School Law Summary 2018-4
This issues includes: ADA • Arbitration – Employee Discipline • Breach Of Contract • Bullying • Civil Rights – Liability • Community Schools • Criminal Law • Discrimination – Age • Elections – Voting Procedures • Employee Termination • Employer Liability • Individuals With Disabilities – Attorneys’ Fees • Individuals With Disabilities • Insurance • Reductions In Force • Sexual Harassment • Sunshine Laws – Open Meetings Act
Tennessee district court grants summary judgment for district on ADA claims after school transferred teacher with diverticulitis.
Giles v. Wilson Cty. Bd. of Edn., M.D.Tenn. No. 1:17-cv-896, 2018 U.S. Dist. LEXIS 168057 (Sept. 28, 2018).
Jill Giles served as principal of W.A. Wright Elementary School from August 2004 to September 2015. In 2012, Giles was diagnosed with diverticulitis, which caused Giles to experience severe stomach cramps, diarrhea, nausea and the need for multiple trips to the restroom. Often, Giles’ symptoms occurred in the morning. If Giles felt like she was going to be late for work based on how she felt in the morning, she would send a text or an email to her staff at school, and if she felt she was going to arrive at work later than 10:45 a.m., she would enter a half-day absence. At the end of the 2014-15 school year, Giles experienced numerous episodes due to her diverticulitis and requested Family Medical Leave Act (FMLA) leave from March 30 to May 1, 2015. The district approved her request.
Giles worried that her attendance issues were not best for the school. In September 2015, Giles requested to work extra over fall break or on holidays to make up missed work time. The district’s administrators indicated that the district could not offer the accommodation and instead suggested that Giles switch from the Principal position to the Assistant Principal position. Giles agreed to the transfer and began working as Assistant Principal in October 2015.
At the end of the 2015-16 school year, Giles had a meeting with the district where she was informed that she was being transferred to a homebound teaching position for the 2016-17 school year. On May 27, 2016, Giles notified the district she was retiring at the end of the 2015-16 school year and declined the homebound teaching position. In September 2017, Giles filed a complaint against the district for unlawful employment practices under FMLA.
In her complaint, Giles asserted that the district interfered with her rights to continued medical leave, benefits and protections of FMLA and retaliated against her for requesting and exercising her right to medical leave under FMLA. She also asserted that the district discriminated against her because of her disability in violation of the Americans with Disabilities Act (ADA). The district requested summary judgment on the basis that the district provided all requested FMLA benefits and there was no causal connection between the exercise of Giles’ FMLA rights and her job change.
The court found that there was a jury question on whether Giles properly noticed her FMLA-qualifying condition and whether the district retaliated against Giles under FMLA. As a result, the court denied the parties’ cross-motions for summary judgment on Giles’ FMLA interference and retaliation claims. The court granted summary judgment to the district on Giles’ ADA discrimination claim, finding that the district’s reason for demoting Giles – i.e. excessive absenteeism – was not pretext. The court denied both parties’ motions for summary judgment on the issue of whether the district failed to accommodate under the ADA, finding that there were genuine issues of material fact as to whether Giles’ position as Assistant Principal caused an undue burden on the district.
Sixth Circuit Court of Appeals concludes that minor child’s claim of discrimination under ADA and Sec. 504 was not an allegation of denial of FAPE and she was not required to exhaust remedies under IDEA.
Sophie G. v. Wilson Cty. Schools, 6th Cir. No. 17-6209, 2018 U.S. App. LEXIS 19036 (July 12, 2018).
https://cases.justia.com/federal/appellate-courts/ca6/17-6209/17-6209-2018-07-12.pdf?ts=1531423826
Sophie G. was a seven-year-old with autism and developmental delays who attended school at Tuckers Crossroads Elementary School in Wilson County, Tennessee. Her mother, who worked full time, attempted to enroll Sophie in an after-school childcare program at her school because it was less expensive than other after-school programs. Sophie was denied access to the program because she was not toilet trained and needed a one-on-one attendant to assist with diapering.
Sophie received special education and related services from Wilson County Schools (WCS). Sophie’s individualized education program (IEP) addressed, among other things, toilet independence training, including dressing and undressing.
In 2017, Sophie and her mother sued WCS under the Americans with Disabilities Act (ADA) and Sec. 504 of the Rehabilitation Act. They alleged that WCS intentionally discriminated against Sophie when it denied her access to the after-school program because of her lack of independent toileting ability.
WCS moved to dismiss the claim on the basis that administrative remedies under the Individuals with Disabilities Education Act (IDEA) had not been exhausted. The district court agreed and dismissed the claim, and Sophie and her mother appealed to the 6th Circuit Court of Appeals.
The court concluded that, although Sophie was receiving special education and related services from WCS, the suit at issue did not allege that WCS was denying Sophie a free appropriate public education (FAPE). It concluded that the plaintiffs did not allege that admission to the after-school program was necessary for Sophie to receive FAPE. At most, the court concluded, the program was tangentially related to Sophie’s IEP, which included toileting needs.
In its decision, the court relied on both of the U.S. Supreme Court’s most recent cases on IDEA, Endrew F. v. Douglas Cty. School Dist. RE-1 and Fry v. Napoleon Community Schools. It cited Endrew F. for the level of educational benefit that must be met to guarantee FAPE. It relied on Fry for the proposition that the court must consider the substance of a plaintiff’s claim to determine whether the suit seeks a remedy available under IDEA, not whether it could have sought such relief.
The court concluded that the gravamen of the plaintiffs’ complaint sought access to subsidized childcare on equal terms rather than redress for a denial of FAPE. It reversed the district court’s dismissal and remanded the case.
ARBITRATION – EMPLOYEE DISCIPLINE
Ohio court of appeals upholds arbitrator’s finding that employee behavior could be characterized as horseplay, befitting a five-day suspension, not termination.
Franklin Cty. Sheriff v. Teamsters Local No. 413, 2018-Ohio-3684.
https://cases.justia.com/ohio/tenth-district-court-of-appeals/2018-17ap-717.pdf?ts=1536874368
In January 2014, the Franklin County Sheriff created a new non-union classification titled Corrections Services Coordinator. The classification was designed to hire civilians to perform jailhouse duties formerly performed by deputy sheriffs. Because the position necessitated close interaction with inmates, employees also were required to serve a one-year probation period, which was the same as deputy sheriffs were previously required to serve.
In September 2014, four employees newly hired into this position subsequently engaged in taking cellphone pictures of themselves in compromising positions. In January 2015, Teamsters Local No. 413 petitioned the State Employment Relations Board (SERB) to opt-in the positions of corrective service coordinators, but by June 2015, the compromising pictures had found their way to the employees’ superiors, who terminated their employment by the end of that month. At the time of their termination, the union still was engaged in negotiating a successor collective bargaining agreement.
