
    In re Appeal of Sergent.
    [Cite as In re Sergent (1976), 49 Ohio Misc. 36.]
    (No. 74-992
    Decided March 1, 1976.)
    Common Pleas Court of Montgomery County.
    
      Messrs. Lucas, Prendergast, Albright, Gibson, Brown & Newman and Mr. W. Joseph Strapp, for appellant.
    
      Mr. Lee C. Falke, prosecuting attorney, for appellee.
   Ziegel, J.

Appellant is challenging an order of the Mad River Township Board of Education discharging him from his position as custodian. His appeal brought under the provisions of R. C. 3319.081(C):

“The contracts as provided for in this section may be terminated by a majority vote of the board of education. Such contracts may be terminated only for violation of written rules and regulations as set forth by the board of education or for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, or any other acts of misfeasance, malfeasance, or nonfeasance. In addition to the right of the board of education to terminate the contract of an employee, the board may suspend an employee for a definite period of time or demote the employee for the reasons set forth in this division. The action of the board of education terminating the contract of an employee or suspending or demoting him shall be served upon the employee by registered mail. Within ten days following the receipt of such notice by the employee, the employee may file an appeal, in writing, with the court of common pleas of the county in which such school board is situated. After hearing the appeal the common pleas court may affirm, disaffirm, or modify the action of the school board. ”

Facts pertinent to this decision are as follows: On December 17,1973', the appellee board of education entered into a continuing contract with appellant consistent with the terms of R. C. 3319.081(B). On April 2, 1974, a letter signed by an assistant superintendent of the school district was sent to appellant advising him that he had been suspended as of April 1, 1974, for absenteeism. This letter advised appellant that the termination of his contract would be recommended for consideration at the next scheduled board meeting. The testimony did not indicate that the board of education was involved in any way in this suspension decision. On April 20, 1974, appellant wrote to the same assistant superintendent who signed the suspension letter requesting a meeting with the board at its April 25, 1974, meeting. He received no reply to this request. On April 26, 1974, a letter signed by the clerk of the board notified him that his contract had been terminated. The minutes of the board showed that a majority of its members had voted for such termination, although no reason therefor was stated. Appellant did not appear before the board at this meeting, nor does it appear that the board ever notified him that consideration would be given to the termination of his contract. There is no record, either verbatim or in abstract, of any testimony taken.

Appellant first complains about his suspension as of April 1, 1974, contending that the assistant superintendent had no authority to suspend him. This court agrees. R. C. 3319.081(C), provides that “the board may suspend an employee.” The statute does not confer that power upon any one else. There is no evidence here that the board was in any way involved in this suspension, or that the assistant superintendent had written the letter of suspension with the board’s authorization. While, under R. C. 3313.66, a superintendent of schools may suspend a pupil, no statute extends such authority to an employee. Appellant’s suspension from his employment between April 1, 1974, and April 25,1974, is therefore pro forma void.

As to the termination of appellant’s contract on April 25, 1974, there is no question that this action was taken by the board of education. Its minutes so reflect, and set forth that a majority of the board concurred. The court must now consider, however, whether the board acted properly, the determination of which requires statutory analysis.

R. C. 3319.081(C) provides that after being notified of the decision of the board of education, “the employee may file an appeal * * * with the court of common pleas * * (Emphasis added.) What is an “appeal”?

R. C. 2505.01 defines the word: “As used in the Revised Code: (A) ‘Appeal’ means all proceedings whereby one court reviews or retries a cause determined by another court, an administrative officer, tribunal, or commission.” Note that this definition applies to the entire Revised Code, and R. C. 3319.081(C) is a part of the Revised Code. The words “reviews” and “retries” are significant. The prefix “re” means to do again. In other words, the court with appellate jurisdiction does not hear a cause initially: rather, it reviews or retries what some other tribunal, judicial or quasi-judicial, has already done. “Cause” is a term indicating the existence of some kind, of controversy, and is synonymous with “suit,” action,” and “case.” 1 Ohio Jurisprudence 2d 253, 254, Actions, Section 3.

Under R. C. 2505.01(A), this controversy must first be determined by “another court” before it is subject to appeal. While a board of education’s authority may be primarily administrative (R. C. 3313.17 et seq. and R. C. 3313.33 et seq. ), when it becomes involved in determining the rights of individuals it exercises judicial power. To the extent that it is performing a judicial function it must function in a judicial manner. This presupposes proper notice of the subject matter and the time and place of the hearing, and an opportunity to be heard — the basic requirements of due process of law before a person may be deprived of rights. It is well-settled that if a public employee can only be discharged for cause, his position constitutes a property interest protected by constitutional due-process provisions. Arnett v. Kennedy (1974), 416 U. S. 134.

Appellee argues that appellant’s constitutional rights may be protected by a hearing after, as well as before, he is discharged, citing Arnett v. Kennedy, supra, and Board of Regents v. Roth (1972), 408 U. S. 564. The Ohio statutes reject this notion, not only from the foregoing analysis of what constitutes an “appeal,” but also from a consideration of the provisions of R. C. Chapter 2506.

Prior to the amendment of R. C. 3319.081 in 1967, providing for an appeal from the board of education in cases like the one now at bar, the Ohio General Assembly enacted R. C. Chapter 2506, dealing with appeals from orders of administrative officers and agencies. R. C. 2506.01 provides that “[e]very final order, adjudication, or decision of any officer, tribunal, authority, hoard, bureau, commission, department or other division of any political subdivision of the state may be reviewed by the common pleas court of the county in which the principal office of the political subdivision is located * * V’ (Emphasis added.) The board of education is certainly a board, and the word “any” certainly means that it is included within the purview of R. C. Chapter 2506. In the absence of some statutory exception, the “any” in R. C. 2506.01 being all inclusive, the appeal mentioned in R. C. 3319.081(C) should have been processed in the manner delineated in R. C. Chapter 2506.

R. C. 2506.02 provides for the filing of a transcript by the officer or body from which the appeal is taken. R. C. 2506.03, provides that, with certain delineated exceptions, the hearing of snch appeal shall be confined to the transcript as filed pursuant to R. C. 2506.02. The reference to a transcript presupposes a full hearing before the board at which a record was taken, all of which is scheduled to take place before the cause ever reaches the Court of Common Pleas on appeal, and none of which happened in the case at bar.

This court therefore holds that before there is any basis for an appeal as provided in R. C. 3319.081(C), there first must have been a full hearing before the board of education. Since, as indicated, no such full hearing took place before the Mad River Township Board of Education, it is the same as if that board did nothing. Its judgment is void ab initio. The wisdom of this conclusion is self evident : the courts of Ohio are sufficiently burdened without being required to hear de novo a cause which should have been fully aired in the administrative, quasi-judicial body before it comes into the courts on appeal.

In reaching this conclusion, this court has elaborated on the decision of Judge Marshall of the Scioto County Court of Common Pleas in Pertuset v. Bd. of Education (1972), 33 Ohio Misc. 161. There, the court remanded the matter to the board of education for further proceedings. I cannot agree with the remand, but I can and will set aside the judgment of the Mad River Township Board of Education in terminating the contract of appellant. Within any period of time, and in any appropriate court, a void judgment may be set aside. Lincoln Tavern v. Snader (1956), 165 Ohio St. 61.

Judgment accordingly.  