In this issue: Board Of Tax Appeal • Collective Bargaining • Discrimination – Sex • Fourteenth Amendment • Fraudulent Transfer Act • Individuals With Disabilities • Open Meetings Act • Public Records • Statute Of Repose • Teacher – Termination • Treasurer – Termination • Territory Transfer
Appeals court remands case for determination of property value based on current statutes and governing authority.
Columbus City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision (JDM II SF NATIONAL LLC and LSREF2 TRACTOR REO (DIRECT) LLC), 2020-Ohio-200.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2020/2020-Ohio-200.pdf
These consolidated cases involve the same State Farm office building property that was at issue in Columbus City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 151 Ohio St.3d 100, 2017-Ohio-7578. In that case, the Ohio Supreme Court determined a "contemporaneous negotiation of the sale price and the lease terms, especially the rent payments, sets up a reciprocal relationship between these elements of the overall transaction." The Supreme Court then reversed the Ohio Board of Tax Appeals’ (BTA) reliance on the $25,092,326 sale price as the property's valuation for 2012 and reinstated a $14,000,000 valuation for that year.
This case was the determination of the property value for the following three years, 2013 through 2015.The court began the analysis with the recognition that, in 2012, the legislature made two significant changes to the governing statute, Ohio Revised Code 5713.03, that went into effect on Sept. 10, 2012, and applied to valuations for tax year 2013 and beyond. First, it required county auditors to determine the true value of the fee simple estate, as if unencumbered. Second, concerning recent arm's-length sales, it replaced shall with may: “the auditor may consider the sale price … to be the true value for taxation purposes.” The court also noted that a property owner may present evidence at a BTA hearing aimed at rebutting the presumption that a recent sales price reflects true market value of property.
One of the main issues in this case is the credit worthiness of State Farm as a tenant and the effect this had on the sale/leaseback. Although the BTA states there was not sufficient evidence to determine the effect of the tenant’s credit worthiness, the appellate court found the record replete with evidence, and the importance of that evidence.
The other issues in the case were the BTA’s misuse of the new statutory guidelines, misattributing case precedent and misapplying the old statutory scheme to the current issue.
Finally, the court determined that the BTA should have considered evidence of the tenant's creditworthiness and whether the lease was a net lease in determining whether the taxpayer rebutted the presumption that the sale established the value of the property. The court vacated the BTA’s decision and remanded the case to determine the valuation according current statutes and governing precedent.
Board of education gets case remanded for a determination regarding the tax appeals reliance upon the renovations as opposed to remodel.
Licking Hts. Local Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 2019-Ohio-5082.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2019/2019-Ohio-5082.pdf
On April 17, 2018, the Ohio Board of Tax Appeals (BTA) established a new taxable value of a 240-unit apartment complex owned by Jefferson Chase OH Partners LLC (Jefferson).
The BTA initially noted that both Jefferson and the Licking Heights Board of Education (BOE) acknowledged the sale of the property in October 2014 was not reliable as to value, as it was conducted by a receiver due to bankruptcy and, therefore, a forced sale. Both parties retained appraisers for their evidence of valuation. The BTA found Jefferson’s appraiser's analysis more probative of value on the tax lien date. Therefore, the BTA found the true value of the property as of Jan. 1, 2015, was $11,120,000.
The BOE filed its appeal with 11 assignments of error, but the court determined only errors one, two and three to be remanded for reconsideration. These three assignments of error all alleged that the BTA’s decision to favor one appraiser over the other was an abuse of discretion and was not reasonable and lawful.
Prior to the tax lien sale, multiple units were damaged by a fire, and it is unclear whether the BTA regarded testimony in reference to “renovations” as fire renovations or standard remodeling in individual units. The appeals court remanded the matter to the BTA for this determination.
District court concludes that union member’s challenge to exclusive representation in collective bargaining fails on constitutional grounds.
Thompson v. Marietta Edn. Ass’n., 371 F.Supp.3d 431 (S.D.Ohio 2019)
https://www.leagle.com/decision/371190444fsupp3d43128
Jade Thompson served as a Spanish teacher at Marietta High School in Washington County, Ohio. The Marietta City Schools Board of Education managed and controlled schools within the Marietta City School District — including Marietta High School — and employed Thompson. The Marietta Education Association (union) represented employees of the district. It is affiliated with the Ohio Education Association and National Education Association.
The school board and union were parties to a collective bargaining agreement (CBA). The CBA established a bargaining unit of all full-time and regular part-time certificated personnel employed under contract, including classroom teachers, special education teachers, psychologists, guidance counselors, librarians, school nurses, head teacher(s), attendance officer, resource teachers and full-time substitutes employed 61 or more consecutive days in the same position in a school year. Thompson was a member of the bargaining unit as defined in the CBA. However, Thompson was not a member of the union and disagreed with the union's position on several issues.
Although the CBA recognized the union as the "sole and exclusive bargaining agent for the members of the bargaining unit," which is legal under Ohio law, bargaining unit members were not required to join the union nor to contribute financially to the union. Furthermore, any bargaining unit member — whether a member of the union or not — was free to criticize union positions or take positions different from those taken by the union. In fact, the union recognized that "there will always be teachers or other employees represented by [the union] who disagree with its positions."
Thompson sued, contending that Ohio law and the CBA violated her First and 14th Amendment rights to free speech and free association by designating the union as her exclusive representative. Specifically, she contended that the designation of the union as her exclusive representative amounted to compelled speech and compelled association. She sought a declaration that Ohio Revised Code (RC) 4117.04-.05 were unconstitutional and a preliminary injunction prohibiting the board from recognizing the union as her representative.
Thompson argued that the designation of the union as her exclusive representative forced her into an expressive association with the union. The district court applied the U.S. Supreme Court’s decision in Minn. State Bd. for Community Colleges v. Knight, 465 U.S. 271, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984) to Thompson’s forced association claim. The district court found that, although Knight did not itself involve a forced association claim, the broad reasoning in the opinion foreclosed such a claim.
