School Law Summary 2022-1
In this issue: Age Discrimination • COVID-19 Protocols • Individuals with Disabilities • Mask Mandates (COVID-19) • Property Valuation • Sexual Harassment • Statute of Limitations • Sunshine Law
District court denies district’s motion to dismiss three age discrimination and other claims against it filed by employees whose positions were eliminated in a district reorganization.
Doe v. Metro. Govt. of Nashville & Davidson Cty., M.D.Tenn. Nos. 3:20-cv-01023, 3:21-cv-00038, and 3:21-cv-00122, 2020 U.S. LEXIS 242155 (Dec. 20, 2021).
https://www.leagle.com/decision/infdco20211221e18
Three administrators with the Metropolitan Government of Nashville and Davidson County (Metro) sued Metro and Dr. Adrienne Battle, the director of schools for the Metropolitan Nashville Public Schools (MNPS), alleging age discrimination under the Tennessee Human Rights Act and the Age Discrimination in Employment Act (ADEA), and for violations for the due process clause of the 14th Amendment.
The three plaintiffs were: Dr. James Bailey, who was a 48-year-old tenured employee of MNPS who served in various positions with MNPS starting in 2003 and was serving as executive principal of Whites Creek High School until June 30, 2020; Dr. Pippa Meriwether, who was a 58-year-old tenured employee of MNPS who served in various positions with MNPS starting in 2002 and was serving as associate superintendent until June 30, 2020; and Dr. Damon Cathey, who was a 55-year-old tenured employee of MNPS who served in various positions with MNPS starting in 1997 and was serving as associate superintendent until June 30, 2020.
The defendant, Battle, was appointed director of schools for MNPS. Within two months after her appointment, all three plaintiffs had been fired or demoted from their positions. All three plaintiffs had had disagreements or conflicts with Battle in the years prior to her promotion and their firings or demotions.
Bailey was terminated from his principal position at Whites Creek High School as the result of a reorganization but told he could apply for other jobs and open principal positions. MNPS stated that if he was unable to secure an administrator position, he would be transferred to a classroom teaching position. However, Bailey did not have a teaching license. He claimed he was effectively terminated when he was removed from the principal’s position. His replacement as principal at Whites Creek High School was 36 years old.
MNPS informed Meriwether and Cathey that their positions as association superintendents were being eliminated due to the district’s reorganization. Like Bailey, they were informed they could apply for other open positions with the district and, if not able to secure another position, they would be transferred into a classroom teaching position. Both Meriwether and Cathey were hired into elementary school principal positions for the 2020-21 school year, which constituted substantial demotions and lower pay and benefits compared to their associate superintendent positions.
Of the four associate superintendents whose positions were eliminated, the youngest was promoted and the second youngest was transferred to an executive director position, which was one step before the associate superintendent position. The two oldest, Meriwether and Cathey, were demoted to elementary school principal. Battle also selected five new individuals to serve as executive directors, all of whom had less experience and were younger than Meriwether and some of whom had less experience. All but one of the new executive directors were younger than Cathey. Two of the five were recruited after MNPS had completed the interview process, and both were much younger than Cathey and Meriwether and did not have a doctoral degree.
The plaintiffs alleged that the elimination of their positions was a sham reduction in force as there were no budgetary reasons to eliminate the positions. While firing or demoting the plaintiffs, MNPS was creating other jobs and hiring outside candidates. MNPS gave all employees two 3% raises during the 2020-21 school year and had accumulated over $110 million in unspent federal funds.
Metro and Battle filed a motion to dismiss the plaintiffs’ due process claims on the grounds that the plaintiffs did not have a protected property interest in their specific positions and no right to a particular form of process prior to being transferred, even though the transfers constituted demotions. They also argued that the claims against Battle should be dismissed based on the doctrine of qualified immunity.
The court granted Metro’s motion to dismiss Meriwether’s and Cathey’s due process claims because they were transferred rather than fired. It concluded that, irrespective of whether their transfers, allegedly made in bad faith, were actionable under other federal or state laws, they did not give rise to a claim for a violation of their rights to due process under the 14th Amendment. The court denied Metro’s motion to dismiss Bailey’s due process claim related to his termination. It also declined to dismiss Bailey’s claim that his termination was retaliation, in violation of the First Amendment, for testimony he gave under oath and pursuant to a subpoena in an administrative hearing. It concluded that Bailey’s speech, in such a situation, was arguably as a private citizen and Metro was not entitled to dismissal of the claim.
