This issue includes: ADA – Due Process • Arbitration – Judicial Review • Arbitration – Termination • Attorney-Client Privilege • Child Abuse • Contract Non-Renewal • Due Process • Ethics • Employee – Substitute • FERPA – Student Records • Immunity – Political Subdivision • Individuals with Disabilities • Open Meetings Act • Public Records Requests • Tax – Valuation/Real Property • Title VII
Teacher suspension overturned because district ignored request for impartial due process hearing.
Monce v. Marshall Cty. Bd. of Edn., M.D.Tenn. No. 1:16-cv-00007, 2018 U.S. Dist. LEXIS 55824 (Apr. 2, 2018).
Monce was a teacher at Forrest School in Marshall County, Tennessee, for 16 years. In December 2012, she was diagnosed with breast cancer and underwent a double mastectomy, followed by chemotherapy and radiation treatment, and then a hysterectomy in October 2013. In 2014, Monce was disciplined for not attending “Fun Day” activities or properly supervising students. In August 2014, Monce underwent breast reconstruction surgery and was out of school for four weeks.
In November 2014, Monce accidently was shot in the head by her husband while bird hunting. The following March, she asked an athletic trainer to use an X-acto knife to cut into her scalp and see if it was infected. When the trainer refused, a student who was nearby volunteered and Monce allowed the student to make the incision. Monce was reprimanded for these actions.
Monce then met with her principal and another administrator and was placed on a corrective plan in February 2015. She was reprimanded again, for not following the plan, in April 2015. At that meeting, the principal claimed she smelled alcohol on Monce and suggested she take a drug test. After consulting with her union, Monce took the drug test, which showed the presence of alcohol metabolites along with prescription drugs. Monce then was suspended without pay, for the remainder of the year. She also was instructed not to return the following year without taking a 10-panel drug test and submitting a note from her physician stating that she was not impaired.
A lawyer from the Tennessee Education Association (TEA) sent the district a letter, on behalf of Monce, stating the suspension did not comply with the requirements of Tennessee’s Tenured Teachers Act (TTA) and requested proper due process notice or that Monce be provided a hearing before an impartial hearing officer. The district then added more conditions to Monce’s return to school by requiring a note from a physician stating that Monce could supervise students while on her medicine, and that she bring in all of her medications for inspection. Monce brought her medications into school, at which point the district took photographs of all the bottles and shared them with her principal. Monce then filed suit, claiming that her suspension violated the Americans with Disabilities Act (ADA), the Fourth Amendment and TTA.
Looking at the ADA claim, the court noted that such claims can be proven by using either direct or indirect evidence. Monce failed to prove direct evidence because her suspension was a result of a drug screen, not because she had cancer or was being treated for that condition. However, considering the indirect evidence, Monce proved that she had a disability, was qualified to perform her job with or without an accommodation, and suffered an adverse employment action because of her disability. The court carefully examined whether Monce was discriminated against because of her disability. Finding it a “close call” as to whether the board’s explanations were legitimate or a pretext for discrimination, the court ultimately found in favor of the board on the ADA claim.
Considering Monce’s Fourth Amendment claims that the inspection of her medicine bottles was an unreasonable search, the court found enough factual dispute as to the voluntariness of the search to rule that the school principal was not entitled to summary judgment. The court also denied summary judgment for the board on Monce’s claim that she was denied due process because the principal ignored the TEA’s request for due process and/or an impartial hearing, but proceeded to suspend Monce, in violation of TTA.
Arbitrator did not exceed the scope of his authority in interpreting a Last Chance Agreement.
Portage Cty. Bd. of Dev. Disabilities v. Portage Cty. Educators Assn. for Dev. Disabilities, 11th Dist. Portage No. 2017-P-0003, 2018-Ohio-1107.
Jennifer Conwell was an employee of the Portage County Board of Developmental Disabilities (Board), working as a registered service specialist, and had a history of discipline. Ultimately, she entered into a last-chance agreement with the Board, specifying, among other things, that she was to report to work on time, clocking in no later than 8:05 a.m. each day. The agreement provided that upon violation, the employer immediately could terminate her employment. Subsequently, Conwell arrived late and clocked in at 8:11, although she initially wrote 8:00 on her timesheet, and was terminated by the Board. The Portage County Educators Association for Developmental Disabilities (Association) then filed for arbitration on her behalf.
At the arbitration hearing, focus was placed on whether Conwell erroneously violated the last chance agreement by writing in 8:00 a.m. and subsequently correcting it to 8:11 a.m. Evidence was produced at the hearing in which other employees stated that mistakes as to time were frequently made by employees and the Board had permitted them to correct them. The arbitrator concluded that the language in the last chance agreement should be construed to give “typical meaning” to the parties and since mistakes had been made and corrected with regards to timesheets, Conwell’s actions were not erroneous and did not violate the last chance agreement. The arbitrator ruled in favor of Conwell and ordered her to be reinstated, with back pay.
The Board appealed to the court of common pleas, which found there was “sufficient evidence presented allowing the arbitrator to render the award” and that the arbitrator did not exceed the scope of his authority. The Board appealed again, with the appeals court finding in favor of Conwell and noting that while the arbitrator’s determination was informed by the unique facts presented at the hearing, it did not imply he failed to draw the essence of his findings from the last chance agreement. Both the arbitrator and common pleas court’s judgments were affirmed.
Impartial arbitrator finds board has sufficient evidence of good and just cause to terminate treasurer’s employment contract.
In re arbitration between Jefferson Twp. Local School Dist. Bd. of Edn. and Christopher Frame, Arbitrator Bruce B. McIntosh, (Nov. 24, 2017).
https://www.ohioschoolboards.org/sites/default/files/Jefferson_township_and_christopher_frame.pdf
The Jefferson Township Local School District Board of Education hired Christopher Frame as its treasurer in December 2008. This arbitration stemmed from the board’s action to terminate Frame’s contract, the term of which was Aug. 1, 2014, through Jan. 21, 2019. On Mar. 2, 2017, the board placed Frame on paid administrative leave beginning Mar. 11, 2017. On Mar. 23, 2017, via resolution, the board terminated Frame’s employment contract citing 32 reasons supporting the board’s finding that Frame committed acts of misfeasance, malfeasance, nonfeasance, dereliction of duty, violations of his contract of employment and violations of Ohio law. In its resolution, the board cited issues ranging from auditor of state findings to Frame’s tardiness in preparing board meeting minutes and making required financial postings. Frame notified the board of his request for a Loudermill hearing for the purpose of responding to the charges and allegations against him.
During arbitration, Frame argued that the reasons cited by the board for termination were conclusory and/or out of his control. The board argued that regardless of whether the financial issues in the district were the result of carelessness, negligence, misfeasance, malfeasance and/or dereliction of duty, all were in Frame’s control, and therefore good and just cause for termination existed. The referee, Bruce B. McIntosh, agreed with the board’s arguments and recommended that Frame’s contract and employment with the district be terminated and any compensation and benefits cease.
Kentucky federal district court compels disclosure of all draft investigative reports and communications between outside counsel and board’s counsel.