In Knight, the Supreme Court stated that, although the union was designated as the employees’ exclusive representative for purposes of negotiation, "[t]he state has in no way restrained appellees' ... freedom to associate or not to associate with whom they please, including the exclusive representative." Similarly, it stated later that the nonmembers' associational freedom was not impaired because the nonmembers were both "free to form whatever advocacy groups they like" and were "not required to become members of" the union.
The district court, citing these broad statements in Knight, concluded that they, at the very least, suggest that because joinder in the union was not required, the First Amendment right to be free from compelled association is still protected.
The court continued by noting that if it granted Thompson’s requested relief — prohibiting the union from holding itself out as representing Thompson or the school board from recognizing the union as representing her — then Thompson and any other employees who chose not to be represented by the union must either: (1) be given some right to bargain (on their own behalf or by joining competing unions that have the right to bargain on their behalf); or (2) be entirely deprived of representation at the bargaining table. This scenario would necessarily destroy the union's status as the sole negotiator, which Thompson argued at oral argument she does not seek to do. Moreover, the right to bargain on their own behalf was exactly the right the plaintiffs sought — and which was found to be nonexistent — in Knight.
In sum, Thompson’s requested relief would leave nonmembers completely unrepresented at the bargaining table unless they were given the concomitant right to represent themselves or be represented by another group of their choosing. The Supreme Court found, in Knight, that no such concomitant right existed. Thus, although Thompson asked for relief different from that sought by the plaintiffs in Knight, the district court found that the holding in Knight nonetheless foreclosed Thompson's claim. Her other claims of irreparable harm, harm to third parties and against public interest were also denied, and Thompson’s motion for a preliminary injunction was denied.
Ohio court finds that football player’s claim of sex discrimination by coach required producing evidence that he exhibited gender nonconforming characteristics.
Chisholm v. St. Marys City School Dist. Bd. of Edn., 6th Cir. No. 19-3034 (Jan. 7, 2020)
https://law.justia.com/cases/federal/appellate-courts/ca6/19-3034/19-3034-2020-01-07.html
Previously reported in School Law Summary 2019-1 as Chisholm v. St. Marys City School Dist. Bd. of Edn., N.D.Ohio No. 3:16CV2849, 2018 U.S. Dist. LEXIS 216192 (Dec. 26, 2018).
Doug Frye was employed by St. Marys City School District as head football coach. Dane Chisholm was a student in the district who played football and was a junior the first year Frye served as head coach. Chisholm had several disciplinary problems while playing but was named a team captain at the start of his senior year. According to Frye, Chisholm’s attitude declined very quickly during his senior year after he started sharing playing time with a sophomore.
Frye routinely called his players highly derogatory and vulgar names. Chisholm was a frequent target of this treatment. Chisholm alleged that Frye created an environment where players were pressured to play injured and filtered players through trainers before sending them to a doctor. Chisholm additionally claimed that Frye retaliated against him when Chisholm challenged Frye’s authority, disagreed with him or made mistakes. Chisholm did not complain to his parents or school officials while playing for Frye. Chisholm’s teammates voted to remove him from the football team on Oct. 23, 2015, because they believed Chisholm tried to throw the second-to-last game of the season. Frye acquiesced to the team’s vote and decision, but it is unclear whether he affirmatively approved of it.
Chisholm rode the bench for the final game of that season and did not attempt to rejoin the team. The district’s Athletic Code of Conduct does not provide for voting a player off the team, nor does it provide any manner of redress if/when that occurs. The assistant coach and Frye discussed Chisholm’s removal, but no further investigation or follow up took place.
Chisholm subsequently complained about Frye’s behavior to his father, who then talked with the school principal. When asked if he wanted to make a formal complaint, Chisholm’s father declined, but then contacted another player’s father who revealed that his son also had received the same “personal motivation” from Frye, which had embarrassed him and made him feel as if he had been “treated … unfairly and disrespectfully.”
Chisholm’s father then created a questionnaire and distributed it to several of his son’s ex-teammates. After getting their responses, Chisholm’s father contacted the assistant coach and complained about his son’s removal from the team. Chisholm’s father then met with other players’ parents, contacted an attorney and filed a letter with the board asking for an investigation of Frye and removal of him and his staff from coaching and teaching. They also sent the complaint to the Ohio Department of Education (ODE).
Upon receiving the complaints, the school board commenced an investigation and hired an independent consultant, the former ESC superintendent. Following an investigation, the former superintendent recommended that the coaching staff continue to communicate injury protocols and the assistant coach continue to learn the players’ concerns and proactively address potential problems. He also found that while some swearing does occur, there was no evidence that it was out-of-line by most standards. Frye’s attorney obtained and posted this report on a Facebook page used by district football players’ parents and identified the complaining fathers by name. Subsequently, some of the page’s members posted insulting comments about Chisholm, other complaining players and their parents. Many more derogatory names were bandied about. Some of the posters included school district employees, such as the school nurse and a keyboarding instructor (who was also Frye’s wife).
The complaining students and one of the player’s fathers then appealed the investigation results to the school board. On April 27, 2017, ODE concluded its investigation and determined that no disciplinary action would be pursued. A court case was then initiated by Chisholm, charging the school district with discrimination under Title IX and with violating his constitutional rights to equal protection and substantive due process. Chisholm also alleged state law claims for intentional and negligent infliction of emotional distress and negligent hiring.
The district court carefully considered the facts in this situation when analyzing Chisholm’s various claims. For example, the court found that Chisholm’s sexual harassment claims did not fit the legal standard for Title IX claims because Frye used the same names repeatedly for other players, it showed that he was an equal opportunity insulter and would “spray-shot his name-calling randomly at anyone or, sometimes, at the whole team.” Therefore, he did not single out Chisholm for unique, observable, gender nonconforming characteristics.
Chisholm also raised a retaliation claim, alleging the board retaliated against him for exercising his Title IX rights. Title IX protects people who pursue claims of sex discrimination from retaliation. However, in this case, Chisholm did not engage in any protected activity. He simply lodged a general bullying complaint against the coach. The court found Chisholm’s equal protection claims failed because he did not suffer any discrimination based on sex and his substantive due process rights were not violated because Frye’s conduct “does not shock the conscience.” The court noted that the context here was not in a nurturing classroom environment, but in an ultracompetitive, highly physical sport.
