Open Meetings and Public Records Law: Three Recent Sunshine Cases in Ohio

Open Meetings and Public Records Law: Three Recent Sunshine Cases in Ohio

by | Jan 15, 2023 | Board Policy & Representation, General

Sunshine law litigation is constantly ongoing in Ohio’s courts. Recently, three new cases expand our understanding of how open meetings and public records law is applied to public bodies.

Must a public entity teach citizens requesting records how to use its software?

The first opinion, issued in October 2022, illuminates the limits of a public office’s duty to explain how it keeps information when it uses software systems to store and access records.

A citizen, who also is an attorney, requested records from the Animal Welfare League of Trumbull County (AWL) about how many criminal complaints were filed by humane officers in any court for a period of seven years. (State ex rel. Huth v. Animal Welfare League of Trumbull County, Slip Op. No. 2022-Ohio-3582)

The request was denied, because the AWL did not maintain a list of that nature and would have had to search every investigation file to determine whether charges were filed. The AWL responded that the request was overbroad, and provided the citizen with the opportunity to revise the request. The AWL suggested limiting the request to specify individual people, addresses, or dates. The citizen filed a mandamus action asking for the AWL to explain to her how its records were stored, and requested statutory damages, attorneys’ fees, and court costs.

The court found that the AWL had provided additional information about how to revise the request for the records sought, and that was sufficient to meet its duty under the law. The citizen argued that the AWL did not tell her which software it used and how to search the software.

The court explained that the law “…requires a public office to explain how its records are organized, so as to help requesters formulate reasonable public records requests. The statute does not require public offices to offer tutorials on how their software systems work.” The court went on to note that even if the public office had explained it, the citizen would have had to have access to the AWL’s files, unless she was planning to ask the AWL to generate reports for her, which it is not required to do. The court denied the request for statutory damages, court costs and attorney’s fees.

Board committees and the Sunshine Law
The second opinion, issued in April 2022, sheds light on the Sunshine law as it relates to board committees. The facts of the case involve the creation of a land use committee by the Colerain Township Board of Trustees. (State ex rel. Mohr v. Colerain Twp., 2022-Ohio-1109, Ct. App. Hamilton, 2022) The purpose of the land use committee was to develop and make recommendations to the trustees. The trustees appointed seven voting and two nonvoting members, consisting of one trustee, a board of zoning appeals member, a zoning commission member, and others not holding public office.

Township planning staff assisted the committee, leading discussion, developing the final document, and engaging with the committee members via email. The committee met informally, did not announce the meetings to the public, did not take roll call and took no votes or minutes. The committee also considered over six months of work in person and interacted via email about a wide range of township land use issues and developed a land use plan and policy recommendations.

The township trustees were sued in mandamus, alleging a violation of the Open Meetings Act for failing to conduct the business of the committee in public and taking minutes. Once the lawsuit was filed, the trustees disbanded the committee and did not vote on the land use plan. The trial court found a violation of the OMA and the trustees appealed.

What did we learn?
The 1st District Court of Appeals in Hamilton County agreed with plaintiffs, finding that the Sunshine Law requires board committee meetings to be announced and open to the public, with minutes available for review. This is because board committees are subject to the OMA.

The court of appeals noted that it made no difference whether the committee had not taken votes. The trustees referred public business to the committee to consider and the committee deliberated and reached consensus in private. The court also found that a quorum of the body met and deliberated reviewing evidence such as pictures, emails, and testimony about the meetings of the body. All these factors resulted in a finding that a majority of the committee met to discuss public business, and in doing so, violated the OMA.

The email correspondence of committee members was likewise found to be a violation of the Sunshine Law; deliberation by a majority of the members outside of a public meeting using serial electronic communication is a violation of the law. The court affirmed the trial court’s decision invalidating the land use plan, ordering an injunction for the trustees not to violate the Sunshine Law again, finding a violation because the committee did not issue public notice of its meetings, hold the meetings in front of the public, and keep minutes. The trustees were ordered to pay statutory damages, attorneys fees and costs.

