[Cite as Fox v. Huron City School Dist. Bd. of Edn., 2017-Ohio-7984.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


Frederick M. Fox                                           Court of Appeals Nos. E-16-076
                                                                                 E-16-077
        Appellee/Cross-Appellant
                                                           Trial Court No. 2013-CV-0318
v.

Board of Education of the
Huron City School District, et al.                         DECISION AND JUDGMENT

        Appellant/Cross-Appellee                           Decided: September 29, 2017

                                                 *****

        James L. Murray, W. Patrick Murray and William H. Bartle,
        for appellee/cross-appellant.

        Lisa E. Pizza, Teresa L. Grigsby and Joan C. Szuberla, for
        appellant/cross-appellee.

                                                 *****

        OSOWIK, J.

        {¶ 1} This is a consolidated appeal from a judgment of the Erie County Court of

Common Pleas which reversed the decision of appellant/cross-appellee to terminate the
employment contract of appellee/cross-appellant pursuant to R.C. 3319.16. For the

reasons set forth below, this court reverses the judgment of the common pleas court.

       {¶ 2} On April 29, 2013, Frederick M. Fox (“Fox”) filed a complaint (case No.

2013-CV-0318) with jury demand against the Board of Education of the Huron City

School District (“Huron”) and co-defendants Timothy M. Sowecke (“Sowecke”), Scott J.

Slocum (“Slocum”), and Donna L. Green (“Green”), each individually and as members

of Huron, setting forth nine counts: wrongful termination under R.C. 3319.16 (Count 1),

violation of Ohio’s Sunshine Laws (Count 2), wrongful termination in violation of Ohio’s

public policy (Count 3), intentional interference with a contractual/business relationship

(Count 4), defamation (Count 5), intentional infliction of emotional distress (Count 6),

invasion of privacy (false light) (Count 7), civil conspiracy (Count 8), and punitive

damages (Count 9). Fox and Huron entered into a superintendent employment contract

through July 31, 2014. Fox alleged he suffered damages relating to and arising from the

illegal conduct of Huron and co-defendants with respect to his April 2, 2013 termination

from his position as Huron’s superintendent. Huron and co-defendants generally denied

the allegations.

       {¶ 3} Concurrently with this case, Fox filed a libel, defamation and civil

conspiracy complaint against Sowecke, Slocum and Green, both individually and as

members of Huron, known as case No. 2012-CV-0695. The parties conducted discovery

set forth in the common pleas court’s scheduling orders in both cases, and discovery




2.
disputes ensued.1 Following a motion in this case to dismiss all counts filed by Huron

and the co-defendants, which Fox opposed, on December 2, 2014, the common pleas

court granted the motion in part and denied it in part. As a result of the common pleas

court’s judgment entry, only Counts 1 and 2 proceeded in this case with the remaining

counts either dismissed or joined with case No. 2012-CV-0695.

       {¶ 4} Discovery among the parties continued, and on July 15, 2015, Huron and the

co-defendants filed a motion for summary judgment for Count 2, which Fox opposed,

and which the common pleas court denied on August 21, 2015.2 Thereafter, on

March 15, 2016, Fox dismissed with prejudice Count 2, leaving only Count 1 active in

this case.

       {¶ 5} The parties submitted briefs and supplemental evidence to the common pleas

court as to Count 1. On June 7, 2016, the common pleas court ordered the reversal of

Fox’s termination and his reinstatement as superintendent.3 Following additional briefing


1
 The co-defendants and Huron appealed the denial of their motions to quash certain
subpoenas duces tecum in both case Nos. 2012-CV-0695 and 2013-CV-0318. This court
consolidated and then, upon appellants’ unopposed request, severed and dismissed both
appeals. See Fox v. Sowecke, 6th Dist. Erie Nos. E-15-0053, E-15-0056 (Nov. 2, 2015).
2
  The co-defendants in case No. 2012-CV-0695 appealed the summary judgment denial
from the same order, and the appeal was assigned case No. E-15-0057. This court
consolidated case No. E-15-0057 with case Nos. E-15-0053 and E-15-0056. Upon the
severing of the consolidated appeals and appellants’ subsequent notice of appeal
withdrawal, the pending appeal was dismissed. See Fox v. Sowecke, 6th Dist. Erie No.
E-15-0057 (Feb. 8, 2016).
3
 Huron originally appealed, and Fox cross-appealed, the common pleas court’s order,
which this court sua sponte dismissed on July 26, 2016, due to the lack of a Civ.R. 54(B)




3.
and evidence regarding damages, as journalized on October 26, 2016, the common pleas

court further awarded Fox record expungement, back pay with benefits plus pre-judgment

interest totaling $268,197.23, and litigation costs of $4,082.14. Thereafter, on

November 18, 2016, Huron filed its notice of appeal, which was assigned case No.