The district court went on to dismiss all of Chisholm’s other claims against the district, Frye and other school administrators, finding they had qualified immunity for the hiring and supervision of Frye and that Chisholm was never in any danger of a real, imminent physical harm — a requirement to prove negligent infliction of emotional distress. The court granted St. Marys City School District Board of Education’s and Frye’s motions for summary judgment.
On appeal to Sixth Circuit Court of Appeals, the court found that although the plaintiffs argued that Frye harassed them by using derogatory terms, they failed to satisfy the three traditional routes for establishing Title IX liability, as Frye did not make sexual advances, was not motivated by a general hostility towards men and did not treat male and female students differently. Nor did the plaintiffs demonstrate sex discrimination by showing that they were being mistreated for failing to conform to traditional gender stereotypes as Frye’s comments were about football, not gender roles. Finally, the intentional infliction of emotional distress claims failed as the plaintiffs did not show that Frye’s conduct was so extreme and outrageous as to go beyond all possible bounds of decency or that their resulting mental anguish was so severe that no reasonable player could be expected to endure it. Therefore, the judgments of the district court were upheld.
District court grants summary judgment for district on former administrator’s claims of sex and race discrimination.
Floyd-Jefferson v. Reynoldsburg City Schools Bd. of Educ., S.D.Ohio No. 2:17-CV-352, 2019 U.S. Dist. LEXIS 188394 (Oct. 30, 2019)..
https://www.leagle.com/decision/infdco20191101j86
Floyd-Jefferson, an African American female, alleged violations of state and federal discrimination and compensation laws against her employer, Reynoldsburg City Schools. She served as an assistant principal at Baldwin Junior High School from 2012 to 2014, earning $73,000 annually. Her successor in 2014, an African American male, received an annual salary of $80,767. In 2014, Floyd-Jefferson became an administrative curriculum specialist, earning $73,000. In January 2015, Floyd-Jefferson was nonrenewed in her administrative curriculum specialist position due to budget cuts. Eventually, she accepted a position as an “administrator on special assignment” under a two-year contract at $73,000. She later applied for a math teacher position but was denied because the district could not simultaneously employ her as an administrator and a teacher. She then lodged a discrimination complaint with the Equal Employment Opportunity Commission and received a right-to-sue letter in 2016.
In her lawsuit, Floyd-Jefferson alleged that she had been denied promotional opportunities due to her race and sex, had been denied equal pay and pay for work performed during the strike, and was subjected to a hostile work environment and retaliation. The school district then filed a motion for summary judgment.
In reviewing each of her claims, the district court found Floyd-Jefferson did not prove, by a preponderance of evidence, that she sustained an adverse employment action because her salary did not change between her administrative contracts, nor was there any evidence of a material change in her responsibilities. This failure was also determinative to Floyd-Jefferson’s sex and race discrimination claims. Because she waited over 300 days to file her federal sex and race compensation discrimination claims, they were barred under 42 United States Code Section 2000e-5. The court also declined to exercise supplemental jurisdiction over Floyd-Jefferson’s similar state claims and her untimely compensation claim. The court issued summary judgment for Reynoldsburg City Schools on Floyd-Jefferson’s hostile work environment claims.
In conclusion, the court granted and/or dismissed all of Floyd-Jefferson’s claims in favor of Reynoldsburg City Schools, except for state unequal pay and untimely compensation claims, which were remanded to state court for resolution.
District court dismisses federal claims, based on school officials’ failure to respond to bullying, filed by parents of student who died of suicide and declines jurisdiction over state claims.
Feucht v. Triad Local Schools Bd. of Edn., S.D.Ohio No. 3:18-cv-345, 2019 U.S. Dist. LEXIS 207129 (Dec. 20, 2019).
https://www.leagle.com/decision/infdco20191203g64
Bethany Thompson was an 11-year-old sixth-grade student at Triad Middle School in the Triad Local (Champaign) School District when she died of suicide on Oct. 19, 2016. Thompson had been subjected to severe and pervasive bullying and harassment for many years because of a deformity on her face. The bullying involved a number of students and took the form of name calling, verbal and physical harassment, physical pushing, shoving and elbowing and, on one occasion, threats to tie up and rape Thompson and another student.
On repeated occasions, Thompson and her mother reported the bullying and harassment to the school. The school administrators, including Principal Duane Caudill, Superintendent Christopher Piper and Guidance Counselor Jessica Gronas, assured Thompson and her mother that the bullying was being addressed and that Thompson would be safe.
In September 2016, Thompson began expressing suicidal thoughts to a friend. The friend informed her father, who contacted the district. Caudill told the father that he would inform Thompson’s mother, and that he was aware of the bullying and was monitoring the situation. The father did not contact Thompson’s mother himself because of Caudill’s assurances. Caudill notified Gronas who spoke to Thompson. Neither Caudill nor Gronas informed Thompson’s parents, secured a psychological evaluation, referred Thompson for counselling or “took any effective action whatsoever in regard to the information that [Thompson] was suicidal.”
Following her death, Thompson’s parents sued the district in federal court, alleging substantive due process violations of the 14th Amendment, violation of Title IX of the Civil Rights Act, and failure to respond to sexual and disability discrimination. The court dismissed the parents’ claim that the district had deprived them of their liberty interest in their familial association with their child because that interest is not recognized in the Sixth Circuit.
The court then considered the claim that the district denied Thompson’s right to life without due process in violation of the 14th Amendment. It stated that, even in the face of “undeniably tragic” circumstances, the state’s failure to protect an individual against private violence does not constitute a violation of the due process clause. There are, however, three exceptions: (1) special relationship; (2) shocks the conscience; and (3) state-created danger. The court concluded that, even if affirmative actions taken by the school administrators resulted in a state-created danger, administrators were individually entitled to qualified immunity.
