In this issue: Ethics • Firearms • First Amendment – Free Speech • Individuals With Disabilities • Public Participation • Real Property Taxation • Sovereign Immunity • Tax Valuation • Termination
Appeals court affirms trial court finding that superintendent of a closed community school was strictly liable for the amounts in conflicted transactions with family members but reverses finding that Ohio’s corrupt practices act applied.
Sun Bldg. Ltd. Partnership v. Value Learning & Teaching Academy, 2021-Ohio-2008.
https://www.supremecourt.ohio.gov/rod/docs/pdf/1/2021/2021-Ohio-2008.pdf
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 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.
The trial court found Ms. Lee strictly liable for the amounts of the conflicted transactions and determined that the Lees should relinquish their wages paid by VLT. The court also found that the contracts between the community school and CEED constituted a pattern of corrupt activity under Ohio’s corrupt practices act (OCPA) and that both Mr. Lee and Ms. Lee were jointly and severally liable for treble damages, in the amount of more than $5 million, for the losses (School Law Summary 2018-2).
The Lees appealed the trial court decision, presenting seven assignments of error. The appeals court described the action as the Ohio attorney general’s effort to hold Ms. Lee and her family accountable for the loss of public funds. It then assessed all seven of the Lees’ arguments de novo because the parties presented joint stipulations rather than convening an in-person trial.
The court denied the Lees’ first two challenges that the attorney general had neither statutory nor common law standing to pursue claims against them because the auditor failed to issue a finding for recovery against them. The court found that the attorney general possessed statutory standing, making it unnecessary to consider the argument on his common law authority. The court concluded that RC 117.42 unambiguously grants the attorney general with expansive authority to file and prosecute actions to enforce the laws relating to the expenditure of public funds. Further, it concluded that RC 117.28, which gives the attorney general the authority to bring suit to recover misappropriated public funds, is entirely discretionary. Finally, the court held RC 117.28 and 117.42 are not mutually exclusive and that the attorney general may use either as a basis to recover public funds provided that it applies to the case at hand. As a result, the court agreed with the trial court that the attorney general has standing to sue public officials, even absent a finding for recovery under RC 117.28
The appeals court also upheld the trial court’s determination that the Lees had an interest in the contracts between CEED and VLT, in violation of RC 2921.42, because Mr. Lee owned CEED and Ms. Lee was an authorized user on CEED’s bank account. The Lees argued that the 2921.42(C) exception to RC 2921.42 was misapplied by the trial court because it should not have considered the exception an affirmative defense and because it should have determined that the Lees were able to comply with one of the four required elements of the exception. The appeals court agreed with both of the trial court’s conclusions. The appeals court also agreed with the trial court that the Lees should forfeit their wages paid by VLT under the faithless servant doctrine.
The appeals court reversed the trial court’s judgment regarding OCPA. The court concluded that the CEED contracts did not constitute a “pattern” for purposes of OCPA. It used a test devised by the Sixth Circuit in Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1110 (6th Cir.1995), which concluded that a pattern is the sum of factors, including the length of time the racketeering activity existed, the number of different schemes, the number of predicate acts within each scheme, the variety of species of predicate acts, the distinct types of injury, the number of victims and the number of perpetrators. In this situation, while there were six contracts between CEED and VLT, the court found that the contracts covered the same subject matter, used nearly verbatim language and had nearly identical pricing structures. As a result, the court concluded that there was only one scheme, one variety of predicate acts within the scheme, one type of injury, one victim and one set of perpetrators.
Finally, the court upheld the trial court’s decision applying strict liability against Ms. Lee, under RC 9.39, for the loss of public money under the contracts with CEED and the employment of Ms. Lee’s daughter. It rejected Ms. Lee’s argument that she could not be found strictly liable because there had been no finding for recovery against her.
Supreme Court of Ohio determines a school district employee must complete an approved basic peace-officer-training program or have 20 years of experience as a peace officer to be armed while on duty.
Gabbard v. Madison Local School Dist. Bd. of Edn., 2021-Ohio-2067.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2021/2021-ohio-2067.pdf
In April 2018, two years after a school shooting at Madison Junior/Senior High School that resulted in injuries to four students, the Madison Local (Butler) School District Board of Education passed a resolution to authorize certain school-district employees to carry a deadly weapon or dangerous ordnance on school property "for the welfare and safety of [its] students." The district’s resolution was based Ohio Revised Code (RC) 109.78(D) and RC 2923.122(D)(1)(a). Parents of students enrolled at Madison Local challenged whether it complied with Ohio law.
The first statute, RC 109.78(D), provides that no public or private educational institution or superintendent of the state highway patrol shall employ a person as a special police officer, security guard or other position in which such person goes armed while on duty, who has not received a certificate of having satisfactorily completed an approved basic peace officer training program, unless the person has completed 20 years of active duty as a peace officer.
The second statute, RC 2923.122, defines the criminal offenses of illegal conveyance into or possession in a school safety zone of a deadly weapon or dangerous ordnance. RC 2923.122(A) and (B) respectively prohibit any person from knowingly conveying or attempting to convey into or possessing in a school safety zone a deadly weapon or dangerous ordnance. The statute then carves out exceptions to those general prohibitions.