Finally, the court declined to dismiss Bailey’s claim against Battle on the basis that Battle had qualified immunity. The court concluded that Bailey had articulated a colorable claim that he was terminated without cause in violation of a protected property interest in continued employment and, as a result, Battle was not entitled to dismissal of the due process claims based on qualified immunity.
Courts dismiss multiple cases challenging school districts’ COVID-19 protocols due to the parents’ inability to prosecute such suits on behalf of their minor children.
A.W. v. Bay Village City School Dist. Bd. of Edn., N.D.Ohio No. 1:21CV1733, 2021 U.S. Dist. LEXIS 224329 (Nov. 22, 2021).
H.V. v. Cloverleaf Local School Dist. Bd. of Edn., N.D.Ohio No. 1:21CV1731, 2021 U.S. Dist. LEXIS 224326 (Nov. 22, 2021)
Lewandowski v. Southgate Community Schools Bd. of Edn., E.D.Mich No. 21-12317, 2022 U.S. Dist. LEXIS 6563 (Jan. 12, 2022)
M.H. v. Olmsted Falls City School Dist. Bd. of Edn., N.D.Ohio No. 1:21CV1732, 2021 U.S. Dist. LEXIS 224328 (Nov. 22, 2021)
T.S. v. Kenwood Pub. School Bd. of Edn., W.D.Mich. No. 1:21-cv-832, 2021 U.S. Dist. LEXIS 248188 (Dec. 30, 2021)
Although each case varies slightly and each courts’ explanation is moderately different, all of the courts came to the same conclusion: dismiss without prejudice.
In each case, a parent sought to prosecute a complaint against the school district in which the minor children reside. Specifically, the parent sought to challenge the COVID-19 protocols chosen by the school district. In response, the school district asserted that the matter must be dismissed because the parent cannot prosecute such a suit on behalf of their minor children. The court agreed in every case.
The district courts relied on the Sixth Circuit court’s conclusion that, although 28 United States Code (USC) 1654 provides that, in all courts of the United States, the parties may plead and conduct their own cases personally or by counsel, that statute does not permit plaintiffs to appear pro se where interests other than their own are at stake. Thus, parents cannot appear pro se on behalf of their minor children because a minor's personal cause of action is their own and does not belong to a parent or representative.
District court grants summary judgment to district employees on the basis of qualified immunity and dismisses claim that they violated a student’s constitutional rights by using a prone restraint.
D.M. v. Bd. of Edn. Toledo Public Schools, N.D.Ohio No. 3:18-cv-1307-JGC, 2021 U.S. Dist. LEXIS 238964 (Jan. 12, 2022).
D.M. was a 9-year-old student at Toledo City School District’s Robinson Achievement. D.M. was identified as a student with a disability with attention deficit hyperactivity disorder, oppositional defiant disorder and general anxiety disorder with a history of engaging in disruptive and aggressive behavior. D.M had an individualized education program (IEP) under which his behavioral goals were to work on controlling anger without acting out, following directions during transition times and working on getting along better with staff and other students.
On June 16, 2016, D.M. was attending Robinson in a summer reading enrichment program. D.M.’s aunt and guardian, Laura Manees, got a call from Robinson asking her to come and pick him up because staff could not calm him. When she arrived at his classroom, Manees saw D.M. prone on the floor with his teacher and the classroom aide holding his lower body and the principal with one hand on D.M.’s neck and one arm holding D.M.’s arm behind his back. After Manees arrived in the room, D.M. was able to calm himself.
D.M. and Manees filed this action against the three school employees, alleging that they used unnecessary force in restraining D.M. resulting in physical injuries. The plaintiffs alleged discrimination under the Americans with Disabilities Act (ADA) and Rehabilitation Act, as well as unlawful seizure in violation of D.M.’s Fourth Amendment rights, depriving him of his liberty without due process of law, and denial of equal protection under the law in violation of his 14th Amendment rights. They also asserted state law claims of assault, battery and intentional infliction of emotional distress. The court dismissed the constitutional complaints against the district in January 2019.
The defendants’ filed a motion for summary judgment. The court stated that summary judgment was appropriate if the opposing party failed to show the existence of an essential element for which that party bears the burden of proof. The person filing the motion must show the absence of a genuine issue of material fact. Once that burden is met, the burden shifts to the nonmoving party to set forth facts showing that there is a genuine issue for trial.
