[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Singer v. Fairland Local School Dist. Bd. of Edn., Slip Opinion No. 2017-Ohio-8368.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2017-OHIO-8368
THE STATE EX REL. SINGER v. FAIRLAND LOCAL SCHOOL DISTRICT BOARD OF
                                        EDUCATION.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Singer v. Fairland Local School Dist. Bd. of Edn.,
                          Slip Opinion No. 2017-Ohio-8368.]
Mandamus—Public employment—R.C. 3319.081—Writ sought to compel school
        district to recognize custodian as “regular nonteaching school employee”
        with continuing-contract status—Writ denied.
    (No. 2015-1517—Submitted May 17, 2017—Decided November 1, 2017.)
                                       IN MANDAMUS.
                                    ________________
        FRENCH, J.
        {¶ 1} In this original action, relator, Kurt Singer, seeks a writ of mandamus
to compel respondent, Fairland Local School District Board of Education
(“Fairland”), to recognize him as a “regular nonteaching school employee” under
R.C. 3319.081 with continuing-contract status. He also asks this court to order
                               SUPREME COURT OF OHIO




Fairland to make him whole by awarding him back wages and benefits and crediting
him with paid leave and other accrued rights. We deny the writ.
                                     Background
          {¶ 2} Fairland hired Singer as a substitute custodian on September 11, 2006.
Singer’s employment as a substitute custodian has continued to the present. All the
paystubs that Singer received from Fairland identify him as a “SUB CUST”
(capitalization sic), and Fairland’s staff-attendance reports detail that Singer was
“substituting” every date he worked for Fairland between September 2006 and June
30, 2016. Singer has never signed a written employment contract with Fairland.
Singer nevertheless contends that he is a “regular nonteaching school employee”
under R.C. 3319.081 and that he is entitled to the statutory rights set out in R.C.
Chapter 3319.
          {¶ 3} R.C. 3319.081 governs employment contracts for certain nonteaching
school-district employees. “Newly hired regular nonteaching school employees,
including regular hourly rate and per diem employees, shall enter into written
contracts for their employment which shall be for a period of not more than one
year.” R.C. 3319.081(A). If the school district rehires such an employee, the
second contract shall be for a period of two years. Id. And if the school district
renews the employee’s contract after the second contract expires, then “the
employee shall be continued in employment.” R.C. 3319.081(B). In other words,
a qualifying employee who is employed more than three years achieves continuing
status.
          {¶ 4} “Continuing” status under R.C. 3319.081 carries benefits.         The
person’s employment is generally subject to termination only for cause. R.C.
3319.081(C). And the school district may not reduce a continuing employee’s
salary, except as part of a uniform plan affecting all nonteaching employees. R.C.
3319.081(B).




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                                 January Term, 2017




        {¶ 5} In addition to the contract rights afforded by R.C. 3319.081, regular
nonteaching employees are statutorily entitled to a host of benefits, including
vacation leave (R.C. 3319.084), paid holidays (R.C. 3319.087), sick leave (R.C.
3319.141), and personal leave (R.C. 3319.142).
        {¶ 6} Singer alleges that Fairland wrongly designated him as a “substitute”
and that as a result, he has been paid less than a full-time custodian, lost health
benefits and some pension benefits, and been deprived of sick leave, personal days,
vacation days, and holiday pay. Singer requests a writ of mandamus directing
Fairland to recognize him as a regular nonteaching employee with a continuing
contract pursuant to R.C. 3319.081(B) since the beginning of the 2009-2010 school
year and ordering Fairland to make him whole for the back wages and benefits he
would have received had he been timely recognized as a regular nonteaching
employee.
                                       Analysis
        {¶ 7} Mandamus is the appropriate vehicle for vindicating rights under R.C.
3319.081. See State ex rel. Couch v. Trimble Local School Dist. Bd. of Edn., 120
Ohio St.3d 75, 2008-Ohio-4910, 896 N.E.2d 690, ¶ 14, 34. To be entitled to a writ
of mandamus, Singer must establish, by clear and convincing evidence, (1) a clear
legal right to the requested relief, (2) a clear legal duty on the part of the respondent
to provide it, and (3) the lack of an adequate remedy in the ordinary course of the
law. State ex rel. Cleveland Right to Life v. State Controlling Bd., 138 Ohio St.3d
57, 2013-Ohio-5632, 3 N.E.3d 185, ¶ 2.
        {¶ 8} At the outset, we reject two theories that Fairland puts forward as
grounds for denying Singer’s petition. First, Fairland contends that Singer was not
a regular nonteaching employee because he did not have a written employment
contract. According to Fairland, R.C. 3319.081(A) imposes a mandatory condition
by stating that regular nonteaching employees “shall enter into written contracts.”
(Emphasis added.) And R.C. 3319.081(B) makes those employees eligible for




