[Cite as Winland v. Strasburg-Franklin Local School Dist. Bd. of Edn., 2013-Ohio-4670.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


H. MICHAEL WINLAND                                   :     JUDGES:
                                                     :
                                                     :     Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                            :     Hon. John W. Wise, J.
                                                     :     Hon. Patricia A. Delaney, J.
-vs-                                                 :
                                                     :     Case No. 12 AP 10 0058
                                                     :
STRASBURG-FRANKLIN LOCAL                             :
SCHOOL DISTRICT BOARD OF                             :
EDUCATION, ET AL.                                    :
                                                     :
                                                     :
       Defendants-Appellants                         :     OPINION


CHARACTER OF PROCEEDING:                                   Appeal from the Tuscarawas County
                                                           Court of Common Pleas, Case No. 2012
                                                           AA 03 0242



JUDGMENT:                                                  AFFIRMED



DATE OF JUDGMENT ENTRY:                                    September 25, 2013



APPEARANCES:

For Plaintiff-Appellee:                                    For Defendants-Appellants:

RALPH F. DUBLIKAR                                          WARRANT ROSMAN
400 South Main Street                                      JOHN S. KLUZNIK
North Canton, OH 44720                                     The Tower at Erieview
                                                           1301 E. 9th St., Suite 1900
                                                           Cleveland, OH 44114
Tuscarawas County, Case No. 2012 AP 10 0058                                             2



Delaney, J.

       {¶1} Defendant-Appellant Strasburg-Franklin Local School District Board of

Education appeals the September 12, 2012 judgment entry of the Tuscarawas County

Court of Common Pleas.

                          FACTS AND PROCEDURAL HISTORY

       {¶2} Plaintiff-Appellee H. Michael Winland has taught at Strasburg Elementary

School, part of the Strasburg-Franklin Local School District, for twelve years. Most

recently, Winland taught language arts and social students to fifth grade students.

Winland holds an elementary education and a secondary education license. Winland

also coaches track for the school district.

       {¶3} On August 26, 2011, the Superintendent of Defendant-Appellant

Strasburg-Franklin Local School District Board of Education (“BOE”) advised Winland

by letter he was recommending the BOE consider suspension and/or termination

proceedings with respect to Winland’s teaching contract. The letter stated, “[t]his action

is being considered due to your failure to follow prescribed procedures and policies with

respect to the possession and use of school district technology.” The BOE issued a

resolution on September 1, 2011 authorizing the suspension of Winland without pay

pending termination proceedings.

       {¶4} Upon receipt of the BOE’s specification letter, Winland timely demanded a

hearing before a referee in accordance with R.C. 3319.16 and 3319.161.                 An

evidentiary hearing was held before the referee on December 1 and 2, 2011. The

referee issued his report and recommendation on January 27, 2012. The referee made

the following findings of fact.
Tuscarawas County, Case No. 2012 AP 10 0058                                           3


      {¶5} Winland’s school principal testified at the hearing Winland did a good job

and was an effective elementary school teacher. During the past three school years,

the principal favorably reviewed Winland’s teaching ability.      The principal awarded

Winland the highest mark in all but one of 33 categories during an evaluation on March

15, 2010. In the same evaluation, the principal awarded Winland top marks in 12 of 13

categories related to teaching effectiveness and classroom management; top mark in

eight out of eight categories for personal qualities; and top marks in nine out of nine

professional categories.

      {¶6} Winland had one prior disciplinary action on his record. In February 2006,

Winland received a five-day suspension for abuse of sick leave.

      {¶7} In the beginning of the school year, each teacher receives a copy of the

school district handbook. The handbook contains an Acceptable Use Policy for staff

members for the use of the school computers, computer network, and electronic

messaging system. The Acceptable Use Policy states the transmission of any language

or images, which are of a graphic sexual nature, are an unacceptable use of the

computers provided by the school district. The school district also has a Computer/On-

Line Services Acceptable User and Internet Safety Policy. It states: “Users shall not

view, download or transmit material that is threatening, obscene, disruptive or sexually

explicit * * *.” “If any users violate any of these provisions, their accounts may be

terminated by either the District or OME-RESA and future access may be denied.”