E-16-076, and on November, 22, 2016, Fox filed his notice of cross-appeal, which was

assigned case No. E-16-077. On December 9, 2016, this court ordered the consolidation

of both appeals cases.

       {¶ 6} Appellant Huron sets forth two assignments of error:

              I. The Common Pleas Court erred by applying an improper standard

       of review when considering Frederick Fox’s (Fox’s) appeal from the

       decision by the Board of Education of the Huron City School District

       (Board or District) to terminate his employment pursuant to R.C. 3319.16.

              II. Even if Fox’s termination was improper (which it was not), the

       Common Pleas Court erred by awarding Fox pre-judgment interest,

       litigation expenses and medical insurance replacement costs.

       {¶ 7} Cross-appellant Fox sets forth three assignments of error:

              I. The Trial Court Erred By Failing to Award Cross-Appellant,

       Frederick Fox, Attorneys Fees.




certification. See Fox v. Bd. of Educ. of the Huron City School District, 6th Dist. Erie
Nos. E-16-0042, E-16-0043.




4.
             II. The Trial Court Erred in Not Awarding Cross-Appellant,

      Frederick Fox, The Actual Cost of His Lost Family Health Care Insurance

      As Evidenced By What the Board Actually Paid For That Coverage.

             III. The Trial Court Erred in Not Awarding Cross-Appellant,

      Frederick Fox, As Damages The Additional Income Tax Liability Incurred

      As A Result Of The Board’s Failure to Pay His Salary When Due Pursuant

      To The Terms Of The Parties’ Five (5) Year Employment Contract.

      {¶ 8} Appellant Huron’s first assignment of error questions the standard of review

applied by the common pleas court in its role as the reviewing court for Fox’s appeal

from the administrative decision by Huron to terminate Fox’s employment contract.

      {¶ 9} Huron argues that the common pleas court applied the facts improperly to

the former version of R.C. 3319.16 to interpret there was a lack of “good and just cause”

for Fox’s termination.

      {¶ 10} Huron further argues that the common pleas court failed to properly

consider whether Huron’s resolution and order for termination was supported by the

weight of evidence in the record. Rather, the common pleas court only considered

whether the referee’s report and recommendation could find support in the record and

relied on the referee’s comments about Huron’s investigation of the allegations that

preceded the disciplinary charges against Fox.

      {¶ 11} Fox argues that the common pleas court properly applied the legal standard

of review.




5.
       {¶ 12} R.C. Chapter 3319 governs the employment of superintendents, including

the circumstances for a board of education’s termination of the superintendent’s

employment contract. R.C. 3319.16. The statutory grounds for termination are stated as

follows: “The contract of any teacher employed by the board of education of any city

* * * may not be terminated except for good and just cause.” Id. The definition of

“teacher” includes superintendents. R.C. 3319.09(A).

       {¶ 13} Although Huron is correct that applying facts to a statute normally presents

a question of law where appellate review is de novo, Metamora Elevator Co. v. Fulton

Cty. Bd. of Revision, 143 Ohio St.3d 359, 2015-Ohio-2807, 37 N.E.3d 1223, ¶ 19, the

plain language of R.C. 3319.16 indicates the common pleas court and this court have

different appellate roles. This court must read R.C. 3319.16 “in the manner which

effectuates, rather than frustrates, the major purpose of the General Assembly.” Naylor v.

Cardinal Local School Dist. Bd. of Edn., 69 Ohio St.3d 162, 168, 630 N.E.2d 725 (1994).