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continuing employment only upon expiration of a second written contract. Because
Singer has never had a written contract, Fairland argues that he cannot qualify as
an employee “continued in employment” under R.C. 3319.081(B).
       {¶ 9} But R.C. 3319.081(A) imposes a duty upon the employer to extend a
written contract to all regular nonteaching school employees. The employee cannot
control whether he receives a written contract. To adopt Fairland’s position would
be to declare that R.C. 3319.081 imposes a duty on a school board to offer a contract
only if the school board determines that an employee qualifies for a contract; in
other words, it would defeat the statute’s purpose, which is to protect the rights of
qualifying nonteaching employees. See State ex rel. Boggs v. Springfield Local
School Dist. Bd. of Edn., 82 Ohio St.3d 222, 226, 694 N.E.2d 1346 (1998).
       {¶ 10} In support of its argument on this point, Fairland cites Gates v. River
Local School Dist. Bd. of Edn., 11 Ohio St.2d 83, 228 N.E.2d 298 (1967), which
held that in the absence of an express employment contract, a school board could
hire a nonteaching employee for an indeterminate period of time, to be measured
by the work to be accomplished, without incurring an obligation to offer continuing
employment. Id. at 90-91. But Gates involved a prior version of R.C. 3319.081
that neither contained the phrase “regular nonteaching school employees” nor
stated that it applied to regular hourly and per diem employees. See Am.S.B. No.
200, 126 Ohio Laws 162, effective Sept. 1, 1955. Gates offers no guidance
regarding compliance with the current version of R.C. 3319.081.
       {¶ 11} Second, Fairland suggests that Singer does not qualify as a regular
nonteaching employee because he does not qualify as a “full-time” employee, as
that term is purportedly defined in the collective-bargaining agreements that have
been in place since the date of Singer’s hiring in 2006 between Fairland and the
union that represents its nonteaching employees.        Fairland has submitted an
affidavit asserting that pursuant to those agreements, “full-time regular custodians,
custodial maintenance, and maintenance employees at Fairland are contracted to




                                         4
                                 January Term, 2017




work eight (8) hours a day for two hundred and sixty (260) days a year over the
course of twelve (12) months” and has submitted several other affidavits making
essentially the same assertion. No affidavit cites a specific section of the collective-
bargaining agreements where this provision may be found, and our review of the
four collective-bargaining agreements filed as evidence shows that they contain no
such term and do not purport to define “full-time” employment. Two of the
collective-bargaining agreements—those in effect from September 30, 2005,
through September 29, 2008, and from October 1, 2014, through September 30,
2017—do, however, include appendices that chart contract amounts, i.e., annual-
salary schedules, for various positions, including custodians, and the hourly rates
upon which those annual contract amounts are based. The hourly rates and annual
salaries increase depending on an employee’s years of service. At the bottom of
the columns that detail the hourly rates that apply to custodians, the charts identify
the months worked as 12, the hours per day as 8, and the contract days as 260.
       {¶ 12} R.C. 3319.09(B) defines “year,” as applied to an employee’s term of
service, to mean at least 120 days of actual service within a school year. Singer
exceeded that mark during the first seven of his years of service. The statutory
definition is controlling unless there is a collective-bargaining agreement in force
that specifically covers the matter at issue. State ex rel. Chavis v. Sycamore City
School Dist. Bd. of Edn., 71 Ohio St.3d 26, 28-29, 641 N.E.2d 188 (1994).
       {¶ 13} Fairland argues that the collective-bargaining agreements conflict
with the definition of “year” in R.C. 3319.09(B) and thus supersede the statutory
definition.   But “to negate statutory rights of public employees, a collective
bargaining agreement must use 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 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. We
conclude that the calculation of a full-time regular custodian’s salary based on a




