[Cite as Doe v. Ronan, 127 Ohio St.3d 188, 2010-Ohio-5072.]




                      DOE v. RONAN, SUPERINTENDENT, ET AL.
          [Cite as Doe v. Ronan, 127 Ohio St.3d 188, 2010-Ohio-5072.]
As applied to employment contracts entered into by school districts governed by
        R.C. Chapter 124, R.C. 3319.391 and Ohio Adm.Code 3301-20-01 do not
        violate the provision in Section 28, Article II of the Ohio Constitution that
        prohibits the General Assembly from passing laws that impair the
        obligation of contracts — R.C. 3319.391 does not violate the provision in
        Section 28, Article II of the Ohio Constitution that prohibits the General
        Assembly from passing retroactive laws.
    (No. 2009-2104 — Submitted June 8, 2010 — Decided October 26, 2010.)
   ON ORDER from the United States District Court, Southern District of Ohio,
       Western Division, Certifying Questions of State Law, No. 1:09cv243.
                                 __________________
                              SYLLABUS OF THE COURT
1. As applied to administrative-employment contracts entered into by school
        districts governed by R.C. Chapter 124, R.C. 3319.391 and Ohio
        Adm.Code 3301-20-01 do not violate the provision in Section 28, Article
        II of the Ohio Constitution that prohibits the General Assembly from
        passing laws that impair the obligation of contracts.
2. R.C. 3319.391 does not violate the provision in Section 28, Article II of the
        Ohio Constitution that prohibits the General Assembly from passing
        retroactive laws.
                                 __________________
        CUPP, J.
        {¶ 1} This case comes to us as two certified questions of state law from
the United States District Court for the Southern District of Ohio, Western
                                  SUPREME COURT OF OHIO




Division. For the reasons that follow, we conclude that contractual obligations in
administrative-employment contracts entered into by school districts governed by
R.C. Chapter 124 are not impaired by R.C. 3319.391 and Ohio Adm.Code 3301-
20-01, and R.C. 3319.391 is not a retroactive law.
                                            I. Facts
         {¶ 2} According to the order certifying the questions to this court and the
facts agreed upon by the parties in their briefs, John Doe,1 petitioner, was
convicted in 1976 of drug trafficking in violation of R.C. 2925.03 and spent three
years in a correctional facility. After he was released, Doe obtained a college
degree, became a licensed social worker, and was certified as a chemical-
dependency counselor. In 1997, Doe’s conviction was expunged pursuant to R.C.
2953.32. Doe has had no other criminal convictions.
         {¶ 3} In 1997, Doe began his employment with respondent Cincinnati
Public School (“CPS”) as a drug-free-school specialist. In 2002, Doe began to
work in an administrative capacity as a hearing officer. In this position, Doe’s
only direct contact with students was at administrative hearings, and the students’
guardians were also present at those hearings.
         {¶ 4} Doe entered into a two-year administrative-employment contract
with CPS in July 2008, with the two-year term beginning on August 1. The
employment contract was made “subject to confirmation of appropriate state
certification.” Beginning in 2008, this confirmation process required Doe to
submit to a background check. This background-check requirement previously
applied only to licensed2 positions, but legislation enacted in 2007 extended it to
include administrative employees within the school district. R.C. 3319.39 and

1. The district court granted plaintiff’s motion to proceed under a pseudonym because it
determined that to pursue the lawsuit, the plaintiff would be compelled to disclose intimate
information and that a pseudonym would prevent the public from tying that information to the
plaintiff.

2. The term “license” is used herein consistently with the definition in R.C. 3319.31.




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3319.391, 2007 Sub.H.B. No. 190, eff. Nov.14, 2007 (“H.B. 190”). H.B. 190 also
authorized respondent Ohio Department of Education (“ODE”) to promulgate
administrative rules related to the background-check process, including rules
specifying circumstances under which persons with certain convictions could still
be hired. R.C. 3319.39(E).
         {¶ 5} In November 2008, CPS notified Doe that his 32-year-old drug-
trafficking conviction was discovered during the background check.3 CPS further
advised Doe that the same recently enacted legislation that now required CPS to
conduct background checks on administrative employees also required CPS to
terminate its employment relationship with Doe because of the prior conviction.
         {¶ 6} Doe filed suit on April 3, 2009, in the Hamilton County Court of
Common Pleas.        Doe alleged that CPS breached the July 2008 employment
contract and that the recently enacted legislation expressed in H.B. 190 violated,
among other things, the Contracts Clauses of the United States and Ohio
Constitutions, the Ex Post Facto Clause of the United States Constitution, and the
Retroactivity Clause of the Ohio Constitution. CPS removed the case to the
federal district court pursuant to Section 1441, Title 28, U.S.Code, and on April
24, 2009, Doe filed an amended complaint in federal court. Respondent Mary
Ronan was the interim superintendent at the time the amended complaint was
filed.
         {¶ 7} Thereafter, Doe filed a motion to certify his state-based
retroactivity and contract-impairment claims as state-law questions. The federal