A claims handling service for a public entity is subject to the OMA
The last case in this tour of recent Sunshine Law litigation ends with frequent public records litigator bringing an action against the Ohio Township Association Risk Management Authority (OTARMA), its third-party claims handling entity, Public Entity Risk Management Services of Ohio (PERSO), and its law firm. (State ex rel. Ames v. Baker, Dublikar, Wiley & Mathews et al., 2022-Ohio-0170, Ohio Supreme Court, 2022).

Decided in November 2022, the Ohio Supreme Court considered the question of whether the unredacted invoices of the law firm advising PERSO, the third-party claims service, were public records. Plaintiff had previously sued the Rootstown Township Trustees for violations of the Sunshine Law three times, and the trustees had made claims with the OTARMA. The law firm provided legal services to PERSO in connection with that litigation. Plaintiff sought the unredacted invoices outlining the services provided by the law firm for those cases.

The law firm provided the invoices, but redacted the narrative portion describing the services provided, claiming that was protected by attorney-client privilege. The court of appeals agreed and dismissed the suit, and Plaintiff appealed.

Applying the quasi-agency test applied in previous cases, the Ohio Supreme Court noted that private entities may be subject to public records law when a public entity has delegated a duty to it, such as defending against lawsuits, and the private entity prepared records to carry out the public office’s duties. The court found that PERSO was not immune from a public records lawsuit.

Second, the court remanded the case to the court of appeals, instructing it to conduct an in camera review (i.e., for the court itself to review the invoices in chambers) of the invoices to determine if they contained attorney-client privileged information.

What did we learn?
Public entities participating in consortia and/or risk management entities which provide services may be subject to public records requests. This is because the public entity has delegated a duty it has to that entity, bringing the record generated into the ambit of public records law under the quasi-agency test. The court noted previous instances in which the General Assembly changed public records statutes when it disagreed with case law and that it could do the same in the future.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ability of School Employees to Carry Weapons Affected by Ohio Supreme Court Decision

by | Jul 9, 2021 | General

The Gabbard decision was announced on June 23, 2021 by the Ohio Supreme Court.  (Gabbard v. Madison Local Sch. Dist. Bd. Of Edn., Slip Op. No 2021-Ohio-2067)

After a 2016 school shooting in the district in which a student emptied a gun in school injuring several students, the school board acted in 2018 to adopt a “firearm authorization policy,” which allowed the superintendent to designate up to ten teachers to carry concealed weapons while in the course of their duties.  The Board also required the designated employees to possess a concealed handgun license, twenty-four hours of training in active shooter response, training on mental preparation to respond to active killers, and a handgun-qualification recertification every year.  However, none of the employees had the training required by R.C. 109.78. 

Parents sued the school district alleging that it did not comply with Ohio law. The case required the court to analyze the interaction between two Ohio statutes.  One statute allows school boards to designate in writing persons authorized to carry concealed weapons on school property, exempting them from criminal penalties for doing so (R.C. 2923.122).  The other statute (R.C. 109.78) stated that persons employed as school security officers, special police officers, or other employee goes armed while on duty requires either twenty years’ experience as a police officer or completion of Ohio peace officer training (over 700 hours of training.)

The court analyzed plain terms of both statutes independently.   The court found that the language of R.C. 109.78(D) requires any school employee authorized by a board of education to go armed while on duty must meet training-or-experience requirements of that statute.  The court rejected the attorney general’s argument (in an amicus brief on the case) that the phrase “other position” in the statute was limited to a position that is a law enforcement or school security function, stating:

While school employees may volunteer to be designated to carry a weapon pursuant to the resolution, the application of R.C. 109.78(d) is not dependent upon an employee being hired particularly for the purpose of carrying a weapon.  As we have already stated, the statute does not tie application of the training-or-experience requirement to the duties of an employee’s position.  That an employee might have been hired to teach, to coach, or to perform other primarily nonsecurity functions does not alter the fact that an employee who carries a weapon while performing his or her job “goes armed while on duty.  (Slip Op., at ¶21)