The union filed four grievances over the terminations, arguing the employees had only a 120-day probation period under the terms of the contract and the sheriff’s office lacked just cause to terminate the employees. An arbitrator bifurcated the arguments and found the 120-day probationary period did not to apply to these employees and that the terminations lacked just cause and were grossly excessive. The arbitrator reinstated all four employees to their positions, less a five-day suspension. The sheriff’s office appealed.
On appeal, the court found that the arbitrator did not exceed his authority and noted that SERB specifically granted the opt-in on March 12, 2015, and when the sheriff and union executed a new contract, the provision had a retroactive effect, and therefore the rights of the 2013-14 contract were applied to the grievants. Those rights included a 120-day probationary period and just cause applied to discipline. The court also noted that the arbitrator did not exceed the scope of his authority in characterizing the employee’s behavior as “horseplay” that merited a five-day suspension, rather than termination. The court of appeals accepted the arbitrator’s decision in this case.
U.S. District Court denies motion for summary judgment in determining whether an acquiring company is liable for contractual liabilities of its predecessor.
Bd. of Edn. of the Springfield City School Dist. v. Computer Automation Sys., S.D.Ohio No. 3:17-cv-330, 2018 U.S. Dist. LEXIS 162573 (Sept. 24, 2018).
From 2009 through 2016, the Springfield City School District Board of Education entered into an agreement with HBH Technology, under which
HBH (formerly known as Computer Automation Systems, Inc.) agreed to provide a comprehensive school Medicaid direct service to the district. The district was eligible for Medicaid reimbursement from the Ohio Department of Medicaid (ODM) if it met the requirements of the Ohio Medicaid School Program. HBH submitted Medicaid claims on behalf of the district from Oct. 1, 2008, through June 30, 2013. ODM rejected those claims in November 2015. HBH continued to submit claims to ODM and provide other services after June 30, 2013.
On Aug. 18, 2017, the board filed a complaint in the Clark County Court of Common Pleas alleging a breach of the agreement by HBH, including failure to comply with its obligation to train, consult, advise, and provide technical assistance to ensure all Medicaid reimbursements were properly prepared, documented and submitted. The board also alleged that HBH continued to breach the agreement by failing to properly report and audit support detailed by their agreement. In its complaint, the board also named TTCO Holding Company, Inc., which acquired HBH as part of a UCC foreclosure sale on May 29, 2014. On Sept. 21, 2017, TTCO removed the action to the U.S. District Court for the Southern District of Ohio, and on Nov. 3, 2017, TTCO filed a motion for judgment on the pleadings arguing that it did not and has not assumed any liabilities of HBH by way of its asset purchase agreement.
Both parties agreed that under Ohio law, an acquiring company may be liable for the contractual liabilities of its predecessor if the: 1) purchaser expressly or impliedly agrees to assume such liability; 2) transaction amounts to a de facto consolidation or merger; 3) purchaser is a mere continuation of the seller; or 4) transaction is entered into fraudulently for the purpose of escaping liability. The court here, held that TTCO’s motion for judgment on the pleadings relied upon extrinsic evidence that was included in unauthenticated and redacted documents attached to TTCO’s answer. The court noted that it could not rule as to successor liability without more facts and information, and as a result, denied TTCO’s motion for judgment on the pleadings.
Ohio district court rejects district’s motion to dismiss Title VII claims in student suicide case, finding district’s response to bullying was unreasonable.
Estate of Olsen v. Fairfield City School Dist. Bd. of Edn., S.D.Ohio No. 1:15cv787, 2018 U.S. Dist. LEXIS 161840 (Sept. 21, 2018).
Emilie Olsen was a student at Fairfield Middle School and Fairfield Intermediate School. Emilie committed suicide in December 2014. Her family claimed that her suicide was the result of bullying she suffered at school and online. Emilie, a female Asian-American, suffered bullying, harassment, assault, battery and discrimination because of her race, national origin, and gender and her association with Caucasian students, and also based upon sex stereotyping and her perceived sexual orientation and practices. Emilie’s family filed a lawsuit against the district and several administrators under Title VII and several state laws.
Title VII of the Civil Rights Act of 1964 states that “no person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” To sustain a student-on-student harassment claim against a school, the claim must demonstrate the following elements: 1) the harassment was so severe, pervasive and objectively offensive that it could be said to deprive the student of access to the educational opportunities or benefits provided by the school; 2) school officials had actual knowledge of the harassment; and 3) school officials were deliberately indifferent to the harassment.
In determining whether the alleged harassment was so severe, pervasive and objectively offensive that it could be said to have deprived someone of access to educational opportunities, courts look to the nature, frequency and duration of the harassment, as well as its effect on the victim. In looking at the harassment Emilie allegedly endured, the court found that the nature, frequency and duration of the harassment, if taken as true, was so severe, pervasive and objectively offensive that Emilie was deprived of access to the educational opportunities or benefits provided by the school.
The court also reviewed the district administrators’ involvement in responding to various allegations of bullying and harassment. The court found that the allegations, if taken as true, supported a plausible claim that the school principal had actual knowledge of the harassment. The court acknowledged that courts should avoid second-guessing school administrators’ disciplinary decisions, but also held that if the allegations were true, the district took little to no action to remedy the peer harassment suffered by Emilie. The complaint alleged that the district did not engage in any investigation of the reports of harassment, and the students involved in the harassment were not disciplined. The court concluded that the allegations, if taken as true, supported a claim that the district’s response to the reports of bullying, harassment, cyberbullying and physical assault and battery was unreasonable. As a result, the court rejected the district’s motion to dismiss the Title VII claims.
The court also denied the district’s motion to dismiss the state law claims of negligence and wrongful death but granted the district’s motion to dismiss the emotional distress, hazing and breach of contract claims. It also dismissed the allegation that the district breached its duty of care and supervision and assumed a heightened duty of care with regard to Emilie.
Court denies district defendants’ motion to dismiss most of the claims filed against them by the estate of an eight-year-old who committed suicide after a bullying incident that left him unconscious.
Meyers v. Cincinnati Bd. of Edn., S.D.Ohio No. 1:17-cv-521, 2018 U.S. Dist. LEXIS 162577 (Sept. 24, 2018).