Doe v. Hamilton Cty. Bd. of Edn., E.D.Ky. No. 1:16-CV-373 (Jan. 12, 2018).
https://www.leagle.com/decision/infdco20180205735
In 2015, the Hamilton County Board of Education in Tennessee hired attorney Courtney Bullard to conduct an investigation and provide legal advice in anticipation of litigation stemming from allegations of sexual assault committed by three members of the Ooltewah High School (OHS) basketball team. Bullard engaged in extensive interviews with students, parents, faculty and staff to prepare her report, and had frequent conversations with the board’s regular attorney, Scott Bennett, to confer with him about the progress of her investigation.
Following her investigation, Bullard prepared “the Bullard Report,” a 27-page document that examined whether there was a culture of hazing, bullying and/or sexual assault in the OHS basketball program and whether coaches and administrators were aware of such culture; whether OHS officials acted appropriately to address the ramifications of the 2015 sexual assaults; and whether OHS officials’ response met legal requirements under Title IX. On Aug. 18, 2016, presumably in response to public interest in the underlying events, the board of education voted unanimously to release the complete Bullard Report to the public.
On Dec. 16, 2016, two of the alleged victims of the 2015 assault filed actions against the board and several district employees. On Aug. 21, 2017, the board designated attorney Bullard as an expert witness and submitted the Bullard Report as the “written report” required of a testifying expert. The board also agreed to disclose copies of witness statements and other underlying materials gathered by Bullard during the course of her investigation. The board did not, however, produce approximately 130 documents comprised primarily of communications between attorneys Bullard and Bennett relating to Bullard’s investigation and the Bullard Report. The plaintiffs filed a motion to compel the documents.
The board asserted that the documents were protected pursuant to Fed.R.Civ.P. 26(b)(4)(C), which addresses communications between a party’s attorney and that party’s expert witness. The court rejected this argument, finding that Bullard was retained to act as an attorney for the board in anticipation of litigation and was acting as counsel for the board at the time she performed her investigation and prepared the Bullard Report. The court found that the district’s belated designation of Bullard as an expert witness did not permit the retroactive application of the disclosure protections of Fed.R.Civ.P. 26(b)(4)(C).
The court also rejected the board’s argument that the documents were protected from discovery by attorney-client privilege. The court found that when the board released the Bullard Report to the public, it waived attorney-client privilege as to any documents prepared by Bullard (including draft responses), as well as any communications to or from Bullard which directly related to her investigation and preparation of the Bullard Report. Similarly, the court found that when the board released the Bullard Report to the public and expressed an intention to rely upon the investigation and report to defend lawsuits against it, it waived the protection afforded under the work product doctrine.
As a result, the court required the board to provide to plaintiffs’ counsel copies of all requested documents, including draft reports and communications to or from Bullard, which related to her investigation and preparation of the Bullard Report.
Kentucky federal district court finds district not deliberately indifferent to allegations that a student with disabilities was abused by his teacher.
K.C. v. Cty. Schools, W.D.Ky. No. 5:16-CV-00136-TBR (Jan. 29, 2018).
K.C. is a minor child with cerebral palsy. K.C.’s condition renders him unable to communicate verbally and requires that he receive his nutrition through a gastrostomy tube in his stomach. During the 2015-16 school year, K.C. was placed in a “functional mental disability” classroom in which he was taught by a special education teacher. Near the end of April 2016, K.C.’s mother began to hear reports from witnesses that K.C.’s teacher was physically and verbally abusing K.C. Following these reports, K.C.’s parents removed him from school for the remainder of the year.
On May 1, 2016, K.C.’s parents went to the county sheriff’s office to report the alleged abuse. The parties agree that May 1, 2016, was the first time K.C.’s parents reported any alleged mistreatment of K.C. to anyone. After receiving a call from the sheriff’s department, the district assigned the school resource officer to conduct an investigation. The district’s investigation found no incidents of wrongdoing. The Department of Child Based Services (DCBS) also conducted an investigation, during which K.C.’s teacher was removed from the classroom. DCBS did not substantiate abuse in the classroom, but did substantiate neglect. K.C.’s teacher was reassigned to work in the technology department in the board’s office and no longer works with children. In August 2016, K.C.’s parents filed a lawsuit against the district, alleging that the board failed to ensure that K.C. was safe from harassment and received equal access to education, in violation of the Americans with Disabilities Act (ADA) and Sec. 504 of the Rehabilitation Act (Sec. 504). The board moved for summary judgment.
The district court granted the board’s motion for summary judgment. The court found that the board was not deliberately indifferent to the allegations that K.C. was abused, citing the district’s investigations, the removal of K.C.’s teacher from the classroom, and adequate training on the procedures for identifying and reporting child abuse. As a result, the court denied K.C.’s claims under the ADA and Sec. 504.
Court grants district’s motion for summary judgment in claim filed by bus driver whose contract was non-renewed for insubordination.
Webb v. Paducah Bd. of Edn., W.D.Ky. No. 5:16-CV-130-TBR, 2018 U.S. Dist. LEXIS 25021 (Feb. 15, 2018).
https://scholar.google.com/scholar_case?case=3563513213547176997&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Carolyn Webb was hired by the school district initially as a substitute bus driver in 2011, but subsequently became a regular bus driver and was employed under a series of one-year contracts. In 2015, she received a letter from the school district superintendent stating that her contract would not be renewed for the following year.
Webb alleged the non-renewal stemmed from an altercation she had with her supervisor over a request for a day off to attend her son’s graduation. The request repeatedly was denied causing Webb to go to her supervisor’s supervisor. Webb’s immediate supervisor then met with her, at which point there was a confrontation and Webb felt bullied, intimidated and humiliated. Webb and her union representative subsequently met with the assistant superintendent, where she received the letter stating she would not be re-employed. Webb then filed a complaint alleging racial discrimination, hostile work environment, retaliation and age discrimination. In response, the district sought a summary judgment.
The court considered each claim separately and found all failed because Webb failed to establish prima facia claims and the district had legitimate, non-discriminatory reasons for its action to non-renew her contract. The district maintained Webb was non-renewed because of insubordinate conduct and conflicts with her co-workers and supervisors. Furthermore, Webb failed to prove the district’s actions were merely a pretext for unlawful discrimination granting the board’s motion for summary judgment.
District court grants summary judgment to school district because former employee, who filed a claim under 42 U.S.C. 1983, failed to show that he was denied due process when he was terminated.
Dobos v. Howland Local School Bd. of Edn., N.D.Ohio No. 4:16CV2381, 2018 U.S. Dist. LEXIS 10679 (Jan. 23, 2018).
https://www.leagle.com/decision/infdco20180124f11
Scott Dobos was employed as a maintenance worker for Howland Local School District from January 2000 until March 2016, when the board of education accepted his resignation. Dobos claims that he was forced to resign by the district’s superintendent, Kevin Spicher.
In November 2015, the district hired the superintendent’s brother, Keith Spicher, as operations supervisor, responsible for supervising all maintenance staff. In December 2015, Keith Spicher questioned an invoice for a sink computer board that Dobos ordered. He noted that Dobos had previously ordered five of the same parts on three occasions between March and December of 2015. When the operations supervisor pressed for more information, Dobos was unable to tell him whether the parts had been installed or where they were. When asked to produce the parts later, Dobos was unable to do so, producing several boxes that contained other parts.