The court also found that the ability of school boards to authorize people (including school employees) to carry concealed weapons without criminal liability (R.C. 2923.122) was not an exception to the requirements of the training-or-experience requirements of R.C. 109.78.  The court found that the statute simply excludes certain people as designated by a board of education from criminal liability, and does not allow a board to disregard other statutory provisions that apply.  The court held:

We conclude that R.C. 2923.122(D)(1)(a) does not clearly constitute a legislative grant of power for school boards to authorize their employees to go armed so long as the employees undergo whatever training a board might deem advisable.” (Slip Op., at ¶33)

The court held the statutes were not incompatible, noting that the training-or-experience statute had been in effect for more than 20 years when the newer written authorization statute was enacted in 1992.  The court also noted that policy decisions and the desire or need to amend or reconcile the statutes is within the purview of the General Assembly, not the Ohio Supreme Court.  The court went on to state that, “…we bear in mind that the General Assembly likely did not contemplate at the time of those statutes’ respective enactments in 1969 and 1992 that they would address a board of education’s authority to arm its teachers and other school staff for protection against a school shooting.” (Slip Op., at ¶40).

What this means for your district:

First, if your district has authorized any school employee to carry concealed at school, this should immediately cease, unless they meet the training-or-experience requirements of being a police office or having completed the 700+ hours of Ohio peace officer training. Contact us if you have questions about this.  Second, the opinion mentions several times the role of the General Assembly in making policy decision or reconciling the statutes’ application.  There has been a bill introduced that would do this, HB 99: however, it was introduced in February of this past year, was referred to the House Criminal Justice Committee, and has received no hearings.  HB 99 would allow school districts to arm school employees with minimum training requirements, the same as obtaining a concealed handgun license.  It is unlikely that this bill will see immediate action. 

Regulations help explain use of ESSER and GEER funds

by | Jun 28, 2021 | General

ESSER/GEER guidance highlights
In late May, The U.S. Department of Education released guidance to states and school districts about the use of the multiple federal funds authorized for pandemic response and relief. A review of this guidance clarifies some questions about use of the funds. The guidance itself is not law, but it outlines USDOE interpretation of the laws and how funds may be used.

ESSER and GEER funds may be used for a wide range of allowable activities, a full list of which is available in the guidance on pages 10-12. One clarification states that where funds are authorized to be used for “children with disabilities,” this means children eligible under IDEA and Section 504.

The last listed item on allowable uses of funds is, “Other activities that are necessary to maintain the operation of and continuity of services in the LEA and continuing to employ existing staff of the LEA.” A footnote explains this includes using ESSER funds to avoid layoffs.

The Department goes into more detail that both ESSER and GEER funds may be used to pay teacher salaries and prevent layoffs. This includes other supportable activities in Question D-1 (p.46). The next question, D-2, states that health support staff, such as “…counselors, nurses, social workers, and other health support staff” are included.

The guidance notes, “…an LEA should consider ways that will build short- and long-term capacity and be sustained after the funding is no longer available.” School districts may provide the services directly or by entering into a contract. Subgrants of these funds are not authorized.

Construction and ventilation
Funds may be used for new construction, renovation and remodeling, with the approval of ODE or the Governor’s office. Improvements must be for the purpose of preparing, preventing or responding to COVID-19. Improvements may include HVAC and ventilation testing and work to upgrade or alter existing systems.

If used for HVAC improvements, projects must comply with ASHRAE standards. Making improvements to improve cleaning, such as removing carpet, are approved. (See questions B-6 and B-7)

Modular units may be purchased using federal funds. All projects must comply with federal procurement standards and must pay prevailing wage.

Supporting special education students
The guidance provides specific examples of ways ESSER and GEER funds may be used to provide services and support students with disabilities, whether they have an IEP or 504 plan. These may include hiring additional people to conduct evaluations if they were backlogged or providing transition services.

One interesting suggestion is for transition services and programs, including “coordination of services with agencies involved in supporting the transition of children with disabilities to postsecondary activities.”

