam had reasonable assurance of employment for the next

academic year and therefore was not eligible for benefits from June 18, 2017 through

August 26, 2017. That decision also ordered Mr. Hannam to repay $690.00 that ODJFS




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determined to be overpaid benefits.       Mr. Hannam timely appealed and ODJFS

transferred jurisdiction to the Review Commission pursuant to R.C. 4141.281(B).

      {¶4}   In August 2017, a Review Commission Hearing Officer conducted an

evidentiary hearing, and, in the September 8, 2017 decision, the Hearing Officer

determined Mr. Hannam did not have reasonable assurances until the week ending

August 19, 2017, i.e., the week the University confirmed adequate enrollment in Mr.

Hannam’s classes, and that Mr. Hannam, accordingly, was entitled to benefits from

June 18, 2017 through August 12, 2017. The University requested further review, and

on November 15, 2017, the Review Commission ultimately affirmed their decision.

      {¶5}   The University then appealed to the Portage County Court of Common

Pleas, which reversed the Review Commission’s grant of unemployment benefits,

finding Mr. Hannam had reasonable assurances as of the June 13, 2017 Reasonable

Assurances Letter. The instant appeal followed.

      {¶6}   Mr. Hannam assigns two errors for our review, which we address together:

      {¶7}   [1] The trial court erred by reversing the Unemployment
             Compensation Review Commission’s decision when it found Mr.
             Hannam was ineligible for benefits since he had reasonable
             assurance of employment because the Review Commission
             decision was not unlawful, unreasonable or against the manifest
             weight of the evidence.

      {¶8}   [2] The trial court erred by reversing the Unemployment
             Compensation Review Commission’s decision to grant Mr. Hannam
             unemployment compensation benefits because Mr. Hannam did not
             have reasonable assurances of employment as defined by
             Unemployment Insurance Program Letter 5-17.

      {¶9}   In reviewing the decision of the trial court in this matter, we apply a

manifest weight of the evidence standard of review. According to R.C. 4141.282(H), “[i]f

the [reviewing] court finds that the decision of the commission was unlawful,



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unreasonable, or against the manifest weight of the evidence, it shall reverse, vacate, or

modify the decision, or remand the matter to the commission. Otherwise, the court shall

affirm the decision of the commission.” Though R.C. 4141.282 specifically addresses

appeals to the court of common pleas, and not to appellate courts, the Supreme Court

of Ohio has held that, in appeals from the unemployment compensation review

commission, the same standard of review applies to both the court of common pleas

and the appellate court. Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv., 73

Ohio St.3d 694 (1995), paragraph one of the syllabus. “When we review the trial court’s

decision, we apply the same standard. In such cases, this Court is ‘required to focus on

the decision of Review Commission, rather than that of the common pleas court[.]’”

Univ. of Akron v. Ohio Dept. of Job & Family Servs., 9th Dist. Summit No. 24566, 2009-

Ohio-3172, ¶9, quoting Markovich v. Employers Unity, Inc., 9th Dist. Summit No. 21826,

2004–Ohio–4193.

      {¶10} Furthermore, “[t]he court’s role is to determine whether the decision of the

Review Commission is supported by evidence in the certified record. * * * If the

reviewing court finds that such support is found, then the court cannot substitute its

judgment for that of the Review Commission. * * * ‘The fact that reasonable minds might

reach different conclusions is not a basis for the reversal of the [Review Commission’s]

decision.’” (citations omitted.) Univ. of Akron, supra, at ¶11, quoting Irvine v. Unemp.

Comp. Bd. of Review, 19 Ohio St.3d 15, 18 (1985).

      {¶11} The Ohio Revised Code sets out the eligibility requirements to receive

unemployment compensation benefits between academic terms.              Specifically, R.C.

4141.29(I)(1) pertains to university employees and provides, in pertinent part:




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       {¶12} (a) Benefits based on service in an instructional, research, or
             principal administrative capacity in an institution of higher
             education, as defined in division (Y) of section 4141.01 of the
             Revised Code; or for an educational institution as defined in
             division (CC) of section 4141.01 of the Revised Code, shall not be
             paid to any individual for any week of unemployment that begins
             during the period between two successive academic years or
             terms, or during a similar period between two regular but not
             successive terms or during a period of paid sabbatical leave
             provided for in the individual’s contract, if the individual performs
             such services in the first of those academic years or terms and has
             a contract or a reasonable assurance that the individual will perform
             services in any such capacity for any such institution in the second
             of those academic years or terms.

       {¶13} With the facts not in dispute, the case sub judice turns on what it means to

have “reasonable assurance” of continued employment as it pertains to R.C.