Later in December, Dobos was assigned the job of installing projectors in classrooms. He waited two days after receiving the assignment before beginning the work. At a disciplinary meeting in January, Dobos was given a verbal warning for failure to carry out a directive and failure to communicate his rationale for deviating from it.
On Jan. 16, 2016, Howland High School hosted a wrestling tournament. That morning, there was no heat in the building. A heating company, called to come to the school, discovered that the boilers had been shut down. Camera footage of the boiler room showed Dobos entering the boiler room and coming out later.
On Feb. 1, 2016, the district scheduled a fact-finding meeting. At that meeting, Dobos denied any knowledge of the boilers being shut down. However, shortly after the meeting ended, Dobos returned and told the superintendent that he was the one who shut down the boilers. On Feb. 5, 2016, the superintendent held a pre-disciplinary hearing about the boilers being shut down and the missing sink parts. As a result of the hearing, Dobos was placed on administrative leave.
Just before a second pre-disciplinary hearing on February 24, Dobos learned that Howland was considering terminating his employment and could file criminal charges with the county prosecutor over the missing sink parts. During the hearing, he decided to resign and accept severance pay. The board accepted his resignation on Mar. 7, 2016. He did not pursue any post-separation grievance action under his union’s collective bargaining agreement.
On Sept. 27, 2016, Dobos filed suit against the district alleging that his pre-termination procedural due process rights were violated. The district asked for summary judgment on the basis that Dobos’ resignation was voluntary, meaning that he could not prevail on a procedural due process claim.
The court considered whether Dobos could produce evidence demonstrating that an objectively reasonable person would, under the totality of the circumstances, have felt compelled to resign if in his position. It considered whether Dobos: 1) was given an alternative to resignation; 2) understood the nature of the choice; 3) had a reasonable amount of time in which to choose; and 4) could select the effective date of resignation. The court concluded that Dobos was not given a reasonable amount of time to choose whether to resign or face discipline. However, it concluded that, notwithstanding whether Dobos felt compelled to resign, he was provided with sufficient pre-termination due process, including adequate notice of the charges, opportunity to respond, and post-deprivation procedures which he did not pursue. As a result, the court granted the district’s motion for summary judgment.
Common pleas court finds superintendent of a closed community school liable, under the Corrupt Practices Act, for multiple violations of RC 2921.42 related to payments to her husband’s company.
Sun Bldg. Ltd. Partnership v. Value Learning & Teaching Academy, C.P. No. A1404504, 2018 Ohio Misc. LEXIS 2 (Mar. 26, 2018).
In April 2005, Value Learning and Teaching Academy (VLT) was organized as a community school under Ohio Revised Code (RC) Chapter 3314, pursuant to a contract with its sponsor, Educational Resource Consultants of Ohio. The school was closed in the summer of 2014. Valerie Lee (Ms. Lee) was VLT’s superintendent during the entire time it was operational.
Ms. Lee’s husband, Clyde Lee (Mr. Lee), became an employee of VLT in 2008. Mr. Lee was the sole owner and shareholder of a for-profit corporation called CEED, Inc. CEED entered into a series of seven contracts with VLT to provide maintenance and janitorial services to VLT, dating from Sept. 4, 2007, through July 17, 2013. VLT paid CEED a total of $1,694,973.84 under these contracts. Both Mr. Lee and Ms. Lee were signatories on CEED’s bank account, with authority to withdraw funds from the account.
Ms. Lee’s daughter, Echole Harris, was an employee of VLT from July 1, 2006, through its closure. Judy McConnell was VLT’s treasurer/business manager from July 1, 2007, through June 30, 2012.
The court analyzed payments that VLT made to Ms. Lee, Mr. Lee, CEED and Harris, and concluded that many of the payments were prohibited. It further concluded, pursuant to RC 9.39, that Ms. Lee and McConnell, as public officials who are directly involved in, or supervise others directly involved in, the receipt or collection of public funds, were strictly liable for illegal disbursements of public funds during their terms.
The court concluded that the contracts between VLT and CEED were public contracts and that Ms. Lee and Mr. Lee were both public officials for purposes of the public contract law, RC 2921.42. The court concluded that both Ms. Lee and Mr. Lee had an interest in the contracts of CEED. For that reason, all of the contracts between VLT and CEED were void under RC 2921.42(H). The court concluded that Ms. Lee was strictly liable for $1,694,973.84, all of the VLT payments made to CEED. McConnell was strictly liable for payments from VLT to CEED from July 1, 2007, and June 30, 2012.
Further, the court concluded that, because multiple payments made by VLT to CEED were made in violation of RC 2921.42, the payments represented a pattern of corrupt activity under Ohio’s Corrupt Practices Act and that both Ms. Lee and Mr. Lee had engaged in the pattern of corrupt activity. The court concluded that, as a result, Ms. Lee and Mr. Lee were jointly and severally liable to VLT for $5,084,921.52, three times the amount of the injury described. Ms. Lee and Mr. Lee also forfeited their right to $1,239.520.29 in compensation they received from VLT between Jan. 1, 2008, and June 30, 2014, because they were violating their fiduciary duties to VLT during that time.
The court then examined the compensation VLT paid to Harris during her employment at VLT, which was direct-deposited into an account owned by her mother, Ms. Lee. It concluded that Ms. Lee had an interest in the contracts between VLT and Harris, making the contracts void under RC 2921.42(H). The court determined that Ms. Lee and Harris were jointly and severally liable for $328,188.38 paid to Harris between May 23, 2008, and June 30, 2014. It also determined that McConnell was jointly and severally liable, with Ms. Lee and Harris, for $222,195.07 of the compensation paid to Harris between May 23, 2008, and June 30, 2012.
There are two other noteworthy findings in the opinion. First, stating case law on point, the court found that the government was not barred from acting to recover public funds even though the auditor made no findings for recovery. Second, the court considered the application of RC 2923.34(J), which states that an action regarding a pattern of corrupt activity may be commenced “within five years after the unlawful conduct terminate[d].” The court concluded that entire pattern can be subject to suit provided that the suit is commenced within five years after the last illegal act in the pattern, even if the first act was more than five years before suit was commenced.
Ohio appellate court finds substitute teacher to be an at-will employee subject to termination for any lawful reason.
Tomety v. Columbus City Schools, 2018-Ohio-937.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2018/2018-Ohio-937.pdf
Folly G. Tomety filed a pro se complaint in the Franklin County Court of Common Pleas on Sept. 9, 2016, for wrongful termination. In his initial complaint, Tomety asserted that he began working for the Columbus City School District in 2004, and that he was assigned as a substitute teacher for a special education teacher on Sept. 14 and Sept. 15, 2015. On the second day of his assignment, Tomety alleges that the school principal asked him to leave the building around lunch time. When Tomety asked why, he was told that two students alleged that they saw him looking at something inappropriate on his phone. Tomety argued that the board later conducted a hearing, but no formal board decision was made following the hearing and, instead, his employment was terminated.
The board admitted that Tomety was employed by the district as a substitute teacher, assigned to substitute on Sept. 15, 2015, and asked to leave the school building on that date after two students reported he was looking at inappropriate pictures on his phone. The board also admitted that a hearing was carried out concerning Tomety’s conduct, and that following the hearing, Tomety was notified that the district would no longer be using him as a substitute teacher. The board argued, though, that Tomety was an at-will employee whose employment was subject to termination at any time for any reason, with or without notice.