The court considered whether the defendants had qualified immunity as government employees. The court stated that qualified immunity applied provided that the conduct of the government employees did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Regarding the facts in this case, the court concluded that there is no controlling precedent or consensus of cases establishing that holding a person in a prone position alone constitutes a constitutional violation.
The court rejected the plaintiffs’ argument that, in the absence of federal precedent to defeat qualified immunity, the defendants were not entitled to the immunity because the Ohio Administrative Code and the district’s policy both prohibit prone restraints. The court held that qualified immunity can be overcome only by clearly established federal law, not state law. It also concluded that the defendants did not use gratuitous force against D.M. when restraining him from injuring himself and others in a prone position. The court held that qualified immunity protected the defendants against all the plaintiffs’ federal claims. It granted the defendants’ motion for summary judgment and dismissed the plaintiffs’ state claims without prejudice to assert the claims in state court.
Appeals court agrees with trial court that IDEA’s fee-shifting provisions were designed to deter frivolous conduct, thereby freeing insurance company from duty to defend attorneys under the terms of a professional liability policy.
Ohio Bar Liab. Ins. Co. v. Wallace, 2022-Ohio-131.
https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2022/2022-Ohio-131.pdf
Attorneys Jason D. Wallace and Daniel Bache and their law firm, Wallace and Bache LLC, represented students with disabilities and their families in administrative law proceedings under the Individuals with Disabilities Education Act (IDEA) against school districts in Ohio. Between December 2014 and November 2016, the attorneys brought multiple due process complaints under IDEA on behalf of students and their parents against school districts. Each of the school districts prevailed in the matters. Each of the districts filed a lawsuit in federal court seeking the award of reasonable attorney fees under IDEA on the basis that the claims filed against them were “frivolous, unreasonable, or without foundation,” that the attorneys continued to litigate them after they had become frivolous, unreasonable or without foundation, or that the cases were brought for an improper purpose.
The attorneys presented these suits to their professional liability insurance company, Ohio Bar Liability Insurance Company (OBLIC). OBLIC denied coverage to the attorneys for failures to fulfill policy conditions. A federal judge in one of the cases sent a letter informing OBLIC that it might have a duty to defend the attorneys and ordering it to appear at a case management conference. At that point, OBLIC filed suit against the attorneys seeking declarations that the policy provided no coverage to the attorneys on any of the claims filed against them.
OBLIC moved for judgment on the pleadings, arguing that the policy excluded coverage because: (1) it provided coverage for damages, not attorney fees charged as costs; (2) the policy excluded coverage for attorney fees under any statute designed to deter frivolous conduct; (3) some of the suits were based on claims of which appellants were aware or reasonably should have been aware prior to the policy’s effective date; (4) one of the suits arose before the issuance of the policy; and (5) some of the claims should have been disclosed in appellants’ answers on the policy application. The attorneys also sought judgment on the pleadings, arguing that OBLIC’s claimed exclusions do not apply and that any ambiguity in the policy must be construed in the attorneys’ favor.
The trial court granted judgment on the pleadings in favor of OBLIC, denied the attorneys’ motion for judgment on the pleadings and granted OBLIC summary judgment on appellants claim for bad faith.
The appeals court upheld all of the trial court’s decisions. Relevant to school districts, one of the attorneys’ claims was that IDEA was not a statute designed to deter frivolous conduct by any party. The court specifically examined 20 USC 1415(i)(3), which provides for an award of attorney fees to the prevailing party: “[T]he court, in its discretion, may award reasonable attorneys’ fees as part of the costs … to a … local educational agency against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation … .[or] if the complaint … was presented for any improper purpose.”
The appeals court concluded that it was not necessary that the entire IDEA was designed to deter frivolous conduct. It was sufficient that a provision in the statute was designed to deter frivolous conduct. It also quoted Wesco Ins. Co. v. Roderick Linton Belfance L.L.P., which held that the IDEA fee-shifting provision is a sanctioning operation. The court concluded that OBLIC was not required to provide the attorneys with coverage for claims arising from an award of attorney fees under this section of IDEA.
District court denies motion for a preliminary injunction and complaint that the district’s mask mandate and quarantine protocol violated students’ Fifth and 14th Amendment rights.
