[Cite as Cline v. Fairland Local School Dist., 2013-Ohio-886.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      LAWRENCE COUNTY

JO LEE CLINE,                                               :    Case No. 12CA15
                                                            :
        Plaintiff-Appellant,                                :
                                                            :    DECISION AND
        v.                                                  :    JUDGMENT ENTRY
                                                            :
FAIRLAND LOCAL SCHOOL DISTRICT                              :
BOARD OF EDUCATION,                                         :
                                                            :    RELEASED 02/25/13

     Defendant-Appellee.              :
______________________________________________________________________
                            APPEARANCES:

Susan Hayest Kozlowski, William J. Steele, and Lora A. Molnar, CLOPPERT,
LATANICK, SAUTER & WASHBURN, Columbus, Ohio, for appellant.

R. Gary Winters and Ian R. Smith, McCASLIN, IMBUS, & McCASLIN, Cincinnati, Ohio,
for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     Jo Lee Cline had an extended limited contract contract to work as a

teacher in the Fairland Local School District for the 2010-2011 school year. After the

Fairland Local School District Board of Education (the “Board”) decided not to reemploy

her, she filed an appeal with the Lawrence County Court of Common Pleas.

Subsequently, the Board conceded that it did not follow proper teacher evaluation

procedures and had to reemploy Cline. However, the parties disagreed about the type

of contract to which she was entitled. Cline appeals the court’s judgment finding that

the Board had to reinstate her under a limited contract. She claims that under R.C.

3319.11 she is entitled to a continuing contract, i.e., tenure. The Board argues that the

court correctly found that a collective bargaining agreement (“CBA”) supersedes
Lawrence App. No. 12CA15                                                                     2


statutory requirements for tenure, and Cline needs, but does not have, the

superintendent’s recommendation to be eligible for a continuing contract.

       {¶2}   Cline contends that the CBA does not supersede the statutory

requirements for her to receive tenure. The Board argues that the CBA does so in

Article 16, 16.01(5), which contains a provision stating that eligibility for a continuing

contract requires the superintendent’s recommendation. The Board argues that this

requirement explicitly preempts the tenure requirements in R.C. 3319.11 based on

language within 16.01(5) that states: “This paragraph supersedes provisions of R.C.

3319.11 and .111 to the contrary.” However, 16.01(5) contains three paragraphs, and

the quoted language appears in the last paragraph, which does not contain the

recommendation requirement. Therefore, the CBA does not use language with such

specificity as to explicitly demonstrate that the intent of the parties was to preempt the

tenure eligibility requirements in R.C. 3319.11. Thus, the CBA does not supersede

statutory law. And because the Board implicitly concedes that Cline is entitled to a

continuing contract if the CBA does not prevail and statutory law applies, we reverse the

common pleas court’s judgment and remand with instructions for the court to order

Cline’s reinstatement under a continuing contract.

                                           I. Facts

       {¶3}   Cline began to work as a teacher for the Fairland Local School District in

2006. The Board employed her under one-year contracts for the 2006-2007 and 2007-

2008 school years. The Board reemployed her under a two-year contract for the 2008-

2009 and 2009-2010 school years. Evidently, the Board voted to not reemploy Cline

when this contract expired. However, the Board apparently determined that it failed to
Lawrence App. No. 12CA15                                                                  3


comply with the appropriate teacher evaluation procedures and that by operation of law,

it had to reemploy Cline under an “extended limited contract” for the 2010-2011 school

year. The Board admits that it gave Cline an extended limited contract even though the

contract itself is titled “TEACHER’S LIMITED CONTRACT.” This contract states that it

is “subject to the terms, conditions and amendments of the contract between the

Fairland Association of Classroom Teachers and the Fairland Local Board of

Education.” In other words, it is subject to the terms of a CBA that was in effect from

July 1, 2009, to June 30, 2012.

