Decision in Favor of School District Against a Requester of Records

Bollinger v. River Valley Local School Dist., 2020-Ohio-6637

A Special Master of the Court of Claims of Ohio has issued a decision in favor of a school district against a requester of records.  The requester was a former employee who was terminated after a discipline investigation.  As part of the investigation, the school district’s attorneys collected text messages from two students who were a part of the investigation.  The attorneys reviewed the collected text messages and stored them but did not use all of them as part of the investigation because they had no investigative value.

The requester asked for “All communications (including ALL text message transcripts) collected by Douglas Duckett and/or any employee or representative of the River Valley Local School District from [two students] during the investigation that lead to the termination of Mark Bollinger’s contract and the issues reported to the Ohio Department of Education.”

The requester alleged that the text messages contained information that was contradictory or that would challenge the credibility of the witnesses or the investigation itself. The School Board turned over texts messages in its possession that it used in the investigation, but denied the request as to all of the text messages.  The school district cited attorney-client privilege as well as that the remaining text messages that were not turned over did not constitute records, because they did not document the operations of the school district.  A public record is defined to include any document or information in any form that is kept by a public office which documents the organization, functions, policies, decisions, procedures, operations, or other activities of the public office, here, the School Board.

Unrelated Text Messages Are Not Records

The Court ruled that while the School Board did possess the additional text messages withheld from the requester, and while the investigators acting on behalf of the School Board reviewed the additional text messages, they were not ultimately used to draw any conclusions or take any actions about the matter and therefore were not records subject to disclosure.  “Even where a document is received, reviewed, and integrated into a topical office file, but is not used to document the office’s activities, it may not rise to the definition of a “record.”

As to the requester’s assertions that the texts could contain information that is contradictory or that diminishes the credibility of the report or the witnesses, the Court found that the appropriate place to assert those arguments would have been during his administrative appeal of the termination, where perhaps the additional texts could have been obtained through discovery.  The only issue before the court here was whether the records constituted public records which were subject to disclosure, not whether the records would have helped him mount a defense to his termination.   The court reviewed the additional texts (they were filed under seal so that the requester could not see them) and agreed with the School Board that they were not used in the investigation and therefore did not meet the definition of records.

Past Production Does Not Waive Assertion of Available Defenses

The requester also argued that because the School Board had voluntary disclosed some texts that were not relied on in the investigation, it could not now assert that the texts were not records and withhold them.  The court disagreed, finding that voluntary production of records in the past does not stop a public office from later withholding the same type of records on the basis of a valid defense. 

CAUTION is warranted regarding this particular aspect of the case as there are other court decisions which hold that a public office can waive an exemption for a particular record if it discloses the exempt record, especially to one whose interests are antagonistic to the public office.  Here, the texts at issue were considered non-records, not exempt records, which is an important distinction.

Attorney-Client Privilege

The School Board asserted the withheld texts fall under the privilege because they were gathered in the course of an investigation conducted by its attorneys.  The court disagreed with the board’s position, characterizing it as conclusory.  The board failed to “identify and explain the nature of any legal issue for which the withheld texts were utilized.”  All factual materials gathered in an attorney-led investigation are covered by the attorney-client privilege.  Further, the court found that the School Board’s assertion that the requested documents were unrelated to the investigation report contradicted a necessary element of the attorney-client privilege – that the material pertained to the attorney’s provision of legal advice.  In any case, the court found the texts to be non-records not subject disclosure, which rendered the attorney-client issue moot.

What this means for your District:

Records that are subject to disclosure are particularly defined by law and do not necessarily include all documents or information retained by a public office.  However, records custodians should be careful in determining whether a document constitutes a record before denying a request.  Particular care should be taken in asserting an exemption as these to have specific legal meanings which are narrowly interpreted in favor of disclosing the record.  Successful claims against a school district can result in the payment of fines and attorney fees.  Please consult an Ennis Britton attorney regarding your public records questions.

Court of Appeals: Terminated Teacher Cannot use Mandamus to Overcome a Failure to File an Administrative Appeal

The Third District Court of Appeals of Ohio has affirmed the decision of a trial court granting summary judgment in favor of a board of education against a teacher seeking reinstatement through a mandamus action. Click here to see the case.