If your district had issues due to the pandemic of providing work experience, internships, workshops, or life skills training for students preparing to graduate, these funds may be used to provide those experiences now. This may occur through extended school year services, if necessary.

A (non-exhaustive) list of activities for which the funds may be used may be found at questions C-5 and C-6 of the guidance.

Students who are migratory, homeless, or in foster care
These students may have had trouble accessing instruction via the use of technology and may have simply stopped attending. ESSER and GEER funds may be used to provide outreach to ensure better engagement. This includes better access to technology, including broadband, and for lost instructional time, tutoring and even transportation.

Attendance issues
ESSER and GEER funds may be used to assist districts in developing data quality systems to track attendance, analyze and publish data, and monitor trends for early warning signs based on key student indicators.

Other miscellaneous guidance
The guidance make several interesting miscellaneous points for which ESSER and GEER funds may be used:

  • Food service (to the extent USDA or other federal program funds are not available), including packaging for grab and go meals, costs of transportation, and additional staff and equipment.
  • Paying college application fees for economically-disadvantaged students
  • For students who graduated in 2020 or 2021, districts may provide college or career counseling, assistance with entry to job training programs or college applications, financial literacy and more.
  • Re-engaging students who have not participated in remote learning and programs to reduce community violence to address social, emotional, mental health and behavioral issues.
  • Paying staff overtime to safely reopen schools and keep them open.

There are many specific questions which cannot be addressed in this format, as well as timelines for use of the various funds authorized under different programs.

The guidance may be reviewed here: https://tinyurl.com/4d3ykh2x

Pandemic relief bill Sub. HB 67

by | Mar 30, 2021 | COVID-19 (Coronavirus), Legislation

This won’t be the last of the pandemic response bills, but Sub. HB 67 recently was passed on a fast track through the Ohio House and Senate, sent to the Governor and signed by him on March 20, 2021.  The bill has an emergency clause, so it is effective immediately.  It provides numerous changes in response to the pandemic for schools.   What exactly was in this bill that will affect us? 

Report cards:  There will be no letter grades for districts, buildings or components for the 2020-21 school year, nor will districts need to submit preliminary data for the report cards by July 31.  There will be no rankings of districts, community schools or STEM schools.  The Department will report on September 15, 2021 the data it has on building and district performance.

Ratings, sanctions and penalties: For district ratings, this year will have no effect on a district’s status for sanctions or penalties, and will not be used as a starting point for new sanctions or penalties. Previous years or subsequent years will be used for ratings that are assessed over time.  For a district already subject to sanctions or penalties, (academic distress commissions, restructuring, Ed Choice scholarship eligibility for buildings, defining a “challenged district” for new start-up community schools, federal and state laws identifying schools for targeted  or comprehensive supports, etc.) will remain in effect next year, but will not advance.  The law specifically states that Ed Choice performance-based scholarships will be awarded the on the same basis as current law outlines in R.C. 3310.03 for 2021-22 and 2022-23.

American history testing: In a compromise on testing, only the end of course exam in American History will not be required to be administered in 2020-21. Any student in the district’s enrollment for whom the test was not administered must continue to be counted by ODE on the same basis.  If the test is not administered, it may not be used to determine whether a student is subject to withdrawal.  Students on Ed Choice, Jon Peterson or Pilot Project scholarships may renew them even if the test is not administered.

Graduation in 2020-21: For students in 12th grade or who are on track to graduate regardless of graduation cohort but have not completed the requirements for a diploma, may graduate if:

            1.) The principal, consulting with teachers and counselors, agrees that the student has successfully completed the curriculum or their IEP.  This option may not be used after September 30, 2021. 

            2.) A school district that has adopted more rigorous requirements for curriculum than the state minimum may require only the minimum curriculum, and after the superintendent reviews whether the student has met the minimum curriculum to determine whether they have successfully completed it. 

Additional graduation pathway added in 2020-21:  Student will qualify for graduation, this year only, if they complete the high school curriculum or their IEP, and earn the OhioMeansJobs readiness seal. 

