This issue includes: Attorneys’ Fees – Administrative Proceeding • Autism Scholarship Program • Construction • Discrimination – Disability • Discrimination – Race And Sex • Individuals With Disabilities • Individuals With Disabilities – Exhaustion Of Remedies • Open Meetings Act • Nonteaching Employee – Continuing Contract • Nonteaching Employee – Rights • Retirement – Benefits • School Buildings • SERB – Authority • Student – Suspension • Superintendent – Contracts • Tax – CAUV • Tax – Valuation/Real Property • Teacher – Licensure • Teacher – Non-Renewal • Teacher Termination
ATTORNEYS’ FEES – ADMINISTRATIVE PROCEEDING
U.S. federal court finds board of education can seek to recover expenses related to hearing officer fees and transcripts in addition to attorneys’ fees pursuant to IDEA.
Akron Bd. of Edn. v. Wallace, N.D.Ohio No. 5:16CV188, 2017 U.S. Dist. LEXIS 193504 (Nov. 22, 2017).
On Dec. 15, 2014, the law firm Roderick Linton Belfance, LLP (RLB), filed an Individuals with Disabilities Education Act (IDEA) complaint on behalf of Delaina Barney, whose child was a student in the Akron City School District. Jason Wallace and Daniel Bache, also named in the Board’s complaint, were employed by RLB as attorneys at the time the original due process complaint was filed. The complaint, filed against the Akron Board of Education (Board), alleged the student was not afforded a free appropriate public education (FAPE). The Ohio Department of Education (ODE) assigned an independent hearing officer (IHO) to the complaint. On June 11, 2015, the IHO issued a decision denying the parent’s due process complaint in its entirety and as a result, entitling the Board to prevailing party status. RLB then appealed the IHO’s decision to the state law review officer (SLRO), who issued a final decision and order on Nov. 9, 2015, affirming the IHO’s decision.
In December 2015, RLB continued to litigate the due process action by filing notice of appeal seeking a review of the SLRO’s decision. On Jan. 19, 2016, the Board removed the case to the U.S. District Court for the Northern District of Ohio, and filed an action to recover fees in the administrative proceedings under IDEA. Proceedings in this case were stayed until the final administrative appeal resolution. On Sept. 22, 2017, the court found in favor of the Board, granting the Board’s motion for judgment on the administrative record, and affirming the IHO’s and SLRO’s decisions. On May 5, 2017, RLB filed a motion for judgment on the pleadings and/or to dismiss for lack of subject matter jurisdiction based on a number of arguments.
RLB first argued that attorneys’ fees were improper in this case because federal law does not explicitly provide for the award of reasonable attorney’s fees as part of the costs to a prevailing party against the attorney of a parent filing a frivolous cause of action, or against a law firm. In denying RLB’s motion for judgment on the pleadings, the court found that RLB’s due process complaint was frivolous, unreasonable and without foundation when filed, and that Bache and Wallace continued to litigate the claims even after it became obvious that their claims were meritless. Additionally, the court noted that RLB also should be held responsible for its former associates’ advocacy of such meritless claims.
RLB also argued that the Board’s complaint for fees was not timely filed. The court noted that IDEA specifies that a party aggrieved by administration findings and decisions made under IDEA has a right to appeal the administration findings by bringing action in federal court. While IDEA does not authorize recovery of attorneys’ fees by the prevailing party, federal law provides for independent court action for such release with no express statute of limitations. The court, relying on an approach taken by the Fifth, Seventh and Eighth Circuits, noted that the time limit for a prevailing party at an administrative IDEA hearing to seek attorneys’ fees does not begin to run until the aggrieved party’s time for challenging the hearing officer’s decision expires. Here, Barney had 90 days to challenge the Nov. 19, 2015 SLRO decision, therefore, the Board’s complaint was timely filed on Jan. 26, 2016, which was 78 days after the SLRO’s decision. Therefore, the court found the Board’s complaint to be timely.
The court also found that a board of education may seek expenses related to hearing officer fees and transcripts in addition to attorneys’ fees, pursuant to IDEA’s fee-shifting provision. The court cited Utica Community Schools v. Alef, where it was concluded that administrative hearing costs are included within the term of “costs” under IDEA. Here, the court held that as the prevailing party of administrative proceedings, the Board had the ability to seek expenses, including costs related to court reporter and hearing officer fees incurred in administrative proceedings related to RLB’s frivolous due process complaint. The court also noted its wide discretion in considering any such requests.
Appeals court upholds Ohio Department of Education’s requirement of separate registration for each location where a private provider is offering services under the Autism Scholarship Program.
Silver Lining Group EIC Morrow Cty. v. Ohio Dept. of Edn. Autism Scholarship Program, 2017-Ohio-7834.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2017/2017-Ohio-7834.pdf
Ohio’s Autism Scholarship Program (ASP), a school choice option, allows parents of children diagnosed with autism to access public funding and have their children’s individualized education programs (IEP) implemented by private providers or alternative public providers. In order to provide services to families in ASP, private providers are required to register with the Ohio Department of Education (ODE). In January 2013, ODE notified registered private providers that, if they had multiple locations, they would need to complete registration applications for each location.
Silver Linings Group (SLG) and Behavioral Intervention Institute of Ohio (BIIO) were affiliated registered private providers, rendering services and receiving payments under ASP. SLG opened in Mansfield in 2007 and BIIO opened in 2009 in Westlake. In 2012, BIIO opened a second location in St. Clairsville and SLG opened a second location in Columbus.
SLG and BIIO received the January 2013 notice of the requirement to separately register their St. Clairsville and Columbus locations. SLG and BIIO also received a reminder of the requirement sent to all providers in early March 2013, and emails sent specifically to them in June and September inquiring about their Columbus and St. Clairsville locations.
On Oct. 7, 2013, ODE notified SLG and BIIO that it would withhold payments from ASP for students attending their Columbus and St. Clairsville locations until the locations became registered providers. An application for the St. Clairsville location was submitted on Oct. 8, 2013, and for the Columbus location on Oct. 11, 2013. Following multiple requests for corrections and supplemental information, the St. Clairsville location was approved as a registered provider in April 2014. The Columbus location was not approved during the 2013-2014 school year.
SLG and BIIO filed a complaint against ODE, asserting the ODE owed them more than $360,000 for ASP services they had provided. The crux of the complaint was the definition of the term “registered private provider,” as used in Ohio Revised Code (RC) 3310.41(B), which stated that ASP funds were to be used to pay tuition for a child to attend a program implementing the child’s IEP that was operated by an alternative public provider or a registered private provider.” RC 3310.41(D) used the same term, prohibiting any payment of ASP funds to a nonpublic entity unless it was a “registered private provider.” RC 3310.41(E) charged ODE with adopting rules to implement ASP, including “procedures for approval of entities as registered private providers.”
The trial court granted summary judgment to ODE on the claim. SLG and BIIO appealed. The court of appeals, noting that a statute should be interpreted only if its language is ambiguous or susceptible to more than one reasonable interpretation, concluded that the term “registered private provider,” as used in RC 3310.41, was ambiguous. The court stated that it would give due deference to ODE’s interpretation of the term, and found that it was reasonable for ODE to require all locations of a provider to register in order to effectively enforce ASP requirements.
The appeals court upheld the trial court’s summary judgment in favor of ODE and dismissed or did not address the appellant’s other claims.
