In a 5-4 decision made last June, the U.S. Supreme Court ruled that the extraction of agency fees from Illinois State’s nonconsenting employees of the public-sector violates their First Amendment rights. After the decision was made, all workers who attempted to withdraw their consent to extract agency fees, were refunded the money taken under the policy. The court stated that, “States and public-sector unions may no longer extract agency fees from nonconsenting employees. … employees must choose to support the union before anything is taken from them.”
The Supreme Court decision is sparking class action lawsuits across the country. In Ohio, Smith v. AFSCME has been monumental for post-Janus rulings. The suit was filed by several employees across Ohio who are employed by local government agencies. All of the employees attempted to withdraw their union membership and their dues deduction authorization following the Janus ruling. They were each denied their First Amendment right as union officials continued to extract dues. Officials followed the “15-day window period” that only allowed for resignation of the union 15 days prior to the expiration of the collective bargaining contract. This led to the employees filing suit against AFSCME, alleging that the policy was unconstitutional.
The employees were represented by the National Right to Work Legal Defense Foundation, who also represented Mark Janus in Janus. At the end of January 2019, the case was finally settled. Under the terms of the settlement agreement, AFSCME agreed to pay back all union dues that were extracted after the employees attempted to withdraw their consent. The union will not deduct any agency fees or dues that were previously subject to the window policy. This is monumental because it is the first class action lawsuit since the Janus ruling in which union officials have reversed their policy on the window period. President of the National Right to Work Foundation, Mark Mix, said, “This first-in-the-nation victory in a class action case to enforce workers’ rights under Janus should be the first of many cases that result in union bosses dropping their illegal restrictions on workers seeking to exercise their rights secured in the Foundation’s Janus Supreme Court victory.” As of January 24th, Foundation was litigating 20 cases nationwide to enforce employee’s rights.
What this Means for Your District In light of the ruling in Janus and the Smith settlement, districts should be mindful that any “window policy” on withdrawing union membership may present legal complications for the district if challenged. Districts should review their collective bargaining agreements and consult with their local unions regarding its position on that provision given Smith.
We are very pleased to announce that the highly reputed organization Super Lawyers has selected Ennis Britton shareholder Gary Stedronsky as a Super Lawyer and shareholders Megan Bair, Pamela Leist, and Erin Wessendorf-Wortman as Super Lawyers Rising Stars for 2019!
Gary Stedronsky is a shareholder who has been with Ennis Britton since 2003. He started as a law clerk while attending law school. As a member of Ennis Britton’s Construction and Real Estate Team and School Finance Team, he provides counsel to school districts throughout Ohio on matters related to property issues, public finance matters, tax incentives, and more. He is a published author and frequent presenter on many education-related topics. Gary received the prestigious Super Lawyers Rising Star award five years in a row and now has received the Super Lawyers award!
Megan Bair is a shareholder who advises school districts on a variety of education law matters. As a member of Ennis Britton’s Special Education Team and School Finance Team, Megan represents boards of education on collective bargaining, student discipline, board policy, and much more. Megan has offices in Cleveland and Mahoning Valley. This is Megan’s third year in a row to receive the Super Lawyers Rising Star award!
Pamela Leist is an Ennis Britton shareholder who assists clients with a variety of education law issues. As a member of the firm’s Special Education and Workers’ Compensation Practice Teams, she has represented boards of education before state and federal courts and multiple state and federal administrative agencies. Ms. Leist frequently presents across the state of Ohio on issues related to school law and operations. This is Pam’s second year in a row to receive the Super Lawyers Rising Star award!
Erin Wessendorf-Wortman is a shareholder with the firm. As a member of the firm’s Special Education and Workers’ Compensation Practice Teams, Erin represents school districts across Ohio on a variety of matters including labor and employment issues, civil rights, special education, public records, and more. She is a published author and frequent presenter on many education-related topics. This is Erin’s third year in a row to receive the Super Lawyers Rising Star award!
Super Lawyers is a national rating service that publishes a list of attorneys from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.
To qualify as a Rising Star, an attorney must score in the top 93rd percentile during a multiphase selection process that includes peer nominations and evaluations combined with independent research. A Super Lawyers rating is considered a very prestigious designation in the legal field. Only those in the top 5 percent of the total lawyers in the state are selected to Super Lawyers, and only 2.5 percent of newer lawyers are selected to Rising Stars. We commend Gary for his selection to Super Lawyers and Megan, Pam, and Erin for their selection to Rising Stars!
In a dispute filed against a Columbus area school district, the Ohio Court of Claims found one part of a four-part public records request overly broad and ambiguous. The other three parts were dismissed as moot.
