PDQ November 2018

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In this issue: Medical marijuana: Are you prepared? • Social media and schools • Sex offender notifications • Food service procurement reviews • Use of facsimile signatures • Changes to OSBA policy updating process • Sample policies included with this issue

Medical marijuana: Are you prepared?

by Kenna S. Haycox, senior policy consultant

In 2016, House Bill (HB) 523 established Ohio’s medical marijuana program. The bill required the Medical Marijuana Control Program to be fully operational within two years of the bill’s effective date. The state did not reach this deadline but is working to get the program fully operational.

As we approach the implementation of Ohio’s medical marijuana program, we have had several questions concerning what districts need to do to be prepared.

The program is established in Ohio Revised Code (RC) 3796. Through the program, a registered patient, on the recommendation of a physician, is permitted to use medical marijuana to treat a qualifying medical condition.

RC 3796.22 provides that the program does not permit the use, possession or administration of medical marijuana other than as authorized by the bill and does not require any public place to accommodate a registered patient’s use of medical marijuana.

Remember, marijuana is still considered an illegal substance under federal law, and districts are required to comply with federal drug-free schools requirements.

Employee use
The impact of the program on employers and workers’ compensation is clearly defined. RC 3796.28 specifically provides that nothing in the law:

requires an employer to permit or accommodate an employee’s use, possession or distribution of medical marijuana;
prohibits an employer from refusing to hire, discharging, disciplining or otherwise taking adverse employment action against a person with respect to hire, tenure, terms, conditions or privileges of employment because of that person’s use, possession or distribution of medical marijuana;
prohibits an employer from establishing and enforcing a drug-testing policy, drug-free workplace policy or zero-tolerance drug policy;
interferes with any federal restrictions on employment, including U.S. Department of Transportation rules;
permits a person to commence a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, retaliating or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions or privileges of employment related to medical marijuana;
affects the authority of the administrator of workers’ compensation to grant rebates or discounts on premium rates to employers participating in a drug-free workplace program in accordance with rules adopted by the administrator.

The law also provides that an employee terminated because of his or her use of medical marijuana is deemed to have been discharged for just cause under Ohio’s unemployment law if that use was in violation of an employer's drug-free workplace policy, zero-tolerance policy or other formal program or policy regulating the use of medical marijuana.

HB 523 also revised RC 4123.54 by adding marijuana to the language on drug testing for workers’ compensation eligibility. Workers are ineligible for compensation/benefits if, when tested in accordance with statutory requirements, it is found they were under the influence at the time of the incident and having been under the influence of a substance was the proximate cause of the injury. The revisions extend these provisions to the use of medical marijuana. The Ohio Bureau of Workers’ Compensation also has released information that it will not pay for patient access to marijuana even if it is tied to a workers’ compensation claim. Its recent fact sheet reiterates the workers' compensation considerations outlined above.

Student use
We have received some questions regarding student use of medical marijuana in the school setting. While the law does not specifically address this, there are important considerations related to student use at school.

Under Ohio’s medical marijuana program, no person can possess medical marijuana or the supplies needed for administering it unless he or she is a registered patient or registered caregiver. Registered caregivers are patient-specific registrations. Additionally, medical marijuana is “recommended” by a physician, not “prescribed.” This clearly makes medical marijuana a drug that cannot just be administered under a district’s administration of medication to students policy.

When receiving requests for administration or use of medical marijuana at school (also true for employees), make sure you are not discriminating based on the underlying medical condition or need but rather restricting the use of the substance at school. When presented with these requests, districts may have Americans with Disabilities Act or Individuals with Disabilities in Education Act to consider for the student or employee about the underlying need.

Work closely with legal counsel when specific questions come up regarding individual employee or student use.

Policy implications
We provided policy updates in May 2016 when the bill first passed because of language in the bill under which employees may have been able to legally acquire medical marijuana out of state and use it in the state. The earlier release also allowed districts to have conversations related to the inclusion of medical marijuana in the drug-free workplace policy well in advance of the program becoming fully operational.

Districts should consider extending drug-free workplace policies to include medical marijuana if they do not want to allow for its use, possession or distribution in the workplace. Remember, the unemployment just-cause provisions apply to violations of the drug-free workplace policy, so if medical marijuana is not defined there, these provisions may not apply. For districts that have not yet updated policies to reflect medical marijuana, GBP, Drug Free Workplace; GBE, Staff Health and Safety; and GBE-R, Staff Health and Safety, are included for review. Boards that already adopted these policies when first released do not need to readopt if the language on medical marijuana was included at the time and the district still wants to prohibit it.

As you consider policy changes, remember to review your negotiated agreements to see how drug testing, use and possession are addressed. Continue to look for more information as the program becomes fully operational, and take measures now to be prepared.

