COUNTY OF SUMMIT  BOARD OF MENTAL RETARDATION AND
 DEVELOPMENTAL DISABILITIES, Appellant

vs.

GAIL L. McALISTER, Appellee

No. 16142
COURT OF APPEALS OF OHIO, NINTH APPELLATE DISTRICT, SUMMIT COUNTY
1993 Ohio App. LEXIS 5070
October 13, 1993, Decided

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS. COUNTY OF SUMMIT, OHIO. CASE NO. 92 06 2351

 COUNSEL

 

Thomas A. Burns, Assistant Attorney General, 116 Cleveland Ave., NW, Suite 717, Canton, Ohio 44702.
Lynn Slaby, Prosecuting Attorney, Mary H. Jones, Assistant Prosecuting Attorney, 53 University Ave., Akron, Ohio 44308.

 JUDGES

 

REECE, COOK, BAIRD
 AUTHOR: REECE

 OPINION

 

 

 
DECISION AND JOURNAL ENTRY

 

Dated: October 13, 1993

 

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

 

REECE, J. Appellants, the Administrator of the Ohio Bureau of Employment Services (Administrator) and Gail McAlister,1 appeal the judgment of the Summit County Court of Common Pleas reversing the decision of the Board of Review for the Bureau of Employment Services (Board) permitting McAlister to receive unemployment benefits. We affirm.

 

McAlister was employed as a teacher by the Portage County Board of Education for the 1990-1991 school year. She expected to receive a similar position for the 1991-1992 school year; however, this position was eliminated on July 2, 1991, because of a reduction in students. Prior to learning of the elimination of this position, McAlister accepted a position with the appellee, Summit County Board of Mental Retardation and Developmental Disabilities (Summit MRDD), as an instructor for the summer term of 1991. During this time, McAlister informed Summit MRDD that she had obtained a position with the Portage County MRDD for the 1991-1992 school year.

 

McAlister applied to the Ohio Bureau of Employment Services for unemployment benefits on August 5, 1991. This application was granted and the first claim for benefits was allowed for the week of August 10, 1991. The Summit MRDD and Portage County Board of Education were both charged for these benefits. Summit MRDD unsuccessfully pursued its administrative remedies with the Bureau of Employment Services, the last being the Board's decision. Summit MRDD then appealed to the Common Pleas Court which reversed the Board's decision. The Administrator and McAlister appeal raising as their sole assignment of error the trial court's decision to reverse the Board.

 

Assignment of Error

 

"The Court of Common Pleas erred as a matter of law in reversing the board of review." (sic)

 

The referee for the Board of Review found that the Portage MRDD was not a "school". Therefore, R.C. 4141.29(I)(1), which prohibits the payment of unemployment benefits to teachers at educational institutions for periods in between academic terms, did not apply. The trial court found that the Portage MRDD was an educational institution and applied R.C. 4141.29(I)(1).

 

R.C. 4141.01(CC) defines an educational institution for purposes of unemployment benefits. It provides:

 

"(CC) 'Educational institution' means an institution other than an institution of higher education as defined in division (Y) of this section which:

 

"(1) Offers participants, trainees, or students an organized course of study or training designed to transfer to them knowledge, skills, information, doctrines, attitudes or abilities from, by or under the guidance of an instructor or teacher; and

 

"(2) Is approved, chartered, or issued a permit to operate as a school by the state board of education or other government agency that is authorized within the state to approve, charter, or issue a permit for the operation of a school.

 

The Summit and Portage County MRDD are educational institutions within the meaning of R.C. 4141.01(CC). The state board of education is entrusted to ensure that each local board of education in the state establishes and maintains a special education program, R.C. 3323.07. That statute also requires the state to authorize any department of mental retardation and developmental disabilities to establish and maintain special education programs. The purpose of these programs is to help fulfill the legislature's intent that all handicapped children of compulsory school age be provided with an appropriate public education. R.C. 3323.02. Pursuant to R.C. 3323.01(D), an appropriate public education means special education and related services that:

 

"(1) Are provided at public expense and under public supervision;

 

"(2) Meet the standards of the state board of education;

 

"(3) Include an appropriate preschool, elementary or secondary education;

 

"(4) Are provided in conformity with the individualized education program required under this chapter."

