Supreme Court Clarifies that Plaintiff Has Burden of Proving Violations of the Ohio Open Meetings Act
On December 1, 2022, the Supreme Court of Ohio released a decision clarifying the burden of proof remains with a plaintiff in actions to enforce the Ohio Open Meetings Act (OMA). In State ex rel. Hicks v. Clermont Cty. Bd. of Commrs., Slip Opinion No. 2022-Ohio-4237, the Court rejected a burden shifting analysis created a decade ago by the Twelfth District Court of Appeals in State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 2012-Ohio-2569. As a result, it will be more difficult for plaintiffs to prevail in suits claiming violations of the OMA.
Under the rejected framework created by Hardin, a plaintiff must first show that a meeting of a majority of the members of a public body occurred and the public had been excluded. Next, the public body would have a burden to show that the meeting fell under one of the exceptions to the OMA. Finally, the burden would shift back to the plaintiff to come forward with evidence that the exception claimed by the public body is not applicable or valid.
In rejecting the Hardin court’s framework, the Hicks court recognized that “the plaintiff must prove a violation of the OMA. There is no requirement for the public body to conversely prove that no violation occurred.” The Supreme Court recognized a presumption of regularity, i.e., in the absence of evidence to the contrary, courts will presume public officers properly performed their duties and acted lawfully. Under the Supreme Court’s interpretation of the OMA, it is sufficient that a public body show a proper motion to enter executive session under the requirements of R.C. 121.22(G)(1). Further, the Supreme Court clarified that a board need not create a detailed record of its executive session discussions. Instead, “the only thing that the public body is required to record in its executive-session minutes is the statutorily permitted reason for the executive session.” As such, the OMA does not impose a duty to maintain a detailed record of executive session discussions.
Recognizing that its decision would make it more difficult to pursue alleged violations of the OMA, the Supreme Court explained that “the difficulty involved in proving a violation of the OMA is a policy choice for the General Assembly. If the General Assembly had been concerned about access to evidence in these types of cases, it could have written R.C. 121.22 to place the burden of production on the public body. It chose not to do so.”
Regarding the specificity of the motion to go into executive session, the Supreme Court also rejected the argument that a public body must discuss every topic it includes in its motion to enter into executive session. Refusing to impose a rule not contained in the statute, the Supreme Court concluded that “a public body must be able to introduce a motion that includes all the topics it might reasonably discuss during an executive session.” A limitation remains, however, that public body “may not discuss any additional topics that are not in included in its motion to enter executive session.”
The Hicks decision should prove helpful in defending claimed violations of the OMA because the burden now clearly rests on a plaintiff to prove that an improper executive session occurred. Please contact any of the Ennis Britton attorneys to discuss the requirements of the OMA.
Appeals Court Rejects Hyper-Technical Procedural Defenses in Upholding the Termination of a Principal
DeVito v. Clear Fork Valley Local Schools Bd. of Edn., 2022-Ohio-3894
The Fifth Appellate District upheld the termination of a principal accused of, among other things, misconduct related to her evaluation duties. The principal allegedly asked a teacher to sign a blank document, recorded inaccurate observation/walkthrough times on six occasions, and copied/cut out signatures and stapled them into other documents.
The referee appointed to the termination appeal agreed with the Board on almost all specifications given for the termination. The Board adopted the referee’s 237-page report, but also expressed disagreement with the specifications the referee did not uphold, citing its interpretation of the relevant facts found by the referee and applying them to its own policies. As such, the Board voted in favor of termination.
The principal appealed to the court of common pleas, which upheld the Board’s decision. On appeal, the principal raised a plethora of defenses the trial court allegedly ignored and errors that it made. Many were hyper-technical defenses related to due process and some were just seemingly made out of thin air. While on the one hand, this is eye-roll inducing for the reader (and the defense attorney), on the other hand, this gave the appellate court the opportunity to make some definitive statements about the law in this arena, which is always helpful.
First, the Plaintiff tried to argue that there were procedural defects, such as the failure to issue a twenty-one-day notice of the hearing, the treasurer failing to sign the notice informing the plaintiff that the Board would consider her termination, and that the referee and the Board both departed from the specifications for termination originally provided by the Board.