The board moved for judgment on the pleadings asserting Tomety’s claim failed to allege facts that would entitle him to relief. Tomety filed a memorandum in opposition. On Aug. 29, 2017, the trial court granted the board’s motion for judgment on the pleadings. Tomety appealed, arguing that the court erred in finding that he didn’t provide proof that he requested an individual investigation, and in finding that he should be categorized as a casual, day-to-day substitute, thus not entitling him to notice of nonrenewal of employment.
In its review, the court denied Tomety’s first claim noting that whether he requested an independent investigation was not material in determining whether he was an at-will employee. In regard to his second assignment of error, Tomety argued that he should not be considered a casual, day-to-day substitute because he had a long-term substitute license and had previously held long-term substitute assignments. The court cited Ohio Revised Code (RC) 3319.10, which specifically states that “teachers employed as substitutes on a casual or day-to-day basis shall not be entitled to notice of nonreemployment” otherwise prescribed under statute.
The court noted that the Supreme Court of Ohio has distinguished between long-term substitutes teachers who are entitled to written notice of nonrenewal and casual, day-to-day substitutes who are not. This determination hinges on day-to-day variance of classroom assignments, compensation according to the regular teachers’ pay schedule as opposed to on a per diem basis, and clearly defined periods within which a substitute replaces a specific individual.
In affirming the court of common pleas’ holding, the appellate court found that, because Tomety did not allege that he had an employment contract with the district, and because he pointed only to a two-day assignment, he was in fact employed as a casual or day-to-day substitute teacher, therefore rendering him an at-will employee not entitled to notice of nonrenewal.
U.S. district court requires district to provide student disciplinary records under court-ordered exception to FERPA and protective order.
Jackson v. Willoughby Eastlake School Dist., N.D.Ohio. No. 1:16CV3100, 2018 U.S. Dist. LEXIS 49508 (Mar. 23, 2018).
Robert Jackson and Kim J., parents of minor, C.J. (Jackson) filed a five-count complaint against the Willoughby Eastlake School District, Willoughby Eastlake Board of Education, Steve Thompson, school district Superintendent, and a number of school district employees, alleging that they collectively failed to take affirmative steps to report, document and prevent bullying and retaliation against C.J. and other students at the school. At issue in the case was Jackson’s motion to compel the district to provide written responses to interrogatories and documents in response to requests for production of documents.
The district objected to the discovery requests citing that the requested documents were student educational records, and were therefore confidential under the Family Educational Rights and Privacy Act (FERPA). As a result, the district filed a motion in opposition and a motion for protective order. Jackson argued that FERPA was not an absolute bar against disclosure of individual student information, especially in civil rights cases, and cited the FERPA exception where disclosure may be made without required consent in compliance with a judicial order. In making this argument, Jackson acknowledged that the party seeking disclosure must establish relevancy and assert that a protective order sufficiently would address the privacy concerns of any named students.
The district argued that the individual records sought were protected from disclosure by FERPA and could not be disclosed without written consent of the parents of the individual students, citing students’ privacy interests in their own disciplinary records.
The court noted that because FERPA is based upon privacy concerns, the party seeking disclosure of student records has a higher burden of proof. The seeking party must demonstrate a genuine need for the information that outweighs the privacy interests of the students. Jackson identified three specific students accused of abusing, assaulting and bullying C.J., and alleged the district failed to properly address C.J.’s allegations. Jackson asserted that those three students’ discipline records were necessary to corroborate his family’s claims. The district did not argue that the requested information lacked relevance, but rather only that the information requested was protected from disclosure by FERPA.
In its analysis, the court agreed that FERPA does not create an absolute bar or privilege that prevents disclosure of the records sought, and the need for the requested discovery outweighs the students’ privacy interests. The court also noted that FERPA requires the district to make a reasonable effort to provide notice to the students and their parents before disclosing education records, but that because the disclosure in this case would be carried out through the court-ordered exception to FERPA, and because it is subject to a protective order, parental consent is not required.
The court also highlighted that in making reasonable efforts to provide notice to any affected student and his or her parents, the district would be required to advise such persons that they have 14 days to assert any objection to the production, and the grounds for any such objection. After 14 days, any objections would be forwarded to the court for consideration and ruling. The court also noted that any documents produced in response to the requests in question must be marked “Confidential” and would be produced subject to a protective order limiting use of the information to litigation only, for attorneys’ eyes only, and preventing the filing of such individual student records except under seal. The court ordered that any such documents be properly redacted.
IMMUNITY – POLITICAL SUBDIVISION
Ohio appellate court finds that school district and bus driver are entitled to statutory immunity.
Nicholson v. Loanmax, L.L.C., 2018-Ohio-375.
https://www.supremecourt.ohio.gov/rod/docs/pdf/7/2018/2018-Ohio-375.pdf
Kelly Nicholson filed a complaint against a number of parties, including the Bellaire Board of Education. In her complaint, Nicholson alleged that on Sept. 17, 2014, she was exiting a school bus owned by the board when she stepped off the bus and into a pothole in a parking lot owned and maintained by the board and all other defendants. The board answered Nicholson’s complaint and denied all allegations, asserting a number of affirmative defenses, including statutory immunity. Nicholson later amended her complaint, also naming Judith Steele, a bus driver employed by the board, as an additional defendant. The board and Steele moved for summary judgment on the basis of statutory immunity pursuant to Ohio Revised Code (RC) 2744.01. The other defendants also objected on other grounds, and all motions were overruled.
Steele and the board appealed the decision, alleging that there were no genuine issues of fact regarding their statutory immunity, and that they were entitled to judgment in their favor as a matter of law. In its analysis, the court noted that a three-tiered analysis is required when evaluating immunity: 1) RC 2744.02(A)(1)’s initial provision that political subdivisions are not liable in damages; 2) The court’s determination of whether any RC 2744.02(B) exceptions to immunity apply; and 3) If any exceptions are found to apply, the court’s consideration of whether any RC 2744.03 defenses and immunities to liability apply. The board and Steele argued that none of the exceptions applied, and Nicholson argued that three exceptions applied to reinstate liability.
Nicholson first argued that RC 2744.02(B)(1) reinstated the board and Steele’s liability alleging that Steele failed to adhere to the applicable Ohio safety regulations, school policies and local rules. Both parties agreed that the bus was fully stopped at the time of the incident. The court found that the bus was stopped and parked when Nicholson exited and stepped down into the pothole. The court found there was no actual operation of a school bus at the time, and therefore negligent operation of a motor vehicle did not apply.
In her second argument, Nicholson alleged a failure to repair public roads. Nicholson’s injury occurred in a parking lot owned by the other defendants, and where the board had a legal easement since 1982. Nicholson argued that the easement required the board to maintain the parking lot in a reasonably safe condition. The court, however, found the failure to repair public roads exception did not apply in this case, because parking lots are not included in the statutory definition of a public road.