4141.29(I)(1).    Effective in November 1983, however, the Ohio Revised Code was

amended to eliminate the definition of “reasonable assurance” for this section, and there

has been little precedent since established by this court or the Supreme Court of Ohio

on the meaning, interpretation, or definition of “reasonable assurances” as applied to

this Code Section. In University of Toledo v. Heiny, 30 Ohio St.3d 143, 146 (1987), the

Supreme Court of Ohio held that reasonable assurance, as applied to a similar Code

section, is sufficient if the employer informs the employee that employment is available.

And, as applied to R.C. 4141.29(I)(1), in Knight v. Administrator, Ohio Bureau of

Employment Services, 28 Ohio St.3d 8, 10-11 (1986), the Supreme Court of Ohio found

that an offer of employment for the following academic year or terms constituted

reasonable assurance despite being contingent on student enrollment.

       {¶14} The Reasonable Assurance Letter Mr. Hannam received reads, in

pertinent part:

       {¶15} I am also writing to offer reasonable assurance, consistent with the
             University’s employment practices, that the School of Music will


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             need your services again during the next fall and/or spring
             semester(s). The salary for any such appointment will be no less
             than the rate per credit hour that you received this semester.

      {¶16} I hope that you will be interested in maintaining your association
            with Kent State University. If you are available to teach in the fall
            and/or spring semester(s), please notify me within fifteen (15) days
            of your receipt of this letter.

      {¶17} The University acknowledges that, though it is not the University’s

intention at the time of sending reasonable assurance letters, occasionally

circumstances dictate that an adjunct professor who was given a reasonable assurance

letter is not hired back the following semester. Though this happens less often than not,

Dr. Jeff Judge, Director of the ESL Center at the University, stated in an e-mail to Mr.

Hannam’s colleague, an adjunct professor that received a Reasonable Assurance letter

but was not hired back the following semester, that “a reasonable assurance letter does

NOT guarantee work with Kent State University. It is kind of an intent to hire, if we have

enough classes to offer. If our student population drops and we don’t have classes to

offer, the letter does not obligate Kent State University to provide you classes to teach.”

(Emphasis original.)

      {¶18} We are not of the opinion, however, that reasonable assurance requires a

guarantee of work. Black’s Law Dictionary defines “reasonable,” in pertinent part, as:

      {¶19} 1. Fair, proper, or moderate under the circumstances; sensible
            <reasonable pay>. 2. According to reason <your argument is
            reasonable but not convincing>. See PLAUSIBLE (1).
            REASONABLE, Black’s Law Dictionary (11th ed. 2019).

      {¶20} Black’s Law Dictionary also provides a definition for “assurance”:

“Something that gives confidence; the quality, state, or condition of being confident or

secure <self-assurance>.” ASSURANCE, Black’s Law Dictionary (11th ed. 2019).




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      {¶21} Neither the definition of “reasonable” nor “assurance” requires absolute

certainty or a guarantee.   Indeed, the legislature could have easily used stronger

language than “reasonable assurance” if it intended to require a guarantee or certainty

of continued employment. By its very nature “reasonable assurance” precludes the

requirement of absolute certainty.     Thus, “reasonable assurance” is necessarily

something less than an absolute guarantee.

      {¶22} On the other hand, we agree with the Ninth District in rejecting the

definition of reasonable assurance as “ʻa mere likelihood that employment could occur.’”

Univ. of Akron v. Ohio Sept. of Job & Family Servs., supra at ¶14, quoting Allen v.

Administrators, OBES, 1st Dist. No C-960705, 1997 WL 249438, at *2 (May 14, 1997).

The intent of unemployment compensation legislation in educational institutions is to

provide benefits to employees whose employment has ended at the close of the

academic year and whose employment prospects for the following academic year are

doubtful. Heiny, supra, at 146. Unemployment benefits are not intended to “‘subsidize

the vacation periods of those who knew well in advance that they may be laid off for

certain specified periods.’” Id., quoting Davis v. Commonwealth, 39 Pa.Commw. 146,

147 (1978). In other words, unemployment benefits are intended to cover unanticipated

periods of unemployment, however, the break between academic years is not an

unanticipated period of unemployment.          Wolfe v. Administrator, Ohio Bureau of

Employment Services, 10th Dist. Franklin, No. 98AP-609, 1998 WL 938593, at *2 (Dec.

22, 1998).   (“As long as the teacher has a reasonable assurance of continuing

employment after the vacation, the teacher is not confronted with an unexpected loss of

earned income.”)




                                           7
       {¶23} Therefore, what constitutes “reasonable assurance” must fall somewhere

between the mere likelihood of continued employment and a guarantee of continued

employment.

       {¶24} In the case sub judice, ODJFS determined that the Reasonable

Assurance Letter did not actually provide reasonable assurance to Mr. Hannam

because “it does not specifically state the date of return that would be consistent with

the next scheduled term.” Though ODJFS modified this determination, the Review

Commission ultimately found the initial determination of the ODJFS to be the correct

decision and disallowed benefits until the week Mr. Hannam knew sufficient enrollment

to continue his classes had been obtained for the following fall semester. Thus, it

appears the Review Commission found the surrounding circumstances too uncertain to

constitute “reasonable assurance” of continued employment until the fulfillment of the

contingencies were confirmed. We find this applies too strict a standard for reasonable

assurance.