Appeals court reverses trial court, concludes that construction statute of repose applies only to tort actions and does not preclude actions based on breach of contract.
New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., 2017-Ohio-8521.
https://www.supremecourt.ohio.gov/rod/docs/pdf/3/2017/2017-ohio-8521.pdf
New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., 2017-Ohio-8522.
https://www.supremecourt.ohio.gov/rod/docs/PDF/3/2017/2017-Ohio-8522.pdf
The New Riegel School District built a new school facility as part of the Ohio Classroom Facilities Assistance Program. The school began occupying the building on Dec. 19, 2002, and the project was completed in March 2004.
Over time, the school district began having issues with the facility, including condensation and moisture intrusion allegedly caused by design and construction errors. In 2015, the school board filed a lawsuit against Buehrer Group Architecture & Engineering, Inc. (Buehrer), the estate of Huber H. Buehrer (estate), Studer-Obringer, Inc. (SOI), Charles Construction Services (CCS), American Buildings Company (ABC) and the Ohio Famers Insurance Company (OFIC). The complaints alleged that SOI, the general trades contractor, and CCS, the roofing contractor, had breached their contracts for failing to conform to the required standard of care to perform in a workmanlike manner. It alleged that Buehrer breached its contract by failing to perform in accord with professional standards, failing to report its findings related to defective work, failing to make appropriate recommendations for repair and improvement, and failing to comply with state and local statutory responsibilities, and that the estate was liable for Buehrer’s debts.
Between August 2016 and October 2017, the trial court granted summary judgment to Buehrer, the estate, SOI, COS, and OFIC. The court concluded that the district’s claims against these defendants were time-barred by the statute of repose (Ohio Revised Code (RC) 2305.131(A)(1)) because they were brought more than 10 years after the project was completed. The claim against the estate also was time-barred by RC 2117.06, which limited the time after a decedent’s death during which claims against the estate could be brought. The district appealed all of these judgments and argued that its claims were breach of contract claims, to which the statute of repose did not apply.
The appeals were assigned case numbers 13-17-03 (SOI), 13-17-04 (Buehrer and the estate), and 13-17-06 (CCS and OFIC). The appeals court took up two of the cases – the ones involving SOI, CCS and OFIC – in one decision, and the other case, involving Buehrer and the estate, in a separate decision.
The appeals court reversed the trial court’s decisions and held that the statute of repose does not apply to breach of contract actions. It based its decision on prior holdings of the Supreme Court of Ohio. However, while it followed the previous decisions, the appeals court noted that it disagreed with them. In both opinions, the appeals court stated that a clear reading of the statute did not support the previous decisions of the Supreme Court of Ohio – the statute of repose should not be limited “to claims for torts only.” Although the district labeled its claims as breaches of contract, the court concluded the district was “trying to collect damages resulting from an improvement … to real property. The statute specifically prohibits this. Thus, it would appear that the statute specifically denies the claims in this case.”
As a result of the appeals court’s decision, the matters involving the claims against SOI, Buehrer, CCS and OFIC were remanded to the trial court for further proceedings. However, the appeals court upheld the trial court’s dismissal of claims against the estate on the basis that they were not filed within six months after the date of the decedent’s death and were therefore barred by RC 2117.06.
Appeals court concludes that teacher forfeits her status as a qualified individual under the Americans with Disabilities Act when she rejects district’s offered reasonable accommodations.
Hargett v. Jefferson Cty. Bd. of Edn., 6th Cir. No. 17-5368, 2017 U.S. App. LEXIS 21799 (Oct. 27, 2017).
Avadawn Hargett was employed as a teacher by the Jefferson County Public Schools beginning in 1987. She began teaching third grade in 2007. In May 2013, Hargett was granted leave under the Family Medical Leave Act (FMLA) through Aug. 27 to undergo knee surgery. After her surgery, Hargett’s doctor determined that she could not return to work until Oct. 6, and then only if she avoided prolonged standing or walking. In a letter dated Oct. 4, the doctor stated that Hargett could return to work without restrictions on Jan. 1, 2014.
The district hired another teacher as Hargett’s replacement in her third-grade classroom, who began teaching on Oct. 19, 2013. On Nov. 4, 2013, Hargett’s doctor sent another letter stating that Hargett could return to work without restrictions on Nov. 6. The district offered Hargett a position teaching first grade which Hargett declined. She asked the district to return her to her third-grade classroom with accommodations, including a teaching assistant or parent volunteer to walk with her students to the computer lab, on bathroom breaks and during fire drills. The district declined Hargett’s requests as unreasonable and offered Hargett the use of a wheelchair during the times she would be required to navigate the hallways or stay in one place. Hargett declined.
On Jan. 8, 2014, Hargett asked for a placement to any class above third grade. The district assigned her to an eighth-grade classroom and she began teaching on Jan. 13. The school provided Hargett with a high stool to accommodate her knee while teaching. In February, Hargett was asked to monitor the hallways between classes. Hargett was concerned about hall duty because she could reinjure her knee when standing in a busy hallway between classes. She and the school discussed the hall duty over the next three months. The school offered Hargett a stool to sit on while monitoring the hallway or the ability to monitor while standing or leaning in an alcove near her classroom. Rather than accepting these offers, Hargett submitted a note from her doctor saying that she should avoid hall duty to reduce the risk of reinjuring her knee.
At the end of the school year, the school informed Hargett that she would be required to perform hall monitoring duty at busy times of the day or take medical leave. Hargett elected to apply for disability retirement beginning in July 2014.
Hargett filed a complaint alleging discrimination under the Americans with Disabilities Act (ADA), FMLA and Kentucky Civil Rights Act (KCRA). She claimed that the district refused to offer a reasonable accommodation to allow her to continue to teach in her previous position, constructively discharged her, interfered with her right to request leave under FMLA and retaliated against her for exercising her FMLA rights. The U.S. District Court for the Western District of Kentucky granted summary judgment for the district and dismissed all of Hargett’s claims. Hargett appealed.
The appeals court agreed with the district court. Regarding her reasonable accommodation claim, the court noted the ADA requirement that, in order to determine the appropriate accommodation, both parties must participate in good faith in an interactive process. When there was more than one reasonable accommodation, the choice of the accommodation was the employer’s, and an employee who declined an offered reasonable accommodation forfeited his or her status as a qualified individual with a disability for ADA purposes. The court concluded that, by failing to engage in the interactive process and refusing the district’s offered reasonable accommodations in 2013 and 2014, Hargett forfeited her status as a qualified individual with a disability.
On her claim of constructive discharge, the court concluded that Hargett failed to demonstrate that she was the subject of an adverse employment action. She did not provide any facts suggesting that her working conditions were so difficult or unpleasant that a reasonable person would have felt compelled to resign. Regarding her FMLA clam, the court concluded that the district offered legitimate reasons, unrelated to Hargett’s exercise of her FMLA rights, for reassigning her from her third-grade teaching position to an equivalent employment position with equivalent pay, benefits, and terms and conditions.
Ohio court of appeals upholds summary judgment when an employee failed to meet the initial burden of establishing race or sex discrimination.
Speller v. Toledo Pub. Schools Bd. of Edn., 2017-Ohio-7994.
https://law.justia.com/cases/ohio/sixth-district-court-of-appeals/2017/l-16-1231.html
Sandra Meeks Speller started working as a teacher for Toledo Public Schools (TPS) in 1996. Starting in fall 2007, Speller served as assistant principal at DeVeaux Middle School. In 2009, a new principal was hired at DeVeaux. At first, the new principal praised Speller’s work, but by January 2011, the principal completed an evaluation wherein he recommended that Speller be transferred and given assistance through an intervention program for professional growth.
