Ohio Supreme Court Asked to Review Guidance Counselor’s Right to Retain Outside Attorney During Arbitration

Ohio Supreme Court Asked to Review Guidance Counselor’s Right to Retain Outside Attorney During Arbitration

On January 1, 2022,An Ohio guidance counselor who opted out of the union has asked the Ohio Supreme Court to overturn a decision of the 11th District Court of Appeals which found she did not have a right to use her own attorney during an arbitration hearing.

Revised Code 4117.04 requires public employers to extend and recognize the right of a designated union representative to serve as the exclusive representative of the bargaining unit included in a CBA. In the event that an employee wishes to obtain their own attorney at their own expense, unions will typically have procedures for the employee to waive their right to protection and representation under the CBA. If a district allows private representation in meetings such as predisciplinary hearings, they may face an unfair labor practice charge.

The employee contends that denying her choice of legal counsel infringes on the First and Fifth Amendments of the United States Constitution. The lower court held that the employee’s constitutional rights were not violated because the arbitration process was established in a collective bargaining agreement between the school district and the union. The court found that the employee herself was not legally entitled to initiate the grievance and arbitration process so her rights to free speech and due process were not violated. By requesting that the union submit the grievance to arbitration, as required by the collective bargaining agreement, the employee “ceded her standing to adjust the grievance.”

The Ohio Supreme Court is not required to take this case. If it decides not to hear the appeal, then the 11th District Court’s decision will remain prevailing law. We will monitor it for further developments.

How this affects your district? The employee in this case is represented by the Buckeye Institute, which has been involved in collective bargaining litigation since the U.S. Supreme Court issued its decision in Janus declaring that fair share fees were unconstitutional. Ennis Britton has seen an increase in the number of employees who request to use their own legal counsel rather than the representation provided by public sector unions. This can put a school district in the middle of a fight between its employee and the union representing bargaining unit members, which may even result in the filing of an ULP charge against the District with the State Employment Relations Board. Districts should contact legal counsel before proceeding with any meeting which is attended by an employee’s non-union attorney.  


































Decision on State Board of Education Resolution on Transgender Protections Delayed

Decision on State Board of Education Resolution on Transgender Protections Delayed

 A “Resolution to Support Parents, Schools, and Districts in Rejecting Harmful, Coercive, and Burdensome Gender Identity Policies” was proposed at the September meeting of the State Board of Education. It was placed on the State Board agenda for its Oct. 11th and 12th meeting dates.

This resolution declares the board’s “unequivocal opposition to the proposed regulatory changes released by the U.S. Department of Education on June 23, 2022.” Specifically, the proposed changes would prohibit schools that receive federal funds from adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity. The resolution opposes these changes and declares support for a lawsuit seeking to invalidate rules concerning the continued receipt of federal nutritional assistance adopted by the Department of Agriculture, which was joined by the Ohio Attorney General and 21 other state attorneys general.

The resolution directs the Superintendent of Public Instruction to mail a copy of the resolution to every public school district as well as elementary and secondary schools and preschools receiving federal funds, with a cover letter from the Ohio Department of Education stating the agency opposes Title IX regulatory changes, considers the United States Department of Education guidance documents without legal force and nonbinding, and urges districts not to amend policies and procedures based on USDOE guidance documents.

The final paragraph declares that the State Board rejects harmful, coercive and burdensome gender identity policies, procedures and regulations.

This resolution garnered a lot of state and national attention. The State Board heard four hours of public testimony before deliberating on the resolution. In the end, the State Board voted 12-7 to send the resolution to an executive committee for further consideration.

What this means for your district? The resolution was not passed so the State Board’s action in October to send the resolution to an executive committee for further consideration has no impact on your school district. If passed, the resolution as written would not be binding on local school districts. In the event the resolution passes, school districts should consult with legal counsel before taking any action in accordance with the resolution because doing so may subject your district to liability for failing to comply with federal law.