       {¶25} Dr. Thomas Janson, Former Chair of the KSU Faculty Senate and

Assistant Director for the School of Music, wrote a letter to ODJFS stating that in his 35

years of employment at the University’s School of Music, there was only one occasion

when an adjunct professor was not hired back the following semester due to a policy

that full-time faculty schedules be filled prior to part-time faculty’s schedules. Though

Mr. Hannam presented this letter in support of his argument, we find it tends to support

the University’s argument that when a Reasonable Assurance Letter is issued, rarely

does the University not hire that professor, especially in the School of Music.




                                            8
       {¶26} Moreover, Mr. Hannam had been employed in the same capacity since

2012. He received a reasonable assurance letter at the end of each academic year,

and only once, and six years prior, had he not been hired back. Moreover, the reason

he was not hired back was due to circumstances outside the control of the University.

And for the six years following, those circumstances had not yet reoccurred.

       {¶27} The language of the reasonable assurance letter is unambiguous: with the

exception of circumstances outside the University’s control, the “School of Music will

need your services.”     While not binding the University if unforeseen circumstances

outside the University’s control preclude its fulfilment, the language of the Letter leaves

no uncertainty as to its desire to reemploy Mr. Hannam the following academic year.

Moreover, Mr. Hannam testified that during the spring 2017 semester, he was officially

listed as the professor for three courses on the University’s website for faculty for the fall

2017 semester.

       {¶28} Mr. Hannam argues that the language “next fall and/or spring semester(s)”

is too ambiguous to provide reasonable assurance. However, R.C. 4141.29(I)(1) refers

to employment in the following “academic year.” As both the fall and spring semesters

occur in the following academic year, we do not find this argument persuasive.

       {¶29} Further, “[a]lthough unemployment compensation statutes are to be

liberally construed [in favor of the person to be benefited], neither the agency nor the

trial court has a duty to construe facts more favorably to either party. Further, ‘[a]

direction to liberally construe a statute in favor of certain parties will not authorize a

court to read into the statute something which cannot be reasonably be implied from the

language of the statute.’” Citations omitted. Burns v. Director, Ohio Dept. of Job &




                                              9
Family Services, 11th Dist. Trumbull Nos. 2004-T-0071 and 2004-T-0072, 2005-Ohio-

6290, ¶47. See also, Ducsay v. Bd. of Rev., 11th Dist. Lake No. 7-273, 1980 WL

352230, *4 (Sept. 15, 1980).

       {¶30} In viewing the totality of the circumstances, we find Mr. Hannam had more

than a mere likelihood of continued employment but less than guaranteed continued

employment. Accordingly, the Review Commission lost its way when it determined Mr.

Hannam did not have reasonable assurance of continued employment until the

University was certain there was sufficient enrollment to hire him for the following

academic year. Thus, the Review Commission’s decision was against the manifest

weight of the evidence and we affirm the trial court’s decision to reverse.

       {¶31} Mr. Hannam asserts that we must apply a federal Unemployment

Insurance Program Letter No. 5-17 (“Program Letter”) to the issue sub judice. We need

not address the extent to which the Program Letter is binding on our decision because

even if we were to consider the Program Letter we do not find it supports Mr. Hannam’s

argument. The Program Letter states that “[i]f any contingencies in the offer are within

the employer’s * * * control, the state agency must determine the claimant does not

have a reasonable assurance. * * * Generally, the Department considers contingencies

based upon circumstances such as enrollment, funding, such as appropriation for a

specific course, and seniority to not be in the employers’ control.” These are the very

contingencies Mr. Hannam and the University understood to determinative of his

reemployment for the following academic year. Thus, according to the Program Letter,

the existence of these contingencies does not destroy a reasonable assurance.




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      {¶32} Finally, we address Mr. Hannam’s assertion that the trial court applied a

de novo standard of review when it should have applied a manifest weight of the

evidence standard of review. We do not find merit to this assertion. The trial court’s

November 30, 2018, Judgment Entry expressly states it applied a manifest weight of the

evidence standard of review. Though it does not expressly state in its conclusion that

the Review Commission’s decision was against the manifest weight of the evidence, it is

apparent from the court’s determination that it reviewed the entirety of the

circumstances and found that the Review Commission had lost its way.

      {¶33} Thus, Mr. Hannam’s assignments of error have no merit. The decision of

the Portage County Court of Common Pleas reversing the Review Commission’s

November 15, 2017 decision is affirmed.



TIMOTHY P. CANNON, J.,

MATT LYNCH, J.,

concur.




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