In her final argument, Nicholson asserted that physical defect should reinstate the board and Steele’s liability. The court noted that, in order for this exception to apply, two elements must be proven: 1) a negligent act; and 2) a physical defect within or on the grounds of the political subdivision. In its analysis, the court pointed to case law citing the definition of a physical defect as a “perceivable imperfection that diminishes the worth or utility of the object at issue.” Here, Nicholson argued that the pothole that caused or contributed to her injury was a physical defect. The board argued that the easement operated as it was intended to, therefore the second factor was not met. In relation to the required showing of a negligent act, Nicholson argues both that the negligent act was Steele’s operation of the bus – even though the bus was fully stopped at the time – and that the negligent act was the board’s failure to repair the pothole.
The court reversed the trial court’s decision and granted summary judgment in favor of Steele and the board, finding that they were entitled to statutory immunity because none of Nicholson’s arguments established a reinstatement of liability for Steele or the board.
Concurring in part and dissenting in part, Judge Gene Donofrio stated that, while Steele should have been entitled to immunity because she was operating a school bus within the scope of her employment, the board’s liability should have been reinstated due to Steele’s negligent operation of the school bus, based on her action of driving the bus over a large pothole and parking it there. The dissent argued that the second tier of the three-tiered analysis reinstated the board’s liability, and no defenses to immunity under the third tier of the analysis entitled the board to any such immunity.
IMMUNITY – POLITICAL SUBDIVISION
Ohio court finds board of education not immune in student’s claim relating to physical defect of athletic facilities.
Stanfield v. Reading Bd. of Edn., 2018-Ohio-405.
https://www.supremecourt.ohio.gov/rod/docs/pdf/1/2018/2018-Ohio-405.pdf
In 2014, Nicholas Stanfield was a student at Reading High School who participated in the schools’ track and field program discus event. Students participating in the program practiced at Reading Veteran’s Memorial Stadium, which is a facility not owned by the school district, but rather by the City of Reading. The discus area included a discus cage, with netting secured by the school district’s discus coach prior to the first practice and a concrete pad. The coach instructed students to stay behind the netting while another student was throwing the discus. Stanfield alleged that the netting had several large holes and was gaping at the poles. On Mar. 17, 2014, Stanfield suffered a severe head injury when a discus thrown by another student hit him in the head. Stanfield and his mother, Sandra Hale, filed a complaint against the City of Reading, the Reading Board of Education and several individual defendants.
The board filed a motion for summary judgment, arguing it was immune from liability under Ohio Revised Code (RC) 2744.02(A)(1), and that the only possible exception to immunity that could apply would be RC 2744.02(B)(4), the physical defect exception. The board went on to argue that, because it did not own the facility, Stanfield’s injury did not occur on school grounds and, therefore, the physical defect exception could not apply. The trial court granted the board’s motion for summary judgment, and Stanfield and Hale appealed the decision.
The court applied a three-tiered analysis for evaluating immunity, which includes: 1) application of RC 2744.02(A)(1), which provides that political subdivisions are not liable in damages; 2) the court’s determination of whether any RC 2744.02(B) exceptions to immunity apply; and 3) if any exceptions are found to apply, the court’s consideration of any RC 2744.03 defenses and immunities to liability.
Here, Stanfield and Hale admitted that the board is a political subdivision and the public school’s athletic program is a governmental function. Both parties agreed that a general grant of immunity under the first tier applied. Stanfield and Hale argued though that under the second tier of analysis, the physical defect exception applied and reattached liability. The board argued that this exception did not apply because it requires the injury to happen within or on the grounds of the political subdivision, and because the board did not own the facility, the exception was not met.
In its analysis, the court pointed to the fact that Stanfield was injured on the grounds of a building used in connection with the performance of a governmental function, the district’s track and field program. The board argued that this analysis was dangerous in that it could create school district liability for defects wherever a school activity might take place, regardless of the school district’s affiliation with the location. The court, however, disagreed, citing the fact that in order for the physical defect exception to apply, the injury or loss had to occur: 1) due to employee negligence; 2) within or on the grounds of a building used in connection with the performance of a governmental function; and 3) because of a physical defect within or on the grounds.
The board also argued that Stanfield and Hale could not show that the netting constituted a physical defect. However, the court found that the discus coach’s affidavit stating he observed the netting to be “dilapidated” and “unsatisfactory due to holes and gaping near the poles” was sufficient evidence that the netting constituted a physical defect.
The board then argued that even if the physical defect exception applied under the second tier, the board’s immunity still should have been restored under analysis of the third-tier defenses because the track and field coach had discretion with respect to instruction and supervision of students and equipment used for practice. The court disagreed with this claim and stated that routine maintenance decisions did not fall under this defense.
The court held that the board was not immune in relation to the physical defect and defective netting claims, but that the board’s immunity was reinstated in relation to the inadequate supervision claims.
District court grants summary judgment to district where parent fails to state a claim under the Civil Rights Act and Rehabilitation Act regarding her child with a disability participating in a team sport.
Clemons v. Shelby Cty. Bd. of Edn., W.D.Ky. No. 3:15-CV-00552-GNS-DW, 2018 U.S. Dist. LEXIS 1476678 (Mar. 26, 2018).
Parent, Keshia Clemons, sued the Shelby County Board of Education on behalf of her daughter, T.W. Beginning in her eighth-grade year at Martha Layne Collins High School (Collins), T.W. began to experience a significant amount of anxiety. In December, Clemons sought professional assistance from a therapist who conducted an evaluation of T.W. In February 2014, the therapist diagnosed T.W. with Asperger’s Syndrome Disorder. Clemons did not seek any special education services or accommodation for T.W. during that school year.
T.W. decided to participate on the girls’ tennis team in 2014. During February, while the evaluation was ongoing, T.W. experienced meltdowns during practice and eloped from practice when she felt uncomfortable. She also came home crying because she felt she was singled out for criticism by the coach. Clemons told the coach he was not giving T.W. positive encouragement.
On Feb. 17, 2014, following a bad practice, Clemons shared T.W.’s diagnosis with the coach and then discussed the matter over the telephone. During March and April, T.W. participated in exhibition and varsity matches. At the end of April, Clemons and T.W. discovered that T.W. would not be competing in the regional tournament and T.W. threatened to commit suicide. Clemons came to school and met with T.W. and two school officials. Later, Clemons attended the team practice with T.W., where she perceived that the coach was ignoring T.W. Clemons responded angrily to the coach, making other parents concerned about the coach’s safety.
Clemons withdrew T.W. from Collins and decided to homeschool her for the remainder of the year. In June 2014, Clemons wrote to the district’s superintendent describing the events of the past year involving the tennis team.
Clemons enrolled T.W. at Collins for the 2014-15 school year and held a series of meetings with school officials to discuss an individualized accommodation plan, as provided by Sec. 504 of the Rehabilitation Act (Sec. 504). She did not request any accommodations related to the tennis team. The tennis coach decided to not select T.W. for the tennis team, in part because he was concerned that he was the source of T.W.’s anxiety and he did not want to contribute to her anxiety again. The school directed the coach to put T.W. onto the team, and Clemons then asked for accommodations related to the team, which the school agreed to implement in a Sec. 504 plan.
Notwithstanding these discussions, T.W. had additional problems with the coach and team. Clemons decided, on Apr. 1, 2015, to withdraw T.W. from Collins and homeschool her for the remainder of the school year. In June, Clemons filed her action asserting claims under Title IX of the Education Amendments of 1972 (Title IX), Sec. 504, the Equal Protection Clause of the Fourteenth Amendment and the Kentucky Constitution. The court granted summary judgment to the district on all of Clemons’s claims.