 

Further, the special education programs are to be maintained in accordance with a plan submitted to, and approved by, the state board of education.> R.C. 3323.08. Each plan must provide individualized education programs for each child and the necessary educational programs and related services needed to meet the educational needs of every handicapped child between the ages of three and twenty one. R.C. 3323.08(C) and (D). Also, each MRDD is required to establish special education programs for all handicapped children who have been placed in special education programs which it operates. R.C. 3323.09(B). Each plan must also provide for necessary staffing and supervision for the identification, placement and provision of educational programs for the handicapped. R.C. 3323.08(A). Any teacher hired in these education programs must possess the usual qualifications required of special education teachers in public schools. R.C. 3323.11.

 

These legislative requirements ensure that the county Boards of MRDD, including the Portage MRDD, provide an "organized course of study or training designed to transfer knowledge, skills, information, doctrines, attitudes, or abilities * * * under the guidance of an instructor or teacher" as required by R.C. 4141.01(CC) to be considered an educational institution. Further, it is clear that each MRDD must meet that statute's requirement to be approved, chartered or issued a permit to operate by the state board of education. Accordingly, we find that the Portage County MRDD was an educational institution within the meaning of R.C. 4141.01(CC).

 

In its brief, the Administrator asserts that Portage County MRDD did not have "academic terms". This would render inapplicable R.C. 4141.29(I)(1)(a), which provides that instructors shall not receive unemployment benefits for any week of unemployment which begins during the period between two successive academic years or terms if that teacher performs services in the first year and has a contract or reasonable assurances or a contract with an educational institution in the second year. See, Knight v. Administrator, Ohio Bur. of Emp. Serv. (1986), 28 Ohio St.3d 8, 501 N.E.2d 1198. In this case, McAlister was hired to work from August 22, 1990 through May 31, 1991 by the Portage County Board of Education. She then expected a similar contract for the 1991-1992 school year with the Portage County MRDD. We find these contracts to represent the "academic terms" required by R.C. 4141.29(I)(1). Thus, Knight and R.C. 4141.29(I)(1)(a) do not permit McAlister to collect unemployment for the period in between terms. Accordingly, appellant's arguments are without merit and the assignment of error is overruled.

 

The trial court's judgment is affirmed.

 

The Court finds that there were reasonable grounds for this appeal.

 

We order that a special mandate issue out of this court, directing the Summit County Court of Common Pleas to carry this judgment into execution. A certified copy of this journal entry shall constitute, the mandate, pursuant to App. R. 27.

 

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E).

 

Costs taxed to appellant.

 

Exceptions.

 

JOHN W. REECE, FOR THE COURT

 

COOK, P. J.

 

CONCURS

 DISSENT

 

 

 
BAIRD, J. DISSENTS SAYING:

 

The referee determined that the question of whether the claimant had assurance of work with Portage County MRDD is not relevant because that entity is not a school. The trial court and now this court have ruled that his premise was wrong; the conclusion that the Portage County MRDD is not a school is incorrect. This does not mean, however, that the referee's resolution of the claim was wrong. Had he considered the question of the presence or absence of assurance that claimant would have a job with the Portage County MRDD, he may well have concluded that there was no such assurance, especially in view of the uncontroverted fact that she did not in fact ultimately become employed there for the school year in question. If that be the finding of fact, the claimant would be entitled to benefits, in accordance with both R.C. 4141.29(I)(1) and Knight v. Ohio Bur. of Emp. Serv. (1986), 28 Ohio St.3d 8, 501 N.E.2d 1198.

 

I would reverse the judgment and remand the case for further proceedings.

 OPINION FOOTNOTES

 

 

 
1 While McAlister is named as an appellant, only the Administrator has filed a brief on appeal.