Speller was transferred to an elementary school for the 2011-12 school year. In September 2011, the elementary school principal and the assistant superintendent of the district met with Speller to discuss concerns about her professionalism. Speller was assigned a mentor. Complaints then surfaced about Speller’s behavior, including inappropriate language and conduct with students, parents and teachers, and numerous occasions of Speller being late to cover or failing to cover her cafeteria shifts.
In June 2012, an internal hearing was held to address five disciplinary charges brought against Speller by TPS. In July, a hearing officer found that the allegations were founded and constituted insubordination and recommended that Speller’s employment be terminated. Speller appealed.
In November 2012, an evidentiary hearing was held before an impartial referee. In May 2013, the referee issued a written recommendation not to terminate Speller. In June 2013, the TPS board of education passed a resolution terminating Speller’s employment. The resolution contained specific reasons why the referee’s recommendation was rejected.
In July 2013, Speller also filed a lawsuit alleging the following claims against the board: violation of Ohio Revised Code (RC) 3319.16, violation of RC 3319.12, malicious breach of contract, defamation, intentional infliction of emotional distress, unlawful gender and race discrimination, and unlawful retaliation. The court granted the board’s motion to dismiss the RC 3319.12 and malicious breach of contract claims. The court also ruled on the RC 3319.16 claim, and affirmed the board’s decision to terminate Speller.
In June 2014, Speller voluntarily dismissed her remaining, unresolved claims. In July 2014 and June 2015, she filed a complaint alleging the claims she previously dismissed. In September 2016, the trial court granted the district’s motion for summary judgment. Speller appealed.
On appeal, the court of appeals held that the trial court did not err by granting summary judgment on the discrimination claims in favor of the school and its employees. Speller argued that she was replaced by a white male and there were numerous comparable, non-protected employees who were disciplined but not terminated. However, the court found that because her “comparables” were not similarly situated in all respects and the charges lodged against the white employees were not as extensive as the charges lodged against Speller, she failed to produce evidence that comparable, non-protected employees were treated more favorably than she was. As a result, the court held that Speller failed to meet her initial burden of establishing a prima facie case of race or sex discrimination. The court also rejected Speller’s claims of retaliation, wrongful infliction of emotional distress, tortious interference with business relationship, false light, and defamation, finding the claims were unsubstantiated by the record.
District court finds that school district did not violate any IDEA procedural safeguards and the student’s IEP was reasonably calculated to confer an educational benefit.
Barney v. Akron Bd. of Edn., N.D.Ohio No. 5:16CV0112, 2017 U.S. Dist. LEXIS 155694 (Sept. 22, 2017).
J.B. was a third grader with ADHD and a severe peanut allergy who attended Akron Public Schools. In December 2014, J.B.’s parents filed a due process complaint against the district alleging that J.B. was denied a free appropriate public education (FAPE). An independent hearing officer (IHO) conducted a hearing over several days. At the conclusion of the presentation of evidence, the board moved for a directed verdict on all issues. The IHO granted a directed verdict on three issues, finding that J.B.’s parents did not prove by a preponderance of the evidence that J.B.’s individualized education program (IEP) was inadequate, that J.B.’s placement was not the least restrictive environment (LRE) and that J.B. was entitled to a manifestation determination hearing. J.B. filed a motion for reconsideration and a motion for sanctions.
In June 2015, the IHO issued her decision concluding that she properly granted the board’s motion for directed verdict. J.B. appealed the decision to the state level review officer (SLRO), who issued a final decision that affirmed the decision of the IHO. In December 2015, J.B. appealed to the court of common pleas.
On appeal, J.B.’s parents alleged that J.B. was denied FAPE by the district for a number of reasons. First, J.B. alleged that the district’s reevaluation of J.B. in 2014 was inadequate. The court rejected this argument, finding that the district used a variety of technically sound instruments to make an accurate assessment of J.B., that J.B.’s parents were present and provided with an opportunity to discuss the results of the evaluation, and that no objections were raised about the evaluation until the due process complaint filing.
Second, J.B. alleged that the IEP developed by the district was inadequate and not appropriate. The court rejected this argument as well, finding that the SLRO and IHO properly found that the district created an appropriate IEP and the IEP was properly implemented. The court found that J.B.’s parent was present and had meaningful participation at the IEP meetings, that the IEP team took time to explain the goals and the reasoning of the goals to J.B.’s parent, and that the IEP team didn’t predetermine the IEP for J.B. without considering his mother’s input. The court also found that J.B. was benefitting from individualized instruction and had made measurable progress towards annual goals.
Third, J.B. alleged that the IEP did not sufficiently address J.B.’s safety in regard to his peanut allergy. The court held that the SLRO and IHO properly found that the school district took the necessary precautions to avoid a possible allergic reaction.
Fourth, J.B. argued that the district improperly segregated J.B. and denied him the right to be educated with his non-disabled peers in the LRE. The court found that J.B. was not impermissibly segregated from his non-disabled peers, since he spent most of the day with his non-disabled peers and was only asked to eat breakfast outside his classroom on one occasion when there was a fear that J.B. would have an allergic reaction. Before removing J.B. from the classroom on that one occasion, the district obtained permission from J.B.’s grandfather.
The court found that the board did not violate any of the procedural safeguards of IDEA, and the IEP developed by the school was reasonably calculated to confer an educational benefit. As a result, the court found that J.B. was not denied FAPE.
District court finds that because hearing officer remanded case back to district to convene an IEP meeting, parents failed to exhaust administrative remedies.
E.G. v. Anchorage Indep. Pub. Schools, W.D.Ky. No. 3:16-CV-00804-TBR, 2017 U.S. Dist. LEXIS 167641 (Oct. 10, 2017).
E.G., is a student who has been diagnosed with autism. E.G. attended Anchorage Public Schools in Kentucky through his eighth-grade year. During that time Anchorage and E.G.’s parents worked together to develop an effective individual education program (IEP).
Anchorage does not offer education beyond the eighth grade. As such, at the conclusion of eighth grade, Anchorage contracts with neighboring districts to provide educational services to its students. For the 2015-16 school year, Anchorage contracted with Jefferson County Public Schools (JCPS) to provide education for E.G. JCPS held a meeting in July 2015 to devise an IEP for E.G.’s high school education. After that meeting, E.G.’s mother discovered that JCPS had relied on an out-of-date IEP from Anchorage in forming E.G.’s new IEP. JCPS agreed to hold another meeting to correct the error, but the parents indicated that they were not interested in pursuing services at JCPS or holding an additional meeting to correct the error.
In August 2015, E.G.’s parents asked Anchorage to hold another meeting with Anchorage personnel and without JCPS personnel present. Anchorage refused. Thereafter, E.G.’s parents enrolled E.G. at the Bluegrass Center for Autism and filed a request for a due process hearing, claiming that Anchorage failed to provide E.G. with a free appropriate public education (FAPE). A due process hearing was held and the hearing officer determined that Anchorage provided FAPE to E.G.
E.G.’s parents appealed to the state exceptional children appeals board (ECAB), which held that: 1) Anchorage had no duty to consider a private placement for E.G. unless it was unable to provide FAPE through a contract with a public school; 2) the meetings with JCPS were properly conducted; 3) the school did not have a procedural duty to give written notice regarding placement or refusal to change placement when it contracted with JCPS to provide high school services; and 4) the process of developing the IEP had not been completed. The case was remanded to Anchorage to convene an IEP meeting.
