In this issue: Abuse of Process – Removal From Office • Elections • Fourth Amendment • Individuals with Disabilities • Liability • Open Meetings Act • Public Records • Section 1983 • SERB – Authority • Tax – Valuation/Real Property • Teacher Termination • Territory Transfer
ABUSE OF PROCESS – REMOVAL FROM OFFICE
Court of appeals agrees with trial court’s application of antitrust doctrine and upholds dismissal of abuse of process claim brought by a township trustee in attempt to remove him from office.
Gemperline v. Franano, 2022-Ohio-3727.
https://www.supremecourt.ohio.gov/rod/docs/pdf/5/2022/2022-Ohio-3727.pdf
In 2018, Michael Gemperline took office as a trustee for Liberty Township in Delaware County. Gemperline voted to request a proposal from Delaware County to replace the township’s emergency medical services (EMS). A group of individuals who opposed any plan to replace township EMS gathered signatures on a petition to remove Gemperline from office, allegedly stating that he wanted to replace the township EMS, which would harm Liberty Township, and that people would die because of the plan.
A complaint to remove Gemperline was filed in July 2019. The complaint alleged that Gemperline was in favor of replacing the township EMS, engaged in misconduct by seeking to replace a township contractor, improperly ceded his authority to another trustee, conducted township business using his personal email account and failed to recuse himself from matters in which he had a conflict of interest. The removal complaint was voluntarily dismissed in August 2019.
In March 2020, Gemperline filed a complaint against the individuals who circulated the removal petition. In an amended complaint filed in September 2020, Gemperline alleged abuse of process, intentional infliction of emotional distress and defamation. The trial court dismissed the complaint for failure to state a claim for which relief could be granted. Gemperline appealed to the Fifth District Court of Appeals, which affirmed the dismissal on all causes of action except abuse of process. It remanded the abuse of process matter to the trial court.
On remand, the trial court found Gemperline’s cause of action was barred by the Noerr-Pennington doctrine, which provides that joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition. Although Ohio courts have not extended the Noerr-Pennington doctrine to the tort of abuse of process, they have applied it to other torts such as unfair competition and interference with employment. The appeals court concluded that the trial court correctly applied Noerr-Pennington and did not err when it dismissed Gemperline’s claim for abuse of process.
The court also concluded that the trial court did not err by applying the Noerr-Pennington doctrine based on the pleadings even though it is an affirmative defense. When an affirmative defense is obvious from the face of the complaint, it can be applied on the pleadings.
Appeals court rejects residency challenge to the election of a county commissioner on the grounds that a taxpayer-resident of the county lacked standing to bring action for declaratory judgment.
Cool v. Frenchko, 2022-Ohio-3747.
Nicole Frenchko was a candidate for the Trumbull County Board of Commissioners in November 2020 and ultimately won the election. Frenchko maintained a residence in Trumbull County. However, she had a domestic partner who lived in nearby Lake County, and Frenchko spent some time at her partner’s residence. During the period leading to the election, Frenchko’s child attended school in Lake County, in the district where Frenchko’s domestic partner resided. Prior to the election, on July 7, 2020, plaintiff Cool sent a letter to the Trumbull County Board of Elections, requesting an investigation as to whether Frenchko was actually a resident of Trumbull County, which was required by state law in order for her to hold the office which she sought. Cool and other plaintiffs sought a declaratory judgment that Frenchko was ineligible to seek the office, alleging that Frenchko was actually a resident of Lake County, and argued that “1) the word ‘reside’ in [Ohio Revised Code] R.C. 3313.64(B)(1) means to live where the residential parent resides under R.C. 3503.02(D), (2) R.C. 3503.02 should be applied to domestic partners to ensure equal protection of the law, (3) a person cannot be an elector in one county and have a child attend public school in another county, and (4) Frenchko is a resident of Lake County and does not have a residence in Trumbull County for purposes of R.C. 3503.02, and cannot serve as a Trumbull County Commissioner.” The board of elections rejected the petition, and this decision was subject to a series of appeals, at which the defendants were successful. The decision was ultimately appealed to the Tenth District Court of Appeals.
The appeals court rejected Cool’s claim, ultimately finding that Cool and the other plaintiffs lacked standing to bring the action for declaratory judgment. The court noted standing requires "(1) an injury (2) that is fairly
traceable to the defendant's allegedly unlawful conduct and (3) is likely to be redressed by
the requested relief." For plaintiffs seeking declaratory judgment, they “must nonetheless demonstrate 'actual present harm or a significant possibility of future harm to justify pre-enforcement relief.'” The court found that Cool did not demonstrate that he would suffer a concrete injury, noting that Cool himself was not seeking the office and has not suffered any adverse action due to Frenchko’s presence in office. The court further rejected Cool’s argument that RC 2721.03 and RC 3501.11 conferred him statutory standing, finding that RC 2721.03 was meant generally to grant the court of common pleas authority to hear declaratory judgment cases and that RC 3501.11 granted the board of elections the authority to conduct investigations and other duties but did not confer standing on individuals. Because the plaintiff failed to articulate a legally protected interest or allege a legally recognized injury, the court upheld the dismissal.
District court grants student’s motion for summary judgment, concluding that his privacy interests outweigh university’s interest in scanning his room before conducting a remote test.
Ogletree v. Cleveland State Univ., N.D.Ohio No. 1:21-cv-00500, 2022 U.S. Dist. LEXIS 150513 (Aug. 22, 2022).
https://scholar.google.com/scholar_case?case=3369200106944033561&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Aaron Ogletree was a student at Cleveland State University (CSU) studying chemistry. He was enrolled in five classes for the spring 2021 semester. For that semester, most CSU classes were conducted remotely. Before attending classes in person, students were required to complete and pass a daily health assessment. Ogletree was not able to pass the daily health assessment, and CSU would not permit him to take his tests on campus in person.
In January 2021, Ogletree disputed a policy in the syllabus for a general chemistry class for which he was enrolled. The policy allowed the professor and test proctors for any exams “to ask any student, before, during, or after an exam to show their surroundings, screen and/or work area.” After his dispute, the policy was removed from the syllabus.
On Feb. 17, 2021, Ogletree had a remote test scheduled for the chemistry class. CSU required students to take remote tests in a location where they will be uninterrupted. Ogletree, who lived with his mother and two siblings, testified that his bedroom was the only suitable test environment. About two hours before the test, Ogletree was informed by email that the proctor would be checking his ID, surroundings and materials. Ogletree replied that he had confidential documents, including tax documents, in his room and that there was not sufficient time to secure them. At the start of the exam, the proctor asked Ogletree to perform a room scan, and Ogletree complied. The scan took somewhere between 10 seconds and one minute and was recorded. The recording has been retained by CSU’s third-party vendor, and CSU is unaware of any data breaches related to the scan.
Ogletree sued CSU, alleging that the scan violated his rights to be secure in his person, home, papers and effects, under the Fourth Amendment, against unreasonable searches and seizures and seeking both injunctive and declaratory relief. He claimed that CSU’s policy requiring a room scan was a warrantless search. Both Ogletree and CSU filed motions seeking summary judgment.