The prohibitions established in RC 2923.122(A) and (B), however, do not apply to a law enforcement officer who is authorized to carry deadly weapons or dangerous ordnance; a security officer employed by a board of education or governing body of a school during the time that the security officer is on duty pursuant to that contract of employment; or any other person who has written authorization from the board of education or governing body of a school to convey deadly weapons or dangerous ordnance into a school safety zone or to possess a deadly weapon or dangerous ordnance in a school safety zone and who conveys or possesses the deadly weapon or dangerous ordnance in accordance with that authorization.
The school board adopted a "firearm authorization policy" that stated, pursuant to RC 2923.122, that the board will authorize up to 10 school employees designated by the superintendent to carry concealed firearms in a school safety zone. It specified that, to be so designated, an employee must maintain an Ohio concealed handgun license; satisfactorily complete at least 24 hours of response-to-active shooter training; hold a handgun-qualification certificate; receive training regarding mental preparation to respond to active killers; and pass a criminal background check and mental health exam. Neither the resolution nor the firearm-authorization policy required designated persons to satisfy the training or experience requirement set out in RC 109.78(D).
The court stated that the question presented in this case was whether the training or experience that RC 109.78(D) requires of a school employee who holds a "position [other than a special police officer or security guard] in which such person goes armed while on duty" applied to teachers, administrators and other school staff whom a board of education has authorized to carry a deadly weapon in a school safety zone. The court found this is a pure question of law, which it reviewed de novo.
After a thorough review of the applicable statutes and legislative intent, the court held that RC 109.78(D) prohibits a school from employing a person who goes armed while on duty in his or her job unless the employee has satisfactorily completed an approved basic peace-officer-training program or has 20 years of experience as a peace officer. And RC 2923.122(D)(1)(a) does not provide schools with a mechanism to circumvent that requirement. Because the board's April 2018 resolution purported to authorize certain school employees to go armed while on duty without also requiring that those employees satisfy the training or experience requirement under RC 109.78(D), the court concluded that the resolution violated RC 109.78(D).
U.S. Supreme Court holds that school district violated a student’s First Amendment freedom of speech when it disciplined student for off-campus social media speech.
Mahanoy Area School Dist. v. B.L., 594 U.S. ___, 141 S.Ct. 2036 (2021).
https://www.supremecourt.gov/opinions/20pdf/20-255_g3bi.pdf
B.L., a rising sophomore student in the Mahanoy Area School District in Pennsylvania, tried out for the cheerleading squad. She was disappointed when she was placed on the junior varsity (JV), rather than the varsity, cheerleading squad. While she and a friend were at a store over the weekend, she decided to post a photo on the Snapchat application on her cell. In the photo or “snap” of herself, B.L. and her friend were sticking out their tongues and making rude gestures. The caption for the snap featured four uses of the same profanity before the words “school,” “softball,” “cheer” and “everything.” She made a second snap more specifically critical of the decision to keep her on the JV team for another year while other students were not placed on the JV team at all.
The snaps were posted on the weekend, not during class time, and the students were not on school property or at a school event. Neither the snaps nor the photo included any school logos or the names of the school district or school officials.
One of B.L.’s friends, who also was a cheerleader, took screenshots of the messages and shared them with other students who were not B.L.’s Snapchat friends. One of those students showed the screenshots to her mother, who was a cheerleading coach. In response to the snaps, the school suspended B.L. from the JV team for the season. B.L. and her parents appealed the suspension through administrative channels at the district. The discipline was upheld by administrators and the school board.
B.L. and her parents then sued the district. They claimed that the school’s discipline of B.L. for private, off-campus speech shared via social media violated her rights under the First Amendment. In its response to the lawsuit, the district argued that discipline of B.L. was consistent with the seminal U.S. Supreme Court decision on regulation of student speech, Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969)).
In Tinker, the Supreme Court held that, while student speech is protected by the First Amendment, the protection is not unlimited. The Tinker test, which has been applied by courts since the decision was reached, provides that student speech is not protected by the First Amendment right to freedom of speech if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The district argued that its discipline of B.L. was consistent with Tinker because her snaps caused material disruption to the school’s cheerleading program.
At the district court level, B.L. prevailed. The court held that, although off-campus student speech can be subject to regulation by the district, B.L.’s speech did not cause material disruption to the school. For that reason, the district’s discipline of B.L. for the snaps violated her First Amendment freedom of speech. The district appealed.
B.L. also prevailed at the circuit court level, although for a different reason. The circuit court did not consider whether B.L.’s speech caused a material disruption. Instead, it concluded that schools could not rely on Tinker to discipline students for off-campus speech.
The district appealed to the U.S. Supreme Court. The court reversed the circuit court’s decision, upholding the Tinker test and its application to off-campus speech. It stressed that the First Amendment should be applied to student speech cases “in light of the special characteristics of the school environment,” including the fact that schools sometimes stand in the place of parents (in loco parentis) to students. It also agreed that, although it could discipline students for some off-campus speech, the school district had violated B.L.’s First Amendment freedom of speech when it disciplined her for her off-campus snaps.