3. When an offense is expunged, the record is sealed. R.C. 2953.32(C). However, inspection of
sealed records is permitted when a school board is conducting a background check. R.C.
2953.32(D)(8).




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district court granted the motion, and this court accepted the certified questions.4
124 Ohio St.3d 1440, 2010-Ohio-188, 920 N.E.2d 371.
                             II. Legislation and Regulations
         {¶ 8} For many years, this state has required criminal background checks
for licensed and certificated school-district employees who have responsibility for
the care, custody, and control of a child.                See former R.C. 3319.39(A)(1),
Am.Sub.S.B. No. 38, 145 Ohio Laws, Part I, 367, 383, eff. Oct. 29, 1993 (“S.B.
38”). If the background check uncovered a conviction of an offense listed in
former R.C. 3319.39(B)(1)(a), the school district was required to release that
employee from employment, unless the “standards in regard to rehabilitation”
were met. Former R.C. 3319.39(B)(1) and (E), S.B. 38. In keeping with the
ODE’s concern that persons who have drug-trafficking convictions on their record
may jeopardize the health, safety, or welfare of students, no rehabilitation was
available under the administrative regulation for a licensed employee who
committed a drug-trafficking offense under R.C. 2925.03.                          Former Ohio
Adm.Code 3301-20-01(B)(1), 1993-1994 Ohio Monthly Record 1257, eff. Mar. 4,
1994, and 3301-20-01(E)(1)(c) and (E)(2)(e), 2005-2006 Ohio Monthly Record
1261, eff. Sept. 23, 2005.



4. {¶ a} The certified questions of law are as follows:
    {¶ b} “I. [Do] Ohio Revised Code § 3319.391 and Ohio Administrative Code § 3301-20-01
violate the Retroactivity Clause of Article II, Section 28 of the Ohio Constitution?”
    {¶ c} “II. [Do] Ohio Revised Code § 3319.391 and Ohio Administrative Code § 3301-20-01
violate the Contract Clause of Article II, Section 28 of the Ohio Constitution?”
    {¶ d} The district court’s certified question pertaining to the retroactivity question, however,
does not match the allegations in the amended complaint. In the amended complaint, Doe alleged
that both R.C. 3319.391 and R.C. 3319.39 were unconstitutionally retroactive. Further, Doe did
not assert that now-former Ohio Adm.Code 3301-20-01 was unconstitutionally retroactive.
    {¶ e} We are unclear as to the rationale behind the district court’s phrasing of the question
regarding unconstitutional retroactivity and why the certified question does not comport with the
allegations in Doe’s amended complaint. In order to avoid rendering an advisory opinion on the
question whether Ohio Adm.Code 3301-20-01 is unconstitutionally retroactive, we limit our
discussion to the issues presented in the amended complaint, but we decline to address whether
R.C. 3319.39 is unconstitutionally retroactive, because this issue was not briefed by the parties.