The court concluded that the fact that most or nearly all students did not object to the room scans does not mean that the routine use of such a practice does not violate a privacy interest that society recognizes as factually and legally reasonable. It held that Ogletree’s subjective expectation of privacy at issue is an expectation that society views as reasonable, and that lies at the core of the Fourth Amendment’s protections against governmental intrusion. The court reviewed a series of cases cited by CSU to support its use of scans and concluded that the holdings in the cases did not apply to CSU’s variable and unevenly enforced policy of using remote scans that make a student’s home visible, including to other students, with uncertain consequences.
The court then considered whether the searches were reasonable by balancing their intrusion on the individual’s Fourth Amendment interests against their promotions of legitimate governmental interests. It stated that, although the Fourth Amendment generally prohibits searches that are not based on suspicion of any particular person, they are permissible when the government has “special needs beyond the normal need for law enforcement.” In this situation, the court concluded that it must examine the: (1) nature of the privacy interest affected; (2) character of the intrusion; (3) nature and immediacy of the government concern; and (4) efficacy of this means of addressing the concern. It reiterated that the home lies at the core of the Fourth Amendment’s protections and that the same principles apply to a visual intrusion using remote technology. After considering each of the four factors, the court concluded that Ogletree’s privacy interest in his home outweighed CSU’s interests in scanning his room and found that the use of room scans is unreasonable. It granted summary judgment for Ogletree and directed the parties to confer on appropriate next steps and submit a joint status report to the court.
Ohio district court grants summary judgment for district after plaintiff fails to exhaust the necessary administrative remedies required by IDEA.
A.G. v. Bd. of Edn., No. 1:19-cv-681, 2022 U.S. Dist. LEXIS 179164 (S.D. Ohio Sep. 29, 2022).
https://casetext.com/case/ag-v-bd-of-educ-of-the-winton-woods-city-sch-dist-1
Kimberly Gibson, on behalf of her son A.G., filed a due process complaint and request for public hearing with the Ohio Department of Education against the Winton Woods City School District on Sept. 13, 2018. Gibson alleged in her complaint that Winton Woods “knowingly and intentionally long denied [A.G.] a free and appropriate public education (FAPE), discriminated against him based on his disabilities, and otherwise deprived A.G. of rights existing under Ohio common law and the U.S. and Ohio Constitutions.” Gibson sought multiple remedies for the district’s alleged misconduct, including compensatory education and services, reimbursement for the family’s out-of-pocket costs, and monetary compensatory damages.
On March 21, 2019, the district and Gibson entered into a settlement agreement resulting in the withdrawal of the due process complaint. The settlement agreement provided for multiple remedies and included a limited release of claims, but it did not provide for compensatory damages. On August 19, 2019, Gibson filed another lawsuit against the district, seeking compensatory monetary damages for various alleged constitutional, statutory and common law violations by the district. Winton Woods filed a motion for summary judgment, premised on the argument that Gibson failed to exhaust the administrative proceedings required by the Individuals with Disabilities Education Act (IDEA). Under IDEA, a plaintiff must exhaust IDEA’s “impartial due process hearing” requirement and the appeal requirement before the filing of a civil action.
The parties agreed that Gibson’s claims were based on Winton Woods’ alleged denial of FAPE. However, the parties disagreed on the issue of whether Gibson’s claims fell outside the scope of IDEA’s exhaustion requirement because Gibson sought compensatory monetary damages. Gibson argued that because compensatory monetary damages are not available under IDEA, her non-IDEA claims fell outside the scope of IDEA’s exhaustion requirement. However, the court cited recent case law stating that a lawsuit that seeks relief for the denial of FAPE is subject to IDEA’s exhaustion provision, even if it requests a remedy IDEA does not allow. As a result, the court held that Gibson’s claims did not fall outside the scope of IDEA’s exhaustion requirement.
The parties also disagreed about whether the parties’ mediation and settlement agreement exhausted the administrative proceedings required by IDEA. The court held that the plain language of the statute established that mediation does not satisfy IDEA’s exhaustion requirement. The court also cited recent case law that determined that a plaintiff does not satisfy the IDEA administrative proceedings by settling his IDEA claim rather than continuing to litigate such claim in the administrative forum. Relying on this precedent, the court held that Gibson entered into the settlement agreement prior to the Ohio Department of Education (ODE) independent hearing officer deciding whether A.G. received FAPE under IDEA. Because ODE did not have the opportunity to determine if A.G. had been denied FAPE due to Winton Woods’ alleged conduct, the court found that Gibson failed to exhaust the necessary administrative remedies. Accordingly, the court granted the district’s motion for summary judgment.
Sixth Circuit court upholds district court decision regarding state level review officer’s report, remands to district court for consideration of parent’s right to reimbursement for private learning services.
C.K. v. Bd. of Edn. of Sylvania City School Dist., 6th Cir. No. 21-3244, 2022 U.S. App. LEXIS 25360 (Sept. 9, 2022).
https://law.justia.com/cases/federal/appellate-courts/ca6/21-3244/21-3244-2022-09-09.html
C.K. was diagnosed with autism before age 2. Notwithstanding intensive programming beginning at first diagnosis, C.K. suffered from significant reading deficits, including an inability to learn letters and their sounds, during preschool through first grade at a community school.
In 2015, C.K. started attending second grade in the Sylvania City School District. At that time, the school’s testing revealed that C.K.’s reading showed a nearly two-grade-level deficit. The district provided C.K. with 100 minutes of reading services weekly. Starting in March 2016, C.K.’s mother, S.R., engaged an outside reading specialist, Lindamood Bell (LMB), to provide four hours daily intensive training to C.K., meaning C.K. missed these hours of school each day.
During his third-grade school year, S.R. continued C.K.’s LMB tutoring during nonschool hours. The district continued to provide 100 minutes a week of reading services. At the end of third grade, his Ohio assessment indicated that C.K. was reading at a third-grade level. The district decided that C.K. was not eligible for extended school year services (ESY), and S.R. enrolled C.K. in an LMB summer reading program.
During his fourth-grade year, C.K. regressed. S.R. requested ESY, but the district decided C.K. was not eligible. S.R. enrolled C.K. in LMB for the summer. LMB tutoring, for two hours during the school day each day, continued during C.K.’s fifth-grade year. While it had not done so when he was in second grade, the district counted C.K.’s time during LMB tutoring as unexcused absences.
S.R. filed a due process complaint alleging that the district failed to provide a free appropriate public education (FAPE) and seeking reimbursement for LMB tutoring from the district. The complaint also questioned the district’s accounting for C.K.’s time away from school for tutoring. In a decision on Feb. 9, 2021, the Northern District of Ohio granted summary judgment to the district and declined to give deference to the state level review officer’s (SLRO’s) decision citing “bizarre and concerning legal errors.” See SLS 2021-1.
S.R. appealed the decision to the Sixth Circuit Court of Appeals, arguing that the district court erred in denying deference to the SLRO’s decision because, although it was sloppy, it was not inconsistent with case law and it evidenced enormous educational expertise that the district court did not question. The Sixth Circuit disagreed, stating that the SLRO’s legal errors were pervasive and inconsistent with Endrew F. v. Douglas County School Dist. RE-1, 580 U.S. 386 (2017), the key case in these matters. It declined to reverse the district court’s conclusion regarding the SLRO’s decision. However, the Sixth Circuit addressed the SLRO’s version of the facts as part of its own de novo review of the case.