K.B. v. Calloway Cty. School Dist. Bd. of Edn., W.D.Ky. No. 5:12-cv-148, 2022 U.S. Dist. LEXIS 5992 (Jan. 12, 2022).
https://law.justia.com/cases/federal/district-courts/kentucky/kywdce/5:2021cv00148/123068/23/
Parents, filing as pro se litigants representing their children who were students in the Calloway County School District, challenged the district’s mask mandate, alleging that it violated their procedural due process rights under the Fifth and 14th Amendments, substantive due process rights under the 14th Amendment, and procedural and substantive due process rights under the Kentucky Constitution. Their parents sought an order enjoining the district from reinstating a mask mandate, preventing quarantine protocol and testing requirements, and authorizing expedited discovery.
The court examined four factors to determine whether to grand a preliminary injunction: (1) likelihood of success on the merits; (2) whether the plaintiff will suffer irreparable harm absent the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact of the injunction on the public interest.
On the first factor, the court concluded that the parents could not represent their children as pro se litigants and, for that reason, their claim was not likely to succeed on its merits.
On the second factor, the court examined that the plaintiffs’ argument that their children’s education and development will suffer because of the mask mandate. The parents’ complaint “simply assumes that the children’s lack of progression, or in some instances degradation, is attributable to wearing masks” and offers no further evidence. In fact, the plaintiffs’ response stated that the parents “are reasonable in our belief that masks might be the cause” of their children’s lack of progress and that the risks of wearing masks outweigh the benefits. The parents further argued that the district’s mask mandate put their children at increased risk of medical effects and that the district’s quarantine policies gave rise to irreparable injury by excluding their children from educational opportunities. The court concluded that the parents’ conjecture does not suggest that irreparable harm is likely; that the possibility of injury is not the same as the likelihood of injury; and that the district’s limited quarantine policies are not likely to result in irreparable injury.
Regarding the third element, the court cited the Centers for Disease Control and Prevention’s (CDC) recommendations for universal indoor masking to prevent serious injury, illness and death from COVID-19. As a result, the court concluded that siding with the parents could potentially cause substantial harm to the district’s students, teachers and faculty as well as the broader community. The court relied on the same reasons to conclude that ruling in favor of the parents weighs against the public interest.
For these reasons, the court dismissed the parents’ claims on behalf of their children.
The parents also added themselves to the lawsuit, claiming that the district’s mask policy harmed them as parents. They alleged that the mask policy caused them to experience stress, anxiety and an increased workload as well as time and money to address these injuries. The court concluded that it did not need to address the likelihood that the parents would succeed on the merits of their claims because they could not demonstrate irreparable harm to themselves and because granting the injunction would cause substantial harm to others and the public interest. The court granted the district’s motion to dismiss the parents’ claims and denied the parents’ motion for a preliminary injunction.
Tennessee district court grants TRO to prohibit enforcement of a law prohibiting school districts from requiring individuals to wear face coverings while on school property.
R.K. v. Lee, M.D.Tenn. No. 3:21-cv-00853, 2021 U.S. Dist. LEXIS 236817 (Dec. 10, 2021).
https://storage.courtlistener.com/recap/gov.uscourts.tnmd.88391/gov.uscourts.tnmd.88391.45.0.pdf
In November 2021, the Tennessee General Assembly passed a law that prohibited school districts from requiring individuals to wear face coverings while on school property. Another provision of the law removed authority from local health entities, officials and schools to quarantine a person who has COVID-19.
Within hours of the statute’s passage, the parents of eight children — on behalf of themselves and all other Tennessee school children whose disabilities placed them at increased risk for severe illness from COVID-19 — filed a lawsuit. They alleged that the new law violated the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act (Sec. 504) and the Equal Protection Clause of the 14th Amendment. In addition to filing a complaint, the plaintiffs filed a motion for a temporary restraining order (TRO) and a preliminary injunction.
The court acknowledged that each of the eight children on behalf of whom suit was brought was disabled for purposes of both ADA and Sec. 504 because each had “a physical or mental impairment that substantially limit[ed] or more major life activities.” The only real dispute was whether the children were denied a benefit or discriminated against because of their disabilities.
The defendants argued that there was no violation of either ADA or Sec. 504 because Tennessee’s new statute contained a reasonable accommodation provision for schools. The court found that, in actuality, the language of the statute itself provided the first basis for a finding that plaintiffs were likely to prevail on the merits because its wording evinced a lack of compliance with ADA. The statute stated that “a school shall, to the extent practicable, provide a reasonable accommodation pursuant to the ADA” (emphasis added). The court acknowledged that public schools do not have the discretion to avoid compliance with ADA or Section 504 because they deem it “impracticable.” Instead, public entities have an affirmative obligation to make “reasonable modifications” in their services or programs to accommodate students with disabilities when necessary to avoid discrimination unless it will “fundamentally alter” the service or program.