      {¶4}   The Board again voted to not reemploy Cline when her latest contract

ended. Cline filed an appeal with the Lawrence County Common Pleas Court. On

appeal, the Board conceded that it had to reemploy Cline because it again failed to

comply with the proper teacher evaluation procedures. However, the parties disagreed

about Cline’s remedy. Cline claimed that she most recently had an extended limited

contract under R.C. 3319.11(B); therefore, under that provision she had to be

reemployed under a continuing contract. The Board argued that Article 16, 16.01(5) of

the CBA conflicted with and superseded Cline’s statutory rights. Specifically, the Board

argued that unlike R.C. 3319.11(B), the CBA requires a teacher to obtain the

superintendent’s recommendation to be eligible for tenure. The Board claimed that

because Cline lacked this recommendation, she was only entitled to a limited contract.

      {¶5}   The magistrate found the CBA ambiguous and recommended that the

common pleas court order the Board to reemploy Cline under a continuing contract

pursuant to statute. The Board filed objections. The common pleas court rejected the

magistrate’s decision. The court found that the CBA made a “clear attempt to
Lawrence App. No. 12CA15                                                                   4


specifically exclude the statutory provisions of O.R.C. 3319.11” with regard to continuing

contract requirements by stating in Article 16, 16.01(5) that: “This paragraph

supersedes provisions of R.C. 3319.11 and .111 to the contrary.” The court found this

language was used with such specificity as to explicitly demonstrate that the parties’

intent was to preempt statutory rights. And because the CBA required and Cline did not

have the superintendent’s recommendation, the court ordered the Board to reemploy

Cline under a limited contract. This appeal followed.

                                II. Assignments of Error

      {¶6}   Cline assigns the following errors for our review:

      ASSIGNMENT OF ERROR 1: THE LOWER COURT ERRED AS A
      MATTER OF LAW BY DETERMINING THAT THE COLLECTIVE
      BARGAINING AGREEMENT SUPERSEDED PLAINTIFF-APPELLANT’S
      STATUTORY RIGHTS.

      ASSIGNMENT OF ERROR 2: THE LOWER COURT ERRED AS A
      MATTER OF LAW BY CONSIDERING EVIDENCE PROFFERED BY
      DEFENDANT-APPELLEE THAT WAS INADMISSIBLE AND NOT PART
      OF THE RECORD.

         III. The CBA Does Not Supersede Statutory Requirements for Cline’s

                           Eligibility for a Continuing Contract

      {¶7}   In her first assignment of error, Cline contends that the common pleas

court erred when it found that the CBA superseded her statutory rights. Specifically,

she disputes the court’s finding that she needs the superintendent’s recommendation to

qualify for a continuing contract. To determine whether a CBA negates statutory rights

of public employees, we conduct a three-part inquiry. First, we must determine whether

the CBA uses language “with such specificity as to explicitly demonstrate that the intent

of the parties was to preempt statutory rights.” State ex rel. Ohio Assn. of Pub. School
Lawrence App. No. 12CA15                                                                      5

Emps./AFSCME, Local 4, AFL-CIO v. Batavia Local School Dist. Bd. of Edn., 89 Ohio

St.3d 191, 729 N.E.2d 743 (2000), syllabus (“Batavia”). If the CBA does not use such

language, our inquiry ends. If the CBA does use such language, we must next decide

whether the CBA in fact conflicts with statutory law. Streetsboro Edn. Assn. v.

Streetsboro City School Dist. Bd. of Edn., 68 Ohio St.3d 288, 291, 626 N.E.2d 110

(1994). See Batavia at 197. If a conflict exists, we must determine whether the

conflicting law fits within one of the categories listed in R.C. 4117.10(A) of laws that a

CBA cannot supersede. Streetsboro Edn. Assn. at 291. The CBA can only preempt

statutory rights if it uses the necessary language to demonstrate that is the parties’

intent, it conflicts with statutory law, and the conflicting law does not fit within one of the

R.C. 4117.10(A) categories.

       {¶8}   Because the determination of whether a CBA preempts statutory rights

requires interpretation of a written contract (the CBA) and statutory law, Cline’s first

assignment of error involves a question of law we review de novo. In re O.H., 4th Dist.