Upper Arlington Schools received a public records request in September 2017 asking, in part, for “any pictures, video surveillance, written correspondence, notes from phone conversations, emails, texts, records of calls made involving the investigations launched by the school.” The treasurer replied to the requester, Matthew Frank, that the request was overly broad and ambiguous and that any responsive records were enclosed. Frank then filed a complaint in the court of claims, in accordance with Ohio’s new process to challenge the denial of a public records request. A Special Master with the Ohio Court of Claims made a determination based on the merits of the case.
With regard to the assertion that the public records request was overly broad and ambiguous, the court noted, “In making a request, ‘it is the responsibility of the person who wishes to inspect and/or copy records to identify with reasonable clarity the records at issue.’” State ex rel. Zidonis v. Columbus State Cmty. College, 133 Ohio St.3d 122, 2012-Ohio-4228, 976 N.E.2d 861. Frank’s request was not time-limited, and a request for an entire category of records is improper. The court found Frank’s request overly broad, noting that it would require an “unbounded search” through many different categories of school records.
Furthermore, the court noted, “A records request is also unenforceable if it is too vague or indefinite to be properly acted on by the records holder.” A court cannot order compliance with a request if it is vague and unclear. Therefore, the court found Frank’s request improperly ambiguous.
Finally – and importantly – “a public office is not obliged to ‘seek out and retrieve those records which would contain the information of interest to the requester.’” Because Upper Arlington Schools does not maintain its records in such a way that Frank requested, it would be required to seek out and retrieve the responsive records. Based on this, the court found Frank’s request improper because it required the school district to “conduct research to seek out and retrieve” responsive records.
The court’s report and recommendation does note one fault of the school district. When a public office denies a public records request as overly broad and ambiguous, it must inform the requester of the manner in which the records are maintained and accessed, and provide the requester with an opportunity to revise the request accordingly. In this case, the school district failed to communicate this information to Frank. Although the court found that this violates the Ohio Revised Code, it did not order Upper Arlington to inform Frank of the way the district maintains its records, simply because Frank did not make this request of the court.
– Frank v. Upper Arlington Schools, 2018-Ohio-1554.
The U.S. Department of Labor (DOL) has issued an official statement of Wage and Hour Division policy concerning athletic coaches for public schools. Opinion Letter FLSA2018-6, issued on January 5, 2018, is an exact reproduction of a previous Wage and Hour Division opinion that was issued in 2009 and then rescinded less than two months later.
This Opinion Letter states that community members who coach public school athletic teams qualify as teachers under the Fair Labor Standards Act (FLSA) and are therefore exempt from FLSA’s minimum wage and overtime pay provisions.
It is important to note that this exemption applies only to coaches who are not employees of the school district. It does not apply to coaches who are employed in another nonteaching capacity by the school district. In the latter case, these coaches are not exempt from the FLSA’s minimum wage and overtime pay provisions.
The DOL explains that coaches spend most of their time instructing student athletes in the rules and fundamentals of their respective sports. When not instructing players, coaches recruit students, supervise them during trips to and from games, discipline them when necessary, and account for their equipment. “Coaches qualify for the exemption if their primary duty is teaching and imparting knowledge to students in an educational establishment.”
Furthermore, a teaching certificate is not required to qualify for this FLSA exemption, nor is a certain minimum education or degree. “Thus, coaches whose primary duty is teaching qualify for the exemption whether or not they hold a teaching certificate or an academic degree.”
Therefore, based upon this new guidance, a school may pay its coaches as it deems appropriate so long as they are not otherwise employed by the district in a nonteaching capacity.
Ennis Britton is very pleased to announce that Ryan M. LaFlamme, Pamela A. Leist, Giselle S. Spencer, Erin Wessendorf-Wortman, and Megan Bair Zidian have been promoted to the position of shareholder in the firm.
“We are proud to have such a fine cohort of attorneys who have a genuine passion for education law,” said C. Bronston McCord, managing shareholder of Ennis Britton. “Their selection to this position is a testament not only to their exceptional abilities as attorneys but also to the continued success of the firm and its commitment to excellence.”
Ryan M. LaFlamme served as a law clerk for the firm during law school before joining the firm as an attorney. He is a member of the firm’s Construction and Real Estate, School Finance, and Workers’ Compensation Practice Teams and practices in many areas of the law concerning school districts including employment issues, construction, student discipline, workers’ compensation, labor arbitration, staff discipline, and policy review and drafting, in addition to general school law and local government practice. Ryan also serves as assistant prosecutor for two municipalities in Ohio. He has represented school district boards of education in both state and federal court. He has also defended school boards before the Equal Employment Opportunity Commission, the state and federal Offices for Civil Rights, the Ohio Bureau of Workers’ Compensation Review Commission, and the Unemployment Review Commission.
