April 30th, 2020, the Ohio Department of Health Director, Dr. Amy Acton, issued
two revised orders that will impact school operations at least in the short
term. These orders will cover school operations through June 30th at a minimum.
It’s a wrap
– concluding school operations for 2019-2020.
The first order directs schools to remain
closed to students through June 30th, 2020. However, the Director clarifies
that the order does not prohibit administrators, teachers, staff, vendors, or
contractors from showing up for work. Rather, administrators are tasked with
determining who will have access to the buildings and are encouraged to promote
practices such as social distancing and frequent hand washing. The order
encourages administrators to consider remote work options when possible.
order also specifically excludes a number of activities and events that may
occur at schools, such as voting, food services, health services, and
charitable works, as well as “targeted” and other educational programs and
activities. While schools have the discretion to determine what types of
programs and services may be provided, it should do so with caution and only
after consulting with the local health department and legal counsel. Further, a
school district must obtain written approval from the local department of
health before the activities may be held and then must submit a copy of the
written approval to both the Ohio Department of Health and the Ohio Department
are expected to follow the social distancing guidelines published by the Ohio
Department of Health while conducting activities. Local law enforcement and
other officials who are tasked with enforcing the order are also directed and
encouraged to contact local health departments with questions and for opinions
there are many practical and legal implications as you determine what
operations will resume, it is very important to consult with your
administrators, local health departments, and legal counsel as you make plans. Click here to review the order.
as Usual? Not so fast!
The second order, which will remain in effect
through May 29th, 2020, addresses how residents and the majority of businesses
will operate during much of May. The stay-at-home requirement remains for
residents, although they are permitted to engage in business activities
authorized by the order. Individuals who are returning to the state are
encouraged to self-quarantine for fourteen days.
order allows most businesses to resume operations as long as they meet
workplace safety standards. These standards changed several times, but as of
May 1st included the following:
must wear face masks or “face coverings” at all times unless an exception
applies; it is recommended that visitors do as well.
and employees will conduct daily health assessments to determine if someone is
“fit for duty.”
who report for work will maintain social distancing (people will stay 6 feet
apart) and will also sanitize and wash hands regularly.
will be cleaned throughout the workday (for high touch surfaces), as well as at
the close of each day or between shifts.
meet social distancing guidelines, buildings will limit the number of visitors
and employees to 50% of the building capacity established by the fire code.
are specific rules about face coverings and masks, including when employees are
not required to wear them in the workplace. The exceptions include the
are prohibited by law or regulation.
are in violation of a documented industry standard.
are not “advisable” for health reasons.
violate a business’s documented safety policy.
are working alone in an area and coverings are therefore not necessary.
is a practical/functional reason why an employee should not wear a covering or
a minimum, facial masks or coverings should be made of cloth and should cover
an individual’s mouth, nose, and chin. An employer must be able to provide
written justification for any exception if requested to do so.
are expected to “immediately report” when any employee is diagnosed with COVID-19
and will work with the local department to identify others who may have been
exposed. They are also expected to send employees home when they show signs of
the illness. When possible, a building site will be closed until it can be
professionally cleaned. Buildings may be reopened in consultation with the
local health department.
20 of the order contains a more specific list of steps that businesses are
expected to comply with as operations resume, broken down by type of business.
The order specifies requirements for manufacturing, construction, consumer
retail and services, and general office environment. Of course, schools are
governed by the separate order summarized above.
the order includes a list of businesses that must remain closed for the time
being, including schools (at least as to student attendance), most childcare
services, beauty salons, entertainment and recreation facilities, and
restaurants/bars. These businesses may only engage in minimum basic operations
as defined by the businesses.
Click here to review the order.
Challenge to Orders Being Proposed in the House
State Rep. John Becker
of Clermont County plans to introduce a bill that would repeal the current
health orders, and make any future orders issued by the Director of Health
advisory unless and until those orders are approved by the General Assembly.
The bill would focus on speeding up Ohio’s return to normal business
operations. Stay tuned for more information about this and other efforts to change
the state’s direction.