The Sixth Circuit reviewed S.R.’s claim that Sylvania’s 2017-18 independent educational program (IEP) failed to provide FAPE to C.K. It concluded that the IEP, developed in consultation with S.R. after considering all of C.K.’s applicable educational and psychological testing, was reasonably calculated to enable C.K. to make progress appropriate to his circumstances, which is the standard set in Endrew F. It specifically found that the IEP was “thoughtful, thorough, contained unput from a wide range of sources, and was tailored to [C.K.’s] needs as understood by all parties at the time” and that it resulted in significant progress in C.K.’s reading ability.
S.R. also argued that the district court erred by failing to address the SLRO’s order that S.R. should be reimbursed for LMB services provided during the pendency of the proceedings. The SLRO agreed with the LMB placement during the proceedings and ordered the district to reimburse S.R. for the cost of these services. The Sixth Circuit concluded that the SLRO’s order changed C.K.’s stay-put IEP to include intensive LMB services, entitling S.R. to reimbursement for the LMB services provided as a result of that change of placement. It remanded this matter to the district court to determine the appropriate reimbursement and to issue an appropriate order.
Ohio court of appeals determines sovereign immunity shields baseball coach from personal liability for student player’s injury.
Conley v. Wapakoneta City School Bd. of Edn., 2022-Ohio-2915.
https://www.supremecourt.ohio.gov/rod/docs/pdf/3/2022/2022-Ohio-2915.pdf
This case arises from an injury incurred during a March 28, 2016, baseball practice for the Wapakoneta City School District’s eighth-grade boys’ baseball team. Due to rain, the team practiced at the Wapakoneta High School gym. Toward the end of practice, coach Thomas Allison set up the gym like a baseball field. As part of the exercise, some members of the team assumed positions in the makeshift field, while other members of the team took turns batting. Allison provided the team with a “hit stick” which he found in the high school’s equipment locker to use in the place of a bat, and a tennis ball was used in the place of a baseball.
The hit stick was a thin, bat-like object with a handle and was used to practice swinging and making contact with the ball. The hit stick was admittedly “worn.” The handle was foam, but electrical tape was wrapped around the handle. Allison added some of the electrical tape to the handle the day prior to the activity because the tape that was already covering part of the handle was starting to tear and expose the foam underneath.
During the activity, one of the players swung the hit stick at the ball and the stick left his hand and hit Plaintiff Trey Conley in the eye. Conley was taken to the hospital where a surgeon removed shards from his eye. Conley's left eye was subsequently removed due to the nature and extent of the injuries.
On Aug. 24, 2020, Conley filed a complaint asserting that the district acted in a wanton and reckless manner and that the school district, through its employees, was negligent for providing its student athletes with unsafe and defective equipment. The district and Allison filed a motion for summary judgment asserting sovereign immunity. On July 13, 2021, Conley filed his response to the motion for summary judgment. Attached to his response was an expert opinion of Shawn Pender, the vice president of player development of the Cincinnati Reds. In his expert opinion, Pender stated that Allison’s actions were “reckless” and that, as a result, Allison and the district should be liable for Conley’s injuries. The trial court disqualified Pender as an expert witness and, on Sept. 1, granted the district and Allison’s motion for summary judgment on the grounds of sovereign immunity.
On appeal, Conley alleged that the trial court erred by disqualifying Pender as an expert witness. In excluding the Pender affidavit from consideration, the trial court found the “expert” to lack the qualifications necessary to render an opinion on the matter. Pender’s curriculum vitae was void of experience coaching high school or middle school baseball. The affidavit also cited to the Ohio High School Athletic Association and National Federation of State High School Associations’ rules, which apply only to games, not practices. The Third District Court of Appeals agreed with the lower court’s determination that expert testimony on the issue of whether Allison’s conduct was reckless or wanton conduct was “not of such a highly technical nature to be beyond the comprehension of an average juror.” Because a fact-finder was capable of making that determination without an expert-witness opinion, the court held that the trial court did not abuse its discretion by excluding Pender’s expert opinion.
The court also found that the trial court did not err by determining that sovereign immunity shielded Allison from personal liability for Conley’s injuries. The court rejected Conley’s argument that Allison’s actions were wanton and reckless. Specifically, Conley argued that Allison failed to take any care towards his duty to protect his players when there was great probability that the hit stick would cause harm. Conley argued that by choosing to use a hit stick that was worn and did not have protective end caps, and by further modifying the hit stick by wrapping electrical tape on its handle, Allison caused the hit stick to become more dangerous. After reviewing the record, the court did not find Allison’s actions to be wanton or reckless. The court found that Allison did not believe adding electrical tape to the hit stick would cause injury, a belief that was based on his past experience. Further, he did not appreciate the potential probability of an injury. Although Allison's actions in applying electrical tape may have been, in hindsight, unwise, the court found that the facts indicated Allison's actions were well-intended and he genuinely did not appreciate the risk of harm. As a result, the court found that Allison’s actions did not amount to willful, wanton or reckless conduct.
Supreme Court of Ohio concludes that a person alleging a violation of the Open Meetings Act bears the burden of proving the violation. In absence of evidence showing wrongdoing, public bodies using executive session are presumed to have acted regularly and in compliance with the law.
Hicks v. Clermont Cty. Bd. of Commrs., 2022-Ohio-4237.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2022/2022-Ohio-4237.pdf
Christopher Hicks filed an action against the Clermont County Board of Commissioners alleging that the board had violated the Open Meetings Act (OMA) on multiple occasions. Hicks alleged that the county board had entered executive session after passing motions that included a laundry list of reasons for doing so rather than identifying the specific issues it intended to and did discuss.
In its review of Hicks’s claim, the trial court relied on the framework established in State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 2012-Ohio-2569, which created a burden-shifting framework for bringing actions under OMA. The Hardin framework required that the plaintiff bringing the action carry the initial burden of showing that a meeting occurred and that the public was excluded. The burden then shifted to the public body to produce evidence that the challenged meeting fell under one of the exceptions in OMA. If the public body met that burden, the plaintiff must produce evidence that the exception claimed by the public body was not applicable or valid.
Based on this framework, the trial court concluded that Hicks met his initial burden but the board failed to meet its burden by producing evidence showing that: (1) it entered executive session for a valid statutory reason; and (2) it did not discuss improper topics during the sessions. The court granted Hicks’s motion for summary judgment on nine of the claims. It also awarded Hicks nearly $80,000 in attorney fees.
In its review, the Twelfth District Court of Appeals upheld the trial court’s decision, also relying on Hardin. The appeals court found that Hicks had met his initial burden. It found that, because the members of the board of commissioners could not recall what was discussed during the executive sessions at issue, the public agency did not meet its burden. It noted that the board had listed multiple purposes for entering its executive sessions and that it would have to show that it considered all the listed purposes during executive session. Finally, it concluded that the trial court had not abused its discretion in awarding attorney fees. The county appealed the decision to the Supreme Court of Ohio.