The court also rejected the defendants’ argument that the statute’s “express carve-out” from the general anti-masking rule ensured compliance with ADA. The court found that the statute impeded a reasonable accommodation request because it dictated exactly what was reasonable and did not contemplate the interactive, individualized process required by ADA. The court found that “it requires no cynicism … to quickly conclude … that Tennessee’s new statutory scheme as it pertains to public schools is substantially likely to violate both the ADA and Sec 504.” As a result, the court concluded that the plaintiffs established a likelihood of success on the merits.
The court also found that the plaintiffs clearly established that they would be irreparably harmed were the court not to enjoin the new statute as it pertained to schools. The court found that: 1) the students would not be able to attend school without their school’s ability to require masking because they run the risk of severe illness or death, and 2) being unable to attend schools would lead them to be deprived of the in-person public education to which they were entitled.
The court also found that the new statute stood as an obstacle to enforcing ADA by not allowing districts the ability to make reasonable modifications in the COVID-19 era that would allow students with disabilities to safely enter the schoolhouse and receive an education. The court found that this harmed not only the students with disabilities but also society as a whole. The court also acknowledged that it was in the public’s interest to slow the spread of COVID-19 in Tennessee’s schools. The court highlighted the fact that defendants had proffered nothing to suggest that any harm would come from allowing individual districts to determine what is best for their schools, just as they did prior to the enactment of the new statute.
As a result, the court granted the plaintiff’s motion for a TRO to the extent that defendants were enjoined from enforcing the new statute.
Court upholds lower court’s decision in property valuation matter because plaintiff's expert appraiser was not as persuasive as the actual sale.
ABC TGAB, LLC v. Stark Cty. Bd. of Revision, 2021-Ohio-4185.
ABC TGAB LLC (ABC) purchased seven parcels of land on Dec. 5, 2019. These undeveloped seven parcels, which totaled 43.39 acres, were part of a larger purchase from the Tam-O-Shanter Co. in December 2019 for $8.75 million. The larger purchase totaled 59.12 acres. Two of the seven parcels, which totaled 15.73 acres, were simultaneously sold to Meijer Stores Limited Partnership for $4.6 million in another arm’s length transaction recorded on Dec. 6, 2019. This left a remainder of 43.39 acres.
The Jackson Local (Stark) School District Board of Education (Jackson) received tax revenue from the parcels. Jackson filed a valuation complaint with the county board of revision for the tax lien date of Jan. 1, 2019. Jackson sought a value of $4.15 million for the five parcels, which represented the difference between the total purchase price for ABC’s seven parcels ($8.75 million) and the sale price of the two parcels ($4.6 million) sold to Meijer Stores Limited Partnership. In turn, ABC, based upon the testimony and appraisal of its appraiser, Daniel Miller, sought a valuation of $3.253 million. The board of revision found in favor of Jackson and issued a decision on Aug. 27, 2020, determining the value of the five parcels was $4.15 million.
ABC, in its sole assignment of error, argued that the trial court erred and abused its discretion in affirming the decision of the board of revision. Article XII, Section 2 of the Ohio Constitution requires property to be "taxed by uniform rule according to value." In essence, the value of property is the amount of money for which it may be exchanged, i.e., the sales price.
The court determined there was evidence before the trial court that ABC purchased seven contiguous parcels for $8.75 million in December 2019 and subsequently sold two of the parcels for $4.6 million. This was documented by the relevant deeds and conveyance forms. Subtracting $4.6 million from $8.75 million equals $4.15 million.
ABC argued that the trial court completely rejected the report of the appraiser and that Jackson failed to present any testimony challenging the appraiser's findings. The court reasoned the aforementioned sales were enough evidence for the trial court and board of revisions to rely upon and affirmed the previous decisions of the lower court.
Ohio court allows student’s claims of intentional infliction of emotional distress to proceed against district employees in harassment case.
T.W. v. Finneytown Local School Dist., S.D.Ohio No. 1:18-cv-668, 2021 U.S. Dist. LEXIS 220686 (Nov. 16, 2021).
https://scholar.google.com/scholar_case?case=5245639487765812521&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Plaintiff Jane Doe was a student in the Finneytown Local (Hamilton) School District. Defendants are the Finneytown Local School District Board of Education and several school employees.