      {¶8} The school district provided Winland with a laptop computer for his use in

his classroom during the school year. On June 6, 2011, Winland requested permission

to use his laptop during the summer. The Summer Equipment Sign-Out Sheet signed
Tuscarawas County, Case No. 2012 AP 10 0058                                            4


by Winland stated he agreed to return the laptop no later than June 30, 2011. The

Sign-Out Sheet stated, “I further acknowledge that these devices are to be used

exclusively for school-related purposes and that any misuse(s) of said devices, any

misconduct, or any violation of the district acceptable use policy will be documented and

reported to the building principal(s) for further action.”

        {¶9} Winland worked at numerous football clinics in Midwestern and Southern

states during June and July 2011. From June 28 to July 2, Winland worked at a football

clinic in Indiana. Winland departed Indiana on July 2 and met his family in Kentucky.

From Kentucky, he and his family went for vacation in Alabama from July 2 to July 10.

Winland returned to Ohio on July 11. On July 13, Winland left for a football clinic in

Georgia from July 14 to July 17. Winland returned to Ohio on July 17. On July 23,

Winland left for a football clinic in Michigan from July 24 to July 27.

        {¶10} Winland returned his laptop computer to Strasburg Elementary School on

July 28, 2011.     He left the laptop on his desk in his classroom.       The school IT

department tried to notify Winland he needed to return the school laptop by June 30,

2011.

        {¶11} The school principal found the laptop computer on Winland’s desk. The

principal gave the computer to the school IT department. The IT department examined

Winland’s laptop computer closely due to Winland’s previous download of a virus on an

assigned school laptop computer.           The IT department discovered in the laptop

computer’s temporary internet files 84 thumbnail images of graphic, sexual images.

The temporary internet files were cached within 23 minutes, between 7:16 pm and 7:39

pm on July 26, 2011.
Tuscarawas County, Case No. 2012 AP 10 0058                                             5


       {¶12} Winland testified on July 26, 2011, he worked at a football coaching clinic

in Hudsonville, Michigan. While at the clinic, the actor “Shane Diesel” was mentioned

during a conversation with other coaches. That evening in his hotel room, Winland

performed a Google search of “Shane Diesel” on the school laptop. Winland testified he

clicked on a Wikipedia link to view information about Shane Diesel.          The cached

temporary internet files on the school laptop computer also indicate Winland clicked on

a link for the “Internet Movie Database.” Winland testified that when he clicked on one

link on the Wikipedia page, “porn thumbnail pop-ups” appeared on his computer.

       {¶13} After discovering the images, the IT department went to the school

principal. The school principal informed the Superintendent. On August 19, 2011, a

meeting was held at the high school office with the Superintendent and Winland. During

the meeting, Winland admitted there was inappropriate content on the computer and

apologized. Winland offered to resign at the meeting, but later withdrew his offer of

resignation. On August 26, 2011, the Superintendent advised Winland by letter he was

recommending the BOE consider suspension and/or termination proceedings with

respect to Winland’s teaching contract.

       {¶14} The January 27, 2012 referee’s report and recommendation utilized R.C.

3319.16 in determining whether the BOE had good and just cause for terminating

Winland’s teaching contract. The referee considered Winland’s school record. The

referee found Winland’s actions could give rise to suspension or termination of his

teaching contract, but the mitigation factors suggested a suspension rather than

termination.   The referee recommended Winland receive a suspension of 45 days

without pay for insubordination for his failure to return his computer in a timely fashion
Tuscarawas County, Case No. 2012 AP 10 0058                                               6


and a suspension of 45 days without pay for inappropriate use of his school computer.

The referee also recommended Winland be banned from removing school property from

school premises, Winland take continuing education courses, and Winland apologize in

writing to the school staff.