E.G. brought an action against the district in federal court. In E.G.’s view, ECAB’s decision “reversed the hearing officer” by finding that JCPS’s proffered IEP was not reasonably calculated to provide E.G. with an adequate education benefit and that the Bluegrass Center for Autism was a placement capable of implementing the kind of IEP E.G. needed. Anchorage moved to dismiss E.G.’s claims for lack of subject matter jurisdiction, arguing that because ECAB remanded the case to Anchorage to convene an IEP meeting, the administrative process was incomplete and E.G. failed to exhaust his administrative remedies.
The court agreed with the district, finding that the mere label of the ECAB’s decision as “final and appealable” didn’t constitute a finding that E.G. exhausted all administrative remedies. Rather, ECAB emphasized that it was remanding the case in order for Anchorage to convene another meeting to devise a proper IEP. Since E.G. failed to see the administrative process through on remand, the court found that he failed to fully exhaust his administrative remedies. As a result, the court granted the district’s motion to dismiss.
INDIVIDUALS WITH DISABILITIES – EXHAUSTION OF REMEDIES
Citing a recent U.S. Supreme Court decision, District Court holds that students and parents are required to exhaust remedies available under IDEA for denial of FAPE before pursuing other claims.
H.C. v. Fleming Cty. Ky. Bd. of Edn., E.D.Ky. No. 5: 16-235-DCR, 2017 U.S. Dist. LEXIS 155973 (Sept. 25, 2017).
https://scholar.google.com/scholar_case?case=1273994507829924754&q=H.C.&hl=en&as_sdt=4,338
R.D.C. was a student at Hillsboro Elementary School (HES) during the 2014-15 and 2015-16 school years. During that time, he was cited 26 times for bullying, harassment, disrespectful behavior, defiance of authority and fighting. R.D.C. denied being at fault for most of these incidents, claiming that school personnel made things up and that no one believed him. The school principal and R.D.C.’s fifth-grade teacher separately referred R.D.C. for counseling in October 2014 and October 2015, but his parents refused counseling sessions on both occasions.
R.D.C.’s mother, H.C., believed that her son was being mistreated by students and school personnel. When H.C. was contacted by school personnel, she reacted in an angry and threatening manner and the court noted that the record was “replete with contentious encounters between H.C. and the HES staff.” H.C. viewed her actions as aggressive protection of her child; HES staff viewed H.C.’s actions as intimidating, bullying and abusive behavior. Following complaints from HES personnel, in November 2015, the superintendent requested that H.C. direct all future communication to staff through the HES office rather than to their personal phones.
Shortly thereafter, H.C.’s attorney sent a letter to the district superintendent requesting a Sec. 504 hearing, citing the district’s failure to identify R.D.C. and provide him with a free appropriate public education (FAPE). R.D.C.’s teachers and principal claimed that, before receiving this letter, neither were they informed that R.D.C. had any diagnosis of a disability nor had they formed the conclusion that a referral for an evaluation was needed.
In December, R.D.C. was involved in several disciplinary matters, culminating in a three-day suspension for hitting a classmate with an oversized pencil. In January 2016, during an argument with another student, R.D.C. allegedly threatened to shoot the student. Both R.D.C. and the other student were suspended for three days and required to undergo a threat assessment before returning to school. At the same time, H.C. was notified by the district superintendent not to come on school property without his prior permission. The threat assessment on R.D.C. was not performed until March 2016 and was not provided to the district until Apr. 27, 2016. On Mar. 21, H.C. attempted to bring R.D.C. to school. The school secretary told H.C. she was prohibited from entering school property and the superintendent filed a criminal trespass complaint against her. Truancy charges were also filed against H.C. because R.D.C.’s sister did not attend school while he was absent.
R.D.C. filed a federal action against the district and district employees, alleging that they failed to provide him with FAPE and discriminated against him in violation of Sec. 504, the Americans with Disabilities Act (ADA), and 42 U.S.C. 1983. R.D.C. and H.C. both alleged that defendants retaliated against them in violation of state and federal law, and alleged state claims of negligence and intentional infliction of emotional distress.
The court granted summary judgment for the district and district employees and dismissed all of the plaintiffs’ claims. Regarding the discrimination claims under Sec. 504, the ADA and Sec. 1983, the court applied the precedent in Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017), and concluded that the gravamen of the plaintiffs’ claims involved denial of FAPE. As a result, the plaintiffs were required to exhaust remedies available under the Individuals with Disabilities Education Act (IDEA) before pursuing these claims. The court dismissed the plaintiffs’ claim that exhaustion does not apply because they sought money damages, a remedy that was not available under IDEA, saying that seeking money damages does not “in itself” excuse the exhaustion requirement.
The court dismissed the plaintiffs’ claims of retaliation because, while they demonstrated that the district had taken adverse actions against them, they did not provide any evidence that the district’s actions were discriminatory. The court found that the district’s actions were legitimate and nondiscriminatory and that there was no evidence that the district’s proffered reasons were pretextual. The plaintiffs’ state claims against the district were dismissed on the basis of governmental immunity. Their state claims against the individual defendants were dismissed on the basis that the defendants’ conduct did not violate the plaintiffs’ constitutional rights.
Ohio appellate court finds village council did not violate the Open Meetings Act.
State ex rel. More Bratenahl v. Bratenahl, 2017-Ohio-8484.
https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2017/2017-Ohio-8484.pdf
In January 2016, Patricia Meade, a Bratenahl resident, and a community news publication distributed by Meade filed a complaint against the village of Bratenahl and its councilmembers (Bratenahl) alleging violation or threatened violation of Ohio’s Open Meetings Act (OMA) by casting secret ballots when selecting a Bratenahl Council President pro tempore in January 2015. In April 2016, Meade filed an amended complaint, adding Bratenahl Mayor John Licastro as a respondent, and adding more OMA violations to her complaint including: 1) threatening to violate OMA by failing to keep and maintain minutes of Bratenahl Council Finance Committee meetings held from January 2016 through April 2016; and 2) conducting public business in illegal executive sessions in August 2015 and November 2014. Meade filed a motion for summary judgment, which was opposed by Bratenahl. In December 2016, the trial court denied Meade’s motion and granted summary judgment in favor of Bratenahl. Meade then appealed.
Meade first argued that Bratenahl violated OMA on Jan. 21, 2015, when it used “secret written ballots” to elect a president pro tempore. Two councilmembers were nominated to serve as president pro tempore during the January meeting. One councilmember asked whether voting by secret ballot was legal. The councilmembers proceeded to vote by handwriting their respective votes and names on a piece of paper and handing their votes to David Matty, Bratenahl’s solicitor. Matty reviewed and counted the ballots. This process was repeated two additional times as some ballots were cast for individuals who had not been nominated for the office of president pro tempore. Councilmember Puffenberger was named president pro tempore and served in that capacity until Dec. 31, 2015. He was reappointed as president pro tempore by a public vote on Jan. 21, 2016.
