Career Tech Corner: Pre-employment Drug Tests and Recreational Marijuana

Career Tech Corner: Pre-employment Drug Tests and Recreational Marijuana

by | Mar 20, 2024 | Board Policy & Representation, General

 

Last year in Ohio, recreational marijuana was authorized by initiative petition.  The state is still in the process of creating a regulatory process that will allow marijuana dispensaries to sell recreational marijuana in addition to medical marijuana.  This is currently predicted to be rolled out in fall 2024. 

 Does your CTC have a pre-employment drug testing policy?  CTC education, occurring in lab and sometimes offsite environments differs in many respects from traditional school districts.  This includes unique risks regularly encountered in lab programs.  Due to some of those unique risks, which include operating heavy equipment, managing volatile compounds, working with sharp objects, and much more, ensuring safety for staff and students is paramount. 

 The law on medical marijuana reinforces an Ohio employer’s right to prohibit the use of marijuana and require a drug-free workplace.  None of the language enacted with the medical marijuana law has changed at this point as it relates to the recreational sale of marijuana. 

 Marijuana is still a Schedule I prohibited substance at the federal level, but there is reason to believe this may change in the near future.  In August 2023, the Department of Health and Human Services (HHS) recommended that marijuana be reclassified from a Schedule I prohibited substance to Schedule III.  This was taken under advisement by the Drug and Alcohol Enforcement Agency (DEA).   In January 2024, a group of senators petitioned the Biden administration to remove it as a scheduled substance altogether.  While this seems unlikely, it is possible that a change in how marijuana is classified at the federal level could happen in the near future.  Changing the schedule of marijuana would affect interstate commerce, and production, and may affect how employers may enforce workplace rules.

 In order to ensure that potential CTC employees are able to effectively supervise, use, and teach career-technical programming involving labs and heavy equipment, they must not be under the influence of prohibited substances.  Pre-employment drug testing sends a message of the expectations of the employer and provides an initial assurance that the employee is not a current user of prohibited substances.  It may result in some self-selection as candidates may not apply if they are recreational or medical users of marijuana.

 There are some special considerations and inherent risks for career technical education in terms of labs and programs offered, and as such, may merit consideration of a pre-employment drug testing policy.  Contact the EB CTC practice team if you would like to discuss this.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Career Tech Corner: It’s a New Year! Time for the CTC Organizational Meeting

Career Tech Corner: It’s a New Year! Time for the CTC Organizational Meeting

by | Jan 10, 2024 | General, Legislation

 

Career technical boards of education are governed by the same statute on holding the organizational meeting in January as any other board of education, but the operation and timing of CTC organizational meetings is slightly different than local, exempted village, and city school districts.

The Ohio Revised Code states simply that career technical school districts must meet during the month of January (R.C. 3313.14). In practical terms, that directive is subject to ensuring that the career-technical meeting is held after the local and exempted village boards of education meet as the boards are swearing in new members and sometimes, depending on expiring terms of office, appointing seats to the career technical board of education.

Before being appointed to the CTC board, local and exempted village board members are reminded that they may not nominate or vote for themselves when it comes to appointment to the career technical board. This is because there is a monetary benefit associated with doing so, and the Ohio Ethics Commission has issued an informal opinion on this issue.

The law on appointments to a CTC school board provides for three-year terms of office, with the member boards of education making appointments at their organizational meetings to the CTC board, if there is a need for a new appointment. Appointments may be board members on the local member board or may be someone “who has experience or knowledge regarding the labor needs of the state and region with an understanding of the skills, training, and education needed for current and future employment opportunities in the state.” (R.C. 3311.19) Preference may be given to individuals who have served as members on a joint vocational school business advisory committee.

For the appointment to the career technical board, an affirmative vote of a majority of the full board is required. Terms of office for these appointments are usually for three (3) years, except when CTC member districts are even-numbered and the plan filed with ODE provides for a additional member to be appointed from the member districts on a rotating basis. Those additional rotating member’s terms are for one year. The CTC plan filed with the Ohio Department of Education will control on this issue.