Starting in fifth grade, Plaintiff’s male classmates subjected her to a pattern of sexual harassment. They made lewd comments, grotesque gesticulations and, on one occasion, one of the boys sexually assaulted her. In fifth grade, Plaintiff told her teacher that the boys were making her uncomfortable with their crude sexual jokes and threats of unwanted sexual touching. The teacher sent the boys out of the classroom. In sixth grade, the same boys escalated to lewd gesticulations and confronted Plaintiff with pornography. Plaintiff reported the boys to her teachers. One teacher recorded the incidents but never acted on them. Another teacher declined to act saying he had to “pick his battles.”
In November 2017, Plaintiff also reported the boys to the school counselor and school resource officer (SRO) but neither took any action. In January 2018, Plaintiff reported the boys to another teacher, who said she would report them to the SRO. This possibly led the SRO to deliver a talk to Plaintiff’s classroom. The harassment only worsened after the talk. Plaintiff’s mother called and expressed her concern that the harassment was escalating and her fear that it could become physical. Near the end of the month, the school convened the entire sixth-grade class for a discussion about sexual harassment.
By March 2018, the harassment had resumed. On several occasions, Plaintiff made reports to her teachers or the SRO. These individuals did not follow up with Plaintiff or punish the boys. Several calls to the school by Plaintiff’s mother went unreturned. Eventually, a school administrator met with Plaintiff in his office. Plaintiff was given the option to either report the harassment and assault anonymously or sign a “cease-and-desist order.” Under the order, Plaintiff and the boys were forbidden to have any contact with each other and forbidden from disclosing the agreement to other students. The order did not work. As soon as Plaintiff went back to class, the boys broke the nondisclosure provision by telling their friends about it and the boys’ friends carried on harassing Plaintiff.
From there, Plaintiff’s health began deteriorating. She suffered panic attacks that manifested in nausea and vomiting. In April 2018, Plaintiffs met with several administrators who suggested that Plaintiff and the boys “talk it out” and proposed moving Plaintiff to a different class. Shortly after, Plaintiff’s health collapsed. She was hospitalized for more than a week and continued to suffer mentally and physically through August 2018.
By May 2018, Plaintiffs retained counsel. In September 2018, Plaintiff filed suit against the district, alleging negligence, gross negligence, intentional infliction of emotional distress and failure to comply with Title IX. The defendants moved to dismiss.
The court dismissed several of the claims due to procedural errors made in Plaintiff’s complaint. With respect to Plaintiff’s claim for intentional infliction of emotional distress, however, the court found that, taking Plaintiff’s allegations as true, there was an adequate claim. Plaintiff’s facts demonstrated that several of the defendants knew the full extent of the harassment and the extreme risk of emotional damage to Plaintiff but consciously disregarded it when they failed to discipline the boys or take other specific actions to end the harassment. As a result, the court allowed those claims to proceed.
Ohio court of appeals finds that one-year statute of limitations in RC 2305.11(A) does not apply to the state’s RC 9.39 claim against school treasurer.
State ex rel. Ohio Atty. Gen. v. Peterson, 2021-Ohio-4124.
https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2021/2021-Ohio-4124.pdf
In April 2019, the state of Ohio filed a complaint against 15 defendants who were involved in the operations of the Cleveland Academy of Scholarship, Technology, and Leadership Enterprise (CASTLE). The state alleged that a special audit found that many of the defendants had used CASTLE’s public funds for their own benefit. The state brought a claim to reduce the audit’s findings to a judgment and brought a claim for public official strict liability pursuant to Ohio Revised Code (RC) 9.39.
One of the defendants named in the complaint was Phyllis Bixler. The state alleged that Bixler was CASTLE’s treasurer from February 2005 to March 2008 and that she was strictly liable for the funds that were misappropriated while she was CASTLE’s treasurer, which totaled $757,213.31. However, in discovery responses after filing the complaint, the state corrected its facts and explained that Bixler was CASTLE’s treasurer from July 2004 to June 2006, that the $757,213.31 demand was “not accurate” and that the correct figure was $340,531.67. Bixler filed an answer to the complaint, raising as an affirmative defense that the doctrine of laches and the statute of limitations barred the state’s claim against her. In May 2020, Bixler filed a motion for summary judgment.