No. 09CA38, 2010-Ohio-1244, ¶ 8 (“We examine questions of statutory interpretation de

novo.”); Cox Paving, Inc. v. Indell Constr. Corp., 4th Dist. No. 08CA11, 2009-Ohio-1383,

¶ 8 (“Judicial interpretation of contract language is a question of law for which appellate

courts apply a de novo standard.”). See generally Batavia and Streesboro (appearing

to apply a de novo review to these matters).

       {¶9}   Initially, we will summarize the relevant statutory law to provide a

framework for the parties’ arguments. R.C. 3319.08(A) provides that “[c]ontracts for the

employment of teachers shall be of two types, limited contracts and continuing

contracts.” For teachers like Cline, a limited contract is one “for a term not to exceed
Lawrence App. No. 12CA15                                                                      6


five years.” R.C. 3319.08(C)(3). A continuing contract is one that “remains in effect

until the teacher resigns, elects to retire, or is retired pursuant to former section 3307.37

of the Revised Code, or until it is terminated or suspended * * *.” R.C. 3319.08(D).

       {¶10} R.C. 3319.11 contains rules regarding the type of contract to which a

teacher is entitled. For purposes of R.C. 3319.11, the legislature created two categories

of limited contracts. First, there are simply “limited contracts,” which are for a term not

to exceed five years and entered into “with a teacher who is not eligible for continuing

service status.” R.C. 3319.11(A)(2); See R.C. 3319.08(C). Second, there are

“extended limited contracts,” which are for a term not to exceed five years and entered

into “with a teacher who is eligible for continuing service status.” R.C. 3319.11(A)(3);

See R.C. 3319.08(C). For teachers, “continuing service status” means “employment

under a continuing contract.” R.C. 3319.09(C).

       {¶11} “Teachers eligible for continuing service status in any city, exempted

village, local, or joint vocational school district or educational service center shall be

those teachers qualified as described in division (D) of section 3319.08 of the Revised

Code, who within the last five years have taught for at least three years in the district or

center, and those teachers who, having attained continuing contract status elsewhere,

have served two years in the district or center, but the board, upon the recommendation

of the superintendent, may at the time of employment or at any time within such two-

year period, declare any of the latter teachers eligible.” R.C. 3319.11(B). In other

words, to qualify for continuing service status and thus be eligible for a continuing

contract under R.C. 3319.11, a teacher must 1.) teach in the district for the appropriate

amount of time, and 2.) meet the requirements of R.C. 3319.08(D), which do not include
Lawrence App. No. 12CA15                                                                       7


obtaining the superintendent’s recommendation.

       {¶12} Under R.C. 3319.11(E), at the expiration of a limited contract as defined in

that section, if the teacher is still not eligible for a continuing contract, the teacher is

considered reemployed under a new limited contract as defined in that section if the

school board fails to comply with the proper teacher evaluation procedures. If a teacher

is employed under a limited contract as defined in R.C. 3319.11 and becomes eligible

for continuing service status, different rules apply. If the superintendent recommends

that the teacher not be reemployed when the contract expires, and the board agrees but

fails to comply with the proper evaluation procedures, the teacher is considered

reemployed under an extended limited contract not to exceed one year. R.C.

3319.11(B)(2). Subsequently, the district may only reemploy such a teacher under a

continuing contract. Id. Therefore, if at the expiration of the extended limited contract

the board again failed to comply with the required evaluation procedures, the teacher is

considered reemployed under a continuing contract. Id.; R.C. 3319.11(D).

       {¶13} Cline argues that she is eligible for a continuing contract under R.C.

3319.11(B). She claims that she received an extended limited contract for the 2010-

2011 school year under R.C. 3319.11(B)(2). Thus, she contends that because the

Board again failed to comply with the required evaluation procedures when it attempted

to not reemploy her, statutorily she is entitled to a continuing contract.