       {¶ 14} Fox was Huron’s superintendent at all times relevant to this case. One

clear purpose of R.C. 3319.16 is to provide a superintendent subject to contract

termination proceedings with due process in two steps: the option to demand a hearing

before a referee whose duty is to ascertain the facts, and the school board’s duty to

interpret the significance of those facts. Aldridge v. Huntington Local School Dist. Bd. of

Edn., 38 Ohio St.3d 154, 158, 527 N.E.2d 291 (1988). It is undisputed these two required

steps occurred in this case. First, on March 11, 2013, the referee issued a 50-page,

double-spaced report and recommendation to Huron that Fox’s employment contract




6.
should not be terminated. Second, on April 2, 2013, a majority of Huron voted to

terminate Fox’s employment contract in a 15-page, single-spaced Resolution No. 6472

containing findings of fact and conclusions which rejected the analysis and conclusions

of the referee’s report and recommendation.

       {¶ 15} While the board must consider and weigh the referee’s report and

recommendation with due deference, the board is not bound by that recommendation, and

the majority may accept or reject the referee’s recommendation, unless such acceptance

or rejection is contrary to law. Graziano v. Bd. of Edn., 32 Ohio St.3d 289, 293, 513

N.E.2d 282 (1987); Aldridge at 158. When “a board of education determines to reject the

recommendation given by the referee, the school board should, in the spirit of due

process, articulate its reasons therefor.” Graziano at 293. “It is the responsibility of the

board to indicate whether it rejected a referee’s findings as being against the

preponderance of the evidence or accepted the referee’s factual determination but

rejected the referee’s recommendation based upon a different interpretation of the

significance of those facts.” Aldridge at 158. Huron’s Resolution No. 6472 articulated

both, and is summarized in the twelfth conclusion:

              It is the conclusion of the Board that Charges 1(a)-(e), 2(a)-(i), 3(c)

       and (d), and 4(a), (b), (d) and (e), as set forth in the September 6, 2012

       resolution [No. 6392] and notice of charges, are supported by the

       preponderance of reliable, probative and substantial evidence on the record.

       The Board further concludes that Fox’s conduct and the actions as




7.
       evidenced in the record constitute “good and just cause” to terminate Fox’s

       contract of employment with the Board of Education.

Ultimately, Resolution No. 6472 shows Huron dropped some charges against Fox.

       {¶ 16} Following the board’s determination, the superintendent affected by the

board’s order of termination may appeal to the court of common pleas by filing a

complaint against the board which alleges facts upon which the superintendent “relies for

a reversal or modification of such order of termination of contract.” R.C. 3319.16.

Count 1 of Fox’s complaint satisfied this requirement.

       {¶ 17} Thereafter, the statute compels the common pleas court “shall examine the

transcript and record of the hearing and shall hold such additional hearings as it considers

advisable, at which it may consider other evidence in addition to the transcript and

record.” Id. While the appeal to the common pleas court does not include a right to trial

de novo, the court is empowered to hold additional hearings and consider other evidence.

Graziano at 293. The common pleas court’s role to weigh evidence and determine the

credibility of witnesses is subject to a preponderance of evidence standard. Id.; Hale v.

Bd. of Edn., 13 Ohio St.2d 92, 97, 234 N.E.2d 583 (1968).

       {¶ 18} It is well settled the common pleas court cannot substitute its judgment for

the judgment of the board where a fair administrative hearing is had and there is

substantial and credible evidence in the record to support the board’s decision. Speller at

¶ 21; Martin v. Bd. of Edn. of the Bellevue City School Dist., 6th Dist. Huron No.




8.
H-12-002, 2013-Ohio-4420, ¶ 18. The common pleas court improperly substituted its

judgment in this case.

       {¶ 19} It is undisputed that on June 7, 2016, the common pleas court ordered the

reversal of Huron’s decision to terminate Fox’s employment contract and his

reinstatement as superintendent. In its decision the common pleas court correctly

identified a fair administrative hearing was had, and found there was substantial and

credible evidence in the record to support the referee’s report and recommendation. In its

full review of the evidence and the parties’ briefs, the common pleas court was

unpersuaded Huron properly discharged its duty to consider and weigh the referee’s

report and recommendation with due deference. The common pleas court concluded the

referee’s report and recommendation was “overwhelmingly” supported by “competent,

credible evidence in the record.” The common pleas court further concluded “the

[referee’s] recommendation is not unlawful, unreasonable nor against the manifest weight

of the evidence.” The common pleas court further concluded Huron failed to meet its

burden of proof “by a preponderance of substantial, reliable and probative evidence the

facts and grounds to support its intended action to terminate the Superintendent’s

contract.”