       {¶15} On February 15, 2012, the BOE adopted Resolution 2012-254, wherein

the BOE accepted the findings of fact of the referee but rejected the conclusion of the

referee.   The BOE determined the contract of Winland was terminated, effective

immediately, for good and just cause.

       {¶16} Winland filed a notice of appeal of the BOE’s disciplinary action to the

Tuscarawas County Court of Common Pleas. In his complaint, Winland requested the

trial court reverse the decision of the BOE to terminate his contract, reinstate Winland to

his position with full back pay and benefits, physically expunge all charges and record of

the hearing before the referee, and reimbursement of all costs to Winland. The parties

did not offer additional evidence to the trial court. The trial court relied on the evidence

presented to the referee.

       {¶17} On September 12, 2012, the trial court issued its decision. Utilizing R.C.

3319.16, the trial court reviewed the evidence and found Winland’s conduct in viewing

the images was not hostile to the community and was private conduct that had no

impact on his professional duties. The trial court reversed the decision of the BOE to

terminate Winland’s contract and reinstated Winland to his former position, with full back

pay and benefits.

       {¶18} It is from this decision the BOE now appeals.
Tuscarawas County, Case No. 2012 AP 10 0058                                                             7


                                   ASSIGNMENTS OF ERROR

        {¶19} The BOE raises four Assignments of Error:

        {¶20} “I. THE LOWER COURT PREMISED ITS DECISION ON A RIGHT TO

PRIVACY THAT DOES NOT EXIST.

        {¶21} “II. THE LOWER COURT’S DETERMINATION THAT MR. WINLAND’S

CONDUCT WAS PRIVATE AND THEREFORE NOT HOSTILE TO THE COMMUNITY

ARBITRARILY IGNORES MATERIAL AND UNDISPUTED EVIDENCE.

        {¶22} “III. THE LOWER COURT’S ORDER ARBITRARILY IGNORES THE

APPROPRIATE STANDARD OF REVIEW.

        {¶23} “IV. THE LOWER COURT’S ORDER IS NOT BASED ON ANY CASE

LAW, STATUTE OR CONSTITUTIONAL PROVISION AND CONSTITUTES A DENIAL

OF DUE PROCESS.”

                                             ANALYSIS

                                     STANDARD OF REVIEW

        {¶24} The Ohio Teacher Tenure Act, contained in Ohio Revised Code Chapter

3319, governs the employment of public school teachers in Ohio. R.C. 3319.16 outlines

the procedural requirements that a board of education must follow before a teacher’s

contract may be terminated for disciplinary reasons.                  The statute provides, “[t]he

contract of any teacher employed by the board of education of any * * * school district

may not be terminated except for good and just cause.”1




1
  R.C. 3319.16 was amended effective October 16, 2009. Prior to the amendment, the statute stated that
“the contract of any teacher may be terminated only for gross inefficiency or immorality; for willful and
persistent violations of reasonable regulations of the board of education; or for other good and just
cause.”
Tuscarawas County, Case No. 2012 AP 10 0058                                              8


       {¶25} Before terminating a teacher’s contract, the employing board of education

must furnish the teacher with written notice of its intention to terminate the contract

containing the grounds for action.      R.C. 3319.16.     The teacher may file a written

demand for a hearing before the board or before a referee. Id. If an evidentiary hearing

is conducted by a referee, the referee must file a report with the board of education with

the referee’s recommendation for discipline. Id. The board may then elect to accept or

reject the referee’s recommendation.

             The decision to terminate a teacher's contract is comprised of two

      parts: (1) the factual basis for the allegations giving rise to the termination;

      and (2) the judgment as to whether the facts, as found, constitute gross

      inefficiency, immorality, or good cause as defined by statute.             The

      distinction between these two is important in understanding the respective

      roles of the school board and of the statutory referee in the termination

      process. * * * The referee's primary duty is to ascertain facts. The board's

      primary duty is to interpret the significance of the facts.