Regarding her Title IX claim that the district failed to provide equal athletic opportunities to girls participating in tennis at Collins, the court concluded that Clemons had failed to provide direct evidence to support her claim. It also concluded that she failed to provide evidence to establish a claim under the burden shifting test developed by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972). The court dismissed her Title IX claims against individual defendants because there is no individual liability under Title IX.
The court concluded that Clemons failed to provide direct evidence to support her Sec. 504 claim that the district discriminated against her daughter. Turning again to the McDonnell Douglas burden shifting framework, the court assumed that Clemons could satisfy her burden to prove a prima facie case. However, it considered that the facts demonstrated that the district could establish a legitimate, non-discriminatory reason for its actions, and that Clemons could not show that the district’s reason was a pretext for discrimination.
Finally, the court granted summary judgment to the district on Clemons’ Equal Protection claim because it concluded that she also had failed to identify any evidence to demonstrate how T.W. was treated differently than any similarly situated non-disabled students.
Tennessee court finds parents of student with an IEP have to produce evidence, not merely allege problems, to prove systemic violations of state complaint resolution process.
C.P. v. Tennessee Dept. of Edn., M.D.Tenn. No. 3:16-cv-02938, 2018 U.S. Dist. LEXIS 55034 (Mar. 30, 2018).
https://casetext.com/case/cp-v-tenn-dept-of-educ-rutherford-cnty-bd-of-educ
C.P. was a 17-year old student with multiple life restrictions. He functions at the level of a toddler and has self-destructive and compulsive behaviors that impede his education. C.P.’s parents originally lived in North Carolina, where he received services pursuant to his individualized education program (IEP). The family then moved to Rutherford County, Tennessee, where C.P.’s parents sought to have the same services provided by the new school district (RCBOE).
As a result of the first IEP meeting between C.P.’s parents and RCBOE, the parents found C.P.’s accommodations lacking. The parents believed the meeting did not include the proper staff and were told C.P. would not be evaluated for the assisted technology he used in North Carolina and that the device previously used might not be supplied. At a second IEP meeting, C.P.’s parents received an updated draft of C.P.’s IEP, which contained fewer services than he had received in North Carolina and eliminated 1:1 aide services. At the end of the meeting, the parents informed RCBOE that they would seek legal representation and decided not to allow C.P. to attend school until he was provided with 1:1 aide services. At a third IEP meeting, RCBOE declined to provide C.P. with all of the services he received in North Carolina, at least until the district concluded its own evaluations. The school agreed to provide the 1:1 aide services if C.P. returned to school, but the parents rejected the offer because, without other supports, 1:1 aide services would not be enough to “ensure C.P.’s well-being.”
Between the second and third IEP meetings, C.P.’s parents sent an administrative complaint to the Tennessee Department of Education (TDOE) alleging RCBOE had violated the Individuals with Disabilities Education Act (IDEA). TDOE investigated and found RCBOE had committed violations and ordered RCBOE to train its staff on its obligations and provide a written summary of its next IEP meeting. R.C.’s parents also requested the documentation RCBOE provided to TDOE. C.P.’s parents claimed the documentation showed TDOE’s “clear bias” to decide complaints in favor of school districts, which they argued showed a “systemic problem” with TDOE’s complaint resolution process. The parents were convinced at this point that C.P. would not be able to receive “a free and appropriate public education” while enrolled at RCBOE and moved to Williamson County. The parents never requested a due process hearing.
The parents alleged violations of IDEA, Americans with Disabilities Act and Sec. 504 of the Rehabilitation Act and sought a declaration that RCBOE violated C.P.’s rights under all three laws. They also sought reimbursement for the logistical and emotional expenses associated with the relocation to Williamson County, an order that TDOE revise its administrative complaint process to comply with the IDEA, attorney’s fees and any other relief the court found just. TDOE and RCBOE filed motions to dismiss.
Examining the case, the court noted that a claim brought under IDEA may be dismissed on a 12(b)(6) motion for failure to exhaust the act’s administrative remedies. Exceptions are made to IDEA’s exhaustion requirement where administrative remedies would be futile or inadequate. C.P.’s parents sought to avoid the exhaustion requirement by arguing a systemic problem with the state complaint resolution process. However, the parents’ complaint fell short of alleging facts to support this relief or a finding of a plausible systemic violation sufficient to waive the exhaustion requirement. The court found that while the parents would have preferred a more thorough investigation by TDOE in resolving their complaint, their allegations failed to plausibly support an inference that the outcome of the complaint resulted from TDOE’s systemic predisposition toward local school districts. The court also found the parents failed to plausibly allege an IDEA claim against TDOE upon which relief could be granted, even if the exhaustion requirement had been met.
Court grants district’s motion for summary judgment on complaint brought by a pro se litigant on behalf of her adult son because a pro se litigant cannot represent another person’s interests.
Harris v. Cleveland City Bd. of Edn., E.D.Tenn. No. 1:17-cv-00121, 2018 U.S. Dist. LEXIS 33149 (Mar 1, 2018).
In January 2017, Elizabeth Harris brought a pro se claim against the Cleveland City Board of Education alleging that it had violated the Individuals with Disabilities in Education Act (IDEA), Americans with Disabilities Act, Sec. 504 of the Rehabilitation Act (Sec. 504), 42 U.S.C. 1983, and the McKinney-Vento Homeless Assistance Act regarding the education of her son, Michael. Michael had been diagnosed with attention deficit hyperactivity disorder (ADHD) and autism.
At the beginning of the 2016-17 school year, the school district evaluated Michael and determined he was not eligible for special education services under IDEA, although he did continue to receive services under a Sec. 504 plan. Michael turned 18 on Mar. 31, 2017, and graduated from the district in May 2017. Michael specifically declined services under IDEA in a meeting with the district in April 2017.
The court granted the board’s motion for summary judgment because: 1) as of his 18th birthday, all rights to make claims under IDEA transferred from Michael’s parents to Michael and he declined special education services; 2) a pro se litigant can only bring claims on his or her own behalf, and cannot bring claims on behalf of a child unless the child has been adjudicated incompetent; and 3) Harris failed to state any claims for relief on her own behalf.
Court dismisses for lack of a present case or controversy parents’ appeal of administrative decision on a stay-put order affecting their son because parents removed the student from the district’s schools.
L.D. v. Sumner Cty. Schools, M.D.Tenn. No. 3:17-cv-01377, 2018 U.S. Dist. LEXIS 35514 (Mar. 5, 2018).
https://scholar.google.com/scholar_case?case=7859733127029509326&hl=en&as_sdt=6&as_vis=1&oi=scholarr
L.D. was a student with autism attending school in the Sumner County Schools (SCS) receiving special education services under the Individuals with Disabilities Education Act (IDEA). When he was an eight-year-old student attending classes in a comprehensive development classroom, L.D.’s behavior became increasingly more aggressive, resulting in injury to himself and others in the classroom. In early 2017, the district wanted to transfer L.D. to a therapeutic behavioral comprehensive development classroom in another building.