Thompson’s family also claimed that the board violated Thompson’s right to be free from sexual discrimination in education programs and activities. The court noted that student-to-student sexual harassment supports civil damages against a school if: (1) the sexual harassment was so severe, pervasive and objectively offensive that it could be said to deprive the student of access to educational opportunities or benefit; (2) the school had actual knowledge of the harassment; and (3) the school was deliberately indifferent to the harassment. However, it concluded that the facts alleged did not rise to the level of sexual harassment that is so severe, pervasive and objectively offensive that it deprived Thompson of access to educational opportunities or benefits, and dismissed the claim against the school. It also dismissed the parents’ municipal liability claim based on a violation of Title IX against the school district because the complaint did not contain sufficient facts to state a claim to relief.
Finally, the court dismissed the parents’ claim of municipal liability against the district based on violation of Section 1983. It concluded that the board’s inaction on bullying and aggression was not a violation of Thompson’s due process right to life. Accordingly, the court dismissed all of the parents’ claims that the school district and its employees violated federal law. It then declined to exercise supplemental jurisdiction over the parents’ state law claims and dismissed them without prejudice to refiling in state court.
Ohio district court dismisses districts’ lawsuit against Facebook, finding that districts were not creditors of ECOT under Ohio’s Fraudulent Transfer Act.
State ex rel. Woodridge Local Schools v. Facebook, Inc., N.D.Ohio No. 5:19-CV-1046, 2020 U.S. Dist. LEXIS 2202 (Jan. 7, 2020).
https://scholar.google.com/scholar_case?case=4644515155082578115&hl=en&as_sdt=6&as_vis=1&oi=scholarr
The Electronic Classroom of Tomorrow (ECOT) was a community school under Ohio law. Plaintiffs are eight school districts that had resident students enrolled in ECOT at the time ECOT ceased operations in January 2018. The districts alleged that, in the six years prior to ECOT’s closure, ECOT received large amounts of money that otherwise would have been paid to the districts but for the enrollment of these students in ECOT.
Administrative proceedings in 2017 and 2018 determined that ECOT owed money to the state of Ohio for funds it had improperly received. ECOT became insolvent and liquidation proceedings were initiated in January 2018 to preserve its assets. A special master was appointed to handle ECOT’s assets, including its potential claims. The special master sought court approval to assign claims to the state of Ohio, which was granted. Subsequently, the districts requested an assignment of ECOT’s claims. The court denied the districts’ motion, as it had already assigned ECOT’s claims to the state, which was adequately representing the districts’ interests.
The districts then filed a separate motion under the Fraudulent Transfer Act to recover funds that ECOT paid to Facebook for online advertisements. The districts alleged that ECOT made two payments of $92,903.61 and $150,000.00 to Facebook without receiving “reasonably equivalent value” under Ohio law. Facebook moved to dismiss the districts’ claims, arguing that: 1) the districts did not qualify as creditors under Ohio’s Fraudulent Transfer Act; and 2) the complaint made allegations on behalf of the state without setting forth any facts or law that established the districts’ authority to do so.
The court agreed with Facebook. The Fraudulent Transfer Act creates a right of action for creditors to set aside a debtor’s allegedly fraudulent transfer of assets to a third party. The court found that the districts did not allege that they had a right or claim to payment against ECOT. Since the districts were pursuing claims that belonged to the state, they were not creditors under Ohio’s Fraudulent Transfer Act and the court found that they lacked standing to pursue their claims.
District court grants summary judgment for state department of education on student’s claim for remedies because the underlying matter had been addressed in previous litigation.
L.H. v. Tennessee Dept. of Edn., M.D.Tenn. No. 3:19-cv-00517, 2019 U.S. Dist. LEXIS 195940 (Nov. 12, 2019).
https://law.justia.com/cases/federal/district-courts/tennessee/tnmdce/3:2019cv00517/79472/22/
L.H. was a ninth-grade student in Hamilton County, Tenn., and an individual with Down syndrome. According to his complaint, L.H. was excluded from his mainstream classroom beginning in the 2012-2013 school year. As a result, L.H.’s parents removed him from Hamilton County public schools and enrolled him in the Montessori School of Chattanooga. The parents filed an administrative challenge to L.H.’s individualized education program (IEP) and later filed a federal lawsuit. The lawsuit was filed against the Hamilton County Department of Education (HCDE) and Tennessee Department of Education (TDOE). The claims against HCDE ultimately resulted in a decision that HCDE denied a free appropriate public education (FAPE) to L.H. HCDE was ordered to pay for L.H.’s private education (SLS 2018-4).
The claims against TDOE were resolved when the parties entered into a settlement agreement and release of claims in 2015. Under that agreement, TDOE paid L.H.’s parents $185,000. L.H’s parents agreed that they would “forever settle, release, compromise, reach accord and satisfaction, waive, remise, discharge and acquit” TDOE of every claim existing as of the effective date of the agreement, whether known or unknown, or which the parents could have in the future against TDOE.
Also, in 2015, the Tennessee General Assembly enacted the Individualized Education Act, which allowed parents of qualifying children with disabilities to apply for an individualized education account (IEA) to pay tuition at a participating school. In return, the parents were required to agree to provide an education to the student in English language arts, mathematics, social studies and science, and to release the school district that the student was entitled to attend from its obligations to educate the student. A student with one of the listed disabilities who had an active IEP qualified for an IEA if he or she met one of three requirements: (1) was previously enrolled in and attended a Tennessee public school for the one full school year immediately preceding the school year in which the student received the IEA; (2) was enrolled in a Tennessee school for the first time; or (3) received an IEA in the previous school year.
L.H.’s parents applied for an IEA for L.H. in 2019. On Feb. 21, 2019, TDOE denied the application because L.H. did not have an active IEP at the time of the application and could not meet any of the three requirements. L.H.’s parents filed an administrative appeal with TDOE, arguing that L.H. should be treated as compliant with the requirements for an IEA by operation of law because the reason he didn’t meet the requirements was that HCDE had violated his rights under the Individuals with Disabilities Education Act (IDEA). TDOE denied the appeal. L.H. appealed to an administrative law judge (ALJ), which also denied the appeal. L.H. appealed the ALJ’s decision to the district court, alleging violations of IDEA. TDOE filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim.