Although the Supreme Court rejected the idea that off-campus speech can never be regulated by schools, it didn’t set a “broad, highly general First Amendment rule” on off-campus student speech. It didn’t describe how or when ordinary First Amendment standards must give way to a school’s special need to prevent “substantial disruption of learning related activities or the protection of those who make up a school community” when the speech occurs off campus.
The court did identify three features of student off-campus speech that diminish the special circumstances allowing regulation of that speech without violating the student’s First Amendment freedom of speech:
1. A school will rarely be standing in loco parentis to a student when he or she is engaging in off-campus speech. Off-campus speech normally falls into the zone of parental regulation.
2. If a student’s on-campus speech is already regulated, then the regulation of off-campus speech means that everything a student expresses is subject to potential regulation by the school. Courts must be more skeptical of the school’s efforts to regulate off-campus speech.
3. As the “nurseries of democracy,” schools should be places where students can express views that may be unpopular. Schools have an interest in protecting, rather than limiting, a student’s unpopular expression, particularly when it takes place off campus.
The court concluded its decision with this cautionary note: “The overwhelming majority of school administrators, teachers, and coaches are men and women who are deeply dedicated to the best interests of their students, but it is predictable that there will be occasions when some will get carried away, as did the school officials in the case at hand. If today’s decision teaches any lesson, it must be that the regulation of many types of off-campus student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.”
District court determines rules regulating speech at a public township meeting and on a police department’s Facebook page are constitutional.
Davis v. Colerain Twp., S.D.Ohio No. 1:19-CV-00455, 2021 U.S. Dist. LEXIS 142178 (July 30, 2021).
https://law.justia.com/cases/federal/district-courts/ohio/ohsdce/1:2019cv00455/227019/45/
The Colerain Police Department established a Facebook page on Dec. 2, 2011, to provide its community with better access to current community issues. Three officers who served as administrators to manage the Facebook page included Police Chief Mark Denney and two detectives. Denney originally included user terms and conditions under the "Our Story" section of the department’s Facebook page.
Some of the relevant terms stated:
- “The Colerain Police Department does not allow posting of photos or videos by anyone other than members of the Colerain Police Department.
- “The Colerain Police Department welcomes a person's right to express his/her opinion and encourages posters to keep comments related to content on the page. The Colerain Police Department reserves the right to remove any comments/reviews that are inappropriate or offensive, including comments that:
- “defame, abuse, harass, stalk, threaten or violate the legal rights of others,
- “include racism, hatred, slander, threats, obscenity, violence, vulgarity,
- “spam or advertise,
- “could harm the safety or well-being of one of our employees, including personal attacks,
- “are off-topic,
- “have personal information about another person or that violate a person's privacy,
- “include copyrighted material that belongs to another person,
- “contain links to inappropriate websites.”
These terms were unilaterally removed by Facebook in March 2021, when Facebook removed the "Our Story" section from all Facebook pages.
Plaintiff Carrie Davis attended a township meeting on Apr. 9, 2019, where she discussed, among other things, the importance of education. Davis said "our fire fighters and police officers they don't have bachelor's degrees, but their certifications speak for themselves too, so you don't have to have a bachelor's degree in order to be wholly competent and qualified for the job." All township meetings are video recorded and could subsequently be viewed on YouTube.
On Apr. 24, 2019, the Colerain Police Department, via Denney, posted on its Facebook page that "a citizen commented that most of our officers do not have college degrees." The post went on to explain that this comment was misplaced because 41 out of 56 officers do have college degrees.
Davis alleges that she posted an excerpt of the video recording of her statement at the meeting on the Colerain Police Department's Facebook page to show that Denney's post took her statement out of context, but the post was subsequently deleted.
Davis filed her original complaint on June 14, 2019, alleging that her First Amendment rights were violated by the Rules of Public Participation and when her post was deleted from the Colerain Police Department Facebook group. On Aug. 14, 2019, the defendant filed its answer. Following discovery, the parties filed cross-motions for summary judgment.
The court noted that this case involves determining whether the rules regulating speech at a public township meeting and on a police department’s Facebook page are unconstitutional. The court’s analysis started by reviewing Facebook’s rules, which it determined were viewpoint neutral. The Facebook settings the police department used — which did not allow any posting of videos by the public — only limited the public’s ability to offer comments and replies on posts initiated by the police department. But it did not limit the public’s ability to provide their viewpoint on the subject. The court found these terms reasonable because it allowed the public to quickly access information posted on the police department’s Facebook page without irrelevant videos detracting from this information.
Next, the court looked at the township’s public participation rules. Davis said the rules amount to viewpoint discrimination because when she criticized the trustees, she was interrupted and told she must be respectful. However, the court found that her speech was not being regulated because of its content but because her disrespectful speech impeded the township’s interest and ability to conduct an orderly, efficient and productive meeting.
Finally, the court looked at Davis’ assertion that the Facebook terms and Public Participation Rules were overly broad or vague and significantly compromised her First Amendment protections. The court noted that the vagueness doctrine is rooted in the idea of fairness: "[T]he primary issue raised by the doctrine is whether the particular statute is sufficiently definite to give fair notice to one who would avoid its sanctions, and ascertainable standards to the factfinder who just adjudicate guilt under it."