                                                 4
                               January Term, 2010




        {¶ 9} In 2007, H.B. 190 expanded the background-check statutes to
require, among other things, criminal-background checks for administrative, or
nonlicensed, school-district employees. Former R.C. 3319.391(A), H.B. No. 190.
The list of enumerated offenses in R.C. 3319.39(B)(1) and the effect that a
conviction of one of the enumerated offenses had on an employee’s employment
within a district were not revised. Former R.C. 3319.391(C), H.B. 190 (stating
that a person convicted of an offense listed in R.C. 3319.39(B)(1) “shall not be
hired or shall be released from employment” unless the person meets the
rehabilitation standards promulgated by the ODE pursuant to R.C. 3319.39(E));
and former R.C. 3319.39(B)(1)(a), H.B. 190 (enumerated offenses not revised in
H.B. 190).     Thus, an R.C. 2925.03 drug-trafficking offense remained an
enumerated offense, and an employee who had been convicted of such an offense
could not be employed by the school district unless the rehabilitation standards
were met.
        {¶ 10} Prior to August 27, 2009, the ODE had promulgated only one
regulation to address how a person with a prior conviction of an enumerated
offense could be rehabilitated, allowing that person to be employed with the
school district. However, the regulation provided that for a conviction of an R.C.
2925.03 drug-trafficking offense, no rehabilitation was available to relieve a
person from employment disqualification. Former Ohio Adm.Code 3301-20-
01(E)(1)(c) and (A)(11), 2005-2006 Ohio Monthly Record 1261, eff. Sept. 23,
2005.
        {¶ 11} Effective August 27, 2009, the ODE revised its background-check
regulations to respond to the 2007 revisions to the statutes. Rather than have one
regulation apply to all persons subject to a background check, the ODE
promulgated two regulations: one applicable to employees who hold positions that
require licenses, and one applicable to employees who hold nonlicensed positions.
Both of the regulations detail how a person with a conviction of an enumerated



                                        5
                            SUPREME COURT OF OHIO




offense may demonstrate the person’s rehabilitation to relieve the person from
employment disqualification with a school district. Ohio Adm.Code 3301-20-
01(E) and 3301-20-03(D).
        {¶ 12} The regulation that applies to licensed positions is essentially a
continuation of the original, pre-August 2009 ODE regulation. Ohio Adm.Code
3301-20-01. In this regulation, the prior rule with respect to an R.C. 2925.03
drug-trafficking offense is maintained: no rehabilitation is permitted.       Ohio
Adm.Code 3301-20-01(E)(1) and (A)(10)(c).
        {¶ 13} The second regulation created by the ODE was new and applied to
nonlicensed positions within a school district. Ohio Adm.Code 3301-20-03. For
these positions, the rehabilitation rule for R.C. 2925.03 drug-trafficking offenses
is different.   If the drug-trafficking offense occurred within ten years of the
criminal-record check, no rehabilitation is permitted. Ohio Adm.Code 3301-20-
03(D)(1) and (A)(6)(e). But if the person committed the drug offense more than
ten years before the criminal-record check, a district may employ that person if
the rehabilitation conditions contained in Ohio Adm.Code 3301-20-03(D) are
met. Ohio Adm.Code 3301-20-03(A)(6)(e). But even if a person meets the
rehabilitation conditions so that the school district may deem that person
rehabilitated, a “district maintains the discretion whether to employ or retain in
employment [that] individual.” Ohio Adm.Code 3301-20-03(D).
                                  III. Analysis
        {¶ 14} Doe argues that R.C. 3319.391 and Ohio Adm.Code 3301-20-01
unconstitutionally impaired his employment contract with CPS. Doe also argues
that R.C. 3319.391 is unconstitutionally retroactive. After consideration of the
arguments presented in this case, we cannot agree with Doe.
                               A. Contract Impairment
        {¶ 15} The Ohio Constitution provides that the “general assembly shall
have no power to pass * * * laws impairing the obligation of contracts.” Section




                                        6
                                 January Term, 2010




28, Article II, Ohio Constitution. This provision applies to contracts that “existed
prior to the effective date of the statute [at issue in the litigation].” Aetna Life Ins.
Co. v. Schilling (1993), 67 Ohio St.3d 164, 168, 616 N.E.2d 893. In contrast,
“contracts entered into on or after the effective date of [a statute] are subject to
the provisions of the statute.” (Emphasis sic.) Id.
        {¶ 16} A two-part test has been established to determine whether a statute
unconstitutionally impairs a contract. The first question is whether the legislation
at issue operates as a substantial impairment of a contractual relationship.
Middletown v. Ferguson (1986), 25 Ohio St.3d 71, 77, 25 OBR 125, 495 N.E.2d
380.   If the answer is yes, the next question is whether the legislation is
reasonable and necessary to serve an important public purpose. Id. at 79.
        {¶ 17} When CPS advised Doe that it was terminating his 2008
employment contract for the sole reason of Doe’s 1976 expunged drug-trafficking
conviction, it did so in accordance with the requirements of the 2007 revisions to
the background-check legislation.        Doe not only claims that R.C. 3319.391
unconstitutionally impaired his 2008 employment contract with CPS, but he
further asserts that applying the administrative regulation in effect at the time of
his termination notice compounds the constitutional infirmity. Ohio Adm.Code
3301-20-01, 2005-2006 Ohio Monthly Record 1261, eff. Sept. 23, 2005. Doe
maintains that application of this administrative regulation to his circumstance is
inappropriate because it was promulgated when only licensed school-district
employees were subject to criminal-record checks. According to Doe, if the
revised August 2009 regulation applicable to nonlicensed school-district
employees had been promulgated sooner than it was following R.C. 3319.391’s
effective date, he would have met the new rehabilitation standard for nonlicensed
employees and could have remained employed by CPS. Ohio Adm.Code 3301-
20-03(A)(6)(e) and (D).