Aldridge v. Huntington School Dist., 38 Ohio St.3d 154, 157-158, 527 N.E.2d 291, 294

(1988).

       {¶26} The Aldridge court held in the syllabus:

             In teacher contract termination disputes arising under R.C.

      3319.16:

             1. The referee's findings of fact must be accepted unless such

      findings are against the greater weight, or preponderance, of the

      evidence;
Tuscarawas County, Case No. 2012 AP 10 0058                                            9


              2. A school board has the discretion to accept or reject the

      recommendation of the referee unless such acceptance or rejection is

      contrary to law.

      {¶27} In Graziano v. Amherst Exempted Village Bd. of Edn., the Supreme Court

said that the “report and recommendation undertaken by the referee pursuant to R.C.

3319.16 must be considered and weighed by the board of education.            * * * [D]ue

deference must be accorded to the findings and recommendations of the referee * * *

who is best able to observe the demeanor of the witnesses and weigh their credibility.”

32 Ohio St.3d 289, 293, 513 N.E.2d 282 (1987). Graziano noted that the board is not

bound by the recommendations rendered by the referee, but that the board “should, in

the spirit of due process, articulate its reasons therefore” if it rejects the

recommendations. Id.; Aldridge v. Huntington School Dist., 38 Ohio St.3d at 157, 527

N.E.2d 291.

      {¶28} A teacher whose contract has been terminated may appeal the board of

education’s decision to the local court of common pleas. The trial court will examine the

transcript and record of the hearings; however, the trial court may hold additional

hearings as it considers advisable, at which it may consider other evidence in additional

to the transcript and the record. R.C. 3319.16. The trial court then engages in a hybrid

exercise, encompassing “characteristics both of an original action with evidence

presented and a review of an administrative agency's decision based upon a submitted

record.” Douglas v. Cincinnati Bd. of Edn., 80 Ohio App.3d 173, 177, 608 N.E.2d 1128,

1131(1st Dist.1992). Based upon this review, “[t]he Common Pleas Court may reverse

an order of termination of a teacher's contract, made by a Board of Education, where it
Tuscarawas County, Case No. 2012 AP 10 0058                                              10


finds that such order is not supported by or is against the weight of the evidence.

(Section 3319. 16, Revised Code, construed and applied.)” Hale v. Bd. of Edn., City of

Lancaster, 13 Ohio St. 2d 92, 234 N.E. 2d 583 (1968), paragraph one of the syllabus.

The teacher or board of education may appeal from the court of common pleas’

decision. R.C. 3319.16.

       {¶29} The Supreme Court of Ohio has delineated the standard of review and the

role of a court of appeals:

              If the judgment of the court of common pleas is then appealed to

       the court of appeals, review in the appellate court is strictly limited to a

       determination of whether the common pleas court abused its discretion.

       This scope of review is, of course, extremely narrow. The term ‘abuse of

       discretion’ has been defined as implying ‘“not merely error of judgment,

       but perversity of will, passion, prejudice, partiality, or moral delinquency.”’

       (Citations omitted.)

Graziano v. Amherst Exempted Village Bd. of Edn., 32 Ohio St.3d 289, 295, 513 N.E.2d

282 (1987).

       {¶30} Thus, unless this court determines the trial court abused its discretion, we

are compelled to affirm its decision as “the court of appeals may not engage in what

amounts to a substitution of judgment of the trial court in an R.C. 3319.16 proceeding.”

Id. at 294, 513 N.E.2d at 286.

              “Abuse of discretion” has been defined as an attitude that is

       unreasonable, arbitrary or unconscionable. * * * It is to be expected that

       most instances of abuse of discretion will result in decisions that are
Tuscarawas County, Case No. 2012 AP 10 0058                                            11


      simply unreasonable, rather than decisions that are unconscionable or

      arbitrary.

