         [Cite as Stewart v. Lockland School Dist. Bd. of Edn., 2013-Ohio-5513.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




ADAM STEWART,                                      :         APPEAL NO. C-130263
                                                             TRIAL NO. A-1206854
        Plaintiff-Appellant,                       :
                                                                  O P I N I O N.
  vs.                                              :

BOARD   OF   EDUCATION                      OF :
LOCKLAND SCHOOL DISTRICT,

    Defendant-Appellee.                            :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 18, 2013



Kircher, Arnold & Dame, LLC, Konrad Kircher and Ryan J. McGraw, for Plaintiff-
Appellant,

Bricker & Eckler, LLP, David J. Lampe and Kate V. Davis, for Defendant-Appellee.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




SYLVIA S. HENDON, Presiding Judge.

       {¶1}   Plaintiff-appellant Adam Stewart has appealed from the trial court’s

entry adopting the magistrate’s decision denying his motion for summary judgment

and granting the motion for summary judgment filed by defendant-appellee the

Board of Education of the Lockland School District (“the Board”) on Stewart’s claim

alleging a violation of Ohio’s Open Meetings Act under R.C. 121.22.

       {¶2}   Because we determine that the trial court properly granted summary

judgment to the Board and denied the motion for summary judgment filed by

Stewart, we affirm.

                                    Background


       {¶3}   Stewart had been employed by Lockland as a data coordinator, a

nonteaching employee. On August 21, 2012, Stewart received a letter notifying him

that the Board would be holding a meeting on August 23, 2012, to consider

terminating his employment, and that he would be accorded the opportunity to

speak and present evidence at this meeting. The meeting was convened for the

Board to consider Stewart’s role in the false reporting of student attendance data to

the Ohio Department of Education. At the outset of the August 23 meeting, the

Board adjourned into executive session over the objection of Stewart and his counsel.

When the Board reconvened into open session, Stewart presented evidence and

argument in support of his continued employment.                Following Stewart’s

presentation, the Board again adjourned into executive session over Stewart’s

objection. Upon resuming open session, the Board passed a resolution terminating

Stewart’s employment.



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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}     Stewart received a letter the following day officially notifying him that

the Board had passed a resolution terminating his employment. The letter further

notified him of his right to appeal, which Stewart timely acted upon by filing a

complaint in the court of common pleas. Stewart’s complaint contained two causes

of action.    The first alleged a violation of the Open Meetings Act under R.C.

121.22(G)(1).    The second cause of action was Stewart’s administrative appeal

challenging his termination under R.C. 3319.081.

       {¶5}     Both parties filed motions for summary judgment on the first count of

Stewart’s complaint alleging a violation of the Open Meetings Act. The magistrate

granted the motion filed by the Board and denied Stewart’s motion. The trial court

overruled Stewart’s objections and adopted the magistrate’s decision. In his sole

assignment of error, Stewart now argues that the trial court erred in adopting the

magistrate’s decision granting summary judgment to the Board.

                                  Standard of Review


       {¶6}     We review a trial court’s ruling on a motion for summary judgment de

novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Summary judgment is appropriately granted when there exists no genuine issue of

material fact, the movant is entitled to judgment as a matter of law, and the evidence,

when viewed in favor of the nonmoving party, permits only one reasonable

conclusion that is adverse to the nonmoving party. State ex rel. Howard v. Ferreri,

70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994).




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                       OHIO FIRST DISTRICT COURT OF APPEALS


                                   Open Meetings Act


       {¶7}     Stewart argues in his sole assignment of error that the trial court erred

in granting summary judgment to the Board on his claim for a violation of the Open

Meetings Act.

       {¶8}     As a nonteaching employee, Stewart’s employment was governed by

R.C. 3319.081. This statute provides, in relevant part, that Stewart’s employment

could be terminated by a majority vote of the Board, but that Stewart could only be

terminated for cause.      See R.C. 3319.081(C).       Because Stewart could only be

terminated for cause, he possessed a property right in his employment, and was

entitled under due-process principles to a pretermination hearing before his

employment was terminated. Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532,

542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The United States Supreme Court has

held that when an employee is also afforded posttermination administrative

procedures, which Stewart was, the pretermination hearing need not be formal or

elaborate, and does not require a full evidentiary hearing. Id. at 545-548. Stewart

does not dispute that he was accorded the required pretermination hearing. But he

contends that the Open Meetings Act dictated that the Board conduct his entire

hearing in public.

       {¶9}     The Open Meetings Act is codified in R.C. 121.22, which provides that

“[t]his section shall be liberally construed to require public officials to take official

action and to conduct all deliberations upon official business only in open meetings

unless the subject matter is specifically excepted by law.” R.C. 121.22(A). As a public

body, the Board was required to conduct its meetings in public and open such

meetings to the public at all times. R.C. 121.22(C).




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} R.C. 121.22(G) contains several exceptions permitting a public body to

hold an executive session when properly convened by a quorum of the body.

Specifically, R.C. 121.22(G)(1) allows for a public body to adjourn into executive

session to consider the employment or dismissal of a public employee, unless the

employee requests a public hearing.       The Board relied on this provision when

adjourning into executive session to discuss terminating Stewart’s employment. But

Stewart argues that the Board was not justified in convening an executive session

because he had objected and requested that his entire hearing be conducted

publically, as permitted by R.C. 121.22(G)(1).

       {¶11} We must determine whether R.C. 121.22(G)(1) allowed Stewart to

mandate that his entire hearing be held publically and to prevent the board from

adjourning into executive session. We hold that it did not.