New board members should receive a copy of the CTC plan document. The organizational meeting is a good time to refresh everyone on any particular provisions of the CTC plan with regard to appointing vacancies or other governance issues as part of onboarding training.

Once the organizational meeting convenes, the CTC board must do the actual organizational business of electing a president and vice-president of the board. Here, members may nominate (and vote for) themselves as they are already appointed to the CTC board.

A second is not required on a motion to nominate someone for board president or vice-president unless the district has a local rule requiring it. Seconding a motion to nominate someone is sometimes done ceremonially as well, but it is not required. The votes to appoint a president and vice-president require an affirmative votes of a majority of the full board, so it may necessary to caucus until such a majority may be obtained.

Questions have arisen regarding a situation when a CTC board member who is appointed from the local board loses their local board of education election, and whether those members may continue in their terms. Generally, once the appointment is made, that member may continue on in their three-year term of office on the CTC.

Other organizational business includes setting regular meetings for the year. All meetings set at the organizational meeting are regular meetings of the board, and there may be more than one regular meeting a month. Board of education are required to meet only once every two months by law. (R.C. 3313.15). CTC boards may also utilize special and emergency meetings.

If you have questions about the organizational meeting, its regular business, appointments or the Sunshine law and how it applies to your CTC, please contact your EB counsel.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Keeping Transportation Between the Dotted Lines

Keeping Transportation Between the Dotted Lines

by | Jan 10, 2024 | General, Transportation

 

School transportation is a significant part of every district’s services, but also has the potential to become a major source of trouble when we lose focus on the details, including regulations and requirements. That can result in the bus(es) drifting out of their lanes and heading for a significant crash! And now, to make it more difficult, it seems that lawmakers and state agencies are making the lanes narrower and paying more attention to our mistakes than our successes. Should we be worried? And if so, about what?

To set the stage for answering these questions, ask yourself the following:
• Do you have an experienced transportation administrator who is now spending more time driving a bus to cover missing drivers than overseeing the transportation operation?
• Do you have a new transportation administrator who is a great manager, but who has no background in school transportation?
• Are you new as a superintendent in a district, and do not yet have a good sense of how efficiently and/or effectively the transportation department is operating, and if it is following all the rules (including the new ones)?
• Has transportation been a quiet department in your district, and do you subscribe to the theory that if it’s not been a problem, don’t poke the bear?

What could possibly go wrong? We can look at a few of the more common issues that arise.

Shortage of drivers: On the face of it, we could easily say this is an HR problem, and recruiting has fallen behind the needs of the district. Driver recruitment should be an ongoing process. However, when the transportation director is busy driving and managing day-to-day operations, he/she has little time to work with HR to develop effective a recruiting campaign. It is easy to get behind the curve and end up short-staffed. To complicate matters, requirements for driver qualifications and training are formidable. There are many hours of training and classes, background checks, drug and alcohol checks, driving record checks, medical qualifications, commercial driver licensing and extensive state and federal oversight. Even when you find the right driver candidates, you have to make certain they satisfy all the qualifications and allow them to drive a bus only after you have satisfied the state regulators that your “ready and willing” candidates have met all the qualifications. Just putting someone behind the wheel because you need a driver, without having met state requirements, is not a solution.

Buses and vans: Sounds simple . . . run a vehicle until it wears out, then buy a new one to replace it. Whether it is a bus or a van, the same practice should work just fine. After all, that has worked just fine for our personal vehicles for decades.
Focusing on just buses for a moment, how do we really know when a bus is at the end of its serviceable life? There comes a point where it is more costly to repair a vehicle than to replace it. Did you also know the state patrol inspects school buses twice every year, and ultimately decides if you are allowed to use it or not? They may place a perfectly sound bus out-of-service for an inspection failure, or they may tell you that they will no longer inspect or pass a bus due to age and condition. To complicate this further, to purchase a new bus you are required to comply with state bidding procedures, purchase only vehicles that meet state and federal requirements, and place an order with a dealer that may not be filled for 18-24 months.