In her argument, Meade relied on Ohio Attorney General (AG) Opinion 2011 Ohio Atty.Gen.Ops. No. 2011-038, which stated that secret ballots violate OMA where the vote is cast in such a manner that the person expressing their vote cannot be identified with the vote expressed. The court noted that this was not the case here. The handwritten ballots were written in open session and included the name of each nominated individual as well as the name of each councilmember issuing the vote. Further, the written ballots were then maintained by Bratenahl as public records, and subsequently produced to Meade. Because the votes were cast in open session, identified each councilmember’s name and respective vote, and were made public record, the court found them to not be “secret ballots” as discussed in the AG Opinion upon which Meade relied.
In her second argument, Meade alleged that Bratenahl violated OMA because the Finance Committee’s minutes failed to contain sufficient facts and information to permit the public to understand and appreciate the rationale behind the committee’s actions. The minutes contained information about various items before the committee, the action taken on those items, and the votes of committee members on motions. Meade alleged that considering the length of these committee meanings, significantly more would have been involved than just a motion and vote concerning each item. Meeting minutes of the Finance Committee also were kept via audiovisual recordings containing the discussions and information at each meeting, which Meade obtained. As a result, the court found that audio or videotape recording are legitimate means of satisfying OMA minutes requirements and, therefore, Bratenahl’s minutes were sufficient to comply with OMA requirements.
Finally, Meade argued that Bratenahl did not comply with the conditions for holding an executive session at its Aug. 19, 2015, village council meeting. Meade alleged that the official record failed to indicate whether the motion to enter executive session stated an actual purpose and whether there was a roll call vote. The court, in examining the audio recording, found that a motion and roll call vote to hold an executive session clearly were taken. The court also noted that Mayor Licastro’s notes and oral request that the record reflect that a motion to enter executive session was made in addition to the audio recording satisfied the statutory executive session requirements. As a result, the court affirmed the trial court’s decision denying Meade’s motion for summary judgment.
NONTEACHING EMPLOYEE – CONTINUING CONTRACT
Supreme Court of Ohio finds substitute custodian not to be a “regular nonteaching employee.”
State ex rel Singer v. Fairland Local School Dist. Bd. of Edn., Slip Opinion No. 2017-Ohio-8368.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2017/2017-Ohio-8368.pdf
Fairland Local School District Board of Education (Fairland) hired Kurt Singer as a substitute custodian on Sept. 11, 2006. Singer never signed a written employment contract with Fairland, and all of the documentation he received from Fairland, including his paystubs, identified him as a substitute. Singer, however, alleged that he was a “regular nonteaching school employee” for the purposes of Ohio Revised Code (RC) 3319.081, and therefore was entitled to continuing status under RC Chapter 3319, and other additional statutorily-provided regular nonteaching employee benefits.
Singer alleged that Fairland improperly designated him as a substitute and as a result, paid him less than he should have been paid, denied him some health and pension benefits, and deprived him of certain leave time. As a result, Singer sought a writ of mandamus with the Supreme Court of Ohio directing Fairland to recognize him as a regular nonteaching employee with a continuing contract since the beginning of the 2009-10 school year, and ordering Fairland to pay him back wages and benefits.
In its first argument, Fairland suggested Singer could not be a regular nonteaching employee because he did not have a written employment contract as required by RC 3319.081. The court disagreed, noting that RC 3319.081 placed a duty on the employer to extend a written contract to all regular nonteaching employees. The court went on to note that the employee had no control over whether or not the employer extended such a contract.
Fairland then argued that Singer did not qualify as a regular nonteaching employee because he did not qualify as a fulltime employee as defined by the collective bargaining agreement. Fairland submitted an affidavit suggesting that pursuant to the collective bargaining agreement, fulltime custodians were defined as working eight hours a day for 260 days a year over the course of 12 months. Upon review of the collective bargaining agreements, the court found no such language or definition of fulltime employment. The court did find that former collective bargaining agreements included appendices charting contract amounts and annual salaries. Under the chart that included hourly rates applicable to custodians, the chart identified the months worked as 12, the hours per day as eight, and the contract days as 260.
RC 3319.09(B) defined “year” related to an employee’s term of service to mean at least 120 days of actual service within a school year and the court noted that, barring collectively bargained language, the statute controled. Under the statutory provision, Singer exceeded the minimum “120 days of actual service within a school year” measure. Fairland argued that the collective bargaining agreement superseded the statutory definition. The court disagreed, stating that all four of the considered collective bargaining agreements recognize the term “regular nonteaching employee” to include not only full-time employees, but also regular short-hour employees.
The court then turned to the question of whether Singer was a regular nonteaching employee by focusing on “regular” because whether Singer was a nonteaching employee was not disputed by either party. The court found that Singer had no regular schedule, was not assigned to a regular location (each full-time regular Fairland custodian was assigned to a regular location), and the manner in which Fairland requested Singer to work varied. Due to all of these factors, the court held that Singer’s employment was not regular and as a result, denied Singer’s writ.
In his dissent, Justice O’Neill disagreed with the majority’s opinion that Singer was not a “regular” employee. The dissent argued that “regular” and “substitute” were nothing more than labels used to deprive Singer of the benefits he had earned, and that the substance of his work was as a regular custodian. Because Singer worked more than the statutorily required 120 days per year for the first seven years he was employed, the dissent argues that Fairland should have offered Singer a written employment contract as a regular nonteaching employee.
The collective bargaining agreement was the sole and exclusive remedy for a claim of intentional infliction of emotional distress.
Marzano v. Struthers City School Dist. Bd. of Edn., 2017-Ohio-7768.
https://cases.justia.com/ohio/seventh-district-court-of-appeals/2017-16-ma-0179.pdf?ts=1506103941
Martina Marzano was employed by Struthers City Schools as a paraprofessional/personal attendant for special needs students and as a member of OAPSE Local #261, whose collective bargaining agreement (CBA) governed the terms and conditions of her employment. Marzano filed a complaint alleging she suffered serious emotional and psychological harm based on actions by the superintendent and an elementary principal, and sought compensatory and punitive damages.
The trial court granted a summary judgment to the school district on the grounds that Marzano’s claim was governed by the terms and conditions of the CBA, pursuant to which it was the exclusive remedy. The appellate court agreed, holding Marzano offered no evidence to show that her claims fell outside of the CBA’s broad definition of a grievance, and therefore the trial court lacked jurisdiction over her claim. Accordingly, the appellate court found that the trial court was correct in granting summary judgment to the school district.
Retiring public employees with more than one retirement system membership are required to coordinate membership and combine contributions and service credits.
State ex rel. Withers v. State Teachers Retirement Sys. Bd., 2017-Ohio-7096.
https://cases.justia.com/ohio/tenth-district-court-of-appeals/2017-17ap-124.pdf?ts=1506633178
Vanessa Withers was employed by Columbus City Schools (CCS) from August 2002 to May 31, 2013, as a school nurse. Additionally, from Oct. 5, 1992, until Sept. 25, 2013 she was employed by Ohio State University (OSU) hospital systems as a nurse. While with CCS, Withers was a contributing member of the State Teachers Retirement System (STRS) and accumulated 10.03 years of service credit. While with OSU, she was a contributing member of the Ohio Public School Employees Retirement System (OPERS) and accumulated 23.587 years of service credit.
The collective bargaining agreement Withers was covered under while with CCS provided for a severance payment for the value of an employee’s accrued but unused sick and personal leave if the employee retired from STRS within 120 days of ending his or her employment. Withers asserted she had accumulated unused sick and personal leave worth $7,412.58 at the time she retired.