The Supreme Court of Ohio rejected the burden-shifting framework set forth in Hardin and relied on by the lower courts in Hicks. The court concluded that the burden-shifting rule would “require public bodies to go beyond the requirements of [Ohio Revised Code (RC)] 121.22 and actually create a detailed record of its executive-session discussions.” The law requires only that a public body keep executive-session minutes that reflect the general subject matter of discussions in executive sessions, i.e., the statutorily permitted reason for the executive session. The court noted that, had the General Assembly been concerned about the public’s access to evidence in executive session challenges, it could explicitly have placed the burden of production on the public body in RC 121.22.
The Supreme Court also upheld the “presumption of regularity” — a proposition that, in the absence of evidence to the contrary, courts will presume that a public body going into executive session for a permitted reason under the law has acted lawfully during the executive session. The court stated that placing the burden of production on the public body in these circumstances would create a presumption of irregularity which is contrary to Ohio law. In the absence of any evidence of wrongdoing, placing the burden of production on the public body would require a court to presume that the body acted contrary to law and considered topics not stated in its motion to enter executive session.
Finally, the court clarified that a public body must be able, in its motion to enter executive session for purposes set forth in RC 121.22(G)(1), to include all the topics it might reasonably discuss during the session. The court stated that it has never “set forth a rule that public bodies may not include in their motions to enter executive session all the topics they reasonably might discuss” and that a public body is not required to “discuss every single topic that it includes in its motion to enter executive session.” Rather, a public body may not discuss any additional topics that are not included in its motion to hold the executive session. If a public body, in its motion to enter executive session, includes the discipline, dismissal, demotion or compensation of a public employee, but ultimately discusses only some of these items, it has not violated OMA.
The court ultimately reversed the appeals court’s judgment affirming summary judgment for Hicks and remanded the case to the court of common pleas for further proceedings consistent with its opinion.
OSBA’s Legal Assistance Fund participated in a brief supporting the board of county commissioners in the matter in common with associations of other public officials. The Supreme Court’s decision is favorable to public agencies and reflects the position taken by LAF and its partners in the amici curiae brief.
Court of claims adopts Special Master’s report and recommendations concluding that requester is not entitled, under the Ohio Public Records Act, to distribution lists for a public agency’s newsletter.
Hicks v. Union Twp., Clermont Cty., Trustees, 2022-Ohio-3558.
https://www.supremecourt.ohio.gov/rod/docs/pdf/13/2022/2022-Ohio-3558.pdf
On Jan. 12, 2022, Christopher Hicks requested that Union Township, in Clermont County, provide him with the distribution lists for township newsletters. He requested both the postal mail and email distribution lists. The township denied his request on Jan. 26. Hicks asked for clarification of the denial on Feb. 14 and Apr. 26 and received a second denial on May 10. On May 11, Hicks filed a complaint with the court of claims which appointed a Special Master. The Special Master referred the case for mediation, which failed to successfully resolve the dispute.
On Aug. 16, 2022, the Special Master filed a report and recommendation concluding that the court should deny the claim for production of the records requested by Hicks. The Special Master found that the disclosure of the names and addresses of individuals who automatically receive or have subscribed to the newsletter would not further the purposes of the Ohio Public Records Act (Ohio Revised Code (RC) 149.43). He concluded that the disclosure would not help to monitor the conduct of township government and would reveal little to nothing about the township or its activities. Hicks filed written objections to the report and recommendations.
The court of claims determined that “neither the email mailing list nor the full postal mailing list constitutes a public record subject to disclosure under RC 149.43.” The court concluded that neither list documented the organization, functions, policies, decisions, procedures, operations or other activities of the township to meet the definition of a “record” set forth in RC 149.011(G).
Supreme Court of Ohio concludes that public office’s response suggesting that requester specify information to formulate public records request met the office’s obligations under public records law.
State ex rel. Huth v. Animal Welfare League of Trumbull Cty., 2022-Ohio-3583.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2022/2022-Ohio-3583.pdf
In July 2021, Michela Huth sent a public records request to the Animal Welfare League of Trumbull County (AWL) requesting all criminal complaints filed from 2015 through the date of production of the records in any court by humane agents or officers employed by AWL. AWL concluded that the only way it could produce the records was to search every investigative file and determine whether it contained a criminal complaint. AWL’s counsel sent a reply to Huth, stating that the request was overly broad as written and ambiguous. The reply concluded with an offer to assist Huth if she wanted to revise or narrow her request.
Huth asked AWL for a document that lists case names and case numbers for all cases for the time frame specified in her request. AWL’s counsel replied that AWL did not create or possess a document listing the case names and case numbers of all cases during the time frame. The attorney suggested that Huth limit her request to records that would be created and kept by AWL during the normal course of business. Huth replied that she disagreed with the counsel’s notification. The counsel offered to review any argument contrary to his message and suggested that Huth include specific individual people, addresses or dates in her request.
Huth filed a writ of mandamus, asking the court to require AWL to inform her how it maintains its records and how these records are accessed in the ordinary course of AWL’s operations. She also requested attorney fees, statutory damages and court costs. The court ordered the case to mediation, which was unsuccessful.
The court explained that mandamus is the appropriate remedy to compel compliance with the public records act. In order to grant mandamus, the court said that Huth was required to demonstrate, but clear and convincing evidence, a clear legal right to the requested relief and a clear legal duty on the part of the respondent to provide that relief. In this instance, Huth argued that AWL should have informed her that it used PetPoint shelter management software and should have informed her about how to search the database so she could find names, dates, addresses and other information. She claimed that AWL failed to meet its obligation under the law for that reason.
The court rejected this argument, stating that the law requires a public office to explain how its records are organized to help requesters formulate reasonable public records requests. It does not, however, require public offices to offer tutorials on how their software systems work. The court reiterated prior decisions holding that the Public Records Act does not contemplate that any individual has the right to a complete duplication of voluminous files kept by government agencies and that a public agency is not required to create a new record by searching for selected information. The court also denied Huth’s request for court costs, attorney fees and statutory damages.
Ohio court of claims rejects Special Master’s recommendation to order the superintendent to research or identify records containing selected information.
Warchol v. Superintendent of Washington Local School Dist., 2022-Ohio-3947.
https://www.supremecourt.ohio.gov/rod/docs/pdf/13/2022/2022-Ohio-3947.pdf
On Sept. 30, 2021, Brittany Warchol made a public records request under the Freedom of Information Act (FOIA) to the superintendent of Washington Local School District for: 1) all documents regarding COVID-19, certifications, school funding and HVAC system maintenance; and 2) all correspondence dated Aug. 1, 2018, to Nov. 1, 2021, in regards to COVID-19, grant funding, emergency/safety response plan in regards to a “pandemic, epidemic, or communicable viral disease.” Warchol requested specific documentation and information under each of these general requests. The superintendent responded that the district was not subject to FOIA and that portions of the request were ambiguous and overbroad, and invited Warchol to narrow her requests.
After several months of back-and-forth dialogue, Warchol ultimately filed a complaint against the superintendent, alleging denial of access to public records. The court appointed a Special Master, and the superintendent moved to dismiss the complaint on the grounds that: 1) Warchol’s request was made under FOIA and was therefore unenforceable against a state public office; 2) Warchol’s claims were moot to the extent records had been produced; and 3) the ambiguous and/or overly broad portions of the request did not create a duty for the public office to produce records.