The Sixth Circuit has held that vagueness can take two forms, both of which result in a denial of due process. A vague ordinance denies fair notice of the standard of conduct to which a citizen is held accountable. At the same time, an ordinance is void for vagueness if it is an unrestricted delegation of power, which in practice leaves the definition of its terms to law enforcement officers, and thereby invites arbitrary, discriminatory and overzealous enforcement.
The court found neither form of vagueness was present in this case. Reserving the right to delete a comment, after consulting with an attorney, that is deemed to be "inappropriate," "offensive," "hateful" or including "racism," does not deny fair notice of the standard of conduct. Neither did the terms invite an unrestricted delegation of power to the administrators of the Facebook page, because the administrators have not deleted a comment or reply under any of the criteria. Nor did Davis show that board members declaring someone disruptive for being disrespectful and having them escorted from the meeting denies anybody fair notice or invites unrestricted delegation of power. Board members should be able to keep public meetings in order. The court then denied Davis’ motion and granted the township’s motion for summary judgment.
Circuit court affirms district court decision that student must exhaust IDEA administrative remedies before claiming damages for denial of a free appropriate public education under another federal law.
Perez v. Sturgis Public School, 6th Cir. No. 20-1076, 2021 U.S. App. LEXIS 19004 (June 25, 2021).
https://law.justia.com/cases/federal/appellate-courts/ca6/20-1076/20-1076-2021-06-25.html
Miguel Perez emigrated from Mexico to Michigan when he was 9. He attended school in the Sturgis Public School District. The school assigned Perez, who is deaf, a classroom aide, but the aide was not trained to work with deaf students and did not know sign language. During his years in the district, Perez’s teachers gave him As and Bs in nearly every class, and he was on the honor roll every semester. Nonetheless, the school informed Perez and his parents, months before graduation, that he did not qualify for a diploma but only for a “certificate of completion.”
Perez and his family filed a complaint with the Michigan Department of Education. They alleged that Sturgis denied him a free appropriate public education (FAPE) in violation of the Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities Act (ADA), Sec. 504 of the Rehabilitation Act and two Michigan disabilities laws. Upon the district’s motion, the administrative law judge (ALJ) dismissed the ADA and Sec. 504 claims, and one state law claim, leaving the IDEA and other state law claim, which were scheduled for hearing.
Before the hearing, the parties settled. The district agreed to pay for Perez to attend the Michigan School for the Deaf for any "post-secondary compensatory education" and for sign language instruction for Perez and his family. It also paid the family's attorney's fees. The ALJ dismissed the case with prejudice.
A few months later, Perez sued Sturgis Public Schools and the Sturgis Board of Education in federal court. He brought one ADA claim and one claim under Michigan law. This time, Perez alleged that the district had discriminated against him by not providing the resources necessary for him to fully participate in class. Along with declaratory relief, Perez sought compensatory damages for his emotional distress
The district moved to dismiss the case, arguing that IDEA required Perez to complete certain administrative procedures in his IDEA claim before bringing an ADA claim. The court concluded that, because Perez settled his IDEA claim before it was adjudicated, he had not exhausted his administrative remedy under IDEA and his ADA claim was barred. It dismissed the ADA claim for failure to exhaust and declined to exercise supplemental jurisdiction over the remaining state law claim.
Because Perez and his parents settled his IDEA claim before completing the administrative process, the court posed three questions about Perez’s ADA claim: (1) whether it was subject to the IDEA's exhaustion provision; (2) if so, whether Perez exhausted the IDEA's administrative procedures to the extent necessary; and (3) if he did not, whether the court should allow his suit to proceed anyway.
In response to the first question, the court concluded that the crux of Perez’s ADA complaint was that he was denied an adequate education and, therefore, the case is subject to IDEA’s exhaustion provision. Perez alleged that the district kept him from accessing his education and benefiting from classroom instruction, that it misrepresented his academic achievement and that, as a result, he was nearing graduation years behind where he should have been. Applying the Fry tests to Perez’s situation, Perez could not have brought essentially the same claim against a different kind of public facility and an adult at the school could not have brought essentially the same claim. Although Perez was seeking damages in his ADA complaint, a remedy that is not available under IDEA, the relief he sought was for the denial of FAPE, relief that is available under IDEA.
In response to the second question, the court concluded that Perez did not exhaust his administrative remedies under IDEA because he and his parents settled his IDEA complaint. It held that Perez could not bring an ADA claim in court if he had not taken the steps necessary to bring an IDEA claim in court. The court concluded that, because Perez’s parents had to dismiss his IDEA complaint to accept the district’s settlement, Perez could never file the IDEA claim or any other corresponding statutory claim in court.
Perez argued that the court should excuse his failure to exhaust the IDEA's procedures before filing his ADA claim because pursuing the IDEA claim would have been futile because it could not provide damages for his emotional distress. The court concluded that IDEA's administrative process was capable of providing Perez relief for his denial of a FAPE, even if not the specific remedy he might have wanted. When an available administrative process could have provided relief, it is not futile, even if the plaintiff decides not to take advantage of it.
In response to the third question, the court affirmed the decision of the district court, concluding that, because Perez failed to satisfy the IDEA's exhaustion provision, his ADA claim was barred.
Southern district of Ohio denies state school board’s motion to dismiss claims against board members in public participation lawsuit.