The court rejected these arguments essentially on the basis that there was no harm caused by minor procedural defects. It held that the hearing scheduling requirements are merely directory and not mandatory or jurisdictional. With regard to the treasurer’s signature, the court found that the notice contained a typed signature line containing the treasurer’s name, thereby giving appellant the identity of the treasurer and informing her that the letter came from the treasurer’s office. The notice was in substantial compliance with the law and was therefore sufficient.
As to the minor deviations between the referee’s findings and the Board’s specifications for termination, the court noted that the very cases cited by the principal all reject a rigid standard of matching a Board’s specification of grounds with identical grounds for termination found by the referee. Rather, Ohio appellate courts have allowed the Board’s evidence to stand as long as the totality of the circumstances indicate that the teacher was sufficiently apprised of the issue in question to present countervailing evidence if so inclined.
The principal also attempted to attack the merits of the Board’s decision on even more ridiculous grounds than her procedural defenses and the court was predictably unassuaged. It went sort of like this:
Principal: The Board had to give me a chance to change my conduct before they could terminate me!
Court: No, they did not.
Principal: The Board had to consider my employment record before terminating me!
Court: No, they did not.
Principal: They didn’t read the transcript! The Board had to read the entire transcript of the hearing before making its final decision!
Court: No, they did not. The Board only had to consider the referee’s report in making its final decision. The trial court did, however, have to read the transcript, and concluded that the transcript showed you deserved to be terminated.
What does this mean for my District?
We should always of course be careful to meet all procedural requirements of the applicable law and CBA. But if you forget to put the letter in the mailbox with your left hand while blinking twice, the court is not going to hold that against you so long as the employee has sufficient information to assert their rights and prepare a defense.
Another facet of the ongoing fallout of the COVID-19 pandemic is the litigation that has ensued, particularly in employment law. Last month, there was progress in two cases stemming from the pandemic. The first involves the non-teaching employee employment statute, RC 3319.081, which requires that all non-teaching employees be “paid for all time lost when the schools in which they are employed are closed owing to an epidemic or other public calamity.” Prior to the pandemic, this generally only came up during snow days and other school closures. The second case is at the university level but involves one of the first causes of action under RC 3792.04, a statute enacted in 2021 which prohibits public schools and state institutions of higher education from discriminating against persons based on their vaccination status.
State ex rel. Ohio Assn. of Pub. School Emps. v. Willoughby-Eastlake City School Dist., 2022-Ohio-4242
The Eleventh District Court of Appeals has overturned an injunction that prohibited a reduction in force during the pandemic.
During the 2020-2021 school year, a School Board transitioned to remote instruction due to the pandemic. Buildings remained open for teachers, administrators, secretaries, and certain special education students. On November 19, 2020, the Board voted to implement a reduction in force of certain non-teaching employees.
The trial court granted a preliminary injunction in favor of the Union. In its order, the trial court determined the following with regard to the statutory language: COVID-19 is “an epidemic or other public calamity”; the laid-off employees are “employed,” despite the reduction in force; and even though students are being taught remotely, the schools are “closed” because the employees cannot report to the buildings to perform their duties. The trial court also concluded that it had jurisdiction to hear the matter because the rights asserted under R.C. 3319.081(G) are independent from the parties’ collective bargaining agreement.
Unfortunately, the Eleventh District Court of Appeals did not answer the questions of whether a reduction in force ends an employee’s eligibility to be paid wages for all time lost from a school closure, and whether a school building providing only remote instruction but which is still open to teachers, administrators, secretaries and special education students, is “closed.” The Appellate Court avoided those questions because the case was reversed on jurisdictional grounds. The Court found that the employees’ rights regarding reduction in force were governed by the collective bargaining agreement. The collective bargaining agreement has a grievance process that is ultimately resolved through binding arbitration rather than litigation. The Court recognized that even though an employee may have rights provided by a statute (e.g. 3319.081 and 3319.17), if the application of the statute is dependent on an interpretation of a collective bargaining agreement, a court lacks jurisdiction over the case and it must be resolved through the grievance and arbitration process.
Siliko v. Miami Univ., 2022-Ohio-4133.