On Aug. 31, 2022, the Special Master issued a Report and Recommendation. The Special Master recommended that the court deny the motion to dismiss on the grounds that the request was made under FOIA since the superintendent ultimately appeared to accept the request as one properly made under Ohio law. The Special Master found that mootness, ambiguity and overbreadth were partially apparent on the face of the complaint but recommended that the court deny the motions to dismiss on those grounds and proceed on the merits “for concision and because the matter ha[d] been fully briefed.”
In reviewing the merits, the Special Master found that Warchol had not shown by clear and convincing evidence that additional records existed that were responsive to Warchol’s request. The Special Master also found that the superintendent had no duty under the Public Records Act to research and compile information in response to Warchol’s questions since under the Public Records Act, the government has the duty to supply records, not information, and there is no requirement to create records to meet a requester’s demand. The Special Master also found portions of Warchol’s request to be ambiguous and overly broad. The Special Master found that requests for “all documents containing information regarding” is a phrase of complete inclusion that improperly asked for everything to do with broad areas of school district health and safety. The Special Master also concluded that the demand for records “regarding” or “in regards to” the listed broad topics was independently sufficient to render the request ambiguous and overly broad.
Warchol’s initial request included “all correspondence dated 08/01/18-11/01/21 in regards to grant funding under ESSER, ARP ESSER, as well as GEER funding to include but not limited to the use of said funds up until the request.” Warchol further clarified that the request only included correspondence regarding: 1) amount of funds received; 2) any stipulations of funding; 3) pending approval of funds; and 4) previous usage of funds. The Special Master found that this “embedded request” for records of the amounts and use of funds from specific grant-funding sources during a limited period was sufficiently specific to “reasonably identify what public records are being requested” and required the district to produce the records.
On Sept. 12, the superintendent filed written objections to the Special Master’s Report and Recommendation. Specifically, the superintendent claimed that Warchol’s request for the superintendent to identify the responsive documents that included the specified content in the “embedded request” was not a proper records request. The court of claims agreed with the superintendent, finding that “the Public Records Act does not compel a public office to do research or identify records containing selected information.” The court found that Warchol’s public records request placed the superintendent in a situation where, in response to an ostensibly overbroad request, the superintendent was required to search for content in records, which is not required. As a result, the court found merit in the superintendent’s objection and rejected the Special Master’s recommendation to order the superintendent to produce all records responsive to the request for specified records of ESSER, ARP ESSER and GEER funding.
Sixth Circuit dismisses claims by parents of student who died by suicide after incidents at school because the parents failed to properly plead their case in a timely fashion in the early stages of litigation.
Bannister v. Knox Cty. Bd. of Edn., 49 F.4th 1000 (6th Cir.2022).
https://caselaw.findlaw.com/us-6th-circuit/1912803.html
The case arose after a high school sophomore died by suicide after some incidents at school. The student, Will Bannister, began having issues at school, which his parents alleged were related to his being perceived as part of the LGBT community. The parents reported multiple incidents that occurred at school, including one in which Will was reported to have a bottle of pills at school, which was actually a bottle of baby powder, for which he was suspended for one day. Later, Will’s locker was searched for pills after an inaccurate anonymous tip, and there was an incident in which an administrator reported that he had slurred, incoherent speech, which he reported was due to his working the night before. Then, Will was discovered to have bought 30 capsules of a dietary supplement from another student. Will was suspended for this incident, and the district moved to impose a long-term suspension. The district failed to hold the suspension hearing within the five-day timeline required by district policy and suspended him for 100 days despite his passing a drug test. The parents then appealed the suspension to a district-level hearing officer, who upheld the suspension. They then appealed to the director of schools, who reinstated Will to school after months of being out on suspension using an online learning platform that the parents described as “inadequate.” Will also did not receive counseling during his period of suspension.
Will returned to school in March and was promised a “clean slate”; however, his parents reported that the principal would show up in Will’s classes. One of Will’s teachers then assigned students to write a journal entry, and Will wrote statements that seemed to indicate suicidal ideation. The teacher did not inform Will’s parents about the nature of his entry, and the parents were not able to inform Will’s doctor when they took him for treatment for his declining mental state. After another incident in which he lost points on a writing assignment and expressed frustration with the school’s actions, Will died by suicide at home.
Will’s parents filed suit against the district and several named district employees in state court just under one year after Will’s death. The parents raised state law claims related to a denial of “administrative due process” during the suspension, violation of the district’s anti-harassment and suicide-prevention policies, and negligent infliction of emotional distress. The district sought to remove the case to federal court on the theory that the due process claims were really alleged constitutional violations; however, the district court remanded the case because the plaintiffs claimed that they were raising claims solely under the Tennessee Constitution. The parents’ attorney allowed the case to “languish for years,” and the parents eventually retained new counsel, who filed an amended complaint alleging federal claims under Sec. 1983 of the Civil Rights Act and statutory claims under Title IX of the Education Amendments Act of 1972, primarily due to the attorney’s belief that they would not prevail on the state law claims. The district again removed the case to federal court and moved to dismiss. The district court granted the motion to dismiss the federal claims on statute of limitation grounds and the state court claims for lack of merit.
The appeals court upheld the dismissal of the case. On the Sec. 1983 claims, the court noted the established rule that, as Sec. 1983 does not specify a statute of limitations, the court will adopt the forum state’s statute of limitations for personal injury claims. Tennessee has a one-year statute of limitations for such claims. The parties’ key disagreement was when the one-year statute of limitations began to run. The court noted two principles to guide its inquiry: first, unlike the length of statute of limitations itself, the accrual of the injury triggering the statute is set by federal law, and second, a threshold inquiry is determining to which state law tort claim the plaintiff’s Sec. 1983 claim is most analogous. Under the second prong, accrual could be said to occur when all elements of the analogous state-law tort have occurred. The court notes that the parties failed to fully brief these issues, including all the sub-issues that impact the analysis.
The court ultimately ruled that the plaintiffs waived and/or forfeited their claims, no matter the theory of the case. Waiver occurs when a party asserts a claim and then explicitly abandons it later, and forfeiture occurs when a party fails to timely assert a claim during litigation. Here, the Bannisters waived their procedural due process claim because in their reply brief, they noted that they “do not argue” that the district court was in error to dismiss the claim. The court went on to find that the plaintiffs forfeited the substantive due process claim by not fully making their arguments at the district court level; rather, they raised them for the first time on appeal. They did not have to raise it in the complaint, but they should have at least raised it when the district moved to dismiss the complaint on statute of limitations grounds.
The court then turned to the Title IX claims. The Bannisters argued that the district had discriminated against Will for not conforming to gender stereotypes. The district court dismissed this claim on timeliness grounds. The parents argued that Will’s teacher committed sex discrimination as she failed to disclose the suicidal content of his journal to the parents and that this was motivated by negative feelings toward him due to his failure to conform to gender stereotypes. The court rejected this claim on the grounds that district leadership did not know nor could they have known about the conduct and refused to hold the district liable on the theory of respondeat superior, noting that a court may hold a funding recipient liable only if, as relevant here, a school official who has the power to take corrective action has “actual knowledge” of a school employee's discrimination and fails to take action. The court also noted that there were significant statute of limitations issues with this claim but affirmed the district court’s decision on the merits.