       {¶ 20} The common pleas court’s decision did not look to any portion of Huron’s

Resolution 6472, the specific resolution articulating the reasoning for Fox’s order of

termination. In Resolution No. 6472 Huron addressed and resolved the evidentiary

conflicts from the referee’s report and recommendation. The court of common pleas




9.
“must give due deference to the administrative resolution of evidentiary conflicts.” Univ.

of Cincinnati v. Conrad, 63 Ohio St.2d 108, 111, 407 N.E.2d 1265 (1980). The common

pleas court’s decision did not do so.

       {¶ 21} The common pleas court’s decision may be appealed by either the

“teacher” or the board. R. C. 3319.16. In this case both did. Our review of the common

pleas court’s decision is limited to abuse of discretion when the common pleas court

determined there was a lack of a preponderance of reliable, probative and substantial

evidence to support Huron’s order to terminate Fox’s contract. See Speller v. Toledo

Pub. School Dist. Bd. of Edn., 2015-Ohio-2672, 38 N.E.3d 509, ¶ 22 (6th Dist.); see also

Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 110-111, 407 N.E.2d 1265 (1980); see

also Kisil v. Sandusky, 12 Ohio St.3d 30, 34-35, 465 N.E.2d 848 (1984). The common

pleas court abuses its discretion where its decision is clearly erroneous in that it was a

misapplication of the law to the facts of the case. Ohio Civ. Rights Comm. v. Case W.

Res. Univ., 76 Ohio St.3d 168, 177, 666 N.E.2d 1376 (1996); Alexander v. Mt. Carmel

Med. Ctr., 56 Ohio St.2d 155, 162, 383 N.E.2d 564 (1978).

       {¶ 22} “The evidence required * * * can be defined as follows: (1) ‘Reliable’

evidence is dependable; that is, it can be confidently trusted. In order to be reliable, there

must be a reasonable probability that the evidence is true. (2) ‘Probative’ evidence is

evidence that tends to prove the issue in question; it must be relevant in determining the

issue. (3) ‘Substantial’ evidence is evidence with some weight; it must have importance

and value.” Our Place, Inc. v. Ohio Liquor Control Com., 63 Ohio St.3d 570, 571, 589




10.
N.E.2d 1303 (1992). “In other words, a document or testimony is reliable if it can be

depended on to state what is true, and it is probative if it has the tendency to establish the

truth of relevant facts.” HealthSouth Corp. v. Testa, 132 Ohio St.3d 55, 2012-Ohio-1871,

969 N.E.2d 232, ¶ 12. “The rules of evidence, including the hearsay rule, do not control

administrative hearings, but the agency may consult the rules for guidance. * * * As a

result, evidence that would be excluded as hearsay in a civil or criminal case may be

admitted and considered under the relaxed standards of administrative proceedings.” Id.

at ¶ 13.

       {¶ 23} Huron’s lengthy Resolution No. 6472 supporting Fox’s termination order

contained nine findings of fact with 29 subfindings of fact. Huron’s Resolution No. 6472

states, in part, “The referee chose to discount the significance of Fox’s admissions. The

Board does not.” Huron’s Resolution No. 6472 also contains a specific section analyzing

ten aspects of the referee’s determinations of witness and evidence credibility and the

lack of explanations by the referee as to why he did not credit some testimony and

documentary evidence. Interpreting the significance of the referee’s facts was precisely

Huron’s duty under R.C. 3319.16, and Huron met that duty in Resolution No. 6472.

Huron’s Resolution No. 6472 also contains a section of twelve conclusions that are

instructive in this appeal as to whether the trial court abused its discretion when it

concluded the record lacked a preponderance, of reliable, probative and substantial

evidence to support Huron’s termination decision.




11.
       {¶ 24} Huron’s first of twelve conclusions specifically states, “The Board of

Education rejects the analysis and conclusions contained in the referee’s ‘Report and

Recommendation,’ including but not limited to his recommendation that the Board not

proceed with the termination of Fox’s contract at this time.”