L.D. was granted a stay-put order to keep him in his current classroom through the end of the 2016-17 school year. In June 2017, the district filed a claim to dismiss the stay-put order and allow it to transfer L.D. to its proposed placement. A hearing was held on July 31, 2017. Before the administrative law judge (ALJ) issued a decision, L.D.’s parents withdrew him from SCS in August 2017 and enrolled him in a private school. They filed a motion to dismiss the complaint because their son was no longer a student in SCS.
The ALJ denied the plaintiff’s motion and issued a final order granting SCS’s motion to change L.D.’s placement. L.D.’s parents filed this claim with the district court, seeking to dismiss the ALJ’s order on the basis of reversible error. SCS filed a motion for summary judgment on the basis that the plaintiffs failed to state a claim for which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure and that there was no live case or controversy because the student had been removed from SCS.
The court granted SCS’s motion for summary judgment on the second ground. While the court concluded that the plaintiffs had stated a claim for relief sufficient to survive scrutiny under Rule 12(b)(6), it also held that the parents’ decision to remove L.D. from SCS meant that they were essentially abandoning their due process claim, thereby making it moot. Further, the matter was not one “capable of repetition, yet evading review” because, if L.D. returned to the district, he would be an autistic child who presents an “evolving set of challenges for educators,” and would not have the same needs.
Court of appeals finds that district neither failed to provide Child Find and prior written notice under IDEA nor failed to provide appropriate services to student under IDEA or Sec. 504.
M.G. v. Williamson Cty. Schools, 6th Cir. No. 17-5300, 2018 U.S. App. LEXIS 522 (Jan. 9, 2018).
https://caselaw.findlaw.com/us-6th-circuit/1885432.html
M.G. began attending preschool in Williamson County (district) in 2010. In December 2010, the district evaluated M.G. and concluded that she was not eligible for services under the Individuals with Disabilities Education Act (IDEA). In 2012, when M.G. was in kindergarten, the district and M.G.’s parents created an individualized accommodation plan as provided for by Sec. 504 of the Rehabilitation Act (Sec. 504) for her. When M.G. continued to fall behind her peers academically, the district started a second IDEA evaluation in April 2013. The evaluation was not completed because M.G.’s parents withdrew her from the district in June 2013.
In September 2013, M.G. and her parent C.G. filed a due-process complaint, contending that M.G. had been denied a free appropriate public education (FAPE). The Tennessee administrative law judge (ALJ) ruled in favor of the district in August 2015.
The family then filed suit against the district alleging that it violated substantive and procedural provisions of (IDEA), Sec. 504, Title II of the Americans with Disabilities Act (ADA) and Tennessee law. The district court agreed with the ALJ and granted the district’s motion for summary judgment on the ALJ’s record. The circuit court agreed with the ALJ and the district court.
On the plaintiffs’ claim regarding procedural violations of IDEA, the circuit court concluded: 1) the district had not failed its duties under the Child Find requirement because it had started a second evaluation of the student and had used appropriate alternative interventions in the time between the two evaluations; and 2) the district was not required to provide prior written notice to the parents because the student was not substantively entitled to special education services under IDEA.
The plaintiffs also claimed substantive violations of IDEA, Sec. 504 and ADA because the district did not provide M.G. with direct occupational and physical therapy. The circuit court concluded that: 1) the district had appropriately evaluated M.G. during her time in its schools and found that she did not need these therapies; and 2) the district was not required to provide services to the student simply because her doctor prescribed them. The court concluded that the district had met its obligations under Sec. 504 and ADA because it provided, progressively, a response to intervention plan, a general education intervention team plan and a Sec. 504 plan to the student.
State Board of Education’s deliberations leading to the decision to “claw back” ECOT’s funding are quasi-judicial and exempt from the Open Meetings Act.
Electronic Classroom of Tomorrow v. Ohio State Bd. of Edn., 2018-Ohio-716.
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2018/2018-Ohio-716.pdf
On June 14, 2017, the Electronic Classroom of Tomorrow (ECOT) filed an action against the State Board of Education (SBOE) seeking to invalidate the SBOE’s resolution to “claw back” approximately $60 million in full-time equivalency funding that the Ohio Department of Education (ODE) previously paid to ECOT. ECOT argued that the adoption of that recommendation was invalid because it was made in violation of Ohio’s Open Meetings Act.
The SBOE argued that it was entitled to judgment on the pleadings as a matter of law because the Open Meetings Act does not apply to the SBOE when it engages in quasi-judicial functions. In May 2017, a hearing officer issued a 100-page report, recommending that the state of Ohio recover $60 million in funds previously awarded to ECOT. The SBOE noticed the June 12, 2017, meeting on June 8. Soon after the meeting began, SBOE adjourned into executive session to conference with its legal counsel and discuss the hearing officer’s recommendation. After SBOE reconvened the public meeting, its legal counsel gave a 6-minute presentation related to SBOE’s consideration of the ECOT resolution. The board then deliberated publicly for nine minutes before taking a vote on a resolution to adopt the hearing officer’s decision.
The trial court found that ECOT had failed to state a viable claim under the Open Meetings Act. See OSBA’s School Law Summary 2017-3 for a summary of the trial court’s opinion.
ECOT appealed the trial court’s opinion. On appeal, the court relied on case precedent finding that proceedings that were “quasi-judicial” were not within the purview of the Open Meetings Act. In determining whether the SBOE proceedings were “quasi-judicial,” the court considered whether the proceedings involved “the exercise of discretion” and “notice and the right to a hearing.” In this case, the statute in question provided for an informal hearing before the board or its designee. The court found that, by issuing its final determination after providing notice, a hearing, and the opportunity to provide evidence, the SBOE was acting in a quasi-judicial capacity. As a result, the court found that the deliberations that led to the decision were not within the purview of the Open Meetings Act.
Ohio appellate court finds Open Meetings Act violations obscured reasons for special meeting.
State ex rel. Jones v. Dayton Pub. Schools Bd. of Edn., 2018-Ohio-676.
https://cases.justia.com/ohio/second-district-court-of-appeals/2018-27649.pdf?ts=1519413459
On May 7, 2013, Craig Jones was employed by the Dayton City School District as the district’s treasurer for a three-year period. The contract began on Aug. 1, 2013, and ended on July 31, 2016, unless terminated earlier by the parties’ mutual agreement, by Jones’ retirement, disability or death, by a majority vote of the board, or by Jones’ failure to maintain a valid license as statutorily required. On Feb. 23, 2016, the board held a special meeting and voted to not to renew Jones’ contract.
On Sept. 9, 2016, Jones filed a complaint seeking both a declaratory judgment and a writ of mandamus against the board. Jones asked for a declaration that he was entitled to be reemployed by the board under a one-year contract, due to the board’s failure to comply with statutory requirements and the board’s own policies pertaining to scheduling special meetings. He also claimed the board’s special meeting notice failed to comply with Ohio Revised Code (RC) 121.22 and that the actions taken at the ensuing board meeting were invalid. Finally, Jones asserted that he was a public official and that the board’s executive session was unlawful because the special meeting notice stated that the purpose of the executive session was to consider “employment of public employees,” rather than to consider the employment of a public official.