Gabriel Taye was an eight-year-old third-grade student at Carson Elementary School (Carson) in the Cincinnati City School District. On Jan. 24, 2017, Taye was knocked unconscious by a bully in a Carson bathroom. He was unconscious for about seven minutes. After he regained consciousness, the nurse at Carson evaluated Taye but did not call 911, even though the school’s head injury nursing protocol required emergency medical response any time a student was unconscious or unresponsive for over one minute. When they contacted Taye’s mother, Cordelia Reynolds, administrators at Carson told her Taye had fainted and did not mention that he had been knocked unconscious. Taye had no recollection of the attack, only that he fell and that his stomach hurt.
Taye suffered from stomach pain, nausea and vomiting the night after the attack. Reynolds took him to the hospital, but Taye was not evaluated for a head injury because Reynolds was unaware that he had been rendered unconscious. On Jan. 26, when Taye returned to school, he was subjected to bullying again and, after arriving home from school, he took his own life.
The administratrix of Taye’s estate, along with Taye’s parents, sued the district board of education, superintendent, and Carson’s principal and assistant principal. They alleged the defendants were liable for violating Taye’s substantive due process rights under 42 U.S.C. 1983 by creating a special danger to Taye (a “state-created danger” claim), by failing to protect Taye after depriving his parents’ of the ability to do so (a “special relationship” claim), and by engaging in acts or omissions that shock the conscience (a “shocks the conscience” claim). They also claimed that the district defendants had violated Taye’s equal protection rights, numerous violations of state law, including wrongful death, intentional and negligent infliction of emotional distress, loss of consortium, failure to report child abuse, and spoliation for destroying videotape evidence. The district defendants moved to dismiss all of the claims.
The court granted the defendants’ motion to dismiss the plaintiffs’ denial of due process claim based on a special relationship. However, it denied the defendants’ motion to dismiss the plaintiffs’ due process claims that the defendants created a special danger to Taye and engaged in acts or omissions that shock the conscience.
The court concluded plaintiffs adequately had alleged that: 1) defendants affirmatively acted to create or increase Taye’s risk of violence at the hands of a third party by misrepresenting the bullying incident to Reynolds and by concealing information about bullying at Carson, as a result of which Taye’s parents did not seek appropriate medical care and sent Taye back to school two days after the attack; 2) defendants’ misrepresentations to Reynolds put Taye in special danger that was not shared by the public at large; and 3) defendants acted with subjective recklessness and deliberate indifference. The court also concluded that these acts and omissions were sufficiently serious that a jury could find they shock the conscience.
The court denied the defendants’ motion to dismiss the plaintiffs’ equal protection claim. Regarding the state claims, the court concluded that the defendants were not entitled to political subdivision immunity because they acted recklessly. It also denied the defendants’ motions to dismiss the state claims of wrongful death, intentional infliction of serious emotional distress, loss of filial consortium, and spoliation of evidence. It granted the defendants’ motions to dismiss the claims of negligent infliction of emotional distress and failure to report child abuse.
Ohio Supreme Court rules that ODE is authorized to base funding of internet-based community schools on the duration of student participation.
Electronic Classroom of Tomorrow v. Ohio Dept. of Edn., 2018-Ohio-3126.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2018/2018-Ohio-3126.pdf
Under state law, ODE is required to fund an internet or computer-based school based on the “full-time equivalency” of each student enrolled. The formula for determining how much to pay per student is set forth in Ohio Revised Code (RC) 3314.08(H)(3), which states the following:
“The department shall determine each community school student's percentage of full-time equivalency based on the percentage of learning opportunities offered by the community school to that student, reported either as number of hours or number of days, is of the total learning opportunities offered by the community school to a student who attends for the school's entire school year. However, no internet- or computer-based community school shall be credited for any time a student spends participating in learning opportunities beyond ten hours within any period of twenty-four consecutive hours. Whether it reports hours or days of learning opportunities, each community school shall offer not less than nine hundred twenty hours of learning opportunities during the school year.”
In this case, both ECOT and ODE disagreed about the meaning of the language that no e-school “shall be credited for any time a student spends participating in learning opportunities beyond ten hours within any period of twenty-four consecutive hours.”
ECOT argued the provision only was meant to ensure that the school spread out learning over the school year and operate on a comparable school year calendar to their brick-and-mortar counterparts. It argued that the provision did not condition funding on the student’s participation, but rather prevented an e-school from claiming credit for a student who had access to the materials 24 hours a day and finished the school year in a few months by working around the clock.
The Ohio Supreme Court rejected this interpretation, finding that, by adding the 10-hour limit, the legislature intended to cap the credit ECOT could claim for enrolling a student to 10 hours a day. The court found that the only way the e-school or department could calculate that credit would be by referring to records with evidence of a student’s participation.
The court explained that enrollment — as measured by learning opportunities offered — provides ECOT the “potential” for funding, but the actual “amount” of funding paid must be calculated by student participation. If the formula were based only on hours offered, there would be no need for the language that precludes funding for student participation beyond 10 hours a day.
“The term ‘offer’ is only one word of the operable language of the statute, which when read in full, does not indicate that the legislature intended for e-schools to be funded merely for offering learning opportunities,” the court’s opinion stated.
As a result, the Ohio Supreme Court ruled that ODE was authorized to base the funding of internet- or computer-based community schools, such as ECOT, on the duration of student participation and could require e-schools to provide data documenting the duration of a student’s participation.
The court’s decision was not unanimous, as both Justice O’Donnell and Justice Kennedy issued separate dissenting opinions. Justice O’Donnell held that RC 3314.08 did not authorize the use of durational data as a basis for funding ECOT. “If the legislature had intended to condition funding on the duration of a student’s participation in the learning opportunities offered by a community school, it could have expressed that intent by using a phrase such as ‘based on the percentage of learning opportunities participated in by that student,’ but it did not do so,” O’Donnell’s opinion stated.
In her dissent, Justice Kennedy asserted that the majority interpreted RC 3314.08(H)(3) “more broadly than the General Assembly intended, taking a limited provision for calculating FTE that simply caps the number of hours of learning opportunities available to a student on a given day and inferring from it a new restriction on e-school funding that is not based on enrollment as provided by R.C. 3314.08(C)(2).” In her view, the 10-hour rule was aimed at students who attend an e-school for less than a full year and prevented an e-school from receiving more to educate the student than the state should pay.
“Unmooring RC 3314.08(H)(3) from its context is ... not just a faulty exercise of statutory construction; it has real-world consequences that arrive at the expense of the very students that the legislature sought to empower by providing an alternative to the traditional public schools that already failed them,” she wrote. And “[b]ecause of the challenges that many students attending e-schools already face, such as high rates of mobility, poverty, and special needs, the majority effectively eviscerates the last chance for an education that many students attending an e-school will have.”