Regenold v. Ohio State Bd. of Edn., S.D.Ohio No. 2:21-cv-1916, 2021 U.S. Dist. LEXIS 127933 (July 9, 2021).
https://casetext.com/case/regenold-v-ohio-state-board-of-education
In November 2019, the Ohio State Board of Education (SBOE) included the 1619 Project in its November 2019 newsletter as an educational resource. On July 14, 2020, SBOE adopted the “Resolution to Condemn Racism and to Advance Equity and Opportunity for Black Students, Indigenous Students and Students of Color.”
On Nov. 10, 2020, SBOE’s board president determined that, going forward, members of the public were precluded from speaking during the public participation portion of meetings about anything relating to SBOE’s decision to adopt the resolution including, without limitation, critical race theory or the 1619 Project.
SBOE’s board policy allows members of the public who wish to address the board on issues of general interest or items not scheduled for a vote at the current meeting to “address the State Board following the voting on items of business at that meeting. In either instance, the individual may speak for a period not to exceed five minutes. The president may impose further limitations on public participation as deemed appropriate or necessary.”
Prior to the Apr. 13, 2021, SBOE meeting, Daniel Regenold called SBOE to request access to the public comment portion of the meeting to speak on the topic of critical race theory. Regenold was informed that public comment on the subject of “race” was no longer allowed during the public participation portion of SBOE meetings. Later that day, Regenold emailed the board president relaying his desire to testify at the April 13, 2021, meeting on the topic of critical race theory. The board president responded by stating that she made the decision to limit public comment on the resolution and the 1619 Project to written testimony only. She denied Regenold access to the meeting.
Regenold filed a lawsuit against SBOE, alleging that SBOE’s denial of access to the public participation forum of its meetings violated his First Amendment rights to freedom of speech and to petition the government for a redress of grievances. Regenold claimed he was barred from accessing SBOE’s public forum based upon the content or viewpoint of his anticipated statements or testimony on topics such as the resolution, critical race theory or the 1619 Project. Regenold requested that the court issue a preliminary injunction directing SBOE and the board president to permit him and other members of the public to speak during the public comment portion of future SBOE meetings on the topics of the resolution, critical race theory or the 1619 Project.
SBOE moved the court to dismiss the case, arguing that the defendants Regenold named in the lawsuit have immunity. SBOE argued that it was immune as a state agency under the 11th Amendment to the U.S. Constitution, which bars suits against a state in federal court unless that state has consented to suit or waived its sovereign immunity or Congress has abrogated 11th Amendment immunity by statute. In this case, because none of those exceptions applied, the court found that SBOE was immune against Regenold’s suit against it in federal court.
Regenold also brought suit against SBOE board members in their official capacities. Generally, a state official sued in his or her official capacity is not a “person” subject to a lawsuit. However, “a suit by a citizen challenging the constitutionality of a state official’s action is not barred by the 11th Amendment.” In this case, because Regenold was seeking to enjoin the board members from violating his First and 14th Amendment rights, the court held it had jurisdiction over the board members sued in their official capacities.
SBOE board members also sought to dismiss Regenold’s claims against them in their individual capacities, arguing that legislative immunity precluded Regenold from filing claims against the board members in their individual capacities. State officials not part of the legislature “are entitled to legislative immunity when they perform legislative functions.” In this case, the court found that the SBOE board members did not establish that their actions in denying Regenold the opportunity to speak during the public participation portion of the SBOE’s April meeting were legislative. The court found that the SBOE board members were not creating policy but were merely applying the policy outlined in the board’s policy manual. As a result, the court found that the decisions were executive or administrative in form and substance.
The court granted SBOE’s motion to dismiss Regenold’s claims against SBOE, but denied SBOE’s motion to dismiss claims against the board members in their individual and official capacities.
Sixth circuit upholds in-person preregistration requirement, but rejects language prohibiting “antagonistic,” “abusive” and “personally directed” speech in public participation policy.
Ison v. Madison Local School Dist. Bd. of Edn., 6th Cir. No. 20-4108, 2021 U.S. App. LEXIS 20111 (July 7, 2021).
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0156p-06.pdf
In February 2016, a Madison Local (Butler) School District student fired a gun and injured four students. Approximately two years after the shooting, the school board enacted a resolution allowing staff to carry concealed weapons. Perturbed by these developments, Carolyn Patrick and Billy, Abby and Sandra Ison frequently appeared at school board meetings to criticize the board’s handling of gun-related issues. On two occasions, the school board prevented them from speaking for failing to comply with the board’s public participation policy. The Isons and Ms. Patrick sued the board, arguing under the First Amendment that the board’s public participation policy used “vague and undefined terms” and imposed “content-based restrictions on speech.” The board and plaintiffs filed cross motions for summary judgment. The district court granted summary judgment to the board.
Plaintiffs' arguments on appeal fell into three categories. First, they alleged that the board’s policy violated the First Amendment by discriminating on viewpoint and that the board unconstitutionally applied the restrictions to silence Billy at a school board meeting. The court of appeals agreed with the plaintiffs’ arguments. The board’s policy contained language that authorized the board president to “interrupt, warn, or terminate a participant's statement when the statement is too lengthy, personally directed, abusive, off-topic, antagonistic, obscene or irrelevant.” The court found that the board’s restrictions on “antagonistic,” “abusive” and “personally directed” speech prohibited speech purely because it disparaged or offended the board or members of the public. As a result, the court found that the policy prohibitions and their application to Billy’s comments were impermissible viewpoint discrimination.