       {¶14} The Board implicitly admits that if the statutory requirements for tenure

apply, Cline is correct and she is entitled to a continuing contract. However, the Board

contends that the CBA requires Cline have the superintendent’s recommendation to be

eligible for a continuing contract and this requirement supersedes her statutory rights.
Lawrence App. No. 12CA15                                                                     8


The Board maintains that Cline was never eligible for a continuing contract because she

never received the superintendent’s recommendation. The Board’s position is

inconsistent with its admission that for the 2010-2011 school year, Cline had an

“extended limited contract.” Again, by definition such a contract can only be given to a

teacher who is eligible for a continuing contract. R.C. 3319.11(A)(3); R.C. 3319.09(C).

       {¶15} However, despite the inconsistency in the Board’s position, Cline does not

argue that the Board is estopped from challenging her current eligibility for a continuing

contract based on its admission that she previously had an “extended limited contract.”

Nor does she contend that the Board waived any contractual requirement that she have

the superintendent’s recommendation to be eligible for a continuing contract because of

its admission. Thus, we will not address those issues. Instead, we will analyze the

provisions of the CBA and compare them to the statutory law using the three part test

outlined above to determine whether the CBA supersedes statutory law on the

requirements for tenure.

       {¶16} First, we must determine whether the CBA uses language with such

specificity as to explicitly demonstrate that the intent of the parties was to preempt

statutory tenure requirements. Article 16, 16.01(3) provides:

       Contracts are of two types: limited and continuing. The limited contract
       may be entered into for a term not to exceed five (5) years. Under a
       limited contract a teacher has no vested right to re-employment after the
       expiration of the term provided for in the contract. The Board shall enter
       into a limited contract with each teacher who holds a provisional teaching
       certification. (Revised Code 3319.03)

       {¶17} Article 16, 16.01(5) states:

       5.     Eligibility for a continuing contract requires:

              a. completion of a two-year probationary period in the
Lawrence App. No. 12CA15                                                             9


              Fairland Local Schools before requesting consideration for a
              continuing contract; (Emphasis sic.)

           b. written notice delivered by the teacher to the Superintendent,
              with a copy also delivered by the teacher to the building
              principal, on or before September 30 of eligibility for a
              continuing contract in the following April, together with a request
              to be considered for a continuing contract;

           c. the possession and filing at the office of the Superintendent on
              or before April 1 of the year in which the continuing contract will
              be considered: (1) a professional, permanent, or a life certificate
              or (2) a professional educator license plus either of the
              following: (a) if a masters degree was held at the time of initially
              receiving a certificate or license, six (6) semester hours of
              graduate coursework in the area of licensure or in an area
              related to the teaching field since the initial issuance of the
              certificate or license, or (b) if no masters degree was held at the
              time of initially receiving a certificate or license, thirty (30)
              semester hours of course work in the area of licensure or in an
              area related to the teaching field since the initial issuance of the
              certificate or license;

           d. completion of a three (3) year probationary period in the
              Fairland Local Schools; and

           e. recommendation of the Superintendent for a continuing contract
              of employment.

           A year of probationary service means actual service of not less
           than one hundred (120) days within a school year. At the end of
           the probationary period, the Superintendent may recommend re-
           employment under a limited contract for a period of one (1) or two
           (2) years provided that written notice of intent has been given to the
           teacher with reasons directed at the professional improvement of
           the teacher on or before April 30 when it is the intention of the
           Board not to re-employ. If such notice is not given, the teacher
           shall be deemed re-employed under a continuing contract.
           (Revised Code 3319.11)

           If a teacher is eligible for a continuing contract and has followed the
           above process, he/she may at any time withdraw his/her request for
           a continuing contract and be considered for a limited contract. The
           teacher may have Association representation in making the
           decision to withdraw his/her request to be considered for a
           continuing contract or to continue to be considered for a continuing
Lawrence App. No. 12CA15                                                                 10

              contract or an extended limited contract. This paragraph
              supersedes provisions of R.C. 3319.11 and .111 to the contrary.
              (Emphasis added.)