Generally, when a public employee with membership in multiple retirement systems retires, Ohio Revised Code (RC) 145.37(A)(4) directs that the “paying system” be the state system in which the member has the greatest service credit. Because Withers had the greatest service credit with OPERS, she applied with OPERS on Sept. 25, 2013 and elected to have her STRS and OPERS credit combined.
Additionally, RC 145.37(B)(1) provides that “[a]ge and service retirement shall be effective on the first day of the month immediately following *** [t]he last day for which compensation was paid.” Because her last day of employment with OSU was Sept. 25, 2013, OPERS determined Withers’ effective date of retirement to be Oct. 1, 2013, which was more than 120 days after the termination of her employment with CCS, making her ineligible for CCS’s retirement payment.
Withers filed for a writ of mandamus against STRS and CCS, initially asking the trial court to require STRS to declare her retirement date as Sept. 25, 2013. Withers later amended her petition and included OPERS as a defendant. STRS, CCS and OPERS filed motions for summary judgment, asserting that RC 145.37(B)(1) controlled OPERS’ determination of Withers’ retirement date and that OPERS had no legal duty or authority to establish an alternative retirement date. The trial court subsequently granted these motions and Withers appealed.
The appellate court carefully reviewed RC 145.37 and noted that there was not a factual dispute as to Withers’ service credit or that OPERS was responsible for calculating and paying her benefits. Similarly, Withers’ retirement date with CCS was not contested. Withers argued, among other points, that she did not actually retire under STRS, but only retired from OPERS and based on that effective retirement date, she should be eligible for the severance payment. The court disagreed and noted that even assuming she was correct, the collective bargaining agreement specifically required that the employee retire from STRS to receive the severance, still rendering Withers ineligible for the severance.
School district was contractually able to tap into village’s sewer line pursuant to an 11-year old resolution between the parties.
Alexander Local School Dist. Bd. of Edn., v. Albany, 2017-Ohio-8704.
http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2017/2017-Ohio-8704.pdf
In 2015, the Alexander Local School District applied to connect its newly-designated wellness center to the Village of Albany’s sewer system. Albany denied the application, citing a 2010 village ordinance that prohibited the issuance of sewer taps outside the village unless the property served by the tap is annexed into the village. The school district filed suit in the Athens County Common Pleas Court, which dismissed the case, which then was appealed to the Fourth Appellate District Court of Appeals.
The school district premised its complaint on an allegation that a 2004 resolution created a sewer services agreement between the district and the village. At that time, the district was undergoing renovations that included constructing a sanitary sewer line. The resolution provided for a 60-day window and referred to a “new school facility.” These phrases became the focal point of the appellate ourt’s reasoning and decision.
The court found that the resolution did not fully define all of the terms of the parties’ agreement and that all of the accompanying documents submitted by the parties did not lead to a sole interpretation of the 2004 resolution. However, based on the facts, the district clearly did tap into Albany’s sewer system at some point in 2004 and within a 60-day window. The resolution’s language was not sufficiently clear to prohibit the district from connecting a newly-constructed building [wellness center] that the district added to the previously newly-constructed facilities in 2004. This being the case, Albany still had a contractual obligation to allow the school district to tap into its sanitary sewer line. The case was remanded to the trial court for further proceedings consistent with this ruling.
Court upholds SERB definition of “supervisor,” based on employee’s exercise of independent judgment in making job assignments.
Laborers’ Internatl. Union of N. Am., Local 860 v. Cuyahoga Cty, 2017-Ohio-8552.
https://cases.justia.com/ohio/tenth-district-court-of-appeals/2017-17ap-292.pdf?ts=1510675908
The Laborers’ International Union (LIU) filed a representation petition with the State Employment Relations Board (SERB) seeking to create a proposed bargaining unit of Cuyahoga County Social Service Supervisors. The county objected, saying the approximately 103 social service supervisors were “supervisors” and not public employees as defined in Ohio Revised Code (RC) 4117.01(C) subject to collective bargaining. Following a five-day hearing, the SERB administrative law judge (ALJ) determined the Social Service Supervisors were “supervisors” under RC 41117(C) and recommended SERB dismiss LIU’s representation petition. SERB adopted ALJ’s findings and dismissed the union petition. LIU appealed the SERB decision to the trial court which affirmed SERB’s order. The LIU then appealed.
The appellate court focused on SERB’s determination that the employees at issue were “supervisors,” noting that SERB had exclusive original jurisdiction regarding whether “particular parties or groups are ‘public employees.’” SERB considers an employee to be a supervisor if the record contains substantial evidence that the employee has the authority to perform one or more functions listed in RC 4117.01(F), actually exercises that authority, and uses independent judgment in doing so. The union challenged SERB’s determination that the social service supervisors using a round-robin system to allocate cases does not demonstrate the independent judgment needed to qualify as a supervisor.
Testimony was produced to indicate that there was no mandated case distribution system, but the system generally was used because of the high volume of cases for which the supervisors were responsible. Exceptions in case assignments were made whenever the supervisor had qualitative factors that overruled the round-robin process. The trial court found these factors clearly showed independent judgment and the appellate court agreed. The court also rejected as unreasonable the union’s assertion that each of the 103 social service supervisor positions needed to be considered independently, since the union was seeking to represent them collectively.
Ohio appellate court finds that suspension appeal is moot when student graduated, the suspension did not become part of his permanent high school record, and the student suffered no other damages.
G.M. v. Springfield Local Schools Bd. of Edn., 2017-Ohio-7767.
https://www.supremecourt.ohio.gov/rod/docs/pdf/7/2017/2017-Ohio-7767.pdf
G.M. was a junior at Springfield High School when he arrived late on May 11, 2015. This was his fourth tardy for the second semester of the school year, and the School Discipline Policy provided that students had two free tardy offenses per semester. On the third offense, disciplinary action consisted of an in-school detention, and on the fourth offense, disciplinary action was a Saturday School detention. Students failing to appear for Saturday School received a two-day out-of-school suspension. Pursuant to the policy, tardiness was considered an unexcused absence and all notes and doctors’ excuses were required to be submitted to the office within 48 hours.
G.M. argued that a doctor’s excuse was faxed to the school on May 11, 2015, but the school argued that no such record of a fax existed. G.M. provided only his doctor’s hearsay statement that a member of his office staff sent the excuse. On May 15, 2015, G.M.’s doctor faxed an excuse for the May 11 tardy, which the school confirmed receipt of, but because this excuse was not received within 48 hours of the tardy offense, G.M. was served notice of Saturday School detention on May 14, 2015. The notice stated that G.M. was required to serve a Saturday School either on May 16 or May 23. G.M. failed to appeal from or appear for either Saturday School. On May 26, 2015, the school principal, Anthony Albanese met with G.M. and notified him that he was receiving a two-day out-of-school suspension for failing to appear at Saturday School.
G.M. then filed an appeal of the two-day suspension, never appealing the Saturday School suspension that preceded it. The Springfield Local School DistrictBoard of Education held a suspension appeal hearing on June 30, 2015, where the two-day out-of-school suspension was affirmed. G.M. then appealed the board’s decision to the trial court on Aug. 20, 2015. Both parties appealed, and the magistrate issued a decision on June 24, 2016, affirming the board’s decision. G.M. filed objections to the magistrate’s decision, which the trial court overruled and dismissed on Aug. 3, 2016. G.M. then appealed.