We Can Help!
Many challenges and opportunities continue to present themselves during this pandemic – it is critical that you rely on credible sources of information to remain up-to-date. It is also important for you to consider your district’s specific needs as you develop plans, and remember that there is no “one size fits all” approach. Make sure you discuss your details and situation with legal counsel to determine how you can effectively implement these and other orders that arise.
UPDATED APRIL 1, 2020
On March 11, 2020, the World Health Organization officially declared that COVID-19, a novel coronavirus, has become a pandemic. We anticipate that this virus will pose many challenges to school districts and communities in the coming weeks and months. It is important for public school district boards of education to understand state laws regarding board meetings so that you have a plan in place to effectively maintain operations during this and future pandemics.
How frequently is a board of education required to meet?
Board of education must meet at least once every two months. Regular meetings are scheduled at the organizational meeting in January. A board of education may convene a special meeting by providing proper notice to the board members and the public. Board members must be notified of the special meeting at least two days prior to the event. Additionally, the board must announce special meetings at least 24 hours ahead of time to the public. With this said, the board of education may cancel meetings in its discretion. Notice of meeting cancellation should be provided as soon as possible.
May the Board of Education conduct a remote meeting online or by telephone?
Ohio’s Open Meetings Act, R.C. §121.22, requires a board of education to conduct meetings that are open to the public. Prior to the COVID-19 pandemic, a member of a public body was required to attend meetings in person even during a health emergency. The Ohio attorney general declared as much in an opinion published in 2009, and concluded that a township could not meet remotely during a pandemic or other public health emergency, even to provide needed response services because this would interfere with the public’s ability to attend. Click here to access 2009 OAG 034. Rather, the Attorney General recognized that a public entity was not permitted to conduct a public meeting remotely unless the General Assembly had authorized it to do so through legislative action.
However, as a sign of the truly unique and unprecedented times we are living in, on March 25th, 2020 the Ohio General Assembly passed an emergency measure through House Bill 197 which temporarily authorizes boards of education and other local government agencies to hold public meetings by teleconference or video conference while the health threat continues.
This law permits members of a school board to participate from a remote location while the emergency is ongoing. Members will be considered present regardless of whether they attend in person or remotely, and their votes will be counted for the purpose of determining quorum. The law declares that any resolution, rule, or formal action taken shall have the same effect as if it had occurred during a typical in-person meeting.
The law also permits a board to fulfill the public access requirement for open meetings by providing members of the public with remote access to the meeting. Examples of acceptable remote access technologies include live-streaming by means of the internet, local radio, television, cable, or public access channels, call in information for a teleconference, or by means of similar electronic technology. The public must be able to observe and hear all discussions and deliberations regardless of whether the board member participates.
If the meetings are streamed over some type of technology, boards must publish information about how the public can access the meetings at least twenty-four hours in advance, unless the board convenes an emergency meeting. Notice should be sent to all members of the media and public who have requested to be notified, and by other means that will reasonably provide notice to the public.
School boards must comply with all other Open Meetings requirements such as quorum and executive sessions. The provisions of HB 197 will remain in effect until December 1, 2020 or until the COVID-19 emergency ceases, whichever comes first.
Prior to HB 197’s passage, the Ohio Attorney General issued a letter on March 13, 2020 shortly following official orders issued by both the Ohio Governor Mike DeWine and the Ohio Department of Health Director Dr. Amy Acton which prohibited mass gatherings and also urged individuals to maintain adequate personal space. The Attorney General emphasized that public business must be allowed to continue in times such as these, but also clearly stated that this opportunity would apply in very narrow circumstances and only while the orders remained in effect. The AG cautions public bodies that they may want to refrain from making decisions that are unrelated to the current health emergency, including examples such as passing a new tax or enacting a new regulatory scheme.
Districts should pay careful attention to the provisions of HB 197 as well as comments included in the Attorney General’s letter, and should contact legal counsel for advice before conducting remote meetings. Click here to access the letter, and click here to review HB 197.
