by Gary Stedronsky | Mar 12, 2020 | COVID-19 (Coronavirus), General
How long can the school district cancel school?
Provisions of Ohio law govern how long a school year must be. A school year begins on July 1st of each year and ends on June 30th of the next year. R.C. 3313.48 provides that schools must be open for instruction for a minimum of 455 hours for students in half-day kindergarten; 910 hours for students in full-day kindergarten through 6th grade; and 1,001 hours for students in grades 7-12. Schools will be in compliance provided they satisfy these requirements by June 30, 2020.
Of course, if
the outbreak gets out of hand, the Ohio legislature is likely to step in and
provide a waiver of these requirements or revise the law to deal with the
unique circumstances we are in. Further, a school district may not continue to
operate if a state or local government entity mandates closer.
Will online
education count?
It’s not
entirely clear. R.C. 3313.48 provides that schools must be “open for
instruction with pupils in attendance.” Furthermore, R.C. 3313.482
addresses make up days via web access (also known as “blizzard bags”). However,
it provides that only three school days can be made up via this method provided
that a district adopted its plan to require students to access and complete
classroom lessons online by August 1, 2019.
The Ohio
Department of Education may issue further guidance on this. Additionally, the
Ohio legislature could act to permit online education in these circumstances.
There are also special education concerns
with respect to mandating online education. Districts must ensure that students
with disabilities are able to access the education program, with or without
accommodations and modifications. Your teams should carefully consider the
needs of your students when making this decision. Please refer to our prior
blog post on this topic.
Should the school district cancel
district travel to out of town or out of state events?
That is a local decision for each school district to make at this time, subject to local, state and federal emergency orders. School districts certainly have the ability to cancel district travel to events. Although money is secondary to student safety, you may wish to review the cancellation provisions in your contracts with travel vendors. Even if a contract prohibits cancellation or requires payment if travel is canceled, some vendors might be willing to waive those provisions or provide a credit for future travel.
Should the school district cancel
athletic and other events?
This is also a local decision for each school district to make at this time, again subject to orders from branches of the government. OHSAA has limited spectators to OHSAA tournaments. School districts certainly have the authority to cancel other events such as school musicals or plays that may draw large crowds or to limit attendance to certain individuals as long as it does so in a nondiscriminatory way.
Can the school district be liable if we
permit travel to events or permit athletic and other events at our district to
proceed?
We do not think that liability is a priority concern at this time. School districts generally enjoy sovereign immunity to causes of action that might be brought in the event a student, employee, or parent contracts COVID-19. Insurance coverage should also provide school districts with defense coverage. With that said, school districts may want to think twice about sending students to places where the outbreak is worse or where local governments have imposed gathering, travel or movement restrictions. As state and federal governments have stated numerous times, safety should be your priority when making decisions.
If a parent or relative of a student is
quarantined or self-quarantined, can a school district prevent students from
attending school?
A school district can certainty request that students remain home in these situations and provide for excused absences. In the event a parent or student refuses to stay home, a superintendent has the authority to assign students to home instruction, mandate that education be provided in a school location away from the general school population, or assign students to other available educational options such as online education. Of course, special consideration should be given to special education students before any of these decisions are made.
If school closes for an extended period of
time, do we have to pay staff?
The answer to this question is governed in part by individual collective bargaining agreements that can supersede Ohio law. For teachers, R.C. 3319.08(B) states that teachers must be paid for all time lost when schools are closed due to an epidemic or other public calamity, and for time lost due to illness or otherwise for not less than five days annually. As for classified staff, R.C. 3319.081(G) states that all nonteaching employees shall be paid for all time lost when the schools in which they are employed are closed owing to an epidemic or other calamity. These rules will apply unless a collective bargaining agreement provides otherwise. You should meet with your union to discuss your plans and how your operations will be modified as you respond to the situation.
Where can I find other information?
We will continue to update clients as more information becomes available.
ODE guidance and information can be found
here:
http://education.ohio.gov/Topics/Student-Supports/Coronavirus
OSBA resources can be found here:
https://www.ohioschoolboards.org/coronavirus-covid-19-resources
NSBA resources can be found here:
https://www.nsba.org/Resources/coronavirus
U.S. Department of Education resources can be found here:
www.ed.gov/coronavirus
by Gary Stedronsky | Nov 21, 2019 | Board Policy & Representation, General, School Management
The Court of Appeals in Logan County, Ohio recently upheld a decision of the Indian Lake School District Board of Education terminating its superintendent after he was arrested for gross sexual imposition of a minor.