       {¶18} Thus, 16.01(5.e.) states that a teacher needs the superintendent’s

recommendation to be eligible for a continuing contract. The Board argues that the

CBA contains specific language that explicitly demonstrates the parties intended to

preempt statutory rights and require that any teacher subject to the agreement obtain

the superintendent’s recommendation before she can receive a continuing contract.

The Board points to the last line of 16.01(5), which states: “This paragraph supersedes

provisions of R.C. 3319.11 and .111 to the contrary.” Cline argues in part that this

statement appears “in a paragraph addressing a teacher’s withdrawal of a request for

continuing contract consideration,” not in a paragraph on eligibility for a continuing

contract. (Appellant’s Br. 14).

       {¶19} The CBA does not define the meaning of the word paragraph. “Words

and phrases are given their common and ordinary meanings absent specific contractual

definitions.” Knott v. Revolution Software, Inc., 181 Ohio App.3d 519, 2009-Ohio-1191,

909 N.E.2d 702, ¶ 71 (5th Dist.). Black’s Law Dictionary 767 (Abridged 6th Ed.1991)

defines a paragraph as: “A distinct part of a discourse or writing; any section or

subdivision of writing or chapter which relates to a particular point, whether consisting of

one or many sentences.”

       {¶20} We conclude that Article 16, 16.01(5) contains three paragraphs. The first

paragraph discusses the requirements for a teacher to be eligible for a continuing

contract. It begins with the phrase “Eligibility for a continuing contract requires:”

followed by a list of five requirements, which include the superintendent’s
Lawrence App. No. 12CA15                                                                  11


recommendation. The second paragraph, separated from the list by a double-space,

discusses a different point – probationary service and reemployment at the end of the

probationary period. It begins with the phrase: “A year of probationary service * * *.”

The third paragraph, separated from the second paragraph by a double-space,

discusses yet another topic – a teacher withdrawing a request for a continuing contract.

It begins with the phrase: “If a teacher is eligible * * *.”

       {¶21} Thus, when the CBA states that “[t]his paragraph supersedes provisions of

R.C. 3319.11 and .111 to the contrary[,]” it is referring is the third paragraph which

contains the quoted language. The third paragraph says nothing about tenure eligibility

requirements. Therefore, we reject the Board’s argument that 16.01(5) contains

language that explicitly demonstrates the parties’ intent to preempt statutory rights and

require that Cline obtain the superintendent’s recommendation before she can receive a

continuing contract. This decision renders moot Cline’s additional arguments about why

16.01(5) does not supersede her statutory rights, so we need not address them.

       {¶22} The common pleas court did not find that any other language in the CBA

explicitly demonstrated that the intent of the parties was to preempt statutory rights

concerning teacher tenure requirements. Nor did the Board claim at the common pleas

level or in its appellate brief that any other such language exists. And in the absence of

that language, the CBA’s superintendent’s recommendation requirement cannot

supersede R.C. 3319.11(B)’s tenure requirements.

       {¶23} Therefore, we conclude that the common pleas court erred when it found

that the CBA superseded statutory law. The statutory requirements for eligibility for a

continuing contract in R.C. 3319.11(B) apply. The Board implicitly concedes Cline
Lawrence App. No. 12CA15                                                             12


meets those requirements and must be reemployed under a continuing contract if

statutory law applies, which it does. Therefore, we reverse the lower court’s judgment

and remand with instructions for the court to order Cline’s reinstatement under a

continuing contract. This decision renders moot Cline’s second assignment of error, in

which she contends that the court erred by considering evidence that she lacked a

superintendent’s recommendation. Therefore, we need not address it. See App.R.

12(A)(1)(c).

                                                              JUDGMENT REVERSED
                                                             AND CAUSE REMANDED.
Lawrence App. No. 12CA15                                                               13


                                  JUDGMENT ENTRY

    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Lawrence
County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

McFarland, P.J., & Abele, J.: Concur in Judgment and Opinion.


                                         For the Court


                                         BY: _____________________________
                                             William H. Harsha, Judge




                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