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Social media and schools

by Kyle E. Lathwell, policy consultant

Technology is a wonderful thing, and it has transformed the way — and speed — with which we communicate. Social media allows individuals to easily stay up to speed with events, news and friends. We can keep current with what is happening around us and easily share our own information with the world.

The same is true for school districts. Districts and the schools and programs within them are using social media to disseminate information, share accomplishments and be more accessible to parents and students. While social media is a great tool and resource, we must keep in mind the various issues it raises for school districts. This article is intended to remind districts of some of those issues and offer some practical and policy considerations.

Privacy issues
Privacy issues are in play when it comes to social media. The Family Educational Rights and Privacy Act (FERPA) was enacted to protect the privacy of student educational records, which are educational records maintained by the school district that directly relate to individual students. FERPA and Ohio law prohibit the release of personally identifiable information unless an exception applies or the district has consent from the parent (or student 18 or older) to release the information.

An issue that often arises with social media is the use of photos. Photos of students have been used in district-sponsored crowdfunding campaigns, on school websites and on social media. Whether a photo or video directly relates to a student is context-specific and will depend on a number of factors. The bottom line: Be careful when releasing photos of students on social media, and when in doubt, get the appropriate written consent from the parent or student.

Staff and students
Districts also should consider social media use by staff and students and the potential pitfalls. We want staff to be using the educational websites and social media available to them for educational purposes. But, how do we control or restrict personal use during the school day? Can both be accomplished?

When does a staff social media posting cross the line and become a discipline issue for the administration if it is likely to disrupt the learning environment?

We know students are on social media as well. How do we assure that social media isn’t being used to bully other students, which ultimately makes its way into the schools and classrooms and disrupts learning?

Finally, we all have heard of cases involving inappropriate communication among staff members and students via text or social media. How do we avoid these instances? How do we ensure that all staff-student communication is strictly professional in nature? After all, these are your students, not your friends, despite how much you may care for them and want them to succeed.

Practical and policy considerations
A solution to some of these issues is to set clear expectations through policy. Districts have an opportunity to clearly set forth what is and is not acceptable. This language is not required to appear in policy, but it is an ideal place to address this issue.

For staff-student relations, you may consider some of the following language:

District staff who have a presence on social media are prohibited from posting data, documents, photographs or inappropriate information on social media platforms that might result in a disruption of classroom activity or violates state or federal law relating to staff and student privacy. The superintendent or his or her designee has full discretion in determining when a disruption of classroom activity has occurred.
District staff members are prohibited from providing personal social media passwords to students.
Fraternization among district staff and students via the internet, personal email accounts, text messaging, personal social media and other modes of virtual technology also is prohibited.
Access of personal social media during school hours is prohibited.

OSBA addresses bullying via social media in policy JFCF, Hazing and Bullying, and regulation JFCF-R, Hazing and Bullying. Bullying through social media is a growing problem and should be addressed clearly in district policy. Be certain you have the most up-to-date version of this policy in your manual to cover this form of bullying. Also, districts are required to educate minors about appropriate online behavior, including cyberbullying awareness and response, as part of their E-Rate funding requirements, and this language appears in your computer and online services acceptable-use policies.

While policy language can help address issues and set expectations, handle potential discipline based on off-campus, personal social media actions or behaviors on a case-by-case basis, with the involvement of legal counsel. These actions often present several First Amendment issues and must be managed accordingly.

Best practice is for staff not to use personal social media for allowable curricular, cocurricular or extracurricular activities, and instead, use social media accounts created specifically for the intended purposes. This helps prevent some potential fraternization concerns. It also allows administrators to know what social media students are using and provides an opportunity to let parents know what social media tools the schools or programs are using.

Policy implications
Policy GBH, Staff-Student Relations (Also JM), has been updated to reflect a change in terminology and to include new language related to privacy issues. It is available for download with this PDQ issue.

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Sex offender notifications

by Kenna S. Haycox, senior policy consultant

Ohio Revised Code (RC) 2950 governs Ohio’s sex offender law. Senate Bill 10, Ohio’s version of the federal Adam Walsh Child Protection and Safety Act, amended these provisions effective Jan. 1, 2008. The significant changes included a reclassification of sex-related offenses and the transition to a tiered system of offenses and subsequent community notification requirements.

At that time, there were several filed cases challenging the constitutionality of the requirement to have individuals reclassified under the new system. The Ohio Supreme Court determined that prior offenders could not be reclassified under the new system. As a result, there are still offenders under both systems. After receiving questions concerning this, we are revisiting this topic to provide some information for districts as well as to strengthen policy language.

The terms “sexual predator, habitual sex offender, child-victim predator and habitual child-victim offender” are no longer used in the current law to classify offender types. Instead, a new three-tier system is used to delineate where offenders are classified according to their offense or repeat offenses. The Tier III offender classification, encompassing the most dangerous offenders and the most serious offenses, has the most stringent registration and notification procedures.