The superintendent was placed on paid administrative leave the day following his arrest. The Board adopted a resolution nine days later that initiated the termination process based on the nature of the charges, including that the arrest required a report to the Ohio Department of Education and suspension from all duties during the pendency of criminal action. The resolution also noted that the arrest generated extensive media coverage that resulted in staff, parents, students, and community members becoming aware of the charges. The Board determined that the superintendent was thus unable to effectively perform his duties.
The superintendent elected to have a hearing on his termination before a state appointed referee. After a five-day hearing, the referee issued a report and recommendation concluding the Board failed to provide reliable, probative, and substantial evidence that just cause supported the superintendent’s termination. The referee focused on the fact that the Board failed to demonstrate that the superintendent engaged in any conduct warranting termination. Instead, the Board alleged that it was the fact of his arrest that rendered him unable to perform his duties. The referee believed this could not support a termination order and recommended that the superintendent remain on unpaid leave pending the criminal proceedings.
The Board rejected the referee’s recommendation, and in accordance with R.C. 3319.16 terminated the superintendent. The superintendent appealed to the court of common pleas. As it turned out, the superintendent was convicted and sentenced during the pendency of his appeal. He subsequently filed a motion to strike the Board’s reference to his conviction in his appeal. The court denied that motion and upheld the Board’s decision to reject the referee’s recommendation and terminate the superintendent.
The court specifically found that the nature of the allegations, in light of his position and loss of community trust, prevented him from effectively performing his duties. The court also held that it could not ignore the fact that the superintendent was convicted while his appeal was pending. The court also found that the Board did not need to indefinitely postpone the termination action until after the criminal proceedings were resolved, meanwhile suffering the damage caused by the turmoil created by the uncertainty and doubt as to the strength of the school system’s integrity.
Despite his conviction, incarceration, and inability to work as a superintendent or teacher under law, the superintendent appealed to the court of appeals. The court of appeals noted that courts cannot substitute their judgment for the judgment of the Board if substantial and credible evidence is presented to support the charges. The court of appeals held that the lower court did not abuse its discretion in upholding the Board’s decision. The superintendent was required to be suspended from all duties requiring the care, custody, or control of children pursuant to R.C. 3319.40 and 3319.31. The court noted that he was unable to perform his job duties based on that fact alone. As a result, the lower court’s conclusion that the superintendent was terminated for good and just cause was not an abuse of discretion and the termination was permitted to stand.
by Gary Stedronsky | May 23, 2019 | Board Policy & Representation, General, Labor and Employment
Given their choice to enter into elective office, school board members are typically service oriented individuals. They are very active in their communities and are often interested in the athletic programs of their district. Thus, it is not surprising that many school board members would want to help out by coaching or assisting a coach with an athletic team. On January 9, 2019 the Ohio Ethics Commission received a request from a district’s superintendent for an advisory opinion letter on behalf of a board member. The member wanted to pursue a coaching position with the district and asked if he could accept employment as a paid coach or serve as a volunteer coach.
The opinion indicates that a board member is prohibited, under Ohio ethics laws, from being employed as a paid coach by the district they serve. Ohio Revised Code section 3313.33(B) expressly states that members of the board may not “be employed in any manner for compensation.” RC 2921.42 (A)(4) also provides that a public official is prohibited from having an interest in the profits and benefits of a contract of the public agency he or she serves. A school board member who is a compensated employee of a district would have an interest in the district by entering into an employment contract as a coach. As a result, the commission’s opinion states that “RC 2921.42(A)(4) prohibits the school board member from serving simultaneously as a paid district coach.”
The opinion further provides that a board member may volunteer as a coach without any compensation. There is no statute that prohibits a member from serving as a volunteer coach. Additionally, there is no prohibited interest in a public contract when a board member volunteers his or her time without compensation. Although, members in this position may be required to abstain from participating in matters directly affecting the athletic department. This could include voting, discussing, deliberating or taking any other actions regarding athletic department personnel. They may also be required to abstain from voting on an employment/supplemental contract for an employee who works in that sport/activity or who oversees the program in which the board member volunteers (ie – athletic director) because of concerns about undue influence. However, the Ethics Commission found that a member was “not prohibited from participating in matters that affect all athletic department personnel within the district uniformly” (i.e. voting on a CBA that includes an increase in compensation to supplemental positions) or from participating in general budgetary matters that might include funding for athletics and compensation or benefits for employees.