What happens if a majority of board members are unable or unwilling to attend meetings due to personal choice, a quarantine or government order?
A board of education must have a quorum in order to properly conduct school business. A majority of all members of the board constitutes a quorum, and a majority of the quorum is typically sufficient to approve a motion or resolution. Some actions require a special voting majority (a majority of the full board or more) under state law. These include adoption of a resolution to purchase or sell real or personal property, employ a staff member, appoint a public official, pay a debt or claim, and adopt a textbook.
Without having the required voting majorities, the actions may not legally be accomplished. As a result, a board of education may need to consider postponing certain actions and should attempt to reschedule meetings if an insufficient number of members are able to attend. In accordance with HB 197, boards may be able to host remote meetings under certain narrow circumstances during a health emergency. Boards of education may be able to delegate certain decisions to a superintendent, and also may be able to take certain actions retroactively in an emergency.
Will the General Assembly make further changes in the law to respond to the COVID-19 pandemic?
It is likely that local, state and federal governments will work diligently with school districts and communities to address the many challenges that COVID-19 has caused and is likely to cause in the future. Therefore, it is possible that legislative measures will be taken that will allow public bodies to operate differently than before in response to the public health needs of the community. It is not yet certain how serious the pandemic will become, how long it will last, and what short and long-term impacts it will have on school operations. In the meantime, boards should regularly consult trusted sources and with legal counsel to explore options and weigh risks during this novel pandemic situation.
Ennis Britton will update this information if it changes over time.
Efforts to curb the impact of EdChoice accelerated towards the end of January as legislators in the Senate and House searched for ways to reduce the negative financial impact that the program is anticipated to have on Ohio’s public schools starting next year. Legislators and the governor approved language in last year’s budget bill which was designed to dramatically increase the number of students eligible for the scholarships by more than doubling the number of eligible buildings. Prior to the program expansion, EdChoice was available in 31 school districts and 255 schools. After the expansion, EdChoice eligibility would have extended to at least 426 school districts and 1,227 schools.
Lobbying efforts and contacts from districts to their legislators and to House and Senate committee members to reduce the impact of the changes resulted in the last-minute action to delay implementation of the changes. The 2020-2021 application window for EdChoice would have opened on February 1st, of this year; now, the program application is delayed to April 1st. The House and Senate are expected to review the EdChoice program expansion in the next two months and hopefully will develop amendments to the budget expansion which will better support Ohio’s public school system.
The House initially proposed changes to EdChoice through HB 9. With a deadline of February 1st (the start of the applications of EdChoice scholarships) looming, the Senate passed alternative language late in the evening on January 29th. The Senate’s plan would have reduced the number of school buildings eligible under the traditional EdChoice program, but would also have increased the number of families eligible for the EdChoice expansion program by changing eligibility from 200% to 300% of the federal poverty guidelines for the income-based vouchers.
The bill was sent back to the House, which rejected the changes, and a conference committee convened. The House elected instead to pass House Bill 120, including language delaying the EdChoice application window until April 1st. HB 120 also contained separate provisions that authorize the auditor’s office to conduct performance audits of all state institutions of higher education and also modified requirements for College Credit Plus informational sessions. The bill included an appropriation of $10 million to help fund the EdChoice program. The Senate passed HB 120 on January 31st and the governor signed the bill the same day. The bill is considered an emergency measure and is effective immediately. This move buys the legislature more time to develop a plan that both houses are willing to pass.
February 3rd, 2020 Update: A group of families and private schools filed a lawsuit in the Ohio Supreme Court challenging House Bill 120 changes to EdChoice. The lawsuit alleges that the legislature failed to properly execute an emergency measure and therefore HB 120 should not go into effect for 90 days. The parties also claim that the HB 120 application delay will cause irreparable harm to new EdChoice eligible students who planned to apply for the scholarship. If successful, the state may be forced to accept applications starting February 1st.
We will keep you posted on developments. The education associations have sent out multiple calls of action on the bills and you are encouraged to continue to stay apprised of developments and let your legislators know how the expansion would affect your district.