The district court concluded that L.H.’s claims regarding the IEA were not barred by the terms of the 2015 settlement agreement. Further, it held that, although IDEA required L.H. to exhaust all state administrative remedies before appealing the ALJ’s decision to the federal court, he was not required to exhaust all state judicial remedies before filing a federal appeal. It concluded that L.H.’s claim that he was denied entrance into the IEA program did not state an actionable IDEA violation.
Finally, the court dismissed L.H.’s claim that he was denied participation in the IEA program on the basis of his disability. The court concluded that L.H. was seeking an accommodation for his lack of an IEP, not for his disability. The lack of an active IEP occurred because of L.H.’s withdrawal from public school after the breakdown of the IDEA process while he was in the Hamilton County public schools. The court concluded that L.H.’s claims arising from that breakdown had already been fully addressed in his previous litigation and granted TDOE’s motion to dismiss the claims made in this matter.
District court agrees with two other appellate districts that attorney-client privilege is to be partially waived for public bodies.
State ex rel. Ames v. Brimfield Twp. Bd. of Trustees, 2019-Ohio-5311.
https://law.justia.com/cases/ohio/eleventh-district-court-of-appeals/2019/2019-p-0017.html
Brian Ames, a self-proclaimed Open Meetings Act (OMA) activist, filed this appeal due to the Brimfield Township Board of Trustees (board) being granted summary judgment in the lower court. Ames filed five assignments of error which the court consolidated into three. The assignments of error were that the trial court erred in evaluating whether particular gatherings of the board constitute meetings by ruling that what the board referred to as information gathering sessions were actually executive sessions, and lastly, the court found that although the board went into executive session to meet with its attorney, it didn’t meet the exceptions in Revised Code (RC) 121.22(G).The last assignment of error was the focus of the opinion.
Ames argued the trial erred in finding that the right of a public body to meet privately is not limited to the statutory exceptions listed under RC 121.22(G). In the summary judgment decision, the trial court concluded that, in addition to the exceptions contained in RC 121.22(G), common law attorney-client privilege applied to the instances of executive sessions cited in the complaint, and further cited RC 121.22(A), a public body must conduct business in an open meeting unless the subject matter is specifically excepted by law.
The 11th district appellate court used the arguments from the 1st and 12th appellate districts and determined a public body may convene an executive session to discuss matters required to be kept confidential by federal law or regulations or state statutes, but not for any discussions with counsel. The board argued it discussed matters with its counsel and such discussions are protected by the attorney-client privilege which is codified in RC 2317.02. The court rejected the board's argument, finding that RC 121.22(G)(5) did not apply to executive session merely because the board was conferring with or discussed matters with its legal counsel during the executive sessions. The court went on to quote the 1st districts opinion, “[t]he General Assembly, in limiting the circumstances in which such a discussion can be held in executive session, has required a partial waiver of the privilege by the client-public body.” State ex rel. Cincinnati Enquirer v. Hamilton Cty. Commrs., 1st Dist. Hamilton No. C-010605, 2002-Ohio-2038, 2002 WL 727023, (Apr. 26, 2002).
The case is remanded to determine if a factual dispute remains to be litigated on the issue of whether the board violated Ohio's OMA by conducting an executive session without an authorized purpose under RC 121.22(G).
Appeals court remands case, finds that board of township trustees enters executive sessions for reasons not allowed in the statute.
Ames v. Rootstown Twp. Bd. of Trustees, 2019-Ohio-5412.
https://www.supremecourt.ohio.gov/rod/docs/pdf/11/2019/2019-Ohio-5412.pdf
Brian Ames, a self-proclaimed Open Meetings Act (OMA) activist, claimed Rootstown Township Board of Trustees (board) violated the OMA by having executive sessions for purposes not authorized by statute. The board asserts the meetings were either information gathering or protected by attorney-client privilege. At the lower court level, the board was granted summary judgment. Ames then filed this appeal with 16 assignments of error. Of those, two were affirmed and the remaining 14 were reversed and remanded. The court found that the only exceptions to meeting in public are found in Ohio Revised Code (RC) 121.22(G) and the board’s executive session did not fall within the exception.
On the occasions the board went into executive session with an attorney, it was to discuss a contract, not imminent litigation. The board argued that it did not want to give up its attorney-client privilege. The court determined “the General Assembly limited the circumstances in which such a discussion can be held in executive session, thus requiring a partial waiver of the privilege outside of RC 121.22(G).” Again, the only reasons under which the board could meet in executive session with its attorney were for conferences on disputes involving the board that are the subject of pending or imminent court action or a matter that needs to remain confidential due to state or federal law. The court concluded that the board did not fit within either exception.
In another meeting, the board attempted to enter into executive session according to RC 121.22(G)(8) to discuss economic development but failed to "determine by a roll call vote that the executive session was necessary to protect the interests of the applicant or the possible investment or expenditure of public funds to be made in connection with the economic development project," as required by RC 121.22(G)(8). The board argued that the minutes need only reflect the general subject matter. The court cited a case they decided eight days prior, State ex rel. Ames v. Brimfield Twp. Bd. of Trustees, 2019-Ohio-4926, in the decision the court reiterated that the minutes must reflect each of the purposes for which the executive session was held in order for the public to discern whether the nonpublic meeting was excepted under OMA. The court further stated, “a citizen should not be forced to file a mandamus action to determine whether or not a board has conducted business in a lawful manner under the OMA.”
The case is remanded back to the lower court for a determination on the 14 assignments of error.
Ohio court of appeals finds that district has no obligation to provide “unfettered access” to records requested pursuant to a public records request.
State ex. rel. Watkins v. Columbus City Schools, 2019-Ohio-4949.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2019/2019-Ohio-4949.pdf
Stanley Watkins taught in the Columbus City School district under a one-year contract for the 2015-16 school year. Toward the end of that school year, Watkins received notice from the district that it intended to terminate his employment. Administrative proceedings before a referee resulted in a determination that the district had just cause to terminate Watkins’ employment under Ohio Revised Code (RC) 3319.16.