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greater number of hours than that which statutorily defines a year for purposes of
an employee’s “term of service” does not explicitly demonstrate an intent to
preempt statutory rights, especially when, as here, all four collective-bargaining
agreements recognize that the term “regular non-teaching employees” includes not
only full-time employees but also “regular short-hour employees.”
       {¶ 14} Whether or not Singer is a full-time employee, he is not entitled to
continuing status unless he is also a regular nonteaching employee. State ex rel.
Borders v. Jefferson Local School Dist., 59 Ohio St.2d 109, 110, 391 N.E.2d 1040
(1979); see also Blair v. Milford Exempted Village School Dist. Bd. of Edn., 62
Ohio App.3d 424, 429-430, 575 N.E.2d 1190 (12th Dist.1989) (suggesting in dicta
that an employee hired to serve as a substitute on an as-needed basis was not a
“regular” nonteaching employee), abrogated in part on other grounds, Coolidge v.
Riverdale Local School Dist., 100 Ohio St.3d 141, 2003-Ohio-5357, 797 N.E.2d
61; Wilson v. Hubbard Exempted Village School Dist. Bd. of Edn., 11th Dist.
Trumbull No. 3129, 1983 WL 6168 (June 24, 1983) (holding that a substitute bus
driver, who was hired without a contract, was assigned daily to a single route for
the entire school year, and worked 35 hours a week, was not a regular nonteaching
school employee). Having reviewed the evidence, we conclude that Singer has not
demonstrated by clear and convincing evidence that he was a “regular nonteaching
school employee” under R.C. 3319.081.
       {¶ 15} R.C. Chapter 3319 does not define “regular nonteaching school
employee.” We afford undefined statutory terms their plain and ordinary meaning.
Fraley v. Estate of Oeding, 138 Ohio St.3d 250, 2014-Ohio-452, 6 N.E.3d 9, ¶ 22,
citing Am. Fiber Sys., Inc. v. Levin, 125 Ohio St.3d 374, 2010-Ohio-1468, 928
N.E.2d 695, ¶ 24. Because the parties do not dispute that Singer is a nonteaching
school employee, we focus on the term “regular.” “Regular” means “[s]teady or
uniform in course, practice, or occurrence; not subject to unexplained or irrational
variation. Usual, customary, normal or general.” Black’s Law Dictionary 1285




                                         6
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(6th Ed.1990); accord Webster’s Third New International Dictionary 1913 (1986).
These definitions do not describe Singer’s employment, which has been irregular
with respect to days of service, hours, and school-building assignments.
       {¶ 16} Throughout his employment, Singer’s days of service have varied
widely. For example, during the 2006-2007 school year, Singer worked as many
as ten days during some pay periods but worked eight days or fewer in a majority
of the pay periods, including several in which he worked four days or fewer. During
the 2007-2008 school year, Singer’s workdays per pay period ranged from four to
ten days. And in summer 2008, Singer did not work at all during three consecutive
pay periods.
       {¶ 17} Just as he had no regular schedule, Singer had no regular location to
which he was assigned. Fairland has four school buildings—two elementary
schools, a middle school, and a high school. Fairland assigns its full-time regular
custodians to work at a single building, and the school board must approve the
transfer of a full-time regular custodian from one building to another. But Fairland
routinely assigned Singer to multiple schools during a single pay period. During
the two-week pay period for September 28 through October 11, 2006, for example,
Singer worked at three separate locations. In his first nine months of employment
as a substitute custodian, there was only one pay period (out of 19) in which Singer
was assigned to a single location, and that was a pay period in which he worked
only one day. In fact, Singer often worked at more than one location on the same
day. For example, during one period of time in May 2007 when Singer worked 17
days, he split his time on 12 of the days between one of the elementary schools and
either the middle school or the high school.
       {¶ 18} Fairland’s records indicate that Singer was called to these multiple
locations for irregular intervals and to substitute for many different employees. In
the pay period for October 1 to 14, 2009, for example, Singer worked on eight
different days, at two different locations, for intervals as brief as two hours and as