Ennis Britton is proud to be a Platinum Sponsor of the 2019 Ohio School Boards Association Capital Conference. This means you will see our team of attorneys and firm logo in a lot of places! The firm is the exclusive sponsor of the OSBA Conference App, which will be activated this month. The conference app is a very helpful tool to schedule your activities, download handouts, learn more about track sessions, and find your way around the conference.
A new feature this year allows you to log in and track your certificates of attendance. You can download the free app through the Apple App Store or Google Play Store. You also may access the app online at http://conference.ohioschoolboards.org/app.
In addition, the firm is sponsoring the Conference Spotlight Session Lifting Leaders – How to Grow Leadership. The spotlight session takes place Sunday, November 10 from 1:30 p.m. to 3:30 p.m. in Room A210-212.
The Ennis Britton Consulting Group will have a booth at the trade show. Stop by Booth 813 and to see the services they can provide to your district and management team.
Join our attorneys presenting at Capital Conference this year for exciting, informative (and entertaining!) track sessions. Here is when and where you can find us:
Sunday, Nov. 10th
1:00 p.m. – Room A123-125
Evaluation, Nonrenewal and Termination
Presented by John Britton
Monday, Nov. 11th
9:00am – Room A210-212
Into the Woods: Advanced Public Records Law
Presented by Hollie Reedy
10:30 a.m. – Room A220-222
Disproportionality Discipline Dilemmas
Presented by Jeremy Neff, Darrell Yater and Mona Burts-Beatty
2:30pm – Room A213-215
Regulating Employee Social Media Use
Presented by John Britton
3:00pm – Room A210-212
We’re Under Attack – This is Not a Drill!
Presented by Robert J. McBride
Last but not least, don’t forget to join us for Ennis Britton’s Capital Conference reception. All attendees are welcome to attend. Please R.S.V.P. to Barbara A. Billow at firstname.lastname@example.org.
Monday, November 11, 2019
4:00 p.m. to 6:00 p.m.
Hyatt Regency Columbus
Franklin Rooms A, B & C
We are thrilled to be a part of this annual event and hope to see you there!
Ennis Britton is excited to announce that attorney Robert J. McBride has joined our team! Bob has dedicated his practice to representing public school districts and private sector clients in the areas of employment law, civil rights defense, board leadership, labor relations, general civil litigation and construction law.
His experience includes negotiating collective bargaining agreements and labor arbitrations, as well as advising clients on compliance with statutes such as the Ohio Public Employees’ Collective Bargaining Act and the Fair Labor Standards Act. Bob also advises clients on compliance with civil rights laws covering race, sex, national origin, religion, age, disability, genetic information, family and medical leave and veteran status. He represents clients before administrative agencies such as the Equal Employment Opportunity Commission, the Ohio Civil Rights Commission, the Ohio Unemployment Compensation Review Commission, the United States Department of Labor Wage and Hour Division, the National Labor Relations Board, and the State Employment Relations Board. Bob is frequently asked to present at conferences across the state on topics related to school operations, employment and more. He is a member of the firm’s School Finance and Construction and Real Estate practice teams.
Bob has practiced law for more than twenty-four years. He graduated cum laude from the University of Notre Dame Law School in 1995. He also holds a Bachelor of Arts degree from the University of Dayton, where he graduated magna cum laude, as well as a Masters of Public Administration from the University of Akron. Bob is a recognized community leader. He is member and past chair of the Stark County Bar Association’s Grievance Committee and a member of the SCBA Labor Law Committee. He also serves on the Board of Directors and is Chair of Operations Committee for ComQuest Services. He is a former board member of both the YMCA of Central Stark County and Meyers Lake YMCA, where he served as board chair. Bob was a proud member of the Leadership Stark County’s 12th graduating class as well.
We hope you help us in welcoming Bob to the firm! You can contact Bob at our Cleveland Office.
6000 Lombardo Center
Cleveland, Ohio 44131
Phone: (216) 487-6672
Fax: (216) 674-8638