During the course of the administrative proceedings, Watkins repeatedly made formal public records requests to review the district’s personnel files for comparable cases of discipline or termination. Although the district produced some files in response to Watkins’ requests, it frequently responded that Watkins’ requests were overbroad or sought information that was statutorily protected from release. Watkins filed for a writ of mandamus, requesting that the court order the district “to permit the unrestricted public records inspection of the Employee Relations files in all locations without redaction,” along with statutory damages for delay.
The court denied the requested writ of mandamus, concluding that the district properly responded to Watkins’ public records request when it declined to grant Watkins unfettered access to personnel files, which would have inevitably allowed Watkins to access material specifically exempted from disclosure under RC 149.43. Relying on precedent, the court held that “the Board cannot simply turn over the files for [requestor’s] inspection as he contends. It must first review and remove any documents that are not public records and are prohibited by federal and state law from disclosure, and the Board must also make copies if any information needs to be redacted on a document such as social security numbers.”
Ohio appeals court upholds trial court decision that statute of repose bars school district’s contract claims against architect and general contractor, relying on recent Supreme Court decision.
Union Local School Dist. Bd. of Edn. v. Grae-Con Constr., Inc., 2019-Ohio-4877.
http://www.supremecourt.ohio.gov/rod/docs/pdf/7/2019/2019-Ohio-4877.pdf
The Union Local (Belmont) School District Board of Education (BOE) entered into contracts to construct a new elementary school and renovate the middle and high schools. The contract with Fanning/Howey Associates Inc. for architectural, engineering and construction administration services was entered into in 1995. The school district hired Grae-Con Construction Inc. to serve as the general contractor on the project in 1996.
In 2008, the elementary school experienced noxious odors, discolored walls and mold, and the high school experienced water infiltration and other damage. On July 23, 2012, the school district filed a complaint against the general contractor and the architectural firm as a result of these issues with the elementary and high schools. The dates specifically set forth in the certificates as the substantial completion dates were Oct. 31, 1997, for the high school and July 21, 1998, for the elementary school. Even using the later dates when the certificates were signed, the claims were time barred by the statute of repose, Ohio Revised Code (RC) 2305.131, before the complaint was filed. Although the statute of repose provides extra time to a plaintiff who discovers the issue in the final two years of the 10-year period, the school district failed to file the complaint within two years of the 2008 discoveries as required by RC 2305.131(A)(2).
The BOE argued the 10-year construction statute of repose only applies to tort claims and does not apply to contract claims and that previous case law should provide a framework for the application of the statute. This court recognized the Ohio Supreme Court’s recent decision that found the amended version of RC 2305.131 was not substantially similar to the prior version and thus courts were not bound by stare decisis (New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., 2019-Ohio-2851). The New Riegel case then concluded the statute of repose as enacted in 2005 applied to contract claims, as well as tort. The New Riegel case went on to explain the statute of repose provides a cutoff date which absolutely bars liability by placing an outer limit on the right to bring a civil action; its application does not depend on whether the cause of action has accrued as it extinguishes liability regardless of whether the cause of action accrued or not.
The appeals court concluded that the absolute cutoff time for complaints has time barred the BOE’s claims, as accrual periods are not permitted in statute of repose claims.
Appeals court upholds board’s termination of high school band director and assistant director for “fairly serious” misconduct related to summer band camp, which violating board policy.
Ellsworth v. Streetsboro City School Dist. Bd. of Edn., 2019-Ohio-4731.
https://www.supremecourt.ohio.gov/rod/docs/PDF/11/2019/2019-Ohio-4731.pdf
Gretchen Weaver worked as a music teacher and band director for the Streetsboro City School District for 12 years. Shane Ellsworth worked as a music teacher and assistant band director for the district for 16 years.
During the summer of 2016, Weaver and Ellsworth organized, supervised and participated in a summer band camp for the high school marching band, as they had for many years before that. In January 2017, the district’s board of education notified Weaver and Ellsworth that it was beginning termination proceedings based on a complaint alleging that Weaver and Ellsworth had permitted, condoned and encouraged the hazing of students at band camp in 2016 and prior years. The hazing activity included senior band members throwing water balloons and spraying water or silly string at underclass band members; throwing or pushing underclass band members into the lake; performing skits that ridiculed or disparaged band members or included inappropriate language and content; waking underclass members in the middle of the night by making noise; forcing underclass band members to clean up messes made by the senior band members; and wrapping underclass band members in plastic wrap, binding them to one another.
Weaver and Ellsworth requested a hearing, which lasted 14 days. The referee issued his report, findings of fact and recommendations, concluding that the teachers had engaged in three instances of fairly serious misconduct that violated board policy during the 2016 band camp. However, the referee recommended discipline short of termination for both teachers. The board accepted some of the factual findings, rejected others and found that the referee incorrectly considered the actions separately and determined that the activity was not hazing. It rejected the referee’s recommendation and adopted a resolution to terminate the teachers’ employment.
Weaver and Ellsworth appealed to the Portage County Court of Common Pleas. The court issued an order dismissing their appeal and adopted the board’s proposed findings of fact and conclusions of law with minimal modification. Weaver and Ellsworth appealed to the 11th District Court of Appeals.
The court of appeals noted that its role, when reviewing a lower court’s decision on an appeal of termination under Ohio Revised Code 3319.16, was to determine whether the lower court had abused its discretion. The court of appeals is not permitted to substitute its own judgment for the lower court’s.
The appeals court dismissed all of Weaver and Ellsworth’s assignments of errors. Specifically, it concluded that the termination of Weaver and Ellsworth was for good and just case, because it was for a fairly serious matter. A fairly serious matter was one that was hostile to the school community, including conduct that has or could have a negative impact on students or their parents. The appeals court also concluded that there was no requirement for a referee to use the Daugherty test (the seven tests for just cause) when reviewing a termination. It held that the trial court did not err when it upheld the board’s decision to reject some of the referee’s findings.