The parents further argued a “continuing violation” theory under Title IX, arguing that the many incidents that happened to Will constituted a “hostile school environment.” They argued that this was a “continuing violation,” and that this could be extended to events that occurred more than a year prior to the filing of the initial suit. The court noted that courts have split on whether to extend the continuing violation theory to Title IX and that the Sixth Circuit has thus far not done so. However, the court noted that it did not need to decide whether to do so because the parents had forfeited the claim. The court lastly determined that the parents forfeited their state law claims for equitable relief for similar reasons to the other claims and that they lacked jurisdiction to issue equitable relief for future actions because there was no risk of future harm to the plaintiffs.
Appeals court concludes that common pleas court is the appropriate venue to consider former employees’ claim that district violated a collective bargaining agreement that retroactively applied to them.
Akron Assn. of Classified Personnel v. Akron City School Dist. Bd. of Edn., 2022-Ohio-3216.
https://www.supremecourt.ohio.gov/rod/docs/pdf/9/2022/2022-Ohio-3216.pdf
In August 2020, the Akron Association of Classified Personnel (AACP) ratified a collective bargaining agreement (current CBA) with the Akron City School District Board of Education. Although it was not ratified until August 2020, it was effective from July 1, 2019, when the previous CBA had expired, through June 30, 2022. During the period from July 1, 2019, through the ratification of the current CBA, the parties had operated under the previous CBA.
The current CBA included a 2.1% wage increase that was effective July 1, 2019. The board did not issue retroactive pay increases to seven former employees who were employed after July 1, 2019, but left employment before the current CBA was ratified. AACP brought a grievance on behalf of the seven former employees alleging that they were entitled to payment for the amount of the wage increase applicable to the time they worked after July 1, 2019, until they left employment. AACP subsequently filed a complaint for breach of contract against the board for failing to provide the wage increases to the seven employees. An amended complaint was filed in May 2021.
AACP filed a motion for judgment on the pleadings. The board answered with a motion to dismiss for lack of subject matter jurisdiction. The board argued that the State Employment Relations Board (SERB) had exclusive jurisdiction over the claim. In August 2021, the trial court concluded that it lacked subject matter jurisdiction over the action as the claim arose or depended upon collective bargaining rights created by Ohio Revised Code (RC) Chapter 4117 and granted the motion to dismiss. AACP appealed to the Ninth District Court of Appeals, arguing that the trial court erred in dismissing the claim for lack of subject matter jurisdiction.
Upon review, the appeals court stated that the determining factor was whether the claim arose from or depended upon the collective bargaining rights created by Ohio Revised Code (RC) 4117. When a party asserts claims that are independent of RC 4117, jurisdiction lies with the court of common pleas rather than SERB, unless the asserted claim arises from or is dependent on the collective bargaining rights created within RC 4117.
In this case, AACP alleges that the current CBA was violated when the board failed to issue retroactive pay raises to seven former employees. The central issue to the dispute was whether the retroactive wage increase provision of the current CBA, which was ratified after the seven former employees left employment with the board, applied to former employees, making them entitled to the raises for the time period they were employed. The court concluded that the court of common pleas, rather than SERB, was the correct venue for AACP’s claim and remanded the matter to that court for consideration.
Appeals court upholds trial court ruling in favor of teacher's union regarding a dispute over the interpretation of a provision in a collective bargaining agreement, finding that SERB does not have exclusive jurisdiction over all matters arising out of RC 4117. Rather, the panel found that SERB has exclusive jurisdiction only when a party specifically alleges that an unfair labor practice has occurred.
Career & Technical Assn. v. Auburn Vocational School Dist. Bd. of Edn., 2022-Ohio-2737.
https://www.supremecourt.ohio.gov/rod/docs/pdf/11/2022/2022-Ohio-2737.pdf
The case arose out of a conflict between the Auburn Vocational School District Board of Education and the Career and Technical Association (the union) over the applicability of an “Eighth Period Stipend” provided for in a collective bargaining agreement (CBA) between the two parties. The board had established the practice of paying teachers who taught eight class periods per day without a planning period a stipend to compensate them for the planning activities that they would presumably have to complete on their own time. The board then made the decision to alter the school schedule so that every teacher would have a planning period in the morning before students arrived and then would teach eight class periods. The union opposed this interpretation and claimed that any teacher who taught eight periods per day was owed the stipend regardless of whether they had a planning period prior to the arrival of students.
After the board amended its practices related to the stipend, the union filed a grievance with the board over its practices, which was denied. The union then filed an action in the court of common pleas, alleging that the board had breached the CBA, claiming that the board had failed to pay teachers who were owed the stipend because they taught eight class periods a day. Notably, the board did not file an action with the State Employment Relations Board (SERB) or specifically allege that the board committed an unfair labor practice (ULP).
The trial court initially granted summary judgment to the board and dismissed the union’s claims regarding the stipend. However, the Eleventh District Court of Appeals reversed the trial court and found that the CBA was ambiguous regarding the Eighth Period Stipend and remanded the case for further proceedings. The case was tried before a magistrate, and the magistrate ruled in favor of the union’s interpretation and awarded damages to the union. The board appealed the magistrate’s decision on several grounds to the Eleventh District Court of Appeals, which upheld the trial court’s ruling. One of the board’s assignments of error was that SERB has exclusive jurisdiction over claims arising under Ohio Revised Code (RC) 4117. The appeals court panel rejected this argument and determined that SERB has exclusive jurisdiction only when there is an allegation of a ULP.
Thus, the court found that the fact that the union did not go to SERB initially was not problematic because they were essentially arguing a breach of the CBA, which it treated as a breach of contract. It discussed how the case essentially turned on each side’s interpretation of the Eighth Period Stipend language in the CBA, which was essentially a contract dispute that can be properly resolved by a court of common pleas. The court also rejected the board’s argument that what was alleged was actually a ULP, as the union was arguing that that board made the change without bargaining with the union. Instead, the court found that there was no real refusal to bargain or pay out the stipend; it was really a matter of interpretation of an existing CBA provision. The court went on to outline its position that SERB has exclusive jurisdiction only when one party asserts that the other has committed a ULP, pointing to provisions in RC 4117, which articulate a role for courts of common pleas in certain situations, such as when a CBA has been violated or to enforce an arbiter’s award to a party. In this case, the court reasoned that the underlying dispute involved rights created independent of RC 4117, so the trial court properly exercised jurisdiction.
The board made several other assignments of error on the appeal, all of which were rejected by the appeals court. These primarily revolved around issues specific to the ongoing litigation, related to joint stipulations and the propriety of the process before the magistrate. The board has appealed this case to the Ohio Supreme Court. The OSBA Legal Assistance Fund has filed an amicus brief on the side of the board on the SERB jurisdictional issue, arguing that SERB has exclusive jurisdiction over any matter arising out of RC 4117, not just when a party has alleged a ULP. That appeal remains pending as of this writing.
Eleventh district court of appeals panel holds that SERB has exclusive jurisdiction over all matters arising out of RC 4117 and rejects employee’s claim that she had right to her own counsel at arbitration proceeding when the collective bargaining agreement vests the exclusive right of representation in the union.
Kolkowski v. Ashtabula Area Teachers Assn., 2022-Ohio-3112.
