Plan For Payment In Lieu of Transportation

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

COVID-19: FMLA Leave Expansion and Emergency Paid Sick Leave

by | Mar 23, 2020 | COVID-19 (Coronavirus), General

The pandemic has resulted in the enactment of emergency federal legislation providing additional the amendments are part of the Families First Coronavirus Response Act (H.R. 6201), and the FMLA expansion portion is called the Emergency Family and Medical Leave Expansion Act. Additional provisions of the law that provide employer-paid sick leave are called the Emergency Paid Sick Leave Act.

These laws take effect fifteen days from the enactment of the law (March 18), which will be April 1st. Both of these provisions will be temporary, ending on December 31, 2020.

FMLA Leave Expansion

To be eligible for this type of FMLA leave, employees must have been employed only for thirty days (not the usual eligibility criteria of 1,250 hours in the preceding year).  The thirty days mean on the payroll for the 30 calendar days immediately prior to when the leave would begin.

Reasons for Leave

1. If a child’s school or place of care is closed, or the
child care provider is not available, and the employee is unable to
work or telework because they must care for the minor
child, the employee may use leave.

Pay for leave after first ten days 

The first ten days of this FMLA leave is unpaid, although the employee may elect to substitute vacation, sick, personal or medical leave for unpaid leave.  They also may use the Emergency Paid Sick Leave Act described below.  After that, the leave will be paid for up to twelve weeks.

After the first ten days, employees are to be paid at a rate of 2/3rds their regular rate of pay for the number of hours they normally work. The amount of pay for this sick leave is capped at not more than $200 per day, and continues up to a maximum of $12,000 (this is for the entire 12-week period, including the two weeks of leave which may be the emergency paid sick leave provided in the Act.

There is an averaging process provided in the law to determine the amount to be paid to an employee who works a varying number of hours.

Documentation

Employers may require documentation in support of expanded family medical leave just as you would for other FMLA requests.

Intermittent leave

The expanded FMLA leave for child care does not require that employers permit the leave to be taken intermittently.  However, if the employer agrees to do so, the leave may be taken intermittently.

Insurance benefits

Employers must maintain health insurance during the period of expanded FMLA leave for child care.

Right of restoration

Employers must restore the employee to an equivalent position unless the position has been eliminated or reduced due to economic reasons or other operating conditions that affect employment as a result of the public health emergency.

An “equivalent position” is one that provides equivalent benefits, pay, and other terms and conditions of employment. If the efforts of the employer to do so are unsuccessful, employers must contact them if such a position does become available for a period of one year.

Paid Sick Leave

Another part of the Families First Coronavirus Response Act is the Emergency Paid Sick Leave Act. This leave applies to school districts and, like the expanded FMLA provisions, it expires December 31, 2020.

Employers must immediately provide, as needed, eighty hours of paid sick leave to full time employees (regardless of the length of their employment) or an average of hours worked over a two-week period for part-time employees who meet the following criteria:

  1. Unable to work (or telework) due to an isolation or quarantine order related to COVID-19 (federal, state or local order);
  2. Has been ordered by a health care professional to self-quarantine due to concerns related to COVID-19;
  3. The employee is seeking medical diagnosis and is having symptoms of COVID-19;
  4. The employee is caring for an individual (law does not specify that it has to be a family member) subject to such an order
  5. The employee’s child’s school or place of care is closed or child care provider is unavailable (same reason as FMLA expansion), or
  6. The employee is experiencing any substantially similar condition as identified by the Secretary of Labor or Treasury.

For the first three conditions, hourly pay is the greater of the employee’s regular rate of pay, the federal minimum wage, or local/state minimum wage.  This is subject to a maximum of $511/day, up to $5,110 for the entire paid emergency sick leave period.

For the conditions from 4-6 on the list, pay is capped at 2/3 of the greater of the amounts listed above.  This is subject to a maximum of $200 per day, up to $2,000 over the two week period.

The leave is subject to a few conditions, including that:

  • The employee may not be required to find another employee to cover the hours they are using for sick time.
  • The employee may be required to return to work at the next scheduled shift after the need for sick leave ends.
  • The leave does not carry over from one year to the next.
  • The employer also may not require use of other paid leaves before using this emergency sick leave.

This leave is limited to two weeks for any combination of the reasons listed above.  The leave is not retroactive (prior to April 1, the effective date) and the employee may still use the leave even if the employer gave the employee paid leave for similar reasons prior to April 1, 2020.

Employers must post a notice of the availability of this sick leave. This notice is available at:

dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Violation of the provisions of the emergency paid sick time would be a violation of the Fair Labor Standards Act for failure to provide minimum wage and subject to the penalties of the FLSA.

Stay tuned

More changes and new provisions are possible as lawmakers and federal and state agencies respond to this situation. There are issues of interpretation with this new law that may be dealt with in additional legislation, future regulations, or a FAQ from the Wage and Hour Division.

This article will be updated to reflect changes in these particular provisions as needed.