It appears that the Ethics Commission likely issued the opinion to address the situation where board members volunteer to take the place of a paid supplemental coach rather than to serve as a volunteer in some other capacity, such as announcing the game, taking tickets, etc. However, the Ethics Commission was not very clear in delineating between someone who volunteers as a coach versus someone who volunteers in another capacity. For that reason, board members who volunteer in a capacity other than taking the place of a supplemental position are also advised to follow the advice in this Ethics Commission opinion.
by Gary Stedronsky | Aug 28, 2018 | Board Policy & Representation, Labor and Employment, School Management, Unemployment, Workers’ Compensation
In 2016, Ohio became the twenty-sixth state to legalize the use of marijuana for certain specified medical conditions. Medical marijuana facilities and patient registries are expected to be fully operational in the near future. School districts should be aware of how the medical marijuana law might impact current policy and operations.
Overview of State Law
Under state law, individuals who suffer from any of twenty-one identified medical conditions (listed below) may register with the state to use medical marijuana. In addition to these twenty-one conditions, the state medical board may be petitioned to add other conditions to this list.
Qualifying Medical Conditions
|
| AIDS |
Inflammatory bowel disease |
| Alzheimer’s disease |
Multiple sclerosis |
| ALS (“Lou Gehrig’s disease”) |
Pain that is chronic, severe, or intractable |
| Cancer |
Parkinson’s disease |
| Chronic traumatic encephalopathy |
Posttraumatic stress disorder |
| Crohn’s disease |
Sickle cell anemia |
| Epilepsy or seizure disorder |
Spinal cord disease or injury |
| Fibromyalgia |
Tourette’s syndrome |
| Glaucoma |
Traumatic brain injury |
| Hepatitis C |
Ulcerative colitis |
| HIV |
|
When registering with the state, an individual’s application must be accompanied by a licensed physician’s recommendation. Caregivers of medical marijuana users must also register with the state to avoid criminal prosecution for possession of medical marijuana and to assist registered patients. Medical marijuana may be used in oils, tinctures, plant material, edibles, patches, and vaporizers; however, smoking marijuana is prohibited.
Federal Laws and Regulations
Regardless of Ohio’s legalization of marijuana for medical purposes, marijuana is still a prohibited substance under federal law. The Americans with Disabilities Act requires that employers provide reasonable accommodations to employees with certain disabilities so that they may perform the requirements of their job; however, the ADA does not require employers to permit the use of medical marijuana as a reasonable accommodation. Similarly, the Family Medical Leave Act does not require employers to grant leave for employees so that they may obtain medical marijuana treatments for a serious health condition. Federal law does not interfere with an employer’s right to maintain a drug-free workplace, to implement a zero-tolerance drug policy, or to subject an employee to a drug test. Currently, pending federal legislation to enact the STATES Act would give states the freedom to decide how to legalize or regulate marijuana.
School District Employees
Ohio employers are not required to permit their employees to use medical marijuana at work and may continue to take adverse employment action against employees for their use of medical marijuana – even if the employee has a recommendation from a doctor for use and uses the marijuana outside of work hours. School districts may elect to make accommodations and modify policies to allow employees to use medical marijuana in some circumstances, although employees must continue to comply with state and federal regulations that prohibit use of drugs in safety-sensitive positions. School districts should be clear that employees may not be under the influence of marijuana when they are responsible for the safety or supervision of students and staff.
For workers’ compensation purposes, if an injury occurs at the workplace and the employee tests positive for marijuana, a rebuttable presumption arises that the use of marijuana was the cause of the injury, even if the employee has a recommendation for use from a doctor. To overcome this presumption, the employee must then demonstrate that the marijuana use did not factor into the cause of the injury. If unsuccessful, the employee would not be eligible to receive workers’ compensation benefits. Similarly, with unemployment compensation, an employee’s use of medical marijuana is just cause for termination, and no benefits would be provided to an employee in this scenario.