The plaintiff Barbara Kolkowski was a guidance counselor who was employed by Ashtabula Area City Schools. Kolkowski was not a member of the local teacher’s union, the Ashtabula Area Teachers Association; however, per Ohio Revised Code (RC) 4117.04, that union serves as the exclusive bargaining representative for district employees. The dispute commenced when Kolkowski filed a grievance per the collective bargaining agreement, which provided for a multilevel grievance procedure, in which the matter would be discussed with the grievant’s immediate supervisor at Level One and with the superintendent at Level Two. If the matter is not resolved satisfactorily at either of those levels, the union may advance to an optional mediation at Level Three, prior to proceeding to arbitration at Level Four. The collective bargaining agreement (CBA) provides that in arbitration proceedings, the "aggrieved shall be represented by the Association" and that the union had the power to determine whether to escalate to arbitration.
The central dispute here occurred after the matter was not resolve to Kolkowski’s satisfaction after Level Two. At this point, she sent a letter requesting that the matter be elevated to arbitration, bypassing the optional mediation, and stating that she intended to be represented by her own legal counsel at arbitration. The union agreed to go to arbitration but declined to allow Kolkowski to be represented by her own counsel. Kolkowski then filed suit in the court of common pleas seeking the following: (1) a declaratory judgment pursuant to 42 United States Code (USC) 1983 and Ohio Revised Code (RC) 2721.03 that she was entitled to retain her own counsel for "arbitrating her grievance under the CBA"; (2) injunctive relief pursuant to 42 USC 1983 to enjoin the Association from requiring her to accept the Association's counsel for arbitration; and (3) damages, costs and attorney fees pursuant to 42 USC 1983 on the basis that the board and the association, acting under color of state law, "purport to be acting pursuant to the exclusive representation provisions of R.C. 4117.04-05." Both the board and the union filed motions to dismiss, which were granted by the trial court.
On appeal, the court looked primarily at three issues. First, the court analyzed whether the court of common pleas had jurisdiction to decide the case in the first place. The court found that the State Employment Relations Board (SERB) has exclusive jurisdiction over claims arising from RC 4117, including Kolkowski’s claims arising out of RC 4117 such as her assertion that her rights under RC 4117.11(A)(5) were violated by the refusal to allow her to retain her own counsel at arbitration. SERB’s exclusive jurisdiction extends to all claims arising out of RC 4117, not just when a party specifically alleges an unfair labor practice. However, the appellate court did find that the court had jurisdiction to hear Kolkowski’s Sec. 1983 claims.
Turning to the Sec. 1983 claim, the court first analyzed whether Kolkowski had standing to assert her claim that the CBA violated her constitutional rights. The court concluded that Kolkowski did not in fact have standing to bring the claim, noting that the CBA is a contract whose parties are the board as the employer and the union — it does not confer any individual rights upon an employee like Kolkowski. The court noted language in RC 4117.03(A)(5) stating that “employees have the right to “[p]resent grievances and have them adjusted without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of the collective bargaining agreement then in effect and as long as the bargaining representatives have the opportunity to be present at the adjustment.” Because the CBA stated that employees are to be represented “by the association” at arbitration, what Kolkowski was seeking was in fact inconsistent with the CBA. Kolkowski sought to distinguish her case from precedent with similar holdings on the grounds that she had specifically rejected the union’s involvement at previous levels of the dispute. However, the court rejected this argument and returned to the “plain language” of the CBA, which vested the union with the exclusive right to decide whether to arbitrate and to represent the employee in the arbitration. Noting again that she is not a party to the CBA, the court concluded that she lacked standing to bring the Sec. 1983 claim.
Lastly, the court rejected Kolkowski’s claims that the clause in the CBA requiring her to use union representation at arbitration and not her own counsel violated her constitutional rights to “free speech, free association, and her right to retain the counsel of her choosing.” The court pointed to principles articulated in U.S. Supreme Court noting that the First Amendment does not compel governmental entities to bargain with unions or individual employees, and that the Constitution does not require governmental entities to engage with such parties any more than they seek input with the public at large. In this case, the right to participate in arbitration is altogether contractual, so Kolkowski does not have any constitutional right to her own representation. Without the CBA, Kolkowski would have no right to grieve at all, and her contention that this is her only forum to be heard does not implicate the Constitution.
Court of appeals rejects district’s challenge of lower property valuation despite conveyance fee statement supporting district’s claim, noting that the conveyance, which was part of a transfer of a company’s entire statewide assets, was not an arm’s-length transaction.
Louisville City School Dist. Bd. of Edn. v. Groffre Invests., 2022-Ohio-3492.
Louisville City School District (the district) challenged the 2020 tax valuations of seven parcels in Louisville, Ohio. The property at issue was purchased by EAP Ohio LLC (Encino) in 2018 from Chesapeake Exploration LLC as part of a transaction in which Encino purchased all of Chesapeake’s assets in Ohio for just over $2 billion. A deed for the property was recorded on Oct. 28, 2019, which recorded that the property was sold to Encino for $10 “and other valuable consideration.” At that same time, a conveyance fee statement was prepared listing the value of the property at $8,125,000, as determined by an appraisal. The property was then sold to to Groffre Investments on Dec. 30, 2020, for $2.5 million. The Stark County Auditor subsequently appraised the value of the property at $12,012,000. Groffre filed a complaint against the value of the property with the board of revisions (BOR), and the district claimed that the value of the property was $8,125,000, while Groffre argued that the $2.5 million figure was the proper amount. The BOR found the value of the property to be $8,125,000, based on the conveyance fee statement. The trial court reversed this decision and set the value at the $2.5 million price based on the December 2020 sale, noting that the $8,125,000 price was not a negotiated price but rather was part of a blanket purchase of Chesapeake’s assets, meaning the conveyance was not an arm’s-length transaction.
The Fifth District Court of Appeals upheld the trial court’s decision, noting that the trial court did not abuse its discretion. The district argued on appeal that the trial court erred in concluding the 2018 purchase by Encino was not an arm’s-length transaction. Under Ohio law, an arm’s-length sale is characterized by the following elements: (1) it is voluntary, i.e., without compulsion or duress; (2) it generally takes place on the open market; and (3) the parties act in their own self-interest. Further, when a “tract, lot, or parcel has been the subject of an arm's length sale between a willing seller and a willing buyer within a reasonable length of time, either before or after the tax lien date, the auditor shall consider the sale price … to be the true value for taxation purposes.” Under this provision, “the uniform rule [in real property taxation] is that property should be valued in accordance with an actual sale price where the criteria of the recency and the arm's-length character of the sale are satisfied.” Further, when a district submits a conveyance fee statement establishing a set value, it creates a rebuttable presumption that that sale price reflects the actual value of the property. The presumption may be rebutted by an owner with evidence that the conveyance was not an arm’s-length transaction.
Here, the appeals court upheld the trial court’s determination that the sale was not an arm’s-length transaction. The court pointed to the fact that the conveyance was part of a larger blanket transfer of assets and to specific testimony that there was no negotiated purchase price for the specific property at issue. The court also noted that Encino was not even aware of the property during the transaction due to Securities and Exhange Commission rules. Instead, the court noted that the December 2022 transaction for $2.5 million was an arm’s-length transaction, pointing to documented specific negotiations between the parties over the property’s value. Thus, the court upheld the trial court’s determination that this was the appropriate value and dismissed this assignment of error. The court also dismissed the district’s related assignments of error.