                                           7
                                  SUPREME COURT OF OHIO




         {¶ 18} The General Assembly has enacted detailed statutes regulating the
employment of school employees. See R.C. Chapter 3319. When an employment
contract between a school district and its employee is made pursuant to these
statutes, that contract must be construed as though the statutes are incorporated
into the contract and become implied terms and conditions of any contract or
contractual right. See, e.g., Jacot v. Secrest (1950), 153 Ohio St. 553, 558, 42
O.O. 31, 93 N.E.2d 1, quoting Banks v. De Witt (1884), 42 Ohio St. 263,
paragraph two of the syllabus (“ ‘A contract made in pursuance of a statute or
resolution, must be construed as though such statute or resolution had been
incorporated into such contract’ ”).5 In this case, the 2008 employment contract
between Doe and CPS was made “subject to confirmation of appropriate state
certification.” Passing a statutorily mandated background check is necessary
“state certification” and is therefore a condition that must be met before
obligations in the contract become effective. In recognition of this condition
precedent, all prior and current versions of the background-check legislation
permit an employee to be conditionally employed until the results of the
background check are obtained. See, e.g., former R.C. 3319.39(B)(2), S.B. 38,
eff. Oct. 29, 1993, and former R.C. 3319.39(B)(2), H.B. 190, eff. Nov. 14, 2007.

5. The dissent claims that the incorporation of present statutory law into a contract is legal
artifice. To the contrary, “[i]t is an elementary principle that any law relating to a contract which
is in existence at the time of the execution of the contract becomes a part of such contract.” E.
Mach. Co. v. Peck (1954), 161 Ohio St. 1, 6-7, 52 O.O. 463, 117 N.E.2d 593; Bricker v. Preble
Shawnee Local School Dist. Bd. of Edn., 12th Dist. No. CA2007-10-020, 2008-Ohio-4964, ¶ 15;
Eastwood Local School Dist. Bd. of Edn. v. Eastwood Edn. Assn., 172 Ohio App.3d 423, 2007-
Ohio-3563, 875 N.E.2d 139, ¶ 27; Labate v. Natl. City Corp. (1996), 113 Ohio App.3d 182, 185,
680 N.E.2d 693. It is also “ ‘elementary that no valid contract may be made contrary to statute,
and that valid, applicable statutory provisions are parts of every contract.’ ” Holdeman v.
Epperson, 111 Ohio St.3d 551, 2006-Ohio-6209, 857 N.E.2d 583, ¶ 18, quoting Bell v. N. Ohio
Tel. Co. (1948), 149 Ohio St. 157, 158, 36 O.O. 501, 78 N.E.2d 42; Darwin Limes, L.L.C. v.
Limes, 6th App. No. WD-06-049, 2007-Ohio-2261, ¶ 25. Finally, this court has held in the
context of subrogation rights that the statutory “provisions must control, regardless of the terms
and conditions written into the policy by the contracting parties.” Verducci v. Cas. Co. of Am.
(1917), 96 Ohio St. 260, 265, 117 N.E. 235. Thus, applying the principle that existing statutory
provisions are incorporated into a contract is recognition of a basic legal concept of longstanding
and accepted use.