UPDATE: Revised Ohio HB 126 Heads to Senate

UPDATE: Revised Ohio HB 126 Heads to Senate

We previously wrote about HB 126, which sought to impose additional hurdles on school districts when challenging property valuations. As passed by the House, this bill would require a school board to authorize each valuation complaint or counter-complaint at a board meeting before they can file a complaint or counter-complaint with the county board of revision. It also requires the school board to notify the property owner of the challenge 14-days in advance of the board meeting. These onerous steps make it difficult to meet the deadlines for filing complaints and counter-complaints and appear to attempt to politicize the process by providing advance notification of coming complaints to property owners. 

In November, this bill received two hearings in the Senate. An amendment was even floated that would have completely eliminated the right of school districts to participate in the board of revision process.  Under that amendment, not only would school districts be prohibited from filing complaints to increase valuations, but they would also have no right to file a counter-complaint to contest valuation reductions being sought by property owners. Although that amendment was never formally introduced, the Senate continued with proponent and opponent testimony concerning HB 126 as passed by the House. OASBO, BASA and OSBA have been working with school districts to oppose this legislation. 

With little notice, the Senate Ways and Means Committee adopted a revised bill on December 7, 2021.  The revised bill prohibits school districts from filing original complaints to challenge the values assigned by county auditors. Although it permits districts to continue filing counter-complaints to challenge reduction requests sought by property owners, the revised bill requires that boards of education adopt separate resolutions for each counter-complaint. In addition, it prohibits districts from appealing decisions of county boards of revision.

The revised bill out of the Ways and Means Committee will now proceed to consideration by the full Senate. If passed by the Senate, the bill will head back to the House for re-consideration. We will continue to update our clients as this bill progresses through the Senate. In the meantime, administrators are encouraged to contact their legislators to voice their positions on this bill.    

Can Parents Opt-out of District Curriculum or Instructional Materials?

Can Parents Opt-out of District Curriculum or Instructional Materials?

Many districts have seen an increase in parental complaints about the curriculum and programs in Ohio’s public schools. This is a result of the national debate about critical race theory and a belief that it is being taught in public schools. Some parents have submitted opt-out forms to schools that state they do not consent to their child’s participation in any instruction or discussion of racially divisive topics or social-emotional learning programs. Must Ohio schools honor these opt-outs?

Although the State of Ohio has a large say over the academic standards in grades kindergarten through twelve, R.C. 3313.60 requires each board of education to adopt a curriculum for all schools under its control. Provided that boards of education satisfy state academic standards and requirements, courts have granted boards of education broad authority to determine the curriculum taught in school and the instructional methods and materials that are utilized.

Generally, parents do not get to pick and choose the required courses or curriculum their children must take or satisfy in Ohio public schools. Such an option would likely be unworkable for districts. Thus, parents generally cannot opt their children out of required courses or curriculum. 

Ohio law does provide parents with the ability to opt their children out of some items in the curriculum, including surveys, personal safety and assault prevention in grades kindergarten through six, suicide awareness and prevention and safety training and violence prevention in grades six through twelve, instruction in social inclusion, venereal disease education, and cardiopulmonary resuscitation.

Additionally, R.C. 3313.60(G) grants parents the right to promptly examine, with respect to their own child, any survey administered to their child; any textbook, workbook, software, video, or other instructional material used by the district in connection with the instruction of their child; any completed and graded test taken or survey filled out by their child; and copies of statewide academic standards and each model curriculum that is developed by the state board of education.

As for textbooks and library books, Ohio law and the courts generally leave it to the discretion of each board of education to select them. However, as for their removal, First Amendment considerations are necessary before books are removed because courts generally hold that they cannot be removed on the grounds that they are found to be offensive to a board of education or the board of education dislikes their ideas. It is permissible to remove books for a variety of other reasons, including because of their poor condition and a lack of shelf space. 