RC 9.39 does not itself include a statute of limitations. Bixler argued, and the trial court found, that the one-year limitations period in RC 2305.11(A) for penal statutes applied to actions brought under RC 9.39. RC 2305.11(A) provides in relevant part that "an action upon a statute for a penalty or forfeiture shall be commenced within one year after the cause of action accrued." The court found that the history behind RC 9.39 showed that the primary purpose of the statute was to compensate rather than penalize. Because the court found that RC 9.39 did not impose a penalty, the court found that RC 2305.11(A)’s one-year statute of limitations did not apply to the state’s RC 9.39 claim against Bixler. As a result, the court found that the trial court erred in granting summary judgment to Bixler on the basis that the state’s claim was time barred.
On appeal, Bixler also argued that the trial court erred when it found that she was not entitled to summary judgment based on the doctrine of laches. She maintained that the state unreasonably delayed bringing the action against her and that the delay prejudiced her because documents she would have needed to support her defense were no longer available. The court of appeals agreed with the trial court that Bixler’s case did not present an exception to the general rule that a laches defense could not be asserted against the state.
Finally, Bixler argued that the failure to apply a laches defense to the state’s claim would violate her due process rights because the state’s delay in pursuing this action prevented her from obtaining evidence to challenge the audit’s finding. However, courts historically have treated arguments of due process violations based on delay under a laches analysis. The court found that Bixler’s reframing of her laches argument as a due process violation did not change the court’s analysis.
Because the court found that the one-year statute of limitations in RC 2305.11(A) did not apply against the state’s RC 9.39 claim, the court found that Bixler was not entitled to judgment as a matter of law and reversed the trial court’s grant of summary judgment in her favor.
Court of appeals affirms determination that the consideration of members to be appointed to a task force was properly conducted in executive session.
Kanter v. City of Cleveland Hts., 2021-Ohio-4318.
https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2021/2021-Ohio-4318.pdf
In January 2021, the city council of the city of Cleveland Heights had a meeting. The agenda for the meeting included the following two items: 1) “Racial Justice Task Force (RJTF) discussion on how to proceed with appointments” and 2) “Executive session to discuss the appointment of a public official.”
Prior to entering executive session, the city’s law director was asked his opinion regarding the use of executive session to appoint members to RJTF. He responded that the discussion by council members as to prospective appointees was a proper subject of an executive session. City council members then proceeded into executive session to discuss the applicants and their appointment to RJTF.
Following the meeting, Garry Kanter filed a lawsuit against the city council, alleging that because the members of RJTF were not public employees or officials, the city council members violated RC 121.22 by entering into executive session to discuss the appointments rather than doing so in an open public meeting.
The city council filed a motion to dismiss for failure to state a claim. In their motion, it contended that the members of RJTF were public officials under RC 149.011, and the city council was permitted to discuss appointments to the task force in executive session under RC 121.22. Kanter filed a brief in opposition to the defendant’s motion to dismiss where he maintained that the task force members were not public employees or officials. He cited then-recent legislative actions taken by the city voting on the salaries of the city's officer and employees that did not include RJTF members, in support of his contention that the task force members were not city employees or officials. Kanter contended that, under R.C. 102.01(C)(3), the RJTF's purpose was solely for cultural, educational, historical, humanitarian, advisory or research and, therefore, its members could not be public officials.
In May 2021, the trial court granted the city council’s motion to dismiss. The trial court found that RJTF met the definition of a “public body” within the meaning of RC 121.22(B)(1). The court found that the members of RJTF were public officials, and city council was permitted to enter into executive session to consider appointments to the task force. Kanter appealed.
On appeal, the Court of Appeals affirmed the judgment of the trial court. The court reviewed the purpose and duties of the committee and found that RJTF was tasked with making recommendations to the city of Cleveland Heights relative to "processes, policies and action steps to create an inclusive community," and preparing a report detailing its efforts and recommendations, including whether the city should establish a commission or commissions. RJTF also was required to select a chairperson, vice-chairperson and secretary. The court found that this supported that RJTF was a public body.
The Court of Appeals also affirmed that members of RJTF were public officials. Specifically, the court found that they were "duly authorized representatives or agents of a public office," the public office being the city of Cleveland Heights. The court rejected Kanter’s contention that private citizens cannot be considered public officials for the purpose of RC 121.22. Based on these findings, the court found that RJTF members were public officials and the city was permitted to discuss potential members to the task force in executive session under the exception to open meetings set forth in RC 121.22(G)(1).