When the Lockland School District (just north of Cincinnati) Board of Education received notice from the Ohio Department of Education that district employees had improperly reported false student-attendance data to improve their district’s state report card for the 2010-2011 school year, it began an investigation. That investigation ultimately implicated Adam Stewart, whom the district employed as a data coordinator – a non-teaching position.
Following the investigation, Lockland held a meeting during which it adjourned into executive session. The board acted in accordance with an Ohio law we’ll call the “executive session law,” which permits a public body to privately consider the dismissal of a public employee. Stewart’s attorney joined the executive session.
After that meeting, Lockland sent a written notice to Stewart stating that it would consider his status as an employee at an upcoming special meeting. That special meeting was to be held in accordance with an Ohio law that governs non-teaching employment contracts.
At the special meeting, Lockland again stated its intention to adjourn into executive session. Stewart’s attorney objected, stating that Stewart was exercising his right to have his employment discussed in public.
Lockland rejected this objection and entered into executive session. Later, Lockland reconvened in open session, where Stewart and his attorney made a public presentation against Stewart’s termination. Lockland then entered into another executive session, later emerging to publicly pass a resolution terminating Stewart’s contract.
Stewart filed an appeal with the court of common pleas, asserting that Lockland had violated the Open Meetings Act. But the trial court ruled in Lockland’s favor.
The court of appeals affirmed that ruling, stating that “an employee can only prohibit a public body from holding an executive session when the employee is” entitled to a hearing by law. After that, Stewart filed an appeal with us – the Ohio Supreme Court.
Ohio’s Open Meetings Act grants to the public broad access to meetings of public bodies. The act “shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings unless the subject matter is specifically excepted by law.”
While the Act is meant to create greater public access, the aforementioned “executive session law” allows public bodies to conduct a meeting that’s not open to the public, to discuss, among other things, the dismissal of a public employee “unless the employee requires a public hearing.”
In a case from 1980, our court stated that the executive session law was intended to bring the Open Meetings Act into conformity with existing laws that governed teacher employment, not to provide a substantive right to a public hearing where there had been none previously.
In that 1980 case, we held that a tenured teacher has the right to a public hearing before a contract is terminated. We found the source of this right in the law which governs employment of tenured teachers.
In direct contrast, we found no equivalent guarantee provided by that law that was applicable to non-tenured teachers, and we therefore held that they are not entitled to a public hearing and that the school board may deliberate about their terminations in private.
Since Stewart was a non-tenured, non-teaching employee, that same law governed his employment. That law also states that contracts of non-teaching school employees may be terminated for violation of written rules “or for incompetency, inefficiency, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, or any other acts of misfeasance…”
The decision in that 1980 case makes clear that the “tenured teacher” law – which contains no reference to a public hearing – did not entitle Stewart to have his entire pre-termination hearing held in public.
Stewart argued, however, that he was entitled to a public hearing in accordance with a 1985 case decided by the United States Supreme Court called Cleveland Bd. of Edn. v. Loudermill. In Loudermill – which just happened to involve Ohioans – the court stated that an “essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’”
The court further stated that an individual who has a property right in his employment is entitled to a pre-termination “hearing,” though that hearing need not be “elaborate.” The court concluded that a “tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.”
Stewart claimed that a public employee can request a public hearing any time a hearing is authorized by law, that he was entitled to a hearing under Loudermill, and that Lockland was therefore required to conduct that hearing entirely in public upon request.
We disagreed. Even if Stewart possessed a property right in his employment and was entitled to a pre-termination hearing, there was no requirement that the hearing be elaborate or in public, so long as it comported with due process.
Stewart and his attorney had notice of the special meeting regarding his employment, and they appeared before Lockland prior to its adjournment into executive session. Stewart and his counsel availed themselves of that opportunity – and again when Lockland reconvened in open session – to persuade Lockland to retain him as an employee.
The decision in Loudermill does not entitle public employees to have their entire pre-termination hearing held in public. Stewart received his due process: he had notice of the special meeting regarding his employment status and an opportunity to be heard at that meeting. Nothing prevented Lockland from thereafter adjourning into executive session to deliberate upon its decision.
We concluded that a public employee can require that a hearing about his employment status be held in public only when the employee is otherwise entitled to a public hearing. Stewart may have been otherwise entitled to a hearing, but not a public one. Therefore – by a 6-1 vote – we affirmed the judgment of the court of appeals.
EDITOR’S NOTE: The case referred to is: Stewart v. Lockland School Dist. Bd. of Edn., 144 Ohio St.3d 292, 2015-Ohio-3839. Case No. 2014-0164. Decided September 24, 2015. Majority opinion written by Justice Paul E. Pfeifer.
Paul Pfeifer is a justice of the Ohio Supreme Court.