Ohio Supreme Court accepts case on issue of whether a criminal conviction is a condition precedent to a civil claim pursuant to Ohio Revised Code (RC) 2921.03.
Buddenburg v. Weisdack, N.D.Ohio No. 1:18-cv-00522, 2018 U.S. Dist. LEXIS 139850 (Aug. 17, 2018).
https://scholar.google.com/scholar_case?case=5416979037197515815&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Rebecca Buddenberg, a former fiscal coordinator at the Geauga County Health District, resigned from her position, alleging her supervisor, Commissioner Robert Weisdack, created such intolerable working conditions that she had no choice but to resign. Buddenberg claimed that Weisdack engaged in unequal pay practices and ethical violations, failed to comply with the agency’s personnel policies, and retaliated against her because she vocalized her opposition to his actions.
Buddenberg’s case was filed on March 6, 2018, in the U.S. District Court pursuant to both federal and state anti-discrimination laws. She alleged violations of three Ohio Criminal statutes and sought civil damages for the violations pursuant to Ohio Revised Code (RC) 2307.60. Specifically, she alleged violations of RC 2921.05 (retaliation), RC 2921.45 (interfering with civil rights) and RC 2921.03(C) (intimidation). Buddenberg sought civil liability for violations of the other two state criminal statutes and the civil rights action.
Weisdack moved to dismiss these claims, arguing that a criminal conviction is a condition precedent to civil liability pursuant to RC 2307.60. On June 28, 2016, the court denied Weisdack’s motions without prejudice, finding no clear authority on whether a criminal conviction is required to bring claims pursuant to RC 2307.60. Weisdack then moved to certify nine questions to the Ohio Supreme Court. The court reviewed Weisdack’s motion and issued an order limiting the questions to two:
1. Does RC 2370.60’s creation of a civil cause of action for injuries based on a “criminal act” require an underlying criminal conviction?
2. Is a criminal conviction a condition precedent to a civil claim pursuant to RC 2921.03?
The OSBA Legal Assistance Fund has authorized and filed an amicus curiae brief in support of Weisdack’s position. We will continue to provide updates as the case proceeds.
Ohio district court denies substitute teacher’s discrimination claims on the grounds that she could not establish a prima facia case of age discrimination or retaliation.
Romano v. Hudson City School Dist. Bd. of Edn., N.D.Ohio No. 5:17-cv-668, 2018 U.S. Dist. LEXIS 70415 (Apr. 26, 2018).
In January 2014, Trisha Romano was employed by Hudson City School District as a full-time, long term substitute teacher for a second-grade class. Romano was 40 years old at the time and already had two years of intermittent substitute teaching experience with the district. During the 2014-15 school year, Hudson posted several K-3 classroom openings for which Romano applied. She was denied the positions on the grounds that she did not have her reading endorsement, but the district continued to employ her as a full-time substitute teacher in the second grade and assigned her a mentor, which was unusual for substitute teachers. In the 2015-16 school year, Romano again applied for a K-3 teaching position but was denied despite her background and recommendations from her supervising principal. Romano applied for several other positions with the district over the next three years, as well as with other districts, but never was hired as a full-time teacher. Romano then alleged age discrimination against the district, under both federal and state law, for failing to hire her when she was over the age of 40 and instead hiring new teachers under the age of 40.
The court granted the defendant’s motion for a summary judgment on the grounds that Romano did not establish a prima facia case of age discrimination or retaliation. In all instances when Romano applied for a full-time teaching position with the district, it presented evidence that the individuals employed were more highly qualified than Romano or that she did not meet the qualifications for the position, both reasons completely unrelated to her age. She also failed to prove that the district’s proffered reasons for not hiring her were a pretext and that the real reason was intentionally retaliating against her based upon her age and age discrimination claim. In fact, most of the employment decisions Romano complained about were, in fact, made before she filed the instant lawsuit and were based upon poor performance during her multiple job interviews.
Election board did not abuse its discretion in denying a petition to place an amendment on the ballot.
State ex rel. Twitchell v. Saferin, Slip Opinion No. 2018-Ohio-3829.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2018/2018-Ohio-3829.pdf
On Aug. 6, 2018, Bryan Twitchell and two other plaintiffs submitted part-petitions in support of a proposed amendment to the Toledo City Charter, entitled the Lake Erie Bill of Rights. The Lucas County Board of Elections verified a sufficient number of petition signatures to qualify the measure(s) for placement on the ballot. However, on Aug. 28, 2018, the board voted 4-0 to refuse to place the proposed charter amendment on the ballot on the grounds that it contained provisions beyond the authority of the city to enact. On Aug. 30, Twitchell filed an expedited election complaint, seeking mandamus to compel the board of elections to place the amendment on the ballot.
To be entitled to a writ of mandamus, a relator must establish, by clear and convincing evidence: 1) a clear legal right to the requested relief, 2) a clear legal duty on the part of the respondent to provide that relief, and 3) the lack of an adequate remedy in the ordinary course of the law. To satisfy the first two prongs of this test, a relator must show the respondent engaged in some form of fraud or corruption, abused its discretion or acted in clear disregard of applicable legal provisions. Because there was no allegation of fraud or corruption, Twitchell was required to show that the board abused its discretion or disregarded the law when it rejected the petition. Twitchell did not show the elections board abused its discretion, but instead, relied on the court’s decision in State ex rel. Flak v. Betras, 152 Ohio St.3d. 244, 2017-Ohio-8109. The court found it not unreasonable for the elections board to look to Flak for guidance on statutory duties and clearly not an abuse of discretion. Twitchell’s writ was denied.
Tennessee cfinds terminated employee fails to state a claim upon which relief can be granted.
Owens v. Shelby Cty. Schools Bd. of Edn., W.D.Tenn. No. 2:18-cv-2345-JTF-dkv, 2018 U.S. Dist. LEXIS 149081 (Aug. 31, 2018).
Emerson Owens was terminated by the Shelby County Schools because he was written up several times for problematic behavior such as eating in the food preparation area, leaving messes in his work area and misplacing trash. He also claimed he was written up for “working too slowly.” Owens also stated that he suffered from depression, hypertension and anxiety and took medication for most of these ailments. He sought reinstatement on the grounds that the district should not have terminated him when it was aware of his disabilities.
In this situation, the court found Owens did not allege enough information to determine whether he had a property interest in continued employment. Under Tennessee law, school employees who are non-tenured have no legitimate claim of entitlement to continued employment that gives rise to a property interest. Additionally, because Owens failed to explicitly make and substantiate discrimination on the basis of disability allegations in his initial complaint, the doctrine of res judicata prevents the claims going forward in the present lawsuit. Owens case was dismissed sua sponte for failure to state a claim upon which relief could be granted.