                                          7
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long as eight hours, in substitution for four different full-time regular custodians.
More recently, during the pay period for May 14 to 27, 2015, he worked a total of
four days, substituting for three different full-time regular custodians.
          {¶ 19} Finally, the manner in which Fairland requested Singer to work
varied. Roni Hayes, the former principal of Fairland High School and current
district superintendent, stated in her affidavit that when she served as the high-
school principal, either she or her secretaries would contact substitutes, including
Singer, from the district’s approved substitute list to fill in for full-time regular
custodians at the high school. Singer identified individuals at each of the Fairland
school buildings who had contacted him to perform custodial work. At other times,
however, Singer was not called in on a daily basis but was instead instructed to
report to a particular work location daily until further notice. Singer was able to,
and at times did, turn down opportunities to work as a substitute custodian at
Fairland.
          {¶ 20} Considering the entire arc of his employment, we cannot conclude
that Singer’s employment was in any meaningful way “regular.” Accordingly,
Singer has not established by clear and convincing evidence that he has a clear legal
right to his requested relief or that Fairland had a clear legal duty to provide it.
Singer therefore is not entitled to a writ of mandamus.
                                                                            Writ denied.
          O’CONNOR, C.J., and O’DONNELL, KENNEDY, FISCHER, and DEWINE, JJ.,
concur.
          O’NEILL, J., dissents, with an opinion.
                                 _________________
          O’NEILL, J., dissenting.
          {¶ 21} I must respectfully dissent.       Specifically, I disagree with the
majority’s conclusion that relator, Kurt Singer, was not a “regular” employee as
that term is used in R.C. 3319.081. The facts in this case are not in dispute, and




                                           8
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based upon those facts, Singer should have been offered a continuing contract after
his third year of employment with respondent, Fairland Local School District Board
of Education. Hence, I would grant the writ of mandamus and order that Singer be
awarded back pay, benefits, and leave time to compensate him for what he has
rightfully earned.
       {¶ 22} Singer worked for ten school years for respondent performing the
same tasks and working similar hours as “regular” custodians. The only differences
between Singer and the “regular” custodians were that the school board never
offered him a contract and referred to him as a “substitute” custodian. “Regular”
and “substitute” are nothing more than labels that were used to shortchange Singer
from receiving what he had earned. The substance of his work was as a “regular”
custodian.
       {¶ 23} To prevail in this mandamus case, Singer must demonstrate that the
school board deprived him of something that he was entitled to receive. See State
ex rel. Couch v. Trimble Local School Dist. Bd. of Edn., 120 Ohio St.3d 75, 2008-
Ohio-4910, 896 N.E.2d 690, ¶ 12. From the facts presented, it is clear that Singer
worked 120 days or more per year for the first seven years that he was employed
by respondent. This was more days per year than many full-time custodians
employed by respondent. There is no requirement that the hours he worked must
be spread out evenly throughout the days he worked. Additionally, there were long
stretches in which it was understood that Singer would simply show up for work
each day without having to receive a call to report to work. While respondent
asserts that Singer worked fluctuating hours at various schools within the district,
there is no requirement that all of the work be performed at the same facility. The
fact is that all of the work was performed for the same employer.
       {¶ 24} Moreover, the purpose of the legislation at issue is to ensure that
nonteaching workers employed by a school district are treated fairly and have some
degree of job security. See Ohio Assn. of Pub. School Emps., Chapter No. 672 v.




                                         9
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Twin Valley Local School Dist. Bd. of Edn., 6 Ohio St.3d 178, 182, 451 N.E.2d
1211 (1983). Based upon the precedent set by the majority’s opinion, school
districts could save money by refusing to offer contracts to employees and then
changing the employees’ work sites from facility to facility on a daily or weekly
basis and changing their hours periodically. If that were done, the employees could
be denied “regular” status, with the result that the school districts could pay lower
wages and avoid having to provide benefits or leave time. Surely that was not the
intention of the state legislature.
        {¶ 25} Therefore, I must dissent. I would grant the writ of mandamus to
ensure that Singer is provided the full compensation and benefits that he deserves.
                                   _________________
        The Law Firm of Richard M. Lewis, L.L.C., Richard M. Lewis, Christen N.
Finley, and Suzanna T. King; and the Gittes Law Group, Frederick M. Gittes, and
Jeffrey P. Vardaro, for relator.
        Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, and Scott
A. Sollmann, for respondent.
                                   _________________




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