On appeal, G.M. argued that his doctor’s testimony should have led the trial court to conclude that his absence was excused and, further, that the May 15, 2016 excuse “erased” his unexcused tardy. The court noted that it should not insert its own judgment in place of board policies absent a clear abuse of discretion or violation of law. G.M. asked the court to find the board’s policy unconstitutional.
The appeals court cited Burton v. Cleveland Hts.-Univ. Hts. School Dist., which held that while graduation from high school does not automatically render an appeal moot, if the student’s permanent record does not contain any reference to the discipline, the administrative appeal is moot. Here, there was no evidence that G.M. failed to move ahead to his senior year of school or graduate from high school as a result of the suspension, or that the suspension became a part of his permanent record. For that reason, the appeals court concluded the suspension appeal was moot. The court also noted that no constitutional issue was raised.
Appeals court finds that court of common pleas abused its discretion and substituted its judgment for the school board’s, in finding a lack of evidence to support the board’s termination of a superintendent.
Fox v. Huron City School Dist. Bd. of Edn., 2017-Ohio-7984.
https://www.supremecourt.ohio.gov/rod/docs/pdf/6/2017/2017-Ohio-7984.pdf
Frederick Fox was superintendent for the Huron City School District. On June 19, 2012, the district board of education placed Fox on suspension without pay, which was modified to suspension with pay on June 25. On Sept. 6, 2012, the board placed Fox on suspension without pay. Fox requested a hearing pursuant to Ohio Revised Code (RC) 3319.16. A hearing was held before a referee, who issued a 50-page report to the district on Mar. 11, 2013. In his report, the referee recommended that Fox’s employment contract not be terminated. On Apr. 2, 2013, the school board voted on a 15-page resolution to terminate Fox’s employment contract. In its resolution, the board rejected the referee’s analysis and conclusions, although it did drop some of the charges against Fox.
Fox filed a multiple-count complaint against the district with the Erie County Court of Common Pleas. Count one of the complaint was Fox’s appeal, as provided under RC 3319.16, of the board’s termination decision.
On June 7, 2016, the common pleas court ordered reversal of the board’s decision to terminate Fox’s employment. The court concluded that the referee’s decision was “overwhelmingly” supported by competent and credible evidence and that his recommendation was not unlawful, unreasonable or against the manifest weight of the evidence. The court further found that the board failed to meet it burden of proof by a preponderance of substantial, reliable and probative evidence to support Fox’s termination. The board appealed this ruling.
The appeals court stated that the common pleas court was “clearly erroneous” and misapplied the law to the facts when it found that there was a lack of a preponderance of substantial, reliable and probative evidence to support the board’s action. The appeals court, referring to RC 3319.16, said that the role of the common pleas court was not to substitute its judgment for the judgment of the board when a fair administrative hearing has been held, and there was substantial and credible evidence to support the board’s decision.
Although the common pleas court must “give due deference to the administrative resolution of the evidentiary conflicts,” the appeals court concluded that the court of common pleas had not looked to the board’s resolution articulating its reasoning for the termination. After defining substantial, reliable and probative evidence, the appeals court examined, conclusion by conclusion, the board’s resolution. It found that the board had met its duty under RC 3319.16 and that the court of common pleas had abused its discretion. The appeals court reversed the decision of the common pleas court and ordered the former superintendent to pay the costs of the appeal.
Supreme Court of Ohio finds that the Board of Tax Appeals has jurisdiction over landowner appeals of the Ohio Tax Commissioner’s journal entry setting forth current agricultural-use values.
Adams v. Testa, Slip Opinion No. 2017-Ohio-8853.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2017/2017-Ohio-8853.pdf
The Ohio tax commissioner annually adopts a journal entry assigning per-acre values (commonly referred to as current agricultural-use values (CAUVs)) to different types of agricultural land. This is due, in part, to the fact that agricultural land is taxed based on its agricultural-income potential as opposed to its fair market value. This journal entry process allows county auditors to determine the value of farmland for tax purposes. The tax commissioner adopted rules for assigning CAUVs, which take into account factors such as soil productivity, crop-price patterns, farmland market values, etc. CAUVs are then entered into a table, which establishes per-acre CAUV for both cropland and woodland for each Ohio soil type. In 2015, the tax commissioner issued an administrative journal entry updating the CAUVs for 24 counties where the county auditor was required to perform a reappraisal or update of tax values for that year. The table used $1,000 per acre as the woodland-clearing cost, but the other 64 counties were instructed to continue to use the 2013 and 2014 values of $500 per acre clearing cost.
In August 2015, a group of landowners believing that their woodland had been overvalued, appealed to the Board of Tax Appeals (BTA), and later amended their appeal to include the argument that the entry was an invalid rule. BTA dismissed the appeal, finding it did not have jurisdiction to consider such an appeal because the journal entry was not a “final determination” for the purposes of Ohio Revised Code (RC) 5717.02. BTA also found that the journal entry did not constitute a “rule,” in response to the landowners’ argument that the journal entry was an unreasonable or improperly issued rule. The landowners appealed to the Supreme Court of Ohio. The question before the court was whether landowners could challenge the tax commissioner’s journal entry by appealing to BTA.
The court noted that in order to be appealable under RC 5717.02(A), the CAUV journal entry had to be: 1) an assessment, reassessment, valuation, determination, finding, computation or order made by the tax commissioner; 2) a final determination; and 3) appealed by the taxpayer, person to whom notice was required to be given, director of budget and management or a county auditor. The Supreme Court of Ohio agreed with BTA that the journal entry was not a rule, but concluded that it did serve as a “final determination,” which BTA had jurisdiction to review. As a result, the Supreme Court of Ohio remanded the case to BTA for hearing and determination.
Trial court did not abuse discretion in allowing evidence of recent property sale and independent appraisal of property’s value as of the tax-lien date.
Othman v. Princeton City School Dist. Bd. of Edn., 2017-Ohio-9115.
https://cases.justia.com/ohio/first-district-court-of-appeals/2017-c-160878.pdf?ts=1513786305
Amani and Akram Othman filed a complaint for the 2014 tax year with the Hamilton County Board of Revision (board of revision), seeking to reduce the value of their property from over $4,000,000 to $880,000. The Princeton City School District filed a counter-complaint seeking to maintain the value assigned by the county auditor. Following a hearing, the board of revision maintained the auditor’s assigned value and the Othmans appealed to the common pleas court. They also filed a motion to supplement the record with an independent appraisal, which the school district and the auditor opposed. The trial court denied the Othmans’ motion to supplement the record.
After a hearing, the magistrate decided to affirm the board of revision’s decision. The Othmans filed objections to the magistrate’s decision to uphold the board of revision’s decision with the trial court, which then adopted the earlier decision. The Othmans then appealed, seeking remand to the trial court, which was granted. On remand, the trial court allowed the independent appraiser’s testimony and reduced the property’s value to $950,000. The school district then appealed the trial court’s decision.
The school district argued that evidence of a December 2016 sale was not sufficiently close in time to the January 1, 2014 tax lien date and the independent appraisal did not constitute competent or probative evidence of the property’s value. The appellate court noted that there is no bright-line test to establish when a sale is sufficiently close to the tax lien date to be presumed recent. The Supreme Court of Ohio has noted that it has “not accorded a presumption of recency to a sale that occurred more than 24 months before the lien date.” So, even though the sale was not recent, the trial court did not abuse its discretion by considering evidence of the sale, along with other evidence presented by the parties, in making its determination of value.