In applying the single employer doctrine, Michigan court finds sufficient evidence of interrelation of operations and common management to deny motion for summary judgment.
Lakey v. Elite School Mgt., E.D.Mich. No. 17-10425, 2018 U.S. Dist. LEXIS 141455 (Aug. 21, 2018).
https://scholar.google.com/scholar_case?case=9289208621111495676&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Elite School Management manages charter school operations and employs more than 15 employees. Maurice Evans founded Elite, which began managing the Detroit Service Learning Academy (DSLA) in 2013. Prior to founding Elite, Evans served as a DSLA board member. He no longer serves in that capacity, but now serves as DSLA Chief Administrative Officer, giving him general administrative control of DSLA.
In its role with DSLA, Elite maintains an office at the school and is responsible for hiring its full-time teachers and other personnel. As a result of this arrangement, DSLA does not employ any personnel or have any employment decision authority. Rather, the board simply has some degree of authority over employees via policies and procedures set forth by Elite and DSLA.
Ginger Lakey was hired by Elite to work as an administrative assistant in July 2014. Initially she was assigned to DSLA to support the assistant principal, beginning in Aug. 2014. On Oct. 21, 2014, Lakey signed an acknowledgment of receipt of the Elite Employee Handbook, as well as an agreement to shorten the limitations period for bringing any action or suit related to her employment to 180 days. Around this time, she also was reassigned to provide administrative support directly to Evans. Lakey alleged that shortly after she began working for Elite, Evans began to sexually harass her. Lakey alleged this happened on a number of occasions. Ultimately, Elite terminated Lakey’s employment in July 2015.
Lakey sued Elite, DSLA and Evans on Feb. 9, 2017, alleging claims for sexual harassment and discrimination in violation of Title VII and Michigan law. Defendants moved for partial summary judgment, Lakey responded, and a hearing was held on Aug. 9, 2018. Defendants argued that Lakey’s claims against DSLA should have been dismissed because it never was her employer. They also argued that her claims under Michigan law were untimely.
The court noted that Lakey needed to show that DSLA was her employer in order to attach liability under Title VII. In considering whether DSLA was, in fact, Lakey’s employer, the court applied the single employer doctrine, under which two companies may be considered so interrelated that they constitution a single employer and are therefore subject to Title VII liability. This determination requires consideration of four factors: 1) interrelation of operations, for instance, common offices and record-keeping, etc.; 2) common management, directors and board; 3) centralized control of labor relations and personnel; and 4) common ownership and financial control. The court noted that while none of the factors are conclusive, all four do not need to be met in every case. Additionally, the court cited the fact that control over labor relations is a central concern in the analysis.
In this case, the court found that there was sufficient evidence of interrelation of operations and common management to deny the defendants’ motion for summary judgment. The court also found that because Lakey had signed an agreement limiting the time within which she could file a claim under Michigan law, her state law claim was time barred.
INDIVIDUALS WITH DISABILITIES – ATTORNEYS’ FEES
District court grants motion by Akron Board of Education for more than $53,000 in attorneys’ fees and costs against a parent and her counsel pursuant to fee-shifting provision of IDEA.
Barney v. Akron Bd. of Edn., N.D.Ohio No. 5:16CV0112, 2018 U.S. Dist. LEXIS 135556 (Aug. 10, 2018).
https://www.leagle.com/decision/infdco20180813a70
In December 2014, Dalaina Barney filed a due process complaint under the Individuals with Disabilities Education Act (IDEA) against the Akron City Board of Education on behalf of her child, J.B. At the time of the filing, J.B. was in third grade and attended school in the Akron Public School District. Following a lengthy process, the state level review officer (SLRO) found in favor of the board and the district court affirmed the SLRO’s decision.
In a decision issued in November 2017, the district court found that the board may seek attorneys’ fees from Barney and her attorneys, Roderick Linton Belfance, LLP (RLB), and two of its former employees, Jason D. Wallace and Daniel R. Bache, because the plaintiff’s complaint was frivolous, unreasonable and without foundation when filed and the attorneys continued to litigate the claims even after it became obvious they were meritless. (SLS 2018-1)
In this action, the board sought attorneys’ fees and costs from Barney and her attorneys under the fee-shifting provision of IDEA, which allows a local education agency (LEA) to seek the award of attorneys’ fees against the attorney of a parent who: 1) filed a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation; or 2) continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation. IDEA also allows an LEA to seek the award of attorneys’ fees against the parent or the parent’s counsel if the parent's complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.
The court concluded that, as the prevailing party on the merits of every issue in the case, the board was entitled to attorneys' fees and costs against Barney and her attorneys Wallace and Bache, and their former employer, RLB. It held that the attorneys continued to litigate a meritless case and purposely continued to elongate the proceedings in a harassing manner to cause delay. The court also noted that the attorneys failed to provide documents to the board as ordered by the court, failed to appear at scheduled appointments to review the board’s records, and consequently delayed the board’s attempt to timely comply with court orders.
However, the court also concluded, based on information provided by Barney, Wallace and Bache, that it was “inclined to find partial inability to pay and to lower the liability.” The court gave Barney and the attorneys eight days to complete a financial affidavit or a financial statement of debtor and provide additional information for the court to consider in support of their inability to pay. Finally, the court ordered attorney Bache to “forthwith” set up a user account to receive email notifications and documents in the case, pursuant to Local Rule 5.1(c), and to check his email on a regular basis.
In the related action [Akron Bd. of Edn. v. Wallace, N.D.Ohio No. 5:16CV188, 2018 U.S. Dist. LEXIS 160038 (Sept. 19, 2018)], the court dismissed a motion for reconsideration and revision from RLB, confirming that the district may recover attorneys’ fees under IDEA from RLB, as well as from Wallace and Bache who were formerly employed by it.
District court adopts magistrate judge’s report and recommendations (R&R) and concludes that, while district-provided FAPE is not a “Cadillac,” it could become a “serviceable Chevrolet.”
S.H. v. Rutherford Cty. Schools, M.D.Tenn, No. 3:15-cv-0809, 2018 U.S. Dist. LEXIS 165399 (Sept. 26, 2018).
https://www.leagle.com/decision/infdco20180927d91
S.H. was a student in the Rutherford County Schools (RCS) in Tennessee, receiving special education and related services as a student with disabilities. Among other diagnoses, S.H. had Prader-Willi syndrome, a genetic condition that can affect growth and development. Many people with Prader-Willi syndrome exhibit behaviors such as outbursts, aggression, rectal and skin picking, and hunger. Students with Prader-Willi syndrome need substantial individual attention and visual schedules, without which they may experience an escalation in behaviors including aggression and violence.