Second, the plaintiffs challenged the board’s in-person preregistration requirement. Under the board’s policy, those wishing to participate in the meeting were required to complete a “public participation form” in person, at least two business days before the meeting. The plaintiffs argued that requiring speakers to register in person prior to board meetings furthered no government interest. However, the court disagreed and agreed with the board that the in-person requirement allowed the board to “reserve time for those individuals who are most likely to follow through and participate in the meeting" and helped to “ensure that those who truly want to participate are not denied the opportunity to do so."
The board also found that although the board’s policy of requiring speakers to register at least two days before a meeting, in person, during board hours (8 a.m. to 3 p.m.) could curtail a working person from easily registering, that hurdle fell short of rending the requirement substantially more burdensome than necessary. The court also acknowledged that those who could not comply with the preregistration requirement had ample alternative channels to communicate with board members through their publicly displayed email addresses or at other school functions. As a result, the plaintiffs’ challenge to the preregistration requirement failed.
Finally, the plaintiffs challenged the policy — and the board's discretion in implementing it — as unconstitutionally vague. In essence, they challenge the board president’s discretion, contending that "reasonable decorum," "abusive" and "antagonistic" can "change from day to day" depending on the board's approach. Although the court acknowledged that “the exact contours of ‘reasonable decorum’ lack precision, perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” As a result, the court of appeals found that the district court properly granted the board summary judgment on that claim.
Supreme Court of Ohio upholds tax commissioner and Ohio Board of Tax Appeals decisions to continue the property-tax exemption for the Ohio State University Airport.
O'Keeffe v. McClain, 2021-Ohio-2186.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2021/2021-Ohio-2186.pdf
In 2016, John S. O'Keeffe, a Franklin County property owner, filed a complaint challenging the continuing property-tax exemption under Ohio Revised Code (RC) 3345.17 for a parcel owned by the state of Ohio and operated as the Ohio State University (OSU) Airport (airport).
The airport operates as a full-service airport, meaning that it has all the features of a typical airport, including runways; taxiways; hangars; an air-traffic-control tower; landing, lighting and communications systems; and car-rental and food services. It also qualifies as a "general aviation airport" under Federal Aviation Administration guidelines, meaning that it offers services 24/7 and must be available to all classes and categories of aeronautical users for which it has certification. However, it is not a commercial service airport. The airport's director testified at the Ohio Board of Tax Appeals (BTA) hearing that the airport is integral to OSU's College of Engineering. Classes, research, career training and many other academic endeavors take place at the airport as well.
The tax commissioner and BTA both agreed that “(1) the state-university property-tax exemption, RC 3345.17, does not involve a primary- or exclusive-use test as advocated by O'Keeffe, (2) an operational relationship between the property's use and university activities exists and furnishes an adequate basis for the exemption, and (3) using the property to generate income does not defeat exemption so long as that use is ancillary to the main use.” O’Keeffe appealed the BTA decision to the Supreme Court of Ohio.
The court first explained that its role in the appeal is to determine whether the previous rulings were reasonable and lawful. However, the court pointed out that the burden always remains with the property owner to show that the parcel is entitled to exemption. The court agreed with BTA that the property qualifies for exemption because it is “(1) property of the state, (2) held for the benefit of OSU, and (3) used for the support of OSU.”
O’Keefe’s final argument was that a split-listing under RC 5713.04 applies to equitably resolve a complex property tax situation in a continued exemption like this one. However, RC 3345.17 does not require split-listing of rent-generating portions of property. The court determined, under RC 3345.17, that the absence of an exclusive-use limitation in the code means that there is no split-listing requirement in this particular context, and the entire parcel will qualify for exemption.
Appeals court upholds decision not to dismiss claim against a board of education because the absence of required safety equipment could constitute a physical defect to district property.
Doe v. Greenville City Schools, 2021-Ohio-2127.
https://www.supremecourt.ohio.gov/rod/docs/pdf/2/2021/2021-Ohio-2127.pdf
On Dec. 9, 2019, two high school students in the Greenville City School District were injured when a bottle of isopropyl alcohol caught fire and exploded during an experiment in their science class. In May 2020, the students, identified as Jane Does 1 and 2, and their families, filed a complaint against the board of education, the five members of the board, 10 unnamed employees of the board of education, HCC Life Insurance Co., and the Ohio Department of Medicaid. The board and other defendants filed to dismiss the complaint. The plaintiffs voluntarily dismissed their complaints against the members of the board of education. They filed an amended complaint alleging that the students were injured because district employees, including science teacher Roy Defrain and high school principal Stan Hughes, failed to provide proper safety equipment and use appropriate protocols for the adequate supervision and protection of the students during classroom activities.