What this Means for Your District 

In general, opt-out forms need not be honored unless a parent is opting out of one of the items in the curriculum that the law gives them the authority to opt-out of. As complaints about the curriculum, textbooks, and library books are made, districts are advised to consult and follow board policies that give parents the right to complain about the curriculum or instructional materials. In addition, districts should consult with legal counsel over First Amendment concerns before removing books as a result of complaints or a general dislike for their ideas.  

Managing Contracted Employees when a Reduction in Force is Necessary

Managing Contracted Employees when a Reduction in Force is Necessary

A Court of Appeals recently reinstated a lawsuit brought by four Dayton Public School employees who were laid off pursuant to a reduction in force (RIF). Under district policy, the former employees were required to receive written notice of open positions they qualified for within two years of the date of their layoff.

In May 2016, the employees signed two-year contracts to continue their employment as a “Transportation Supervisor II” in the transportation office. Shortly after their contracts were signed, the superintendent recommended a RIF through reorganization and consolidation due to long-term declining enrollment and a corresponding loss of funding. By November 2016, the board voted to abolish their positions.

Under the restructuring plan, the Transportation and Fleet Services Department was created which would oversee all district-owned vehicles. The district made job announcements for the new positions in December 2016 that would include more responsibilities and come with a higher salary. In addition, the new hires would receive significant training to help them navigate the new role.

The trial court ruled in favor of the school district, finding that the essential duties of the new position of Associate Director of Transportation and Fleet Services substantially differed from the original position of Transportation Supervisor II. The new position, for example, would supervise, purchase, and dispose of the motor fleet for the entire district, not just yellow school buses.

State law authorizes a school board to adopt its own policies for the suspension of administrator contracts as part of RIF, but any adopted policy must include the following:

  • Reasons for a RIF, which may include the financial conditions of the school district or educational service center
  • Procedures to determine the order of suspension of contracts
  • Provisions requiring a right of restoration for employees whose contracts are suspended if and when any positions become vacant or are created for which any of them are or become qualified

The former employees argued that they were entitled to recall rights for two years and receive vacancy notices by mail for open positions, but claim they were never notified even though they believe they were qualified for the newly created positions.

The Director of Human Resources testified that recall rights existed only if the exact same position was posted and that the terminated employees had no right to be notified of openings unless it was the exact same as their previous job. The Director admitted not knowing whether the terminated employees were qualified, inferring that the appellants were not considered as candidates for the new position.

The Board said the RIF was necessary due to restructuring, but the appellate court found that the salary for the new position was significantly more than the old one resulting in no cost savings. If the newly created position did involve some added responsibilities, it does not appear that those responsibilities were taken away from another employee who was eliminated by the RIF.

The appellate court also found that initial testimony from board members supported a reasonable inference that their inclusion in the RIF was a matter of housecleaning rather than reducing headcount. During depositions, board members stated “the department was in such disarray… beyond dysfunctional… an embarrassment” and acknowledged having discussions amongst themselves about “getting rid of the transportation supervision because of all the issues that were going on.”

The appellate court ultimately found that the employee affidavits support a finding that the new jobs functionally were the same as their old jobs and the evidence suggested that they were qualified for the new positions. Therefore, it ruled that the trial court erred in entering summary judgment for the Board of Education and reinstated the lawsuit for further proceedings.

What this means for your district

This case demonstrates that courts will review the alleged rationale behind a RIF to determine if a layoff was justified. In situations where a RIF is implemented and no new employees or positions are created and filled, a RIF will stand. However, courts will heavily scrutinize RIFs whenever positions similar to those that were abolished are created and filled. School districts must be sure to offer recall rights to laid-off administrators who are qualified for the positions.

In situations like this where it’s arguable that former employees are qualified for newly created positions, courts are likely to let a jury decide whether recall rights should have been offered. That creates a substantial amount of risk because an adverse ruling means that the former employees will be reinstated with back pay. At that point, the employees that were hired to replace them will either need to be maintained and moved to different positions or subjected to another RIF.