                                                 8
                                January Term, 2010




          {¶ 19} Doe was conditionally employed pending the results of his
background check. When these results indicated that Doe failed to meet the state-
certification requirement, Doe was unable to meet the condition precedent that
would have triggered CPS’s obligation to perform the contract. Consequently, the
contract between CPS and Doe failed to become binding.
          {¶ 20} We further note that Doe and CPS executed the July 2008
employment contract eight months after the effective date of the provisions of
H.B. 190, which imposed the new background-check requirements.           Because
Doe’s 2008 employment contract with CPS was executed after the date the
statutory change became effective, the new background-check requirements and
the employment-disqualification standards of Ohio Adm.Code 3301-20-01
became incorporated as implied terms and conditions of Doe’s contract. Thus,
Doe cannot demonstrate that R.C. 3319.391 impaired his employment contract
with CPS, because there was no contract between Doe and CPS to substantially
impair.
          {¶ 21} Doe’s reliance on R.C. 3319.081 to establish that his employment
contract was a continuing contract is misplaced. R.C. 3319.081 applies to school
districts that are not governed by R.C. Chapter 124. CPS, however, is governed
by R.C. Chapter 124. R.C. 124.01(A) and 3319.081. Thus, there is no continuing
contract under R.C. 3319.081. Moreover, a public employee who meets the
classified-service criteria of R.C. 124.11(B) does have protection from
termination without specific cause, as defined in R.C. 124.34(A). One of the
specific causes for which an employee can be terminated, however, is the
conviction of a felony drug-abuse offense under R.C. 2925.03.               R.C.
124.34(A)(2). Because the conviction was under R.C. 2925.03, it falls within the
purview of R.C. 124.34(A), and Doe has no statutory right to continued
employment.




                                         9
                            SUPREME COURT OF OHIO




       {¶ 22} Doe also claims that application of the pre-August 2009
administrative rule to his circumstance impaired his 2008 employment contract
with CPS. Had Ohio Adm.Code 3301-20-03 been promulgated more quickly
upon the enactment of H.B. 190, Doe’s R.C. 2925.03 drug-trafficking conviction
would not have constituted a nonrehabilitative offense, and he could likely have
met the conditions to show rehabilitation so that CPS could have maintained its
employment relationship with him. Ohio Adm.Code 3301-20-03(A)(6)(e) and
(D).
       {¶ 23} Nonetheless, these laws reflect the General Assembly’s conclusion
that the health, safety, and welfare of students required an expansion of the
background-check laws to include nonteaching employees, e.g., administrators,
cafeteria workers, custodians, and maintenance personnel. Unfortunately, delay is
often an inherent characteristic of the rulemaking process. The effect that the
delay in the administrative rulemaking process had on Doe’s career is regrettable.
Doe’s past experiences and rehabilitation appear to have made him especially
qualified for the duties of the position for which he was hired, and Doe claims in
his amended complaint that he has received either an “acceptable” or
“accomplished” job evaluation every year since he became employed at CPS.
When his conviction was expunged in 1997, Doe was found to be rehabilitated.
The district court found that Doe has been “a model citizen since being released
from jail.”   Regardless, the ODE acted pursuant to its statutory grant of
discretionary rulemaking authority and was under no obligation to amend the
Administrative Code to make different rehabilitation provisions for nonlicensed
positions. R.C. 3319.39(E) and 3319.391(C).
       {¶ 24} Based on the foregoing, the revisions to the background-check
statutes and corresponding administrative regulations did not substantially impair
the contractual relationship between Doe and CPS; they merely prevented Doe
from being able to meet the condition precedent of the contract.




                                        10
                                  January Term, 2010




                                     B. Retroactivity
       {¶ 25} The Ohio Constitution also provides that the “general assembly
shall have no power to pass retroactive laws.”          Section 28, Article II, Ohio
Constitution. A determination that a law is unconstitutionally retroactive involves
a two-step inquiry. If the statute is expressly retroactive and is substantive, as
opposed to merely remedial, the statute violates the proscription against
retroactive laws. State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, 772
N.E.2d 1172, ¶ 13.
       {¶ 26} Doe     asserts     that    the   background-check     legislation   is
unconstitutionally retroactive.     In Doe’s view, his vested right in continued
employment was impaired when the General Assembly enacted R.C. 3319.391
and caused nonlicensed school-district employees to be terminated from current
employment if a background check disclosed a criminal conviction that predated
the employment relationship.
       {¶ 27} Doe’s     contention       notwithstanding,   the    background-check
legislation in R.C. 3319.391 is prospective in application. This legislation simply
imposed a new restriction on the school district regarding the qualifications of
persons it could employ after a specific date, with a focus on those persons who
have had felony convictions. This legislation does not go back to the date of the
employee’s initial hire, terminate that person effective as of the hire date, and
eliminate any of that person’s accrued benefits. Doe has not been deprived of any
pay, retirement credit, or other benefits he accrued during his tenure with CPS.
Instead, the conduct that the background-check legislation prohibits, i.e.,
continued employment after a disqualifying criminal-background check, occurs
only after the effective date of the statute, November 14, 2007.
       {¶ 28} Even if we did consider the statute to be expressly retroactive, we
have already concluded in our contract-impairment analysis that R.C. 3319.391
does not impair, in Doe’s circumstances, any vested right to continued