The defendants asked the trial court to dismiss the amended complaint, arguing that the board, Defrain and Hughes were immune from liability under Ohio Revised Code (RC) Chapter 2744, and that the plaintiffs had not satisfied the requirements of Ohio Rules of Civil Procedure (Civ.R.) 15(D) regarding the unnamed employees of the board. On Sept. 10, 2020, the trial court overruled the motion, relying on Moore v. Lorain Metro. Hous. Auth., 2009-Ohio-1250. The defendants/appellants appealed based on Civ.R. 12(B)(6), alleging that the plaintiffs/appellees failed to state a claim on which relief can be granted. Appellants asserted that the trial court erred by not applying the sovereign immunity analysis required by RC 2744.03(A)(6) and not making an express determination that Defrain and Hughes were immune from liability. They alleged that appellees failed to allege facts to support their assertions of bad faith or malicious, reckless or wanton conduct against Defrain and Hughes or to state that they were unable to determine the names of the unnamed defendants.
The appeals court concluded that the trial court did not err by not making an express determination of whether Hughes and Defrain are immune from liability under RC 2744.03(A)(6) and that appellees' allegations against Hughes and Defrain were not insufficient to satisfy the requirements of Civ.R. 8, because the underlying allegations are questions of fact. However, the court concluded that the trial court erred by overruling appellees' motion to dismiss the claims against the unnamed defendants because the appellees did not allege that they were unable to discover the defendants' names.
Regarding the board of education, the appellants claimed that the trial court erred in concluding that the school board was not entitled to sovereign immunity under RC 2744.02(B)(4) because the absence of a fire extinguisher or other unspecified protective equipment in the science classroom where the injuries occurred constituted a “physical defect” within or on the grounds of the school district’s building. The appeals court rejected this argument, noting that the Supreme Court of Ohio concluded, in Moore, that the trial court had not fully considered whether the absence of safety equipment (in that case, a smoke detector) was a physical defect. By remanding in Moore, the Supreme Court essentially found that the absence of required safety equipment was not insufficient, as a matter of law, to qualify as a physical defect for purposes of the exception to sovereign immunity. The appeals court concluded that the trial court did not err in overruling appellants’ motion to dismiss the claim against the board of education because the absence of fire safety equipment arguably could constitute a physical defect if the equipment were a legal or regulatory requirement.
Finally, the appellants argued that the trial court erred in not evaluating whether any statutory defenses were available to reestablish immunity for the board of education. The appeals court rejected this argument, holding that, to demonstrate that its immunity should be restored under RC 2744.03(A), the board would have to prove that Hughes’ and Defrain’s alleged actions or failures to act were within their discretion to engage in policymaking, planning or enforcement. Alternately, the board could have its immunity restored if it could prove that the injuries suffered by Jane Does 1 and 2 were the result of Hughes’ and Defrain’s exercise of judgment in determining whether to acquire or how to use safety equipment in the classroom, unless they exercised that authority with malicious purpose, in bad faith or in a wanton and reckless manner. The court concluded that the record is insufficient to determine either the extent of the employees’ discretion or the manner in which the employees exercised what discretion they had are questions of fact beyond the scope of the appellants’ motion.
Appeals Court finds board of revision incorrectly excluded appraisal evidence from record in determining tax valuation
Durham Ridge Invests., LLC v. Lorain Cty. Bd. of Revision, 2021-Ohio-2454.
https://www.supremecourt.ohio.gov/rod/docs/pdf/9/2021/2021-Ohio-2454.pdf
Durham Ridge Investments LLC owned a number of parcels in LaGrange that collectively make up the Grey Hawk Golf Club. For 2010, the Lorain County Auditor set the combined value of the parcels at $4,658,600. Durham Ridge contested the valuation, arguing that it was $1,800,000 based on an appraisal that was completed in April 2010. Durham Ridge contends that it submitted a copy of the appraisal at the review hearing before the county board of revision. The board, however, did not change the valuation of the parcels, concluding that the auditor's value was fair and equitable. Durham Ridge appealed to the Lorain County Court of Common Pleas. The court affirmed the board's decision without accepting additional evidence, finding that Durham Ridge did not submit the full appraisal at the hearing and concluding that Durham Ridge did not produce competent and credible evidence to support a decrease in the value of the parcel.
On appeal to the Ninth District Court of Appeals, Durham Ridge argued that the common pleas court incorrectly denied its motion to supplement the record with a copy of the full appraisal that it presented during the hearing before the board. According to Durham Ridge, although it submitted a complete copy of the appraisal to the board, the appraisal was not maintained as part of the record.
The record that the board transmitted to the common pleas court did not contain a copy of the appraisal that Durham Ridge offered at the hearing. Durham Ridge, therefore, moved to supplement the record and attached the full appraisal to its motion. The common pleas court found that Durham Ridge had "offered several pages of an appraisal" at the hearing and that the "appraisal was not offered into evidence in its entirety at the hearing." The court also found that the report was not authenticated by its author during the hearing. Concluding that Durham Ridge had failed to offer the complete appraisal to the board, the court next considered whether Durham Ridge had good cause for failing to provide it. It determined that Durham Ridge had failed to show good cause and, therefore, denied its motion to supplement the record.