In this case, the Plaintiffs were employees that sued Miami University for claims alleging that the University’s vaccination policy violated the Ohio Constitution (“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety”), as well as RC 2905.12 (Coercion); 3709.212 (a 2021 statute limiting the applicability of certain health department regulations related to disease prevention); 3792.04(B)(1) (requiring a vaccine); and 3792.04(B)(2) (discrimination on the basis of vaccination status).
Miami’s vaccination policy provided that all employees and students must be fully vaccinated by November 22, 2021, unless exempted. Requests for exemption were required to be submitted by October 15, 2021. Faculty, staff and students were also required to receive at least their first COVID-19 vaccine dose by October 25, 2021. The policy further provided that “exemptions may be granted for medical reasons, sincerely held religious beliefs or reasons of conscience (philosophical or ethical reason) and a deferral granted for pregnancy or nursing.” Individuals with an approved exemption were required to comply with COVID-19 testing and other educational and preventative health and safety measures. As for employees, the policy provided that “employees who choose not to be vaccinated and who do not receive an approved exemption will face disciplinary action.”
The trial court dismissed the Plaintiffs’ complaint after finding that they lacked standing to challenge Miami University’s vaccination policy because, at the time of filing the complaint, they either had obtained an exemption to the vaccine requirement or had failed to request an exemption. The Appellate Court agreed with the dismissal except as to the discrimination claims under RC 3792.04(B)(2). The Plaintiffs alleged that because the policy required exempted employees to take additional measures such as testing and other prevention, they were being treated differently than similarly situated vaccinated employees in violation of the statute. Additionally, the Plaintiffs alleged that the University had a bonus program to encourage vaccination, which only vaccinated employees were eligible for.
The Appellate Court found that this was enough to survive a motion to dismiss and reinstated that portion of the case. It should be noted that a motion to dismiss is a high standard and serves to test the sufficiency of the complaint to state an actionable claim. It is not a judgment on the merits. Ennis Britton will monitor this case as it proceeds and will provide important updates to our clients.
Last month the Office of Special Education Programs and the Office of Special Education and Rehabilitative Services issued a letter to state directors of special education regarding the critical nature of ensuring prompt services for highly mobile students with disabilities. The letter emphasizes the importance of providing prompt evaluations and services to highly mobile children with disabilities as required under the IDEA. It concludes by listing over 40 resources available to districts to ensure quality educational services for highly mobile children with disabilities.
This advisory communication reminds districts that military connected children, migratory children, children who are homeless, and children in the foster care system often experience difficulty becoming oriented into new and varying school expectations and may have difficulty communicating their needs and concerns within these contexts. As such, schools are reminded that the IDEA requires that evaluations be conducted in a timely manner and without undue delay. In those situations where a child transfers to a new school district after their previous district has begun but not completed an evaluation, the expectation is that both districts will cooperate to ensure completion of the evaluation as expeditiously as possible. This includes the timely exchange of relevant records between the school districts as an initial important step in ascertaining student needs.
The guidance further points out that while the use of a multi-tiered system of support (MTSS) is a useful tool in identifying student needs, it should not be used habitually as a delay in an initial evaluation for highly mobile children. Because this population is more susceptible to experience recurring educational disruptions, implementing special education and related services can be even more critical to student achievement and success. OSEP and OSERS jointly advise that postponing an evaluation to implement the MTSS process can be a denial of FAPE, resulting in significant compensatory service obligations. If a child transfers to a new school district during the same school year before the previous school district has completed the child’s evaluation, the new school district may not delay the evaluation or extend the evaluation time frame in order to implement their MTSS process. And although the new school district may choose to provide interventions as part of their MTSS framework, in those situations where an evaluation had been commenced elsewhere, extended use of the interventions could be determined to be a violation under the IDEA.
Finally, the letter recognizes the importance of providing ESY services to highly mobile children if the IEP team determined that such services were necessary for the provision of FAPE. This can be especially challenging when students transfer at the end of the academic year, however it does not appear that short notice to the receiving school of the right to these services will excuse the obligation to provide ESY.
What this means for schools: This is a great reminder of the importance of promptly obtaining educational records of transfer students. This is not only essential to ensure that an evaluation, once commenced, is promptly completed, but to provide continuity of services when the transitioning between districts occurs.