Appeals court upholds board’s termination of superintendent after his arrest for gross sexual imposition required suspension from all duties involving the care, custody and control of children.
O’Donnell v. Bd. of Edn. of Indian Lake Local School Dist., 2019-Ohio-4521.
https://www.supremecourt.ohio.gov/rod/docs/pdf/3/2019/2019-Ohio-4521.pdf
Beginning in 2010, Patrick O’Donnell served as the superintendent for the Indian Lake Local (Logan) School District. O’Donnell was arrested on June 19, 2017, on a charge of gross sexual imposition and was incarcerated until June 20. The school board placed O’Donnell on paid administrative leave on June 20. On June 29, it suspended O’Donnell without pay and adopted a resolution to consider termination of his contract. Among the grounds for termination, the board stated that O’Donnell was barred from having the care, custody and control of a child during the pendency of the criminal action and that school district staff, parents and students were aware of the arrest, both of which rendered O’Donnell unable to perform the duties of superintendent.
O’Donnell demanded a hearing, which was held over five days in September and October 2017. The referee issued a report concluding that the board had failed to provide reliable, probative and substantial evidence that just cause supported its termination of O’Donnell. The conclusion was based on the fact that the board failed to demonstrate that O’Donnell engaged in conduct warranting termination. The referee recommended that the board dismiss the termination action until the criminal charges against O’Donnell were resolved.
On Nov. 20, 2017, the board rejected the referee’s recommendation and voted to terminate O’Donnell’s employment contract and underlying continuing teacher contract because he was unable to perform the duties of superintendent as a result of his arrest. O’Donnell appealed to the court of common pleas. Both parties filed briefs. In its brief, the board included evidence related to O’Donnell’s conviction and sentencing on March 20, 2018. O’Donnell objected to the inclusion because the information was not before the board at the time of the termination.
The court of common pleas concluded that the board’s decision to reject the referee’s report and terminate O’Donnell was based on good and just cause because the nature of the allegations against him and the loss of community trust prevented him from effectively performing his job duties. The court also noted that it could not ignore the fact that O’Donnell had entered an Alford plea (accepting all the ramifications of a guilty verdict without first attesting to having committed the crime) on the criminal charges.
O’Donnell appealed the common pleas court’s decision. The appeals court concluded that the lower court did not abuse its discretion when it upheld the board’s action. It found that because O’Donnell was barred by law after his arrest from performing any duties that required the care, custody and control of children, he was unable to fulfill his role as superintendent. It further found that the trial judge, who had also sentenced O’Donnell on the criminal charge, could not have been expected to ignore the details of the criminal case, including his Alford plea.
Appeals court upholds teacher termination for changing student grades, based on hearing officer’s recommendations.
Hal v. Ohio Dept. of Edn., 2019-Ohio-5081, application for reconsid. den’d, 2020-Ohio-204.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2019/2019-Ohio-5081.pdf
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2020/2020-Ohio-204.pdf
Hal was employed by Columbus City Schools (CCS" as a teacher and administrator beginning in 1989. During the 2010-2011 school year, she was employed as a leadership intern assigned to Walnut Ridge High School, which involved duties similar to those of an assistant principal. Hal was instrumental in implementing a new program for ninth-graders called the "Freshman Forgiveness Program" (FFP), which offered ninth-graders the opportunity to raise a failing grade to a "D" if they met the requirements of the program, including attendance and additional makeup work. The program only applied to core subjects, including English, science, math and social studies, and a student could only be enrolled in the program in one core class per nine-week period. A student needed to attend the program for nine weeks to raise the failing grade for a nine-week period. A student who successfully completed FFP for a particular grading period could not receive any grade higher than a "D." FFP was approved by the school board in January 2011 and implemented immediately. On June 2 and 10, 2011, Hal's computer username was used to make changes to the grades of eight freshman students, five of whom participated in FFP. Hal admitted making seven of the 29 changes for those students because she argued the changes were the result of FFP and permissible changes.
The board caused Hal to be notified of its intention to determine whether to deny or permanently deny her pending applications on account of alleged violations of Ohio Revised Code (RC) 3319.31(B)(1) for engaging in conduct that was negligent and/or unbecoming a licensed educator for changing the grades of multiple students for impermissible reasons. Hal timely requested a hearing that was held before a hearing officer over the course of several days, Oct. 24-27, 2016. On Jan. 24, 2017, the hearing officer issued her report and recommendation and concluded that Hal engaged in conduct unbecoming to the teaching profession in violation of RC 3319.31(B)(1). The hearing officer recommended that the board deny Hal's applications for a five-year professional principal license and five-year professional special all-grades teaching license and, further, Hal be ineligible to reapply for any license issued by the board until on or after April 11, 2022, and only after Hal would submit evidence that she completed 16 hours of ethics training.
Hal filed objections to the report and recommendation. At its April 11, 2017, meeting, the board issued a resolution in which it accepted the hearing officer's report and recommendation and denied Hal's applications until on or after April 11, 2022, requiring her to submit evidence that she completed 16 hours of ethics training. Hal filed a notice of appeal to the Franklin County Court of Common Pleas under RC Chapter 119. The common pleas court, acting as an administrative appellate court, affirmed the board's resolution. Hal appealed.
The appellate court found the common pleas court did not abuse its discretion in finding that the hearing officer did not craft her own definition of what grades mean and that the Ohio Department of Education offered probative, reliable and substantial evidence to establish the meaning of grades and to explain what constitutes accurate grades. In the course of the hearing, the hearing officer made a credibility determination, finding Hal not to be credible. As a result, based on the evidence adduced at the hearing, the hearing officer found Hal changed the grades on June 2, 2011, and found that behavior to constitute misconduct involving academic fraud and conduct unbecoming to her position as a teacher.