                                           11
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employment. In view of the foregoing, we conclude that R.C. 3319.391, as
expressed in H.B. 190, is not expressly retroactive, did not affect a vested right,
and thus does not violate the retroactive-law proscription in Section 28, Article II
of the Ohio Constitution.
                                    IV. Conclusion
          {¶ 29} Based on the above discussion, we conclude that as applied to
administrative-employment contracts entered into by school districts governed by
R.C. Chapter 124, R.C. 3319.391 and Ohio Adm.Code 3301-20-01 do not violate
the provision in Section 28, Article II of the Ohio Constitution that prohibits the
General Assembly from passing laws that impair the obligation of contracts.
Further, we conclude that R.C. 3319.391 does not violate the provision in Section
28, Article II of the Ohio Constitution that prohibits the General Assembly from
passing retroactive laws.
                                                                         So answered.
          LUNDBERG STRATTON, O’CONNOR, O’DONNELL, and LANZINGER, JJ.,
concur.
          BROWN, C.J., and PFEIFER, J., concur in part and dissent in part.
                                 __________________
          LUNDBERG STRATTON, J., concurring.
          {¶ 30} While I sympathize with Doe’s plight, the law is clear, and I
concur in the majority’s disposition of the two narrow legal questions certified to
us by the district court.
          {¶ 31} Although we have resolved the federal court’s legal questions
under the Ohio Constitution, I believe that on remand the court may resolve this
case by resorting to the doctrine of relation back. Under this doctrine, “an act
done at a later time is, under certain circumstances, treated as though it occurred
at an earlier time.” Black’s Law Dictionary (8th Ed.1999) 1314. This doctrine




                                           12
                                 January Term, 2010




applies to the amendments of pleadings, see Civ.R. 15(C), but I believe that it
should apply here in the interest of equity.
       {¶ 32} The Ohio Department of Education had statutory authority to
formulate the rules to carry out the legislative intent of 2007 Sub.H.B. No. 190,
eff. Nov. 14, 2007 (“H.B. 190”). R.C. 3319.39(E). The department promulgated
Ohio Adm.Code 3301-20-03 to carry out the legislative intent of H.B. 190.
Unfortunately, Doe fell into the gap between enactment of the new law and the
department’s regulations in response to the 2007 statutory revisions. The parties
agree that had the 2009 regulation been in effect, Doe would have remained in his
position, because he had been rehabilitated. Thus, I believe that the regulation
should relate back to the statute’s enactment.
       {¶ 33} Courts must give due deference to an agency’s interpretation and
implementation of the law. State ex rel. Saunders v. Indus. Comm., 101 Ohio
St.3d 125, 2004-Ohio-339, 802 N.E.2d 650, ¶ 41; Northwestern Ohio Bldg. &
Constr. Trades Council v. Conrad (2001), 92 Ohio St.3d 282, 289, 750 N.E.2d
130. Under such circumstances, the court should apply the subsequent regulation
to Doe’s contract in this case, which would allow him to continue his employment
but would also fulfill the overall intent of the law.
                               __________________
       BROWN, C.J., concurring in part and dissenting in part.
       {¶ 34} I agree with the majority that R.C. Chapter 124, R.C. 3319.391,
and Ohio Adm.Code 3301-20-01 do not violate the Contract Clause, Section 28,
Article II of the Ohio Constitution. However, I would hold that R.C. 3319.391
violates the prohibition against retroactive laws in Section 28, Article II of the
Ohio Constitution.
       {¶ 35} Today the majority holds that a long-term school-district
employee—a person who has successfully turned his life around and has not been
in trouble for over 30 years—can be summarily fired based upon a new law that