       {¶ 25} The second conclusion states,

              It is the conclusion of the Board that Fox’s substantial abuse of the

       District’s email system to conduct his affair violated Board policy EDE and

       EDE-R. It also violated Fox’s employment contract which required him to

       perform his duties consistent with Board policy. Fox’s misconduct is not

       excused with an “everybody does it” attitude because as the District’s

       leader he should have held himself to a high standard of compliance with

       Board policy, because it was his responsibility to cause employees to stop

       or to initiate disciplinary action if necessary if he was aware of [an]

       employee violating the policy, and because there was no evidence in the

       record that any other employee deliberately and persistently abused the

       email system in the manner that Fox did.

       {¶ 26} The third conclusion states,

              The referee’s finding that Fox was eligible for compensatory time is

       against the manifest weight of the evidence. Fox was a salaried employee.

       Compensatory time is permitted under federal law to compensate hourly

       public employees under an agreement reached before the work was




12.
      performed in lieu of paying them at 1½ times their hourly rate of pay when

      they work in excess of 40 hours per week. 29 CFR 553.21(c)(2). Past

      practice only qualifies as an agreement if the person was hired before

      April 15, 1986. 29 CFR 553.21(o)(2)(B). Fox was not entitled to

      compensatory time for his weekend travel. His contract does not provide

      for compensatory time as a benefit, and the undisputed testimony

      established that no Board policy provides for it.

      {¶ 27} The fourth conclusion states,

             The referee’s finding regarding Fox’s failure to use his vacation time

      for February 28 and March 1, 2011 is against the manifest weight of the

      evidence. Fox was not working on either of those dates. Fox’s contract

      provides him with vacation days which he can use or cash out. By failing

      to use his vacation days, he was able to retain those days for his future use

      or to cash-out. The Board concludes that by failing to use vacation leave

      for those dates, he acquired a benefit of financial value to which he was not

      entitled under his contract, and violated § 3(b) [Accurate Reporting] of the

      Ohio Licensure Code of Professional Conduct for Educators.

      {¶ 28} The fifth conclusion states,

             The referee’s finding that the Board approved reimbursing Fox for

      his car rental is against the manifest weight of the evidence, based on the

      evidenced discussed above in ¶¶ 6a through 6f regarding Findings of Facts.




13.
      None of the five witnesses who were Board members at the time of the trip

      testified that the car rental was discussed, and Fox admitted that he did not

      discuss it. Fox’s contract did not permit reimbursement for the purposes he

      testified he wanted to rent the car. Neither did the Board policy. It was

      also undisputed that Fox claimed reimbursement for two night [sic] of his

      hotel stay in Arizona that were not conference-related, and that he did not

      repay the District until Green raised the matter during her review of

      reimbursement records in February 2012. It is the Board’s conclusion that

      by obtaining these reimbursements, Fox violated his contract, Board policy

      and § 7(g) [Accepting Compensation for Self Promotion or Personal Gain],

      of the Ohio Licensure Code of Professional Conduct for Educators.

      {¶ 29} The sixth conclusion states,

             It is the conclusion of the Board that, as part-owner and President of

      Kalahari Sandusky, Nelson was in a business relationship with the District

      and was a beneficiary of tax arrangements with the District for which Fox

      was involved through discussions and voting; and, that the District

      conducted business with Nelson’s enterprises and purchased goods and

      services from them repeatedly from 2006 through 2010. It is the further

      conclusion that as part-owner and President of Kalahari Dells and the

      business that owned its affiliated golf courses, Nelson was in a position to

      provide Fox with free or reduced rate lodging at the Dells resort as well as




14.
      complimentary golf at its affiliated course. It is the conclusion of the Board

      that the preponderance of reliable, probative and substantial evidence

      shows that Fox obtained something of value from Nelson when he was

      given half price lodging with golf compliments of Nelson for his 2010 golf

      trip to the Wisconsin Dells, and when he accepted free lodging for two

      nights while attending the wedding of one of Nelson’s children. The

      referee appears to excuse Fox’s participation in the golf trip by noting that

      the subordinate administrators who Fox invited to accompany him on the

      2010 Dells golf trip have not been punished. The Board concludes that

      nothing in the record shows that those subordinate administrators were

      aware of the arrangements that Fox had made. Similarly, the Board

      concludes that the acceptance of free lodging by private citizens or

      Wisconsin public officials does not excuse Fox’s acceptance of such a thing

      of value in violation of R.C. 102.03 and § 7(b) [Accepting Compensation

      for Self Promotion or Personal Gain], of the Ohio Licensure Code of

      Professional Conduct for Educators.