However, the appeals court concluded that the common pleas court's findings about what was submitted at the board’s hearing are not supported by the record. The appellate court found there was no indication in the transcript that Durham Ridge offered only several pages of the appraisal as opposed to the entire document. In fact, the board noted that Durham Ridge "submitted appraisal evidence" to which the board objected. The board did not sustain any objections. Instead, it simply found "the evidence * * * insufficient." The subsequent written decision issued by the board only provided that, "[a]fter due consideration and review of the evidence presented," the value of the parcels was fair and equitable. But the record transmitted from the board also did not contain any part of the appraisal.
Under Ohio Revised Code 5717.05, the county board of revision had a duty to "certify to the court a transcript of the record of the proceedings of said board pertaining to the original complaint and all evidence offered in connection with that complaint." Upon learning from Durham Ridge that there was an appraisal offered at the hearing that had not been transmitted, the common pleas court should have exercised its authority to supplement the record with the omitted documents or with any other evidence it deemed material to its determination. Therefore, appeals court concluded that the court of common pleas incorrectly denied Durham Ridge’s motion to supplement the record, which was an error. The court then found in favor of Durham Ridge, reversed the court of common pleas’ decision and remanded the case for additional proceedings.
School district’s termination of employee for using vulgar and demeaning speech upheld by court.
Lamb v. Reynoldsburg Civ. Serv. Comm., 2021-Ohio-2322.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2021/2021-Ohio-2322.pdf
Larry Lamb was employed by the Reynoldsburg City School District as a maintenance worker for approximately 10 years prior to the events giving rise to his termination. On Dec. 7, 2017, Lamb's assigned hours were 7 a.m. to 3:30 p.m. At approximately 1:30 p.m., Lamb and fellow maintenance employee, Robert Moore, were assigned a task by their supervisor, Charles Pickett, the school district's facilities and support services manager. At approximately 2:30 p.m., Lamb determined that it would be difficult to complete the task by 3:30 p.m. and urged Moore to so advise Pickett and obtain approval to work overtime. Moore called Pickett, who responded that there was still an hour left in the workday and that he and Lamb should continue working.
The next morning, Dec. 8, 2017, Pickett held his daily facilities department meeting. Lamb informed Pickett that he and Moore had worked 15 minutes overtime the previous day and wanted to be compensated for it. Pickett stated that he would neither authorize compensatory time nor compensate them monetarily because he had not authorized the overtime. Lamb was "infuriated" and told Pickett "it was ****ing bull****." In addition, Lamb was upset because he thought Moore had failed to advise Pickett about the overtime issue. Moore, standing near the table where Lamb was seated, pointed at Pickett and said, "Look, Chuck. I don't want to be part of this. It's 15 minutes. It's not a big deal." Lamb responded to Moore with profanities and vulgar names and a suggestion that he should grow some male body parts and then smacked Moore's hand away. Moore started to walk away but returned to where Lamb was seated, pointed his finger at him, and said "[d]on't talk to me like that and don't touch me." Lamb again smacked Moore's hand and threatened to beat Moore or knock him out.
Pickett separated the men because he was worried the situation might escalate. Lamb used profanity as he continued to voice his displeasure with both Moore and Pickett. Pickett reported the incident to Chris Reed, the school district's director of operations and services. Pickett and Reed reviewed surveillance footage captured on two security cameras situated inside the room where the meeting was held. Jennifer Kelley, a human resources consultant for the school district, also reviewed the security footage. Following consultation with Reed, Kelley recommended that Lamb be placed on paid administrative leave pending further investigation.
Pursuant to her investigation, Kelley interviewed Lamb on Dec. 11, 2017. Lamb claimed that he felt threatened by Moore pointing at him and swatted Moore's hand away in a defensive reflex action. Lamb told Kelley he did not use profanity during the incident. At pre-disciplinary hearing held on Jan. 11, 2018, Lamb reiterated that Moore pointing at him caused him to push Moore's hand out of the way but also admitted that he used profanity during the incident. Following the hearing, Reed recommended termination of Lamb's employment.
The Reynoldsburg City Board of Education terminated Lamb for physically striking and verbally threatening a co-worker, using vulgar and demeaning names and being dishonest during the investigation. Lamb appealed to the Reynoldsburg Civil Service Commission, which subsequently upheld his termination, concluding that Lamb acted in a threatening manner, created a hostile work environment and showed lack of respect for his supervisor.
Lamb then appealed to the Franklin County Court of Common Pleas, which affirmed the commission’s order. Lamb, who represented himself, appealed to the Tenth District Court of Appeals. The court found his brief violated Ohio Rules of Civil Procedure 16(A)(7), which requires an appellant to provide "[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes and parts of the record on which appellant relies."
Lamb essentially contended in a rambling brief that the common pleas court abused its discretion in determining that the commission's decision affirming the termination of his employment was supported by the preponderance of reliable, probative and substantial evidence. The appellate court disagreed, specifically finding the common pleas court, pursuant to its statutory responsibility under Ohio Revised Code 2506.04 and case law, considered the entire record and evaluated all evidence as to witness credibility, the probative character of the evidence and the weight to be given the evidence, and, giving due deference to the commission's resolution of evidentiary conflicts, concluded that its decision was supported by the preponderance of reliable, probative and substantial evidence. The court then affirmed the common pleas court’s judgment terminating Lamb’s employment.