                                          13
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looks back to conduct that occurred prior to his employment. Contrary to the
majority’s assertions, Doe’s vested right to continued public employment
provided him with constitutional rights, which should not be summarily denied.
       {¶ 36} Therefore, I respectfully dissent from the majority’s holding that
R.C. 3319.391 does not violate the prohibition against retroactive laws.
                                       Facts
       {¶ 37} According to the order certifying the questions to this court, Doe
was convicted 34 years ago for drug trafficking and spent three years in jail. That
conviction was expunged in 1997.
       {¶ 38} Doe obtained a bachelor’s degree in 1983 and became a licensed
social worker and certified chemical-dependency counselor. The federal court
that is hearing this case found that Doe “has been a model citizen since being
released from jail.”
       {¶ 39} Beginning in 1997, Doe spent five years working for the school
district as a drug-free-school specialist.      Doe has since worked in an
administrative capacity as a hearing officer.
       {¶ 40} R.C. 3319.391 was enacted, effective November 14, 2007, to
expand the categories of school-district employees who were required to undergo
criminal background checks. 2007 Sub.H.B. No. 190. Doe was among the
employees who were newly subject to background checks.
       {¶ 41} However, the statute provided that any employee whose
background check revealed crimes requiring termination could avoid termination
if that person met rehabilitation standards adopted by the Department of
Education.   R.C. 3319.391(C).      Doe’s 1976 conviction made him subject to
termination, and under the then-existing regulations, the drug offense was a
nonrehabilitative offense.    Former Ohio Adm.Code 3301-20-01(E)(1)(c) and
(A)(11), 2005-2006 Ohio Monthly Record 1261, eff. Sept. 23, 2005.




                                         14
                               January Term, 2010




       {¶ 42} In July 2008, Doe signed a new employment contract with the
school district; the contract stated that Doe’s employment was “subject to
confirmation of appropriate state certification.” In November 2008, the school
district informed Doe that a background check had revealed his former felony and
that his employment was terminated.
       {¶ 43} Subsequently, the Department of Education passed regulations that
would have permitted Doe to retain employment by demonstrating rehabilitation.
Ohio Adm.Code 3301-20-03 (eff. Aug. 27, 2009). Had this regulation been in
effect in November 2008, it is unlikely that Doe would have been fired.
       {¶ 44} Doe’s termination was incongruous in that had the General
Assembly not passed R.C. 3319.391, Doe would not have been fired, and had the
Department of Education more quickly promulgated its rule regarding
rehabilitation (Ohio Adm.Code 3301-20-03), Doe would not have been fired. As
noted by the federal court, Doe is a model citizen, a person who turned his life
around in a remarkable and exemplary way. His life and experiences made him
uniquely qualified for his service to the school district.       Yet because his
background check occurred during the gap between November 2007 (when R.C.
3319.391 was enacted) and August 2009 (when the Department of Education
finally promulgated the rule that would allow rehabilitation for Doe’s offense),
Doe was terminated.
       {¶ 45} Doe filed suit in state court, alleging breach of contract and
violation of constitutional rights. The school district removed the case to federal
court. The federal court certified questions of state law to this court concerning
the constitutionality of certain state laws in effect at the time of Doe’s
termination. We accepted the questions.
                               Law and Analysis
       {¶ 46} For the majority, the analysis of whether R.C. 3319.391 violates
the prohibition against retroactive laws begins and ends with Doe’s 2008



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employment contract. According to the majority, Doe did not have a vested right
to employment, because his 2008 contract was contingent on “ ‘confirmation of
appropriate state certification.’ ”     Majority opinion at ¶ 18, quoting the
employment contract.
       {¶ 47} In order to reach this result, the majority equates passing the
criminal background check required by R.C. 3319.391 with “confirmation of
appropriate state certification” under Doe’s employment contract. The majority
springboards from this proposition to the holding that Doe did not meet the
“condition precedent” in his employment contract and therefore had no “vested
right” to continued employment. Without such a right, the majority concludes,
the law is not unconstitutionally retroactive.
       {¶ 48} I disagree with the majority’s conclusion that the contract makes
Doe’s employment conditional on a background check. The contract does not
clearly and unambiguously say that Doe would be subject to a background check
and that he could be fired based on the result. It says instead that his employment
is “subject to confirmation of appropriate state certification.” The phrase “state
certification” is ambiguous.     In the context of a school-district employment
contract, “certification” could as easily mean “licensed,” since certain school-
district jobs require licenses. See R.C. 3319.22, describing “educator licenses.”
       {¶ 49} Thus, the contract is ambiguous, at best, with regard to whether
passing a criminal background check equates to “confirmation of appropriate state
certification.” In contracts, we construe ambiguities against the proponent of the
instrument. Monnett v. Monnett (1888), 46 Ohio St. 30, 34-35, 17 N.E. 659.
“Any ambiguities in the document setting forth the rights and responsibilities of
each party must be construed against the drafter of the document. Otherwise the
nondrafter of the document may ultimately forfeit far more than he or she
reasonably contemplated at the time the agreement was signed.” Fletcher v.