The teacher was in the Resident Educator Program. At the time, teachers were required to obtain passing scores on five different tasks.  Teachers were permitted to repeat failed or uncompleted tasks in subsequent years of the program and there was also an ability to obtain an extension for one year, in the event the teacher was unable to complete the tasks in time.  Here, the teacher was granted such an extension. 

During the extended year, the teacher completed the final two tasks and submitted them for scoring.  The scores were to be released on June 30.  This put the school board in a pickle because it needed the scores to determine if it wanted to offer the teacher another contract but also needed to inform the teacher by June 1 that it intended not to renew the teacher’s contract or it would be forced to offer a contract.  The Board chose to offer a one-year contract to the teacher at its meeting in May. 

Subsequently, the teacher found out he failed one of the tasks and would not be issued a license.  The teacher was unable to obtain another extension by law and ODE did not grant the teacher a substitute license.  Accordingly, the teacher was without a teaching license for the coming school year.  The Board of Education held a special meeting on June 7th at which it terminated the teacher’s employment for the teacher’s failure to pass the exam and obtain a professional license.  The Board did not follow any of the teacher termination procedures contained in R.C. 3319.16, including providing written notice of the Board’s action, time for a hearing, etc.

Subsequently, the RESA regulations were revised and ODE deemed that under the new program requirements, the teacher would have been issued a license.  ODE issued a license to the teacher retroactive to July 1, a little less than a month after the Board took its action to terminate. The teacher, through the union, demanded that he be reinstated, and by letter the Board refused. A grievance ensued and proceeded to arbitration which was decided in favor of the Board because it had just cause to terminate.

The teacher then filed the mandamus action that is the subject of this case. A mandamus action is a lawsuit whereby a person requests a court to force a public entity or officer to do an act it has a clear legal duty to perform.  The teacher asked the court to either require termination proceedings in accordance with 3319.16 or to reinstate the teacher with a one-year contract.

As a quick reminder, per R.C. 3319.16, a board of education may terminate a teacher contract for “good and just cause.”  Before terminating the contract, the Board must provide written notice of its intent to do so, it must afford the opportunity for a hearing before the board or a neutral referee, it must then publicly adopt an order of termination setting forth the grounds for termination.  A teacher has 30 days to appeal an order of termination by a Board of Education. Note that you may have collective bargaining agreement provisions that place additional procedural requirements or limitations on this process.

The issue on appeal was whether mandamus was an appropriate action because the teacher could have filed an administrative appeal of the board’s decision to terminate under 3319.16 and thus had an “adequate remedy at law” negating the applicability of a writ in mandamus.  This is not a novel question and the outcome here is not much of a surprise.  The Court ruled that an administrative appeal under 3319.16 is an adequate remedy at law and so mandamus was not appropriate.  The teacher should have filed an administrative appeal to challenge the decision of the Board.

However, there are several insights in the case into how courts may interpret the requirements of R.C. 3319.16 in a termination appeal, particularly where there may be procedural defects:

1.       Actual notice of the Board’s action is all that is required to trigger the 30-day appeal period. 

Even though the Board did not provide official written notice of its actions, there was sufficient evidence in the record, that the teacher knew of his termination well before he filed his mandamus action, and thus could have filed an appeal.  The Court only assumed for purposes of the case but did not decide, that merely hearing from a third party who attended the board meeting that the termination had occurred constituted sufficient notice. In any case, do not rely on others to inform the employee of the Board’s action. You want that appeal period to begin to run as soon as possible so get written notice to the employee as soon as possible.

2.       Even if the Board ignores completely the procedural requirements for termination, the termination is subject to an administrative appeal.

The right to the appeal is based on what the law requires the Board to do, not what it actually does.  So even where there are procedural defects or no procedure at all, the employee still must be vigilant in filing an appeal or the trial court will not have jurisdiction.

3.       A court has the authority to remand a matter back to a board of education for further proceedings.

It is therefore possible that rather than reinstate a teacher, a court could remand back to a board of education to conduct appropriate termination proceedings.

A question that went unanswered was whether ODE backdating the license it granted to the teacher to July 1 would have negated the Board’s just cause for terminating the teacher when it was apparent in June that the teacher would not have a license as of July 1, the first day of the contract.  Had the teacher filed an administrative appeal, this may have been addressed by the court.

What this means for your district:

While it is always a good idea to follow applicable procedural requirements, failure to do so may not delay the employee’s time to appeal.  However, failure to follow procedures in a timely filed appeal may be cause for reinstatement or remand for further proceedings by the Board.