End of course exam flexibility: 11 and 12th grade student who take and retake, or who were unable to take an end of course exam may use their final grade in the course instead of the end of course exam score to meet graduation requirements.  The grade in the course determines what level of skill; advanced, accelerated, proficient, basic, or limited.  A grade of “C” or higher qualifies as a competency score.

Testing time frames: For 2020-21 only, spring state assessments online will be done according to the following schedule:   

  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 

Home school academic assessment waiver: Superintendents may not require home school parents to submit an academic assessment for the 2020-21 school year as a condition of allowing continued home instruction.

ESEA waiver:  The law orders ODE to seek a waiver from the ESEA accountability and school identification requirements for this year.

FFCRA leave guidance changes now effective

by | Sep 16, 2020 | COVID-19 (Coronavirus), General, Labor and Employment

A lawsuit challenging the Department of Labor (DoL) FFCRA leave guidance was filed in April 2020 by the New York Attorney General. (New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020) The decision of the federal district court invalidated four sections of the DoL regulations. The invalidated regulations included:

  • The persons covered as “health care providers” who could be excluded from the leave provisions of the Act,
  • Regulations stating the employer must permit intermittent leave under the EPSLA or EFMLEA,
  • Prior notice of leave provisions, and
  • Availability of leave if the employer does not have work for the employee to do.

DoL recently issued a new temporary rule with explanations of some of the provisions (intermittent leave) and clarification/amendment of others (notice of leave), effective September 16- December 31, 2020. Unless extended through additional legislation, the leave provisions in FFCRA (EPSLA and EFMLEA) expire at the end of December.

Find the notice in the Federal Register here: https://preview.tinyurl.com/yysmuzlg.

DoL clarified and expanded upon its interpretation on intermittent leave. An ongoing question for public schools has been how to administer the use of EFMLEA leave for child care when the employee’s child(ren) are on a hybrid schedule, attending in person and remotely from week to week or day to day. Updated regulations clarify that EFMLEA child care leave for parents whose students are on hybrid programs is not considered intermittent leave.

The rationale: because school buildings are closed to students on days when students attend remotely, remote days are considered a qualifying reason for leave. In contrast, when the child goes to school in person, the school is open. When the school switches back to remote learning, it is a new qualifying reason for leave. This guidance is different from previously-published guidance and is a new interpretation. Intermittent leave was addressed at questions #20-22 of the Dol “FFCRA Questions and Answers”. It is assumed this Q & A will be revised after the effective date.

DoL’s new explanation of the rationale as published in the Federal Register, 85 FR 57677 :
“The employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent under § 826.50.

In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee. The employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.

The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that). Under the FFCRA, intermittent leave is not needed because the school literally closes (as that term is used in the FFCRA and 29 CFR 826.20) and opens repeatedly. The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person.

This is distinguished from the scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule. Under these circumstances, the employee’s FFCRA leave is intermittent and would require his or her employer’s agreement.”

Teleworking employees: DoL clarified that an employee may take intermittent leave while teleworking for any of the FFCRA qualifying reasons if the employer permits it.

Notice and documentation of leave: The DoL also amended one regulation that required notice to the employer of the need for leave prior to taking the leave.

  • EPSLA leave: notice of the need for leave cannot be required prior to the leave. The revision states that notice of leave after the first day should be given “as is practicable.”
  • EFMLEA leave: if the need for the leave is foreseeable, notice should be given in advance. If not foreseeable, the employee must give notice “as is practicable.” Employees may be required to provide documentation including the employee’s name, dates for which leave is requested, qualifying reasons for the leave, and an oral or written statement the employee is unable to work.

What this means for your district:
Administering EPSLA and EFMLEA child care leave has been challenging. DoL’s interpretations and positions continue to evolve. These regulations clarify some of the questions we have been getting, although additional questions remain. Please consult with an EB attorney if you have specific questions about how the newly-effective regulations apply in specific situations.