Ryan frequently speaks throughout Ohio on education-related topics. He volunteers as a high school mock trial coach annually. He also served as a trustee for the Citizens for the North College Hill Community Center and has served as a treasurer on several levy campaigns. Ryan earned his J.D. from Northern Kentucky University in 2008 and is licensed to practice law in Ohio and in the U.S. Virgin Islands.
Pamela A. Leist served as a law clerk for the firm before joining the firm as an attorney. She is a member of the Special Education and Workers’ Compensation Practice Teams and assists clients with a variety of education law issues including special education, student discipline, labor and employment law, negotiations, board policy review and development, and legislative review. She has represented boards of education before state and federal courts, the U.S. Department of Education Office for Civil Rights, the Internal Revenue Service, the U.S. Equal Employment Opportunity Commission, the Ohio Civil Rights Commission, the State Personnel Board of Review, the State Employment Relations Board, the Ohio Unemployment Review Commission, and the Ohio Department of Education. She also serves as the firm’s marketing coordinator.
Pam frequently presents across the state of Ohio on issues related to school law and operations. She has served the local community in many capacities including director of marketing for the Cincinnati Memorial Hall Centennial Event Planning Committee, member of the board of trustees for the North College Hill Community Seniors, Executive Committee member for the North College Hill Business Association, and planning chair for the Ohio State Bar Association’s School Law Workshop. She is also a member of the Ohio State Bar Association’s Leadership Academy Class of 2016. She is currently a legal advisor for the Cincinnati Bar Association High School Mock Trial Competition. Pam earned her J.D. from the University of Cincinnati in 2007.
Giselle S. Spencer is a member of the firm’s Special Education, Workers’ Compensation, and Finance Practice Teams. She counsels school district boards of education and administration on many aspects of education law including employment matters, workers’ compensation, property valuation, student discipline, public records, special education, discrimination complaints, and board governance. She has represented boards of education before state and federal courts, county Boards of Revision, the U.S. Department of Education Office for Civil Rights, the U.S. Equal Employment Opportunity Commission, the Industrial Commission, the Ohio Civil Rights Commission, the State Personnel Board of Review, the State Employment Relations Board, the Ohio Unemployment Review Commission, and the Ohio Department of Education. Prior to entering private practice, Giselle served as director of legal services for Dayton Public Schools and chief legal counsel for Columbus Public Schools. She has also served as chief examiner for the Dayton Civil Service Commission.
Giselle frequently presents on various education law topics at the state and national levels and is a featured presenter for several school employee associations throughout Ohio. Giselle is a 2011 recipient of President Barack Obama’s Volunteer Service Award and has an extensive history of volunteer service, including as a board member for the Habitat for Humanity in Dayton and in Greater Cleveland and as past president of the Thurgood Marshall Law Society. She is a former adjunct professor at Capital Law School and current member of the National School Boards Association Council of School Attorneys, the Norman S. Minor Bar Association, and other bar associations. Giselle earned her J.D. from Ohio Northern University in 1986.
Erin Wessendorf-Wortman advises clients on a variety of education law matters including labor and employment issues, student discipline and rights, special education, relationships with school resource officers, serving transgender students, employee misconduct and investigations, and general school law practice. She is also a member of the firm’s Special Education and Workers’ Compensation Practice Teams. Erin has represented school boards before a variety of federal and state administrative agencies including the Ohio Civil Rights Commission, State Employment Relations Board, Internal Revenue Service, U.S. Equal Employment Opportunity Commission, and U.S. Department of Education Office for Civil Rights.
Erin is a frequent presenter at professional conferences and at administrator and staff in-service trainings. She is a member of the Cincinnati Bar Association and the Ohio State Bar Association. Erin earned her J.D. from The Ohio State University in 2009.
Megan Bair Zidian advises public school districts and boards of education on a variety of education law matters including collective bargaining, labor and employment issues, student discipline and privacy issues, special education and board policy, and administrative guideline development. She is a member of the firm’s Special Education and School Finance Practice Teams. She has defended boards of education in arbitration, special education due process hearings, and state and federal administrative agencies including the State Employment Relations Board, Ohio Civil Rights Commission, U.S. Equal Employment Opportunity Commission, and Office for Civil Rights. Megan also has extensive experience in the school transformation process and assists academically distressed districts in navigating that progression.
Megan is a frequent speaker at school conferences and regularly provides in-service training to school administrators and staff members. She serves on the Council of School Board Attorneys for the Ohio School Boards Association and is a member of the Council of School Attorneys of the National School Boards Association. Megan earned her J.D. from the University of Akron in 2011.
Please join us in congratulating each of them on their new role at Ennis Britton!