With vans, it should be easier, but many will tell you it is equally as complicated. There are state and federal regulations that limit options for passenger occupancy in vehicles other than school buses. If you go to the car dealer and ask for a passenger vehicle (van) for pupil transportation, they will jump at the opportunity and sell you anything with seats in it. For the most part, dealers are ignorant of the federal and state regulations on vehicle size and seating. Sometimes we have other staff in the district that mean well . . . and go out and purchase a vehicle only to find out afterwards that the vehicle is not legal for pupil transportation.

Compliance regulations: In recent years the state (both legislators and state agencies) has adopted a firmer stance with regard to compliance with regulations. This also comes at a time when new regulations are being enacted and the lanes we drive in, so to speak, are getting narrower. Some of the regulations have been in place for decades and were enacted with pupil safety as a goal. Other regulations have been adopted to correct perceived slights and inequalities in the actual services being provided. The fact of the matter is that most regulations require more resources, at a time when the availability of drivers and buses is lower than ever.

What is an administrator to do?

District administrators and school boards have many responsibilities and obligations. Having an in-depth knowledge of everything within their scope of oversight is not practical. We rely on other staff in the chain of command to keep the district off thin ice and fully compliant in all areas of school district operations. That said, when you are trying to do more with less, it is easy to overlook something.
The starting point to moving forward is an accurate assessment of what you currently have in place. You can do this yourself, hoping that you know all the regulations and best practices, or you can engage an objective, experienced transportation professional. Ennis Britton Consulting Group has a tool to provide you with this assistance. Transportation Consultant Pete Japikse has developed a ‘transportation health check” based on over 40 years of experience and knowledge of rules, regulations and best practices in transportation. This health check looks at all aspects of your transportation operation. The outcome of this transportation health check is a report identifying the areas where the District is doing well, areas where attention should be focused, and areas where transportation operations may be “getting by” but improvements may be needed. This management tool will provide you with concrete and specific input, enabling you to develop a roadmap to success, and to stay inside of the lanes as you move forward.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Keeping Transportation Between the Dotted Lines

Plan For Payment In Lieu of Transportation

by | May 22, 2023 | General, Legislation, School Management

Successful transportation programs have had to adjust their timelines for declaring transportation impractical and offering payment in lieu of transportation (PILOT) due to new statutory deadlines and processes enacted in 2021. Here are some reminders about those deadlines and practical tips on preparing for timely and effective PILOT determinations. A cost-efficient and legally compliant transportation program is a key component of district operations, especially with financial penalties for noncompliance.

Route Plans
Have the nonpublic and community schools in your district declared their start and end times by April 1? That’s a new deadline. If they have done so, the district’s obligation is to develop a transportation plan for those students in 60 days; i.e., June 1. This is much sooner than districts usually do routing.

If those schools have not yet done so, it is to a district’s benefit, as it plans routes for next year, to request that information, along with student rider names and addresses. Once provided, the district must attempt to respond with the transportation plan by August 1. It is in the district’s interest to get this information quickly so that routing can incorporate these students.

Impracticality Determinations
Districts must determine impracticality of transportation 30 days before school begins. This means most families must be notified by mid-July. Determining whether the costs of transportation for nonpublic or community school students are disproportionate must be made on a case-by-case basis. Districts must also consider the other factors for this determination outlined in R.C. 3327.02. Researching each factor and documenting the results will protect the district.

The Superintendent may make the determination after considering all the statutory factors, with the Board approving the same at its next scheduled Board meeting. A letter detailing the reasons supporting the determination of impracticality must be sent to the parents, the State Board, and the community/nonpublic school.

PILOT
The Board may then offer payment in lieu of transportation (PILOT) to the parents by sending them the resolution, the reasons transportation was declared impractical, notice that the parent may accept or reject the offer and request mediation with ODE, and a contract for the parents to sign if they accept.

Attention to ensuring this process is well underway now is time well spent, with the goal of being ready to make decisions in July. Failure to do so risks missing deadlines, which could result in transporting students the entire year.

Values for payment in lieu of transportation for 2023-24 already have been announced by ODE- a minimum amount of $596.43 and maximum of $1,192.87.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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.