             A decision is unreasonable if there is no sound reasoning process

      that would support that decision. It is not enough that the reviewing court,

      were it deciding the issue de novo, would not have found that reasoning

      process to be persuasive, perhaps in view of countervailing reasoning

      processes that would support a contrary result.

Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., 5th Dist. Knox No. 2011-CA-

00023, 2012-Ohio-889, ¶ 21 citing AAAA Enterprises, Inc. v. River Place Community

Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597, 601 (1990).

       {¶31} We consider the BOE’s four Assignments of Error under this narrow

standard of review. For ease of discussion, we consider the four Assignments of Error

together.

                               GOOD AND JUST CAUSE

       {¶32} The trial court, in its September 12, 2012 judgment entry, reviewed the

relevant case law as to the termination of a teacher’s contract. R.C. 3319.16 states,

“[t]he contract of any teacher employed by the board of education of any * * * school

district may not be terminated except for good and just cause.” The Ohio Supreme

Court in Hale v. Bd. of Edn., City of Lancaster defined “good and just cause” as a “fairly

serious matter.” 13 Ohio St.2d 92, 98-99, 234 N.E.2d 583 (1968). Ohio appellate

courts have further explained the meaning of R.C. 3319.16 that “in order to constitute

immorality and good and just cause within the statutory meaning of those terms, the

conduct complained of must be hostile to the school community and cannot be some
Tuscarawas County, Case No. 2012 AP 10 0058                                           12

private act which has no impact on the teacher’s professional duties.”        Florian v.

Highland Local Bd. of Edn., 24 Ohio App.3d 41, 42, 493 N.E.2d 249 (9th Dist.1983);

Bertolini v. Whitehall City School Dist. Bd. of Edn., 139 Ohio App.3d 595, 744 N.E.2d

1245 (10th Dist. 2000); Oleske v. Hilliard City School Dist. Bd. of Edn., 146 Ohio App.3d

57, 65, 746 N.E.2d 1110 (10th Dist. 2001).

       {¶33} The trial court may reverse an order of termination of a teacher's contract

where it finds that such order is not supported by or is against the weight of the

evidence. In the present case, the evidence presented to the trial court consisted of the

record established before the referee. The trial court found:

       FINDS that the evidence presented to the Referee clearly and

       convincingly demonstrates that Winland’s conduct in viewing sexually

       explicit images via a school-issued computer was private conduct in

       which Winland engaged, not school property, that did not impact his

       professional duties or his students and cannot, under any reasonable

       standard or test, be construed as “hostile to the community.” The private

       sexual practices or proclivities of educators, if perchance revealed or

       learned, cannot serve as a predicate for Board discipline if that conduct

       has not implicated or transgressed the sacred boundaries of students and

       school.   To conclude otherwise invites the spector [sic] of Orwellian

       concepts of “big brother” and “thought police” bleeding into the Board-

       teacher relationship and sowing seeds of inevitable discord and distrust –

       all to the ultimate detriment of their joint mission – to provide a quality
Tuscarawas County, Case No. 2012 AP 10 0058                                                13


       educational environment in which both teachers and students can thrive

       and reach their full potential. (Emphasis sic.)

       {¶34} The BOE argues in its first and second Assignments of Error the trial court

abused its discretion as to its analysis of whether Winland committed a private act. The

BOE argues that in finding Winland committed a private act, the trial court created a

right of privacy for Winland that does not exist. The BOE cites to numerous cases that

state an employee using an employer-provided computer has no expectation of privacy

for the data on the computer.       We do not disagree with those statements of law.

However, the issue in this case is not about Winland’s expectation of privacy when he

used a school-issued computer. The issue is whether Winland committed a private act

that impacts his professional duties as a teacher. The private act contemplated by case

law is not to be considered in a vacuum; the private act must be considered in relation

to the impact it may have on the teacher’s professional duties and whether the act is

hostile to the school community. The standard is further defined as a “fairly serious

matter.”