The trial court rejected Jones’ arguments about defects in the board’s procedure calling for a special meeting under RC 3313.16 because Jones had “actual knowledge” of the special meeting, the board’s notice did not violate RC 121.22(F) and Jones’ argument about being a public official versus a public employee was a “distinction without a difference.”
On appeal, Jones argued that the board failed to comply with the statutory requirements under RC 3313.16 and RC 121.22(F) and its own policy concerning special meetings. He pointed out the actual notice did not indicate the board would be voting on Jones’ contract. Rather, it stated the board would be acting on superintendent and/or treasurer recommendations, which the board knew were not going to be made.
The appellate court exhaustively reviewed the facts in this case and analyzed Ohio’s Open Meetings Act requirements and the board’s own policies, concluding that several procedural violations had occurred, but because Jones had actual notice of the meeting, he was not prejudiced by the lack of compliance with RC 3313.16. However, the appellate court found the Open Meetings Act violations more problematic, as no purpose for the meeting was stated, and to the extent that any purpose was indicated, it obscured, rather than revealed the meeting’s true purpose. Accordingly, the case was remanded on this single assignment of error.
Special master recommends holding that school district provided all public records responsive to overly broad and ambiguous public records request.
Frank v. Upper Arlington Schools, 2018-Ohio-1554.
https://cases.justia.com/ohio/court-of-claims/2018-2017-00841-pq.pdf?ts=1524260266
Matthew Frank made a public records request to Dr. Kathleen Jenney, Associate Superintendent of Upper Arlington schools, on Sept. 29, 2017. The request included “any pictures, video surveillance, written correspondence, notes from phone conversations, emails, texts, records of calls made involving the investigations launched by the schools, involving Matt Frank or investigations sent by Jeanine Hummer or Mark Hummer to the school, testimony taken under oath or in deposition from any party, or the notes taken by Robin Hothman during the meeting with two outgoing and one incoming captain parents and AD Tony Pusater from last year.”
On Oct. 10, 2017, Andrew Geistfeld, the school district’s treasurer responded that the request was ambiguous and overly broad and that responsive documents would contain information protected by FERPA, Ohio Revised Code (RC) 3319.321, and attorney-client privilege, as well as personal information not a record of the office. The response also stated that “records that may be responsive in whole or in part” were enclosed and advised that there was no responsive security video or testimony taken under oath.
On Oct. 12, 2017, Frank filed a complaint alleging denial of access to public records under RC 149.43. The case was sent to mediation in November 2017 where it was not resolved. A special master was appointed to the issue and the school district submitted a response and motion to dismiss on Dec. 15, 2017, stating that it had fully responded to Frank’s requests as of Sept. 29, 2017, and his allegedly clarified request as of Nov. 1, 2017.
The district argued that Frank’s request was vague and overbroad because it did not identify what “investigations launched by the school” was referring to. In his analysis, the special master noted that the person making the response bears responsibility for identifying, with reasonable clarity, the records he or she wishes to inspect and/or copy. He also noted that a public records request is unenforceable where it is too vague or indefinite to be properly acted on by the records’ holder. The special master found that Frank’s first request was not sufficient to meet this requirement.
The special master also noted that a public office is not required to seek out and retrieve records that would contain information of interest to the requester. As a result, he found Frank’s first request also improperly required the district to conduct research to seek out and retrieve records containing information that the district otherwise does not maintain.
In his analysis, the special master noted that the district was obligated, under RC 149.43(B)(2), to notify Frank of the manner in which records are maintained and provide him with an opportunity to revise his request. While the special master noted that the district failed to meet this requirement, he stated that Frank was not entitled to relief under the finding of this violation because Frank did not assert a claim for such relief nor make such request of the district.
In his analysis, the special master also noted that a public office has no duty to provide records that do not exist or that the office does not otherwise possess. Therefore, because the district does not have records responsive to Frank’s request for video surveillance records and Frank failed to show that he had been denied access to the records that do exist, the special master also recommended denial of Frank’s motion in relation to surveillance records.
Finally, the special master found that Frank provided no evidence to prove that the district had not already provided all responsive records. The district stated Frank clarified his first request, that resulted in the district providing him with all public records responsive to the clarified request. Frank provided no evidence that this was untrue. As a result, the special master recommended that all of Frank’s requests be found either ambiguous, overbroad or moot, and dismissed.
Court concludes that, before applying The Bedford Rule, both procedural and substantive circumstances of the case must be evaluated and satisfied.
South-Western City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, Slip Opinion No. 2018-Ohio-919.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2018/2018-Ohio-919.pdf
In this real-property valuation case, the property owners sought to reduce the value of their 55.61 acres of unimproved agricultural land for tax year 2011. The Franklin County Board of Revision (BOR) granted a partial reduction and the Board of Tax Appeals (BTA) adopted BOR’s value determined. The South-Western City School District then appealed the BTA valuation decision.
The court noted that in situations involving valuation such as this, the Bedford Rule applies. This rule provides that “when the board of revision has reduced the value of the property based on the owner’s evidence, that value has been held to eclipse the auditor’s original valuation,” and the BOE before the BTA may not rely on the latter as the default valuation.” The court further stated that, before Bedford can be applied, two circumstances must be evaluated; one procedural and one substantive. Procedurally, BOE actively opposed using the property owner’s evidence before BOR and substantively, the evidence showed the comparable sale was a related-party transaction and the sale price did not necessarily constitute market value. Based on these circumstances, the court reversed BTA’s decision and reinstated the county auditor’s original valuation.
Sixth circuit holds that Title VII prohibits discrimination based on an employee’s transgender status.
EEOC v. R.G., 884 F.3d 560 (6th Cir.2018).
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0045p-06.pdf
Aimee Stephens was born biologically male. While living and presenting as a man, she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc. Stephens was terminated from the funeral home shortly after she informed the owner of her intent to transition from male to female and represent herself and dress as a woman while at work.
Stephens filed a complaint with the Equal Employment Opportunity Commission (EEOC), which investigated Stephens’ allegations that she had been terminated as a result of unlawful sex discrimination. EEOC subsequently brought suit against the funeral home, charging it with violating Title VII by terminating Stephens’ employment on the basis of her transgender or transitioning status. The district court granted summary judgment in favor of the funeral home, finding merit in the owner’s argument that employing Stephens while she dressed and represented herself as a woman would constitute an unjustified substantial burden upon the owner’s sincerely held religious beliefs, in violation of the Religious Freedom Restoration Act (RFRA).
The court of appeals disagreed with the district court and found that the funeral home violated Title VII, which prohibits discrimination on the basis of sex. The court found that it is “analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” The court’s opinion relied on “settled law” that prohibits “sex stereotyping based on a person’s gender non-conforming behavior.” It stated: “Title VII protects transgender persons because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait.”
The court rejected the funeral home’s argument that its owner’s sincerely-held religious beliefs provided a defense to liability under Title VII. Although the court acknowledged that religious institutions are protected from certain discrimination claims when the action taken is critical to the religious function of the institution, the court held that the funeral home was not a religious institution and its owner was not a ministerial employee. The court also rejected the funeral home’s arguments under RFRA, finding that accommodating Stephens’ request to represent herself as a woman and requiring the owner of the funeral home to “comply with Title VII’s proscriptions on discrimination does not substantially burden his religious practice” in violation of RFRA.