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Fletcher (1994), 68 Ohio St.3d 464, 471, 628 N.E.2d 1343 (Resnick, J.,
dissenting).
        {¶ 50} In light of the ambiguity, the court should not deprive Doe of his
vested right to continued employment.         Instead, the court should hold the
ambiguity against the contract’s proponent—the school district—and hold that the
clause does not mean that the employee must pass a criminal background check.
        {¶ 51} The majority next asserts that Doe’s satisfying R.C. 3319.391 was
an implied term of the employment contract because the statute was in effect
before the contract was executed. In other words, the majority holds that Doe
loses the ability to raise his otherwise viable constitutional right based upon terms
of the contract that were added to the contract by this court by implication.
        {¶ 52} I cannot agree to so casually dispose of Doe’s constitutional claims
through the use of a legal artifice (contract terms implied in law).
        {¶ 53} This is not a proper use of the court’s ability to supply implied
contractual terms. The court should imply terms to prevent injustice and to
conform the contract to the parties’ actual intent, but not to deprive a person of his
ability to enforce his constitutional rights. This is particularly true when, as here,
the terms being implied are from a newly passed law and would significantly alter
the contractual relationship between the parties. Accordingly, I would not find
that Doe’s satisfying R.C. 3319.391 was an implied term of his contract.
        {¶ 54} The majority also states that R.C. 3319.391 is not retroactive
because it does not go back in time and terminate Doe from the date of his initial
hire or deprive him of pay and benefits that he previously acquired. But these
facts are irrelevant.
        {¶ 55} What is relevant is that the new law required Doe’s termination
from employment based on his past conduct.            We have held that laws are
unconstitutionally retroactive when they impair a vested right based upon prior
conduct. Smith v. Smith, 109 Ohio St.3d 285, 2006-Ohio-2419, 847 N.E.2d 414, ¶



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6. The principle is that a law cannot add new burdens to rights that are presently
lawfully enjoyed, based upon events that occurred in the past. R.C. 3319.391 is
such a statute.
       {¶ 56} R.C. 3319.391 applies retroactively by its own terms. The statute
applies to new and current employees alike and instructs that an employee whose
background check discloses a proscribed felony “shall be released from
employment.” R.C. 3319.391(C).
       {¶ 57} Our caselaw establishes that public employees, like Doe, have a
vested right to continued employment. Ohio Assn. of Pub. School Emps.,
AFSCME, AFL-CIO v. Lakewood City School Dist. Bd. of Edn. (1994), 68 Ohio
St.3d 175, 176, 624 N.E.2d 1043. And where, as here, that vested right is
impaired by a new law requiring the employee’s termination based on the
employee’s prior conduct, the law is unconstitutionally retroactive.
                                    Conclusion
       {¶ 58} For the foregoing reasons, I would hold that R.C. 3319.391
violated the constitutional prohibition against retroactive laws. Accordingly, I
dissent from the majority’s holding that R.C. 3319.391 does not violate the
prohibition against retroactive laws.
       PFEIFER, J., concurs in the foregoing opinion.
                              __________________
       Dinsmore & Shohl, L.L.P., Christopher R. McDowell, Kimberly Beck,
and Sarah Sparks Herron, for petitioner.
       Taft, Stettinius & Hollister, L.L.P., Mark J. Stepaniak, and Daniel J.
Hoying, for respondents Mary Ronan and Cincinnati Public Schools.
       Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
David M. Lieberman, Deputy Solicitor, Mia T. Meucci, Assistant Solicitor, and
Amy Nash Golian and Todd R. Marti, Assistant Attorneys General, for
respondent Ohio Department of Education.




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       Carrie L. Davis, in support of petitioner for amicus curiae American Civil
Liberties Union of Ohio Foundation, Inc.
       Christina M. Royer, Ltd., and Christina M. Royer; and Cynthia McGrae,
in support of petitioner for amici curiae Ohio Employment Lawyers Association,
Legal Aid Society of Cleveland, and Towards Employment, Inc.
                          ______________________




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