      {¶ 30} The seventh conclusion states,

             It is the conclusion of the Board that the preponderance of evidence

      in the record shows that Fox plotted against and attempted to intimidate

      Green. It is also the conclusion of the Board that the record shows that Fox

      supported efforts to intimidate Slocum by supporting efforts alleging




15.
      criminal misconduct, although Fox’s attempt at intimidation of Slocum was

      unsuccessful because the alleged misconduct had never happened. The

      record also shows that Fox’s plotting and attempts to undermine Green

      were made in front of subordinate employees who were concerned about

      similar retaliatory conduct being directed against them if they made

      statements against Fox. And, the record shows that immediately before

      employees were to be interviewed by the investigator Markling, Fox made

      statements that caused the employees to be concerned that they could be

      questioned by Fox’s attorneys based on whatever they might say during the

      investigative interviews. It is the conclusion of the Board that, through

      such actions, Fox engaged in unprofessional conduct.

      {¶ 31} The eighth conclusion states,

             The Licensure Code of Conduct for Professional Educators (Bd. Ex.

      6) was adopted by the State Board of Education pursuant to H.B. 190 (127th

      Gen. A.). §9, and states (at page 14): “The Licensure Code of Professional

      Conduct for Ohio Educators applies to all individuals licensed by the Ohio

      Department of Education. The presumptive ranges are only applicable for

      disciplinary actions involving an educator’s licensure or application for

      licensure. The presumptive ranges are not applicable for any discipline

      imposed at the local level. Possible discipline at the local level must follow

      all local contractual provisions, including but not limited to due process,




16.
      progressive discipline, and just cause. However, an educator who violates

      one or more of the principles may be subject to discipline at both the

      state level and local level.” (Underlining and bold added.) The Board

      therefore concludes that Fox may be subject to contractual termination for

      his multiple violations of that Code, as well as his violations of his contract

      and Board policies and other unprofessional conduct.

      {¶ 32} The ninth conclusion states,

             The referee relies on Bertolini v. Whitehall City School District

      Board of Education, 139 Ohio App. 3d 595 (10th Dist. 2000) to conclude

      that Fox’s conduct does not warrant termination. The referee’s reliance is

      misplaced. Bertolini concerned a charge of sexually harassing conduct that

      rested, in part, on emails sent to a subordinate employee. However, the

      alleged victim of the administrator’s conduct testified that his conduct did

      not affect her work, and that district’s board policy allowed personal email

      messages. Bertolini, 139 Ohio App. 3d at 607. By contrast, Huron’s Board

      policy EDE-R states that its email system “shall only be used for purposes

      related to education or administration of the school district,” and “personal

      use of the system is strictly prohibited.” Additionally, there was evidence

      that Vonthron was upset that Fox’s conduct caused her to be rumored to be

      his paramour, that Fox grossly violated the Board policy with hundreds of

      emails to his paramour and often did so during working hours, and that Fox




17.
      was distracted or away from his office, thus allowing a confusing shared

      power structure to develop because of Fox’s leadership vacuum.

      {¶ 33} The tenth conclusion states,

             While the Board may weigh Fox’s performance history, it is not

      required to do so, especially where the disciplinary charges involve

      multiple incidents of misconduct. Hykes v. Board of Education of the

      Bellevue City School District, (6th Dist.) 2012-Ohio-6059, ¶¶ 23-24.

      However, if the Board does consider Fox’s performance history, it chooses

      to consider the entire history. The referee attributed the District’s excellent

      rating and good facilities solely to Fox, then used that attribution to suggest

      that the Board must weigh that record against the disciplinary charges and

      proven violations of Board policy and the Licensure Code. The Board also

      notes that the referee cited Vonthron’s testimony as support for his position

      that the District has thrived under Fox’s leadership. (Report pages 22, 45).