When S.H was 12, her parents filed a due process complaint against RCS. The complaint was dismissed by an administrative law judge (ALJ), after which S.H.’s parents brought suit alleging that RCS denied her a free appropriate public education (FAPE).
After an evidentiary hearing, the magistrate judge entered an R&R, in which he concluded that S.H. had been denied FAPE. He recommended that RCS be ordered to: 1) obtain formal training for its staff members who work with S.H. about the best educational practices for students with Prader-Willi Syndrome; 2) meet with S.H.’s parents and develop a mutually agreeable individualized education program (IEP) and behavior intervention plan; and 3) reimburse the parents’ attorneys’ fees.
Both RCS and S.H.’s parents filed objections to the R&R. S.H.’s parents objected on the ground that the R&R did not recommend placement for S.H. at King's Daughters’ School (KDS), a residential school. RCS objected to the majority of the R&R. The district court dismissed objections by both sides and found that the R&R appropriately resolved the matter and should be adopted.
The court agreed with the magistrate judge and stated that S.H.’s educational needs, as a result of her Prader-Willi Syndrome, were not being met in RCS’s comprehensive development classroom where she was taught. The court praised the R&R: “[e]xercising Solomonic wisdom, Magistrate Judge Frensley effectively chose the middle ground by finding that RCS could provide a FAPE to S.H. with a bit of training and some tweaking of her IEP.”
The court critically reviewed the ALJ’s oral ruling in the matter and agreed with the magistrate judge’s characterization of the ruling as “conclusory.” It was especially critical of the ALJ’s rejection of the testimony of the parents’ expert, a senior research specialist on Prader-Willi at the Vanderbilt Kennedy Center who had known S.H. since she was 17 months old, in favor of the testimony from RCS employees.
In opposing the parents’ request for placement in KDS, RCS relied upon a metaphor set forth in Doe By & Through Doe v. Bd. of Edn. of Tullahoma City Schools, that while IDEA “requires that . . . schools provide the educational equivalent of a serviceable Chevrolet to every handicapped student. . . it is not required to provide a Cadillac." The court applied the metaphor to the entirety of the case, stating: “Just as placement [at KDS] would be the equivalent of a Cadillac, the education presently provided by RCS is not the serviceable Chevrolet contemplated by the IDEA. It can become such a vehicle, however, with the tune-up and implementation of the recommendations made by” the magistrate judge.
Sixth Circuit finds Tennessee school district denied FAPE and failed to provide LRE and requires district to reimburse parents; remands case to district court to determine amount to be reimbursed.
L.H. v. Hamilton Cty. Dept. of Edn., 900 F.3d 779 (6th Cir.2018).
https://cases.justia.com/federal/appellate-courts/ca6/18-5086/18-5086-2018-08-20.pdf?ts=1534782626
L.H., a Tennessee student with Down syndrome, attended school through second grade at Normal Park Elementary School, his neighborhood school, operated by the Hamilton County Department of Education. L.H.’s parents actively were involved in his education, participated in his individualized education program (IEP) team, and advocated for him to be included in a classroom with typical peers.
During second grade, L.H. began to experience difficulty progressing toward his IEP goals. At his parents’ insistence, those goals had been aligned with the regular education standards for second grade. At the meeting to plan L.H.’s IEP for his third-grade year, the staff at his school proposed moving L.H. to a different school building and a dedicated classroom for students with disabilities. The move would have allowed L.H. to receive his academic instruction in a self-contained classroom, which was not available at the Normal Park School. L.H. would be mainstreamed during lunch and other activities, such as art.
In the district’s view, L.H. could not achieve meaningful progress on his IEP goals in the regular classroom. L.H.’s parents disagreed, withdrew him from Normal Park and placed him in a private school, and requested a due process hearing, claiming that the self-contained setting was not the least restrictive environment (LRE) for their son.
The hearing officer ruled in the school district’s favor. L.H.’s parents appealed the hearing officer’s findings, claiming that the district’s failure to provide L.H. with education in the LRE violated IDEA because it did not provide him with a free appropriate public education (FAPE). They asked for reimbursement of the cost of L.H.’s private education.
The district court agreed with L.H.’s parents on the district’s proposed placement. It ruled that the school district had failed to provide L.H. with FAPE in the LRE because it had been improperly measuring the child’s progress against IEP goals that incorporated the curricular standards applicable to typical students. Instead, the school should have been assessing L.H.’s advancement with respect to his own abilities. However, the district court also held that L.H.’s parents were not entitled to reimbursement for the cost of L.H.’s education because the parents’ placement did not satisfy the IDEA requirements.
The school district and parents both appealed the district court’s decision. The district asked what the appropriate standard, in light of the U.S. Supreme Court’s decision in Endrew F. v. Douglas Cty. School Dist., was to determine that it had complied with the IDEA requirement that a FAPE be provided in the LRE. The parents challenged the district court’s finding that L.H.’s placement in private school did not satisfy IDEA and denial of reimbursement for the costs of the private placement.
The Sixth Circuit Court of Appeals found that the district’s proposed placement of L.H. violated IDEA and did not provide FAPE in the LRE. It characterized the district’s arguments as arguments against mainstreaming as a concept because the district believed education in the LRE is “impossible, impractical, or counterproductive.” It then rejected the district’s argument that LRE is about academic methodology rather than physical location, stating that the teachers at L.H.’s former school failed to properly engage in the process of mainstreaming L.H. in favor of removing him from a classroom with typical peers when it became challenging.
The court found in favor of the parents on the issue of reimbursement. It concluded that the district court erred when it concluded that the L.H.’s education at the private school did not satisfy IDEA, and that L.H.’s parents were entitled to reimbursement for the cost of his education. It remanded the case to the district court to admit evidence and render judgment on the amount of reimbursement that it finds appropriate.
District’s complaint against former superintendent asserts a claim specifically listed as an exclusion under its errors and omissions coverage.
Cuyahoga Hts. Local School Dist. v. Netherlands Ins. Co., et al., N.D.Ohio No. 1:16 CV 1331, 2018 U.S. Dist. LEXIS 163404 (Sept. 21, 2018).
The Cuyahoga Heights Local School District initiated an action against its insurers seeking satisfaction of a $4,199,812 judgment that the district obtained against its former superintendent, Peter Guerrera. The judgment was a result of a series of wrongful acts Guerrera committed in which the district sustained a loss of over $4 million. Guerrera reported the complaint to the district’s insurers, who declined coverage, explaining Guerrera was not an “insured” under the “School Leaders Errors and Omissions” coverage because he was a district employee at all relevant times, working within the scope of his employment. As such, the superintendent was not an “insured” for claims made by the district against its own employee.