       {¶35} The facts of this case are not in dispute. Winland viewed sexual images

on a school-issued laptop computer.        At the time he viewed the images, however,

Winland was on summer break in Michigan participating in a non-school related football

clinic. Did the trial court abuse its discretion in finding this factual scenario did not rise

to the level of a private act that impacted Winland’s duties as a teacher and was not

hostile to the school community?

       {¶36} What constitutes “good and just cause” can depend on the context and

unique facts of each case. Lanzo v. Campbell City School Dist. Bd. of Edn., 7th Dist.
Tuscarawas County, Case No. 2012 AP 10 0058                                             14


Mahoning No. 09 MA 154, 2010-Ohio-4779, ¶ 18. It is instructive, however, to review

the related case law to determine what has been held “good and just cause”

for termination.

       {¶37} In Bertolini v. Whitehall City School Dist. Bd. of Edn., 139 Ohio App.3d

595, 744 N.E.2d 1245 (10th Dist.2000), the board of education terminated the contract

of the associate superintendent because he had an adulterous affair with another

school district employee. The 10th District Court of Appeals reversed the decision to

terminate the contract because it found the affair was a private act that did not seriously

affect the superintendent’s professional duties and did not create hostility in the school

community. The 10th District Court of Appeals affirmed the decision of the board of

education to terminate a teacher’s contract in Oleske v. Hilliard City School Dist. Bd. of

Edn., 146 Ohio App.3d 57, 65, 746 N.E.2d 1110 (10th Dist.2001). The teacher was

cited for multiple instances of telling jokes to students that contained sexual content and

ethnic insensitivity, and multiple instances of intentionally mispronouncing a fellow

teacher’s name as “turd” in front of her students. Id. at 59-60. The teacher had a good

teacher record for over 20 years.      The board of education accepted the referee’s

recommendation that the teacher’s actions constituted “good and just cause” for

termination.

       {¶38} The 12th District Court of Appeals in Kitchen v. Bd. of Edn., Fairfield City

School Dist., 12th Dist. Butler No. CA2006-09-234, 2007-Ohio-2846, the court affirmed

the board of education decision to terminate an assistant superintendent’s contract. In

that case, the assistant superintendent was observed to be under the influence of

alcohol at the high school football game. She left the game at halftime and joined
Tuscarawas County, Case No. 2012 AP 10 0058                                             15


friends for additional drinks. On her way home at 2:00 a.m., she was stopped and

charged with OVI. Id. at ¶ 2. The assistant superintendent concealed her arrest from

the superintendent. The referee recommended the assistant superintendent’s contract

be reinstated but the board of education rejected the recommendation and terminated

the assistant superintedent’s contract. Id. at ¶ 9-10. The trial court and court of appeals

affirmed the decision of the board of education.

       {¶39} A review of the case law in which the appellate court affirmed a board of

education’s decision to terminate an employee shows that the teacher’s behavior had or

could have had a serious effect on the school system. Bertolini, 139 Ohio App.3d 595,

608. In the present case, the trial court found the weight of the evidence demonstrated

Winland’s actions did not occur on school property and did not involve any students.

Winland did not commit a criminal act in viewing the images. The trial court considered

the appropriate standard of review in making its decision to find Winland’s actions were

a private act that had no impact on his professional duties as a teacher and not hostile

to the school community. We find no abuse of discretion in the trial court’s conclusion

that the weight of the evidence did not support the BOE’s decision that Winland’s

actions constituted a “fairly serious matter” and rose to the level of “good and just

cause” for termination.

       {¶40} The four Assignments of Error of Defendant-Appellant Strasburg-Franklin

Local School District Board of Education are overruled.
Tuscarawas County, Case No. 2012 AP 10 0058                             16


                                CONCLUSION

       {¶41} The judgment of the Tuscarawas County Court of Common Pleas is

affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Wise, J., concur.



                                   HON. PATRICIA A. DELANEY




                                   HON. WILLIAM B. HOFFMAN



                                   HON. JOHN W. WISE