The court noted that, while the district objected to the appraiser’s method of establishing value, it did not object to his qualifications or the admissibility of his testimony or report. While his methods were not ones typically used, the rate he determined was not unreasonable. Therefore, the trial court’s judgment was affirmed.
Teacher’s license revoked for conduct unbecoming a teacher.
Langdon v. Ohio Dept. of Edn., 2017-Ohio-8356.
https://www.supremecourt.ohio.gov/rod/docs/pdf/12/2017/2017-Ohio-8356.pdf
Michelle Langdon worked as a licensed professional intervention specialist with the Lakota School District as a teacher of high school students with disabilities. In 2013, she was placed on administrative leave while the district investigated professional conduct concerns about her. She was informed she could be represented by an attorney at a fact-finding hearing. Prior to any formal decision by the district, Langdon irrevocably resigned from her teaching position for “personal reasons.” She then allowed her license to lapse.
In 2014, Langdon applied to renew her license and the Ohio Department of Education (ODE) charged her with conduct unbecoming a teacher on eight grounds. The counts included: 1) making unprofessional and inappropriate comments about students, staff and parents; 2) making unprofessional posts on social media pertaining to her workplace; 3) revealing details of a student’s individualized education program (IEP) to other parents and students; 4) having inappropriate physical contact with students; 5) using marijuana and asking for marijuana to be delivered on school property; 6) creating a hostile working environment for students and staff; 7) failing to follow IEP instructions for students; and 8) referring to a private nurse working with a student within the school as a “big, gross, disgusting wildebeest.” Ultimately, ODE pursued six of these grounds.
Following a hearing, in which Langdon participated, the hearing officer found she had engaged in conduct unbecoming a teacher, in violation of Ohio Revised Code (RC) 3319.31, on five of the six grounds ODE pursued. The hearing officer recommended that Langdon’s license be revoked, her pending application be denied, and she be barred from re-applying for at least five years. The State Board of Education adopted these findings, but reduced the time period for her re-application, coupled with a fitness-to-teach evaluation and completion of eight hours of anger management. Langdon appealed to the Butler County Court of Common Pleas, which reversed State Board of Education’s decision on due process grounds. ODE then appealed to the Twelfth Appellate District Court of Appeals.
The appellate court held that the lower court committed several errors when it failed to defer to ODE’s resolution of evidentiary facts. The appellate court also found that the lower court’s decision was not supported by reliable, probative and substantial evidence. Theappellate court focused on the record created at ODE’s hearing, in which Langdon acknowledged her inappropriate conduct and that ample evidence was produced to support ODE’s decision that she engaged in conduct unbecoming a teacher. Because the lower court substituted its judgment for ODE’s and failed to give due deference to ODE’s resolution of facts and credibility issues, the lower court decision was reversed. ODE’s decision was reinstated regarding Langdon’s licensure request was reinstated.
Appellate court finds teacher not entitled to continuing contract because she submitted an untimely request on which the board was not required to act.
State ex rel. Sommers v. Perkins Local Schools Bd. of Edn., 2017-Ohio-7991.
https://cases.justia.com/ohio/sixth-district-court-of-appeals/2017-e-16-081.pdf?ts=1506719724
Malinda Sommers worked as a teacher in the Perkins Local School District from 2006 to 2013 on successive limited contracts. On Feb. 20, 2011, in the midst of her first year of a limited contract, Sommers sent the superintendent a request for a continuing contract for the 2011-12 school year. However, the superintendent notified Sommers that, pursuant to the terms of the negotiated agreement, the request was due on or before Oct. 15, 2010, and the board was not able to honor her request. In her response, Sommers asked that the superintendent consider her Feb. 20, 2011 request to be an early request for the next school year.
On Oct. 8, 2012, Sommers submitted yet another request for a continuing contract, beginning with the 2013-14 school year, but the superintendent recommended to the board that her contract be nonrenewed. The board acted on the superintendent’s recommendation, notifying Sommers of her nonrenewal on Apr. 30, 2013.
Sommers, with the assistance of the union, Perkins Education Association (PEA), filed a grievance, which was pursued through three levels of the grievance procedure, claiming she had a right to a continuing contract. PEA, which represented Sommers, voted not to pursue her nonrenewal to arbitration (level four of the grievance procedure). At this point, rather than independently pursuing arbitration, Sommers filed suit in the Erie County Court of Common Pleas.
The trial court ruled in Sommers’ favor finding she had a clear right to a continuing contract and the board had a corresponding clear duty to issue her a continuing contract, but concluded that she had an adequate remedy at law by pursuing arbitration without PEA’s assistance. Therefore, the trial court denied Sommers’ motion for a writ of mandamus ordering the board to issue her a continuing contract.
The Sixth Appellate Court of Appeals affirmed the trial court’s decision but on entirely different grounds. After reviewing the facts and applicable laws, the appellate court found that under the terms of Sommers’ collective bargaining agreement, Sommers terminated her three-year limited contract when she made a request for continuing contract status during the 2011-12 school year. Because the superintendent and board then failed to take the required statutory action under Ohio Revised Code 3319.11, she received an extended limited contract for the 2012-13 school year by operation of law. The district then followed the proper procedure in recommending and voting to not renew that (extended) limited contract, thereby terminating Sommers’ employment with the district.
Ohio court abused its discretion when it summarily concluded that a board’s rejection of a referee’s recommendation was not contrary to law.
Humphries v. Lorain City School Dist. Bd. of Edn., 2017-Ohio-8429.
https://www.supremecourt.ohio.gov/rod/docs/pdf/9/2017/2017-Ohio-8429.pdf
Aliceson Humphries was employed by the Lorain City School District Board of Education in various positions from approximately 1996 until her termination in 2016. In May 2015, Humphries attended a district track meet and senior athlete recognition ceremony along with her sister, Natalie. Humphries’ niece was a Lorain City School District student being recognized as a senior track athlete. At the track event, Humphries’ niece refused to participate in the recognition ceremony. This angered her mother, Natalie, and the two began to argue. Humphries intervened in the argument, which ultimately turned physical. Security officers eventually escorted the niece to the parking lot. While she was being escorted, Humphries went up and “struck” or “bopped” her niece on the head.
Humphries was placed on paid administrative leave, pending the board’s investigation of her conduct during the track incident. Upon the conclusion of the investigation, the board issued notice to Humphries of a hearing to address the board’s anticipated recommendation to initiate termination proceedings. In July 2015, the board approved a resolution to initiate termination proceedings. Humphries made a timely demand for a hearing. The hearing officer found just cause for discipline, but made a recommendation that “termination of this high performing administrator [was] excessive.”
The board considered the referee’s report and issued a resolution that rejected the referee’s recommendation. The resolution detailed the board’s consideration of the referee’s report and articulated the reasons for rejecting the referee’s recommendation not to terminate. Humphries appealed the board’s determination to the court of common pleas. The lower court affirmed the board’s decision, and Humphries appealed.
On appeal, the court was asked to determine whether the lower court abused its discretion in determining that the board afforded due deference to the referee’s findings of fact and recommendation, and whether the board’s actions were supported by the weight of the evidence and not contrary to law. The court found that the lower court did not engage in an analysis to determine whether the board properly rejected and altered the referee’s findings of fact, and instead summarily concluded that the board’s rejection of the recommendation of the referee was not contrary to law. Accordingly, the court of appeals concluded that the lower court abused its discretion, and therefore reversed the common pleas court’s judgment and remanded the case for further proceedings.