The $4 million loss was a direct result from the criminal acts of the district’s IT director, who had created an elaborate fraud scheme. Guerrera was included in the district’s action for recovery against the IT director because the auditor had issued a finding of recovery jointly and severally against the duperintendent and IT director. The district and Guerrera subsequently entered into a consent judgment and a settlement agreement, both of which the insurers assert were unenforceable against them because he was not entitled to coverage as he was not an “insured” under the district’s “School Leaders Errors and Omissions” coverage.
The court first looked at the district’s insurance policy to determine who is insured, which specifically listed employees who are acting in the scope of their duties, except that no employee is insured for claims made by the district for “loss arising out of and in the course of his or her employment or performing duties related to the conduct of the district’s business.” The court found that under the clear terms of the policy, Guerrera was not insured under the policy for claims made by the district arising out of and in the course of his employment or performing duties related to the conduct of the district’s business. The district’s complaint stated that at all times, Guerrera was employed as district superintendent, he was responsible for certain school duties and because of his wrongful acts in performance of those duties, the district sustained a loss in excess of $4 million. As such, the district complaint against Guerrera asserts a claim that specifically applies to the exception in its errors and omissions policy language. Since Guerrera is not insured, the court concluded that the defendant was entitled to summary judgment.
Michigan’s revised Teacher Tenure Act held to not grant teachers a contract right to continued employment.
Schwein v. Bd. of Edn. of Riverview Community School Dist., E.D.Mich. No. 17-13288, 2018 U.S.Dist. LEXIS 139593 (Aug. 17, 2018).
Jennifer Schwein was employed by the Riverview Schools as a teacher in 2001. Under the district’s evaluation rubric, she was rated as “Effective,” but in 2015, she was informed that she would be laid off due to the district’s budget, staff performance and student needs. During the ensuing school year, Schwein was offered a part-time position, which she declined. Throughout that school year, various vacant teaching positions were posted by the district, but Schwein was either not informed of them or not selected to fill the positions. She remained on lay-off status through 2017 during which time she brought suit against the district alleging due process rights violations and violations of her rights under the state’s Teacher Tenure Act (TTA).
In 2011, the Michigan Legislature modified the state school code, changing laws that previously governed teacher lay-offs and recalls by collective bargaining to instead be based on teacher effectiveness. Also modified at that time by the legislature was the TTA, which no longer governed the layoff and recall of teachers. Schwein argued in court that the TTA created a contract right to continued employment, but the court found otherwise. The court noted that the Michigan TTA did not contain language creating “indefinite contracts” between teachers and local school boards and the language did not evidence an express intention of granting tenured teachers a contract right. Because the state’s TTA did not grant teachers a contract right, Schwein’s contracts clause claim also failed and her case was dismissed.
District court blocks school district’s inquiry into sexual histories, but allows limited psychiatric examinations and access to medical records of minors alleging unwanted sexual contact at school.
T.C. v. Metro. Govt. of Nashville & Davidson Cty., M.D.Tenn. Nos. 3:17-CV-01098, 3:17-CV-01159, 3:17-CV-01209, 3:17-CV-01277, 3:17-CV-01427, 2018 U.S. Dist. LEXIS 113517 (July 9, 2018).
https://www.leagle.com/decision/infdco20180710d58
Plaintiffs in consolidated cases are parents of five children who filed separate lawsuits against the Metropolitan Nashville Public Schools (MNPS) on their children’s behalf. The lawsuits allege violations of Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. 1681, and 42 U.S.C. 1983, arising from alleged incidents of “exposing” at two MNPS schools. Exposing is videotaping sex acts without the knowledge of one or more of the students involved and circulating the videos to other students or on the internet. In addition, one of the cases alleged that a student was sexually harassed by a teacher. As a result of the harassment, the students were subjected to name-calling, bullying and harassment online and at school, and were unable to remain in school.
The plaintiffs alleged that harassment was widespread within MNPS, and administrators at the schools were aware that exposing took place. The plaintiffs alleged violations of Title IX and equal protection rights based on MNPS’s failure to train its personnel to handle incidents of sexual harassment, and its deliberate indifference to the ongoing sexual harassment of female students.
The plaintiffs sought a protective order limiting MNPS’s inquiry into the students’ sexual histories with any person other than the male students involved in the alleged harassment. The district court granted the order, concluding that it was well settled that a plaintiff’s private sexual history has no bearing on whether unrelated sexual contact was welcomed. The court, quoting Mitchell v. Hutchings, 116 F.R.D. 481, 484 (D.Utah 1987), concluded: “It is now beyond question in the federal courts that ‘[t]he fact that the plaintiffs may welcome sexual advances from certain individuals has absolutely no bearing on the emotional trauma they may feel from sexual harassment that is unwelcome.’”
The court also granted the plaintiffs’ request for a protective order regarding discovery into the parents’ employment, health and financial records. MNPS argued that the parents’ financial status was relevant to their children’s mental health, because some of the trauma the children suffered may be attributable to poverty and not to the alleged sexual harassment. The court concluded that MNPS’s justification of its need for the information was based on a false equivalence between poverty and trauma.
MNPS filed a motion asking that the court order the minor plaintiffs to submit to psychiatric examinations under Federal Rule of Civil Procedure 35. Because the plaintiffs stated an intent to prove their claims of emotional injuries with the testimony of a retained expert, the court granted the order. It concluded that there was good cause to authorize a Rule 35 examination of the plaintiffs by the MNPS expert. However, the court cautioned that the Rule 35 examination needed to be undertaken within the terms of the protective order regarding discovery of the plaintiffs’ sexual histories.
The court also granted MNPS’s motion to discover the plaintiffs’ social media information, including platforms they used and usernames on each platform so that MNPS could access their public postings. It ordered the plaintiffs to produce all non-public social media content regarding the alleged incidents of harassment and any harassment taking place from two months before the incidents alleged in each plaintiff's complaint to the present.
Finally, the court authorized MNPS to obtain the minor plaintiffs’ medical records, if the plaintiffs did not object to the release on other grounds, from any medical provider from whom records were sought. The order required that notice be given to the plaintiffs’ counsel and prohibited ex parte communications between the plaintiffs’ health care providers and MNPS’s counsel. The order also required the plaintiffs to execute the necessary releases to allow MNPS to access the medical records.
SUNSHINE LAWS – OPEN MEETINGS ACT
County Board of Commissioners did not violate Ohio’s Open Meetings Act by holding five meetings in which information was presented, but no deliberations took place.