The law also outlines requirements for juvenile offenders. The difference between juvenile offenders who are “public registry qualified juvenile offender registrants” and “juvenile offender registrants” is that the former will appear on sheriff and state websites, while the latter will not.

Notification requirements
Even though all tiers have some registration requirements tied to them, not all tiers are subject to community notification. Also, provisions allow for offenders subject to community notification to appeal this obligation to the courts, removing their community notification requirement. As a result, school districts are not notified of all registered sex offenders living, working or attending school in the district, only those subject to community notification.

When a sex offender subject to community notification registers with a sheriff’s office, the office has the responsibility to notify school district(s) of the offender’s registration. District superintendents may be notified in one of several circumstances. These include when sex offenders subject to community notification notify the county of their intent to reside, go to school or work in the county.

In most cases, the public registry and notices from the sheriff’s office do not apply to lower-level sex offenders. The requirements for juvenile offenders to appear on the public registry are limited to severe offenses and specific circumstances. Many more individuals convicted of sex offenses may be in your community than appear on the sheriff’s website or in notices provided by the sheriff.

When managing sex offender notifications, districts need to understand their role. Districts are not responsible for determining which sex offenders are subject to community notification — the sheriff must provide this information. Ohio Administrative Code 109:5-2-04 outlines what the superintendent should do after receipt of a notice from the sheriff.

Upon receiving the notification, the superintendent should not release any information other than what is included in the notice, and direct any inquiries to the sheriff’s office where the offender has registered.

When the superintendent receives notification, he or she may disseminate the information to employees whose duties include supervision of or responsibility for students. At this time, superintendents also should notify employees to promptly notify the superintendent if the sex offender is observed in the vicinity of the school. If a sex offender is seen in the vicinity of the school, the superintendent should notify local law enforcement if, in his or her judgment, the offender’s presence appears to be without a legitimate purpose or otherwise creates concern for the safety of students.

Upon receipt of a notification, the superintendent may inform parents, guardians and adult students that he or she has received notice that a sex offender subject to community notification is residing, employed or attending school within the district’s geographic region. This notification should direct parents to the sheriff’s office and tell them how to contact the sheriff to obtain more information.

Juvenile sex offenders in school
Juvenile sex offenders present some unique challenges when the offender attends school. First, a student’s sex offender status may not be used to prohibit the student from receiving a free public education. Court orders may limit a student’s ability to participate in certain situations. District superintendents, pursuant to RC 3319.01, may assign students to the appropriate school and grade. The superintendent generally may consider all programs offered for students in making this determination.

Districts must comply with student confidentiality statutes regarding the student, both the Family Educational Rights and Privacy Act and Ohio law, RC 3319.321. This means school officials may not release personally identifiable education records concerning any student, including juvenile sex offenders. This would include any student records containing information about what school the student attends, what classes he or she is assigned to, the particular program attended, attendance, grades, status and discipline, among others.

The sex offender criminal law takes away some of the privacy rights of juvenile sex offenders who are required to register as public registry qualified juvenile offender registrants. However, this registration and the availability of information about a juvenile sex offender have nothing to do with the school and its records; the information available will come from the Ohio attorney general and sheriffs’ offices. Therefore, the school’s duties and responsibilities in this regard will not change.

Districts also should remember there is no general right of law enforcement to access student records without some specific authority to do so. Schools may not release student records containing personally identifiable information without parental consent, a subpoena, court-ordered access or a health and safety emergency. Partnering with law enforcement cannot extend the release of confidential student information without proper authority. Probation officers may have court orders authorizing them to review school records.

Parent sex offender
Questions often arise when a school receives notification that the parent of a child attending the school is a sex offender. Depending upon the offense, the parent’s custodial rights and visitation status may be unaffected with his or her own children. In these situations, school officials must balance the parent’s constitutional liberty interest in directing the upbringing of his or her children and the school’s interest in protecting students.

Parent sex offenders may bring their children to school or pick them up and may attend their child’s parent-teacher conferences. These activities may be subject to additional regulation, such as advance notice or alternate arrangements to provide conferences. However, school officials may wish to consider regulating attendance during programs, sporting events, classroom visits, chaperoning field trips, casual school visits and other activities.

Such parents may be notified that their presence on school property is limited to certain circumstances and requires approval in consultation with the superintendent or principal.

Meeting with the parent or notifying the parent of any limitations on access to school property or school events should occur, preferably in consultation with the board’s attorney.

In the event the sex offender is a stepparent, the issue may be slightly different regarding access to school, school activities and dropping off and picking up the child. Stepparents are the husband or wife of the parent of the child and may not have the same rights as a parent.