Ohio’s law does not prohibit an employer’s right to refuse to hire a job applicant because of use, possession, or distribution of medical marijuana.
Patient Protections
A very small section of the Revised Code delineates the rights of patients who are registered with the state to use medical marijuana. Patient rights include the right to use and possess medical marijuana, up to a maximum of a 90-day supply; to possess any paraphernalia or accessories for the use of medical marijuana; and to avoid arrest or criminal prosecution for obtaining, using, or possessing medical marijuana and the necessary paraphernalia and accessories. Registered caregivers have the same rights to possess medical marijuana, paraphernalia, and accessories, but do not have the right to use medical marijuana. Operating a vehicle is prohibited while under the influence of medical marijuana. No minimum age is specified for patients to use medical marijuana.
Activities Prohibited Near Schools
No medical marijuana cultivator, processor, retail dispensary, or testing laboratory may be located within five hundred feet of a school, except for academic research institutes.
by Gary Stedronsky | May 25, 2018 | Board Policy & Representation, General
The Ohio attorney general recently published an opinion that addressed several questions regarding property valuation settlements when property owners and boards of education contest an auditor’s value (O.A.G. No. 2018-011).
A party such as a board of education or a property owner who contests an auditor’s property valuation will begin by filing a complaint with the board of revision. A party who disagrees with the requested valuation may file a counter-complaint. While the complaint is pending before the board of revision, the complaining parties may enter into a settlement agreement, either dismissing the complaint or stipulating to an agreed property valuation, both of which options may be accompanied with a payment from the property owner to the board of education.
The attorney general’s opinion answered four questions raised by the Stark County prosecuting attorney, all of which used the same hypothetical property valuations:
- The county auditor values a property at $400,000.
- The local board of education files a complaint to increase the property valuation to $550,000.
- The property owner files a counter-complaint to reduce the valuation to $350,000.
Scenario 1
In the scenario in the first two questions, the board of education dismisses the complaint in exchange for a one-time payment of $5,000. In their simplest form, the questions arising from this scenario are as follows:
- Is this scenario permissible?
- If so, may a board of revision require disclosure or approval of the settlement agreement as a condition for the board of education to dismiss the complaint?
The short answer to question 1 is yes, this is permissible. The attorney general explained that a board of education may voluntarily dismiss a pending complaint. Furthermore, a board of education has the authority to enter into a settlement agreement. This includes the terms of the settlement – in this scenario, receiving a payment in exchange for dismissing the complaint.
In answer to question 2, the attorney general noted that a board of revision has no authority to require a party to disclose the settlement agreement, nor to require the board of revision’s approval of the settlement agreement, as a condition for the board of education to dismiss the complaint.
Scenario 2
In the scenario in the final two questions, the board of education and the property owner agree to a property value of $450,000, which is halfway between the differing valuations of the board of education ($550,000) and the property owner ($350,000). Provided the board of revision agrees to the stipulated value, the property owner will then pay the board of education a one-time payment of $2,500. The questions arising from this scenario are as follows:
- Is this scenario permissible?
- If so, prior to the board of revision’s approving the stipulated value, may a board of revision require disclosure of the payment arrangement and consider that arrangement when determining whether to approve or reject the stipulated value?
Again, the short answer to question 3 is yes. A board of education may agree to accept payment from a property owner in exchange for stipulating to a certain property value. Stipulations are common tools that litigating parties employ. However, only the county auditor and board of revision have the authority to determine a property’s valuation. Therefore, although a board of education and a property owner may stipulate to a particular valuation, the board of revision must approve the valuation.
Question 4 is whether the board of revision may require disclosure of the payment arrangement and consider that arrangement when deciding whether to approve the stipulated property value. To determine the property value, the auditor considers not only the land and the improvements to the land, but also the present use of the land and the best probable use of the land. These factors include such things as supply and demand, financing, time and cost of development, and many others – all of which are physical and geographic characteristics. These considerations do not include any agreed payment amount between a board of education and a property owner. Therefore, a board of revision may neither require the disclosure of any such payment nor consider such payment in making a decision on the stipulated property valuation.
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Clients of Ennis Britton receive our School Law Review newsletter, in which we address what this OAG opinion means for school districts in Ohio.