State ex rel. Ames v. Portage Cty. Bd. of Commr., 2018-Ohio-2888.
https://cases.justia.com/ohio/eleventh-district-court-of-appeals/2018-2017-p-0093.pdf?ts=1532372065
The Portage County Board of Commissioners were charged with violating Ohio’s Open Meetings Act (OMA) for convening four meetings with a group designated the Jail Overcrowding Task Force (JOTF) and one meeting with the Portage County Tea Party. All meetings were held to receive input regarding the county’s jail overcrowding problem, the opioid epidemic and potential solutions for these issues. The charges alleged that the board had failed to establish a reasonable method by which any person could determine the time and place of certain meetings, meeting minutes were not kept, and that a sales and use tax increase passed by the board should have been invalidated.
At trial, the parties stipulated to most relevant facts concerning the dates, times, and locations of, and which board members attended, the meetings, as well as for which meeting’s minutes were not kept and public notice not provided. The JOTF consisted of community volunteers, the county coroner, and treatment providers, but was not vested with any authority to render decisions or create policy. Board members who attended simply listened to the discussions or offered their personal views on the issues.
The trial court, after receiving all evidence, entered judgment on behalf of the board of commissioners. It held the JOTF was a “task force” not vested with any authority to make decisions or engage in official actions. The court found that during these meetings, no decisions or deliberations occurred, so the board did not violate OMA.
Ames appealed, arguing that the JOTF was a subcommittee of the board and that a majority of the board did deliberate on the pros and cons of a tax increase at one of the meetings in question. The appeals court looked at the statutory definition of a meeting, defining it as any prearranged discussion of the public business of the public body by a majority of its members. Furthermore, in order for OMA to apply, the public body must “deliberate” over public business at the meeting. The court defined deliberating as involving more than information gathering, investigation or fact-finding.
In this situation, both parties stipulated that the gatherings between the board and JOTF were pre-arranged meetings. Whether JOTF was a board subcommittee was irrelevant to the factual question of whether the board “deliberated” during those meetings. The trial court found it did not deliberate, and the appellate court agreed.
The evidence produced at trial showed that board members mostly listened and said very little at the meetings. Most importantly, board members did not exchange ideas with each other, an essential function in conducting deliberations. Similarly, on the tax increase proposal, no evidence was presented that indicated board members discussed the proposal between themselves at the meeting as it too was limited to information sharing. Therefore, the appellate court held the board of commissioners did not violate OMA at any of the five meetings at issue.
SUNSHINE LAWS – OPEN MEETINGS ACT
Village Council did not violate Ohio’s Open Meetings Act by entering executive session to discuss a settlement agreement related to pending litigation and then approving the agreement in open session.
State ex rel. Huth v. Village of Bolivar, 2018-Ohio-3460.
https://cases.justia.com/ohio/fifth-district-court-of-appeals/2018-2018-ap-03-0013.pdf?ts=1535480978
The Village of Bolivar Village Council was engaged in pending litigation with the Lake Region Development Co., Ltd. when, in spring 2014, Lake Region Development offered to settle the dispute. As a result, on May 18, 2014, the village council published legal notice that it would be holding a special meeting for the purpose of considering a settlement offer in the case. The notice stated that council intended to discuss the pending litigation matter in executive session, but would take action during the public portion of the meeting. The meeting took place as scheduled.
Bolivar’s mayor, Rebecca Hubble, called the meeting to order and stated the village council would enter executive session. Irvin W. Huth, the appellant in this case, asked Hubble if the public would be permitted to speak after executive session. Hubble advised that the general consensus was no, but that the council would make that decision after executive session. Huth’s attorney, Michela Hutch, who also was at the meeting, then asked the village council what it was going to discuss during executive session. Jillian Daisher, an attorney for the village council, advised that the council would be discussing pending litigation. The meeting proceeded and, even though they were advised that the council would not be taking any further questions, Huth and his attorney continued to interrupt.
A council member moved to go into executive session and again was interrupted by Huth’s attorney resulting in the council member’s failure to state the purpose of the executive session in her motion. The motion was seconded and a roll call vote taken with all members voting yes to enter executive session. Huth and his attorney continued to speak over council members throughout this process. Following executive session, after the public reentered the room, Hubble announced that the public would be allowed to speak per the council’s public participation policy. Another attorney for the council, Tami Hannon, described the settlement agreement, followed by questions and comments from the public, including Huth. At the close of public discussion, a council member moved to suspend the council’s rules to pass the settlement agreement. The motion to pass the settlement agreement was seconded and passed in a 5-1 vote.
On May 18, 2016, Huth filed a complaint for an injunction citing six causes of action against the village council alleging that the council had violated Ohio’s Open Meetings Act (OMA). A bench trial was held on Oct. 17, 2017. On March 6, 2019, the trial court entered a judgment in favor of the village council, dismissing each count of Huth’s complaint. Huth appealed.
First, Huth argued that the trial court erred in dismissing count one of his complaint when it found the village council had substantially complied with OMA in stating its reasoning for entering executive session. The appellate court noted that the party asserting an OMA violation bears the burden of proving such violation. The court also highlighted OMA’s intent, which is to prevent public bodies from engaging in secret deliberations on public issues with no accountability to the public.
In this situation, the court found that the notice for the special meeting clearly stated the purpose for both the meeting itself and the executive session. Hubble also notified those present at the meeting that the council would be entering executive session. Also, during the meeting, an attorney for the council stated that the council would be entering executive session to discuss pending litigation. The court noted that, although the motion itself did not state the reason, taking the full situation into consideration, it was clear that the public was well informed that the purpose of the meeting and the executive session was to discuss the pending litigation and settlement.
Huth also argued that the trial court erred in finding that the discussion regarding permitting public participation during executive session was not an OMA violation. The court pointed to the village council’s policy on public participation which stated that all public bodies of the village had the discretion to allow or disallow public comment at each meeting. It also noted that in order for an OMA violation to occur, some resolution, rule, or formal action must have been adopted by the council after deliberating in a meeting not open to the public. As a result, the court found that any lack of public deliberation, or alleged discussion during executive session regarding public participation, was not an OMA violation because it did not constitute a formal action, resolution or rule.
In his next assignment of error, Huth argued that discussing the settlement agreement did not meet the requirements of discussions of pending litigation permitted to occur in executive session. The court, however found that OMA permits a public body to discuss and deliberate in executive session on pending litigation, including settlement agreements or offers so long as any action taken on the matter was adopted in an open meeting. The court rejected Huth’s argument as to this point and affirmed the judgment of the court of common pleas.