Ohio court of appeals finds that the trial court did not abuse its discretion in affirming district’s decision to terminate a principal.
DeVito v. Clear Fork Valley Local Schools Bd. of Edn., 2022-Ohio-3894.
https://www.supremecourt.ohio.gov/rod/docs/pdf/5/2022/2022-Ohio-3894.pdf
Kirsten DeVito was employed with the Clear Fork Valley Local School District as a principal pursuant to a contract set to expire on July 31, 2019. In September 2018, DeVito received a letter from the district setting forth five grounds for termination. A 12-day hearing before a referee was held over several months. The referee recommended the termination of DeVito’s contract for good and just cause. In February 2021, the district notified DeVito that it had terminated her employment contract. DeVito appealed the decision to the court of common pleas. The trial court affirmed the district’s decision. DeVito appealed.
On appeal to the Fifth District Court of Appeals, DeVito alleged that the trial court committed prejudicial error by not finding that the district violated her rights under Ohio Revised Code (RC) 3319.16. The court of appeals reviewed each of DeVito’s arguments and could not find where the trial court abused its discretion in its finding. The court noted that in each of the complained issues, DeVito did not argue in what way she suffered any prejudice.
Next, DeVito alleged that the trial court erred by not requiring the district to give her an opportunity to change her conduct. DeVito argues she should have been given an opportunity to change her conduct because she merely made clerical errors and “did not engage in conduct hostile to the community.” The trial court found that the cases cited by DeVito in support of her argument did not establish that school boards considering termination must give educators the opportunity to change their alleged behavior in all circumstances. The trial court also found that, contrary to DeVito’s claims, her conduct was “conscious wrongful behavior related to fairly serious matters and was hostile to the school community.” In reviewing the arguments and the record, the court of appeals did not find that the trial court abused its discretion in its finding.
Third, DeVito alleged that the trial court erred by not requiring the district to consider her employment record in making its decision to terminate. The trial court found that neither party cited to any case law that established binding precedent on the issue of whether a school board considering termination of an educator must consider the educator’s good employment record. The trial court conducted a thorough analysis of the applicable case law, noted DeVito did not have a longstanding positive employment record with the district to consider in mitigation of her conduct, considered her conduct and noted the referee's report referenced her employment record in many places. The trial court concluded, given the facts of the case, that the district was not required to consider the appellant's employment record in making a decision on termination. The court of appeals held that, in reviewing the record, the trial court did not abuse its discretion in its finding.
Fourth, DeVito alleged that the trial court erred by not reversing the order of termination because the order was not supported by reliable, probative and substantial evidence. In his report and recommendation, the referee fully analyzed each ground for termination and concluded DeVito’s errors violated Board Policy GCN-1, were hostile to the school community and impacted her professional duties. The referee found that DeVito’s errors constituted “dishonest, fraudulent and immoral behavior.” The court of appeals noted that the referee’s findings were supported by the transcript. The court could not find the trial court abused its discretion in its finding.
Finally, DeVito claimed the trial court erred by not reversing the order of termination where it was established that the district had not read the entire transcript. The court acknowledged a split of authority as to whether a board must read the actual transcript of the hearing in order to override a referee’s recommendation. The trial court reviewed the two cited cases and found that one of the cases contained “the better rule, and an excellent rationale for the rule that the board need not read the actual transcript.” RC 3319.16 directs boards of education to consider the referee’s report and recommendation, which the board did in this case. The referee’s report and recommendation, which was 237 pages in length, detailed much of the testimony elicited during the hearing. The court of appeals found that the trial court did not abuse its discretion by not reversing the order of termination where it was established that the district had not read the entire transcript.
As a result, the judgment of the court of common pleas was affirmed.
Ohio Supreme Court holds that an agreement to share tax revenue does not require approval from the State Board Of Education or a fiscal certificate.
Beachwood City School Dist. Bd. of Edn. v. Warrensville Heights City School Dist. Bd. of Edn., 2022-Ohio-3071.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2022/2022-Ohio-3071.pdf
In 1990, the Beachwood City School District Board of Education sought approval from the State Board of Education for a transfer of approximately 405 acres of land known as the Chagrin Highlands from the Warrensville Heights City School District to the Beachwood City School District. Warrensville Heights opposed the requested transfer.
In 1997, following several years of negotiation, Beachwood and Warrensville Heights agreed that the Chagrin Highlands territory would not transfer to the Beachwood City School District, but that the districts would instead share the tax revenue generated from real property located within the territory. Beachwood withdrew its request for approval of a transfer of the Chagrin Highlands territory.
Since the parties entered into the agreement, Warrensville Heights “has at all times refused to share with Beachwood the tax revenues generated from the Chagrin Highlands territory.” In 2018, Beachwood filed claims against Warrensville Heights for breach of contract, promissory estoppel, declaratory judgment and injunctive relief. Warrensville Heights moved for summary judgment, and the trial court granted its motion. The court held that the parties lacked “the capacity to contract over the transfer of tax dollars” without the State Board’s approval and that by not obtaining such approval, the parties failed to complete the steps required by Ohio Revised Code (RC) 3311.06 to finalize an agreement. The court held that because the parties were without the authority to contract, there was no valid contract, and Beachwood’s claims failed.
A divided panel of the Eighth District Court of Appeals reversed the trial court’s judgment. The majority held that the parties’ agreement did not require the State Board’s approval, because it did not call for a transfer of school-district territory. It also rejected Warrensville Height’s alternative argument — which had not been addressed by the trial court — that the parties’ agreement was invalid because it lacked a statutorily required fiscal certificate.
On appeal, the Ohio Supreme Court affirmed the judgment of the Eighth District Court of Appeals. The court rejected Warrensville Heights’ argument that the agreement’s validity remained dependent on the State Board’s approval because it called for a “division of funds” that flowed from Beachwood’s initiation of the RC 3311.06 process. RC 3311.06(I) states that if a “division of funds and indebtedness is “incident to” a transfer of school-district territory, it must be completed in the manner prescribed by RC 3311.06. The Eighth District Court of Appeals concluded that a “division of funds” cannot be dependent on or appertaining to a nonexistent transfer of school-district territory and the Ohio Supreme Court held that “that conclusion is consistent with the plain, ordinary meaning of ‘incident to.’”
The court also rejected Warrensville Heights’ argument that the agreement was invalid because it lacked a statutorily required fiscal certificate. RC 5705.41 and 5705.412 prohibit a school district from making any contract involving the expenditure of money unless there is a certificate of the fiscal officer that the amount required to meet the expenditure has been lawfully appropriated for such purpose. Contracts that do not contain the required certification “shall be void, and no payment of any amount due thereon shall be made.”
Previously, the Ohio Supreme Court has held that RC 5705.41 applies to contracts that require a political subdivision to spend public money. In this case, the court concluded that the parties’ agreement does not require Warrensville Heights to expend money; it simply allocates the collectable tax revenue between the two districts. “To ‘collect’ is the opposite of to ‘expend’,” wrote the court. The court found that the Eighth District correctly characterized the agreement as concerning the collection of revenue, not an expenditure of revenue. As a result, the court held that the 1997 agreement to share tax revenue in lieu of a transfer of the Chagrin Highlands territory required neither approval from the State Board of Education nor a fiscal certificate.