Policy implications
JHH, Notification of Sex Offenders, has been updated to more accurately reflect the current requirements and is available for download with this PDQ issue. District questions concerning your local process for receiving these notifications should be directed to your county sheriff. Additionally, districts should work with legal counsel when questions or concerns arise about students or parents of students who are registered sex offenders.

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Food service procurement reviews

by Kenna S. Haycox, senior policy consultant

We have received several questions from districts going through food service procurement reviews with the Ohio Department of Education (ODE). These new reviews are required by the U.S. Department of Agriculture for districts participating in the National School Lunch Program (NSLP). More information on the ODE reviews is available here. NSLP is federally funded and, therefore, subject to the new uniform guidance standards outlined in 2 Code of Federal Regulations (CFR) 200.

Based on district questions and conversations with ODE staff, following are some tips for managing these reviews:

The uniform guidance grace period only applied to procurement. The remainder of the uniform guidance requirements should already have been followed last fiscal year. More information on the uniform guidance requirements is available in the August issue of PDQ.
- This includes language regarding mandatory disclosures and conflicts of interest and other accounting and tracking requirements. Review language you already should have in policy DECA, Administration of Federal Grant Funds.
If you were taking advantage of the procurement grace period, make sure this is documented in your policies and complete the required tables under the previous standards of 7 CFR 3016.36.
- Think about the procurement method used — not dollar amounts in the chart that may differ from the standards you were following.
- Document all vendors, and make sure you have adequate documentation for additional review of these specific vendor procurements.
Contact your ODE reviewer if you were taking advantage of the grace period and need further clarification on how to complete the chart based on the standards you used last fiscal year.

Moving forward, ODE is hoping to align the scheduling of future procurement reviews with the NSLP administrative reviews districts already know. Because of this, ODE recommends that treasurers are involved in this review process moving forward, as many of the items asked for will tie directly to the uniform guidance requirements.

Policy implications
No additional policy updates are necessary for these reviews. However, to confirm whether you are working from the most current OSBA policies addressing all of your uniform guidance obligations, review the August 2018 PDQ article and policies. These policies do not need to be readopted unless you need to make changes.

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Use of facsimile signatures

by Kyle E. Lathwell, policy consultant

Ohio Revised codes 9.10, 9.12 and 9.14 allow for designated depositories to honor any instrument bearing a facsimile signature in lieu of a manual signature. If your district wants to establish this facsimile signature, the following must be taken into consideration.

A facsimile signature includes, but is not limited to, the reproduction of any authorized signature by a copper plate or a photographic, photostatic or mechanical device. The use of a rubber stamp signature is not authorized.

To be compliant with the law, notice of the adoption of a facsimile signature must be provided, in writing, to the depository from which funds will be withdrawn. The notice must include a description of the device to be used and a sample of the facsimile signature. Written approval must be received from the depository before the facsimile signature can be used.

There is some potential exposure if a facsimile signature is misused and funds are lost. As such, the law states that the treasurer or school board may protect themselves from the loss, damage or expense occasioned by the unauthorized use of the facsimile signature by purchasing a surety bond. This language is permissive, but purchasing such a bond should be strongly considered due to the protection it can provide.

Policy implications
While these provisions are not new, many districts may not have looked at the requirements in a while to ensure that any facsimile signatures used have been established and managed in accordance with law. Also, districts may have individuals other than the treasurer using facsimile signatures in certain situations.

If you use facsimile signatures, you are required to have policy DGA, Authorized Signatures (Use of Facsimile Signatures), which is available for download with this PDQ issue. This policy has been updated to better clarify the statutory requirements for use of these signatures and reflect the fact that other signatures may be used beyond the treasurer.

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Changes to OSBA policy updating process

by Kenna S. Haycox, senior policy consultant

Districts contracted for OSBA’s update or web-hosting service receive the added benefit of updates to their master manual when the association is notified the board has adopted new or revised policies. View a reminder on how to submit these updates to OSBA for processing.

As we continue to receive feedback from districts using these services, we are making changes to address input and better meet your needs. To date, we’ve sent a revised electronic version of your entire updated manual in Microsoft Word format on a CD. With advancements in technology, some districts may no longer need or want the CDs. To provide an electronic version more expeditiously, we now will email a zip file of your updated manual in Word format for download. As always, we are available to you if there are any issues associated with this process.

Additionally, many of our districts no longer maintain multiple hard copies of the overall board policy manual and often have no need for hard copies of updated policies. Moving forward, we will not send hard copies unless you request them when you send updates to us for processing.

Please contact us with questions or feedback. Our goal is to provide excellent and timely policy service at all times. If your district is not currently using our update or web-hosting service, please contact us for more information on this opportunity to ensure your district policies stay current.

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