      However, the referee ignored the full context of the questions posed and her

      responses. She was asked whether the District had prospered between 2010

      and 2012, setting aside the problems with her building’s boiler and “the

      educational stuff,” specifically with respect to test scores. She responded

      that [the] District’s scores had gone up in some areas, but not in others, and

      it was rated excellent in some areas but not others. When asked if the

      District had prospered, Vonthron responded that it [had] done so in spite of




18.
      the things going on with Fox, a reference not limited to his inappropriate

      relationship. (T. 470-471) The Board considers that this District has long

      been a very good District academically, and that it remains so because of

      the efforts of many staff members, this Board and the support of the

      students, parents and community. Evidence in the record shows that while

      facilities improvements like windows and boilers were made during Fox’s

      tenure, he failed to ensure that his Director of Maintenance pursued

      correction of deficiencies in those improvements, or other problems.

      Evidence in the record also shows that Fox has failed to focus on academic

      leadership and technology planning to support students’ academic

      performance. The record also shows poor leadership through Fox’s focus

      on threats of retaliation and “killing the messenger,” rather than fixing the

      problem that the message concerned – whether it was about maintenance

      issues, or allegations of improprieties in the bus garage. Finally, the Report

      ignores the evidence about Fox’s role in sending the District into difficult

      financial straits several years ago.

      {¶ 34} The eleventh conclusion states,

             Ohio law authorizes the superintendent to suspend and expel

      students who violate policies, rules and conduct codes. Fox’s job

      description (Bd. Ex. 2) assigns the superintendent responsibility for

      recommending disciplinary action against personnel, and the responsibility




19.
       to “serve as a role model for students in how to conduct themselves as

       citizens and as responsible, intelligent human beings,” and “to instill in

       students belief in and practice of ethical principles.” By his conduct, as

       evidenced in the record of these proceedings – including, as examples,

       pursuit of a personal relationship using the District’s non-private email

       system, failing to record use of vacation, obtaining improper

       reimbursements, and accepting gifts or things of value – Fox violated his

       duties and responsibilities as superintendent and his contractual duty (see

       Bd. Ex. 1) “to perform the duties specified in the Job Description” and “to

       perform all duties as prescribed by law and consistent with Board Policy.”

       It is the conclusion of the Board, in light of Fox’s conduct as reflected in

       the record of the hearing, that Fox can neither effectively lead the District,

       nor be a role model for ethical conduct, nor be an effective disciplinarian

       for students or employees.

       {¶ 35} The twelfth conclusion was stated previously in our decision.

              Even if this court accepts Fox’s argument that the sixth conclusion

       regarding tax arrangement benefits was not contained in the original

       charges brought by Huron against Fox, conclusions one through five and

       seven through twelve remain unresponded to by the common pleas court.

       {¶ 36} In applying the abuse of discretion standard of review, we find the common

pleas court was clearly erroneous in its misapplication of the law to the facts of the case




20.
in finding that there was a lack of a preponderance of reliable, probative and substantial

evidence to support Huron’s order to terminate Fox’s contract. In applying the tests of

reliable, probative and substantial evidence to the entire record, this court finds the

common pleas court failed to demonstrate any application of these tests to Resolution No.

6472, which was the sole administrative decision before it on appeal. Huron’s Resolution

No. 6472 gave due deference to the referee’s report and recommendation by providing

pointed responses to the facts and conclusions made therein. As a result of Huron’s

analysis, it dropped certain subcharges against Fox, which are reflected in the twelfth

conclusion. Huron met its duty under R.C. 3319.16, which the common pleas court

ignored. We find the common pleas court abused its discretion.

       {¶ 37} Appellant Huron’s first assignment of error is found well-taken.

       {¶ 38} All remaining assignments of error by appellant Huron and cross-appellant

Fox question the damages awarded by the trial court. In light of this court’s ruling on

appellant Huron’s first assignment of error, the remaining assignments of error are moot.

App.R. 12(A).

       {¶ 39} The judgment of the Erie County Court of Common Pleas is reversed.

Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                          Judgment reversed.




21.
                                                               Fox v. Bd. of Edn. of the
                                                               Huron City School Dist.
                                                               C.A. Nos. E-16-076
                                                                         E-16-077




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




22.