Hal also contended that the common pleas court erred as a matter of law in finding that the sanction imposed by the board is in accordance with law. In support of this, Hal argued that the hearing officer provided no legal basis for the conclusion that Hal's actions violated Principles 1 and 3 of the Licensure Code. The appeals court found that Hal's argument was not clear. The hearing officer found that, under the facts of this case, Hal's actions violated those principles. The hearing officer concluded that Hal's actions violated Ohio Administrative Code 3301-73-21(A) because she engaged in "crimes or misconduct involving academic fraud.” The appeals court concluded that Hal had not been denied due process and affirmed the judgment of the Franklin County Court of Common Pleas.
Ohio court of appeals holds that severance pay clause that compensates a treasurer after being terminated for just cause violates Ohio public policy.
Lawless v. Bd. of Edn. Lawrence Cty. Edn. Serv. Ctr., 2020-Ohio-117.
https://www.supremecourt.ohio.gov/rod/docs/pdf/4/2020/2020-Ohio-117.pdf
In 1998, the Lawrence County Educational Service Center (ESC) hired Teresa Lawless as a secretary and, in 2002, she became its treasurer. While performing the ESC’s fiscal year 2014 audit, the auditor’s office initiated a special audit of the ESC. After conducting the audit, the auditor’s office reported an abuse of public funds and issued specific findings for recovery against Lawless. On May 31, 2017, the board adopted a resolution to terminate Lawless’ contract.
Lawless sued the board, arguing that the board had breached several of its responsibilities outlined in her employment contract. The board asserted counterclaims against Lawless. The trial court granted the board summary judgment on some claims, but denied it on other claims. Both parties appealed.
On appeal, Lawless argued that the special audit triggered an obligation on the part of the board of education to defend her. Lawless’ contract with the board contained a provision that required the board to “defend, indemnify and hold harmless the treasurer from any and all demands, claims, suits, actions and legal proceedings brought against the treasurer in [her] individual or official capacity as agent and employee of [ESC] arising from acts or omissions occurring while the treasurer was acting within the scope and course of [her] employment.” Lawless asserted that the board failed to fulfill its duty to defend her and argued that she was entitled to reimbursement for legal expenses she incurred to defend against the special audit. The court held that the special audit was not “brought against” Lawless and therefore the board did not have a duty to defend Lawless in connection with the special audit. The court found that the findings for recovery from the special audit gave the ESC the right to bring an action against Lawless for the recovery of money, but the findings did not somehow convert the special audit itself into an action brought against Lawless.
On appeal, the board argued that the severance pay clause outlined in Lawless’ contract was unenforceable. Lawless’ contract included a clause which provided that “upon separation from employment, the treasurer shall be entitled to full pay at her current per diem rate of unlimited days of her accumulated and unused sick and vacation leave with ESC as of the date of separation. This severance pay shall be paid upon any separation from employment and is not limited to separation for retirement purposes, unless convicted of criminal behavior in the performance of her duties.” The board argued that public policy dictates that an employee terminated pursuant to Ohio Revised Code (RC) 3319.16 should not receive compensation for time not worked.
The court agreed with the board, finding that “providing an employee of an educational service center who is terminated pursuant to RC 3319.16 with compensation for the unworked portion of the terminated contract is inconsistent with the preservation of the fiscal integrity of the educational service center. It is also inconsistent with public policy as expressed in the Unemployment Compensation Act.” For those reasons, the appeals court held that the severance pay clause violated public policy and was unenforceable.
Supreme Court of Ohio orders school board to cause the county board of elections to check the sufficiency of the signatures on a territory transfer petition.
State ex rel. Hills & Dales v. Plain Local School Dist. Bd. of Edn., 2019-Ohio-5160 and State ex rel. Dunn v. Plain Local School Dist. Bd. of Edn., Slip Opinion No. 2020-Ohio-40.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2019/2019-Ohio-5160.pdf
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-40.pdf
In 2019, Ohio Revised Code (RC) 3311.242 was enacted as an alternative to the existing process that allows Ohio residents to propose the transfer of the territory in which they reside from one school district to another. Under the new law, qualified electors of a township containing territory of two or more districts may place a transfer proposal on an election ballot for approval or disapproval by voters.
On Oct. 29, 2019, the law director of the village of Hills and Dales delivered to the Plain Local (Stark) School District Board of Education a petition proposing “that the territory bound by the geographic limits of Hills and Dales Village be transferred from Plain Local School District to Jackson Local School District according to RC 3311.242.” The petition sought placement of the proposal on the March 17, 2020, primary election ballot. To be placed on the March 2020 ballot, the Plain Local school board was required to certify the proposal to the board of elections no later than Dec. 18, 2019.
At a meeting on Nov. 20, the Plain Local school board adopted a resolution that “tabled” the petition. The resolution explained that the Plain Local school board had filed a lawsuit in federal court challenging the constitutionality, legality and enforceability of RC 3311.242. In its resolution, the Plain Local school board stated that it would not act on the petition until there was a final determination of the claims pending in federal court.
On Dec. 3, the village filed a complaint, seeking a writ of mandamus to compel the Plain Local school board to submit the petition to the board of elections for verification of the signatures on the petition. The Supreme Court of Ohio held that the village lacked standing and dismissed the complaint. On Dec. 16, nine residents of the village of Hills and Dales filed a complaint seeking the same relief against the board.
RC 3311.242 requires the Plain Local school board to cause the board of elections to check the sufficiency of the signatures on the residents’ petition. The court found that, despite the use of an inappropriate form, the residents’ petition, on its face, was a transfer petition under RC 3311.242 and the Plain Local school board had a legal duty to forward it to the board of elections. The court held that the board’s duty to submit the petition to the board of elections was a ministerial duty and did not empower the board to determine the validity of the petition or otherwise challenge it. The court also rejected the board’s claim that it was able to delay its duty to forward the petition to the board of elections, so long as it did not outright refuse to perform its duty under RC 3311.242. The court acknowledged that RC 3311.242 does not describe the time by which a school board must act but found no support for the board’s argument that the absence of such language authorized the board to “disregard a ripe legal duty.”
As a result, the court granted the residents’ petition for a writ of mandamus and ordered the Plain Local school board to cause the Stark County Board of Elections to check the sufficiency of the signatures on the petition.