       {¶12} In Matheny v. Frontier Local Bd. of Edn., 62 Ohio St.2d 362, 405

N.E.2d 1041 (1980), the Ohio Supreme Court considered whether R.C. 121.22(G)(1)

granted the right to a public hearing to a nontenured teacher. The court ultimately

held that a nontenured teacher had no expectancy of continued employment and was

not entitled to any hearing, let alone a public hearing, before the teacher’s contract

was not renewed. Id. at 364. The court held that R.C. 121.22(G)(1) must be read to

conform to existing statutes governing teacher employment. It specifically cited R.C.

3319.16, which governs the employment contracts of teachers who could only be

terminated for cause, and provides that, unlike nontenured teachers, such teachers

were entitled to a hearing before termination, which “shall be private unless the

teacher requests a public hearing.” Id. at 366. In reaching its determination, the

court stated that




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       R.C. 121.22(G)(1) was intended to bring the other provisions of that

       section into conformity with existing statutes, such as R.C. 3319.16,

       which prescribe the procedure applicable to public employee

       termination actions. We do not believe that the words ‘unless the

       public employee * * * requests a public hearing * * *’ were intended to

       grant the right to a hearing where none existed previously, as in the

       instance of contract considerations of non-tenured teachers.

Id. at 367.

       {¶13} This court recently applied Matheny in Schmidt v. Village of

Newtown, 1st Dist. Hamilton No. C-110470, 2012-Ohio-890. In determining that an

at-will employee of the Village of Newtown had no right to a public hearing, we held

that “[o]nly when a hearing is statutorily authorized, and a public hearing is

requested, does R.C. 121.22(G) operate as a bar to holding an executive session to

consider the dismissal of a public employee.” Id. at ¶ 26.

       {¶14} Unlike R.C. 3319.16, R.C. 3319.081, which governs Stewart’s

employment, does not authorize a nonteaching employee to request a public

pretermination hearing.     Nor was Stewart otherwise statutorily entitled to a

pretermination hearing. Consequently, he could not prevent the Board from holding

an executive session under R.C. 121.22(G)(1). Stewart contends that we interpreted

Matheny too narrowly in Schmidt, and that an employee can require a public hearing

any time a hearing is authorized by law, rather than only when statutorily

authorized. And he maintains that, because due-process considerations entitled him

to a Loudermill pretermination hearing, he was entitled to a hearing authorized by




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                     OHIO FIRST DISTRICT COURT OF APPEALS



law and could require a public hearing under R.C. 121.22(G)(1).             We are not

persuaded.

       {¶15} The Matheny court held that R.C. 121.22(G)(1) was intended to bring

the Open Meetings Act into conformity with existing statutes. It followed by stating

that R.C. 121.22(G)(1) could not provide the right to a hearing where none had

existed previously. Matheny, 62 Ohio St.2d at 367, 405 N.E.2d 1041. Reading these

statements in conjunction, we are convinced that our interpretation in Schmidt was

correct, and that an employee can only prohibit a public body from holding an

executive session when the employee is statutorily entitled to a hearing.

       {¶16} Stewart cannot rely on his entitlement to a Loudermill pretermination

hearing to prevent the Board from entering into executive session. Our decision

comports with the basic principles guiding the Loudermill court’s decision.

Loudermill sought to provide persons who possessed a property interest in

continued employment with the basic due-process protections of notice and an

opportunity to be heard prior to termination of employment.           Considering its

statement that a required hearing need not be formal or elaborate, the Loudermill

court certainly did not accord such persons the right to require that the entire

pretermination hearing be held publically.

       {¶17} The trial court did not err in granting the Board’s motion for summary

judgment or in denying Stewart’s motion for summary judgment on his claim

alleging a violation of the Open Meetings Act. Stewart’s assignment of error is

overruled, and the judgment of the trial court is affirmed.

                                                                  Judgment affirmed.


HILDEBRANDT, J. concurs.


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                     OHIO FIRST DISTRICT COURT OF APPEALS


DEWINE, J., concurs separately.

DEWINE, J., concurring separately.

       {¶18} I concur in the judgment because I agree with the lead opinion that

this case is controlled by the Ohio Supreme Court’s decision in Matheny v. Frontier

Local Bd. of Edn., 62 Ohio St.2d 362, 405 N.E.2d 1041 (1980). I write separately to

explain my discomfort with that result.

       {¶19} If we were to decide this case on “a blank slate,” it would seem evident

that Mr. Stewart is entitled to a hearing. Such a conclusion follows from the plain

language of the statute: a public body may move into executive session “to consider

the * * * dismissal of * * * a public employee * * * unless the public employee * * *

requests a public hearing.” As I read this language, it seems clear that an employee

such as Mr. Stewart had a right to prevent the Board from discussing his termination

in executive session and require that such a discussion take place in public.

       {¶20} Such a result is not only consistent with the plain language of the

exception, but also with the introductory section of the Open Meetings Act, which

provides that the section is to be “liberally construed” to require that public business

be conducted in public unless specifically excepted by law. It is also consistent with

the evident purpose behind the section of allowing employee matters to be discussed

in private “to protect the [employee’s] reputation and privacy.” See Gannett Satellite

Information Network v. Chillicothe City School Dist. Bd. of Edn., 41 Ohio App.3d

218, 220, 534 N.E.2d 1239 (4th Dist.1988). If the employee is not concerned about a

public airing, there is little justification to allow policymakers to shield their

discussions from the public ear.

       {¶21} Nevertheless, the Supreme Court in Matheny limited the right of an

employee to require the discussion to be held in public to cases where the employee



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                      OHIO FIRST DISTRICT COURT OF APPEALS



already had a right to a public hearing. And as the majority correctly holds, the clear

implication of Matheny is that this only applies when an existing right to a hearing

comes from statute.

       {¶22} The result we reach today finds little support in the language of the

Open Meetings Law.        But unless the Supreme Court revisits Matheny or the

legislature takes action, it is the decision we are required to reach.




Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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