Court Sides with District in Teacher Termination and Vacates Back Pay

The Sixth District Court of Appeals delivered a win to school districts recently when it reversed a lower court’s decision ordering the Perkins Local School District to reinstate a former teacher who had been terminated with an award of $367,202.52 in lost wages and benefits. The case was brought by former teacher and coach Tracey Hiss. Hiss was terminated for cause after the district learned she supplied several members of her girls track team with Lidoderm patches – prescription patches containing lidocaine that help with pain relief.

When the superintendent learned of the allegations, he met with Hiss and subsequently placed her on paid leave pending further investigation. He also reported the allegations to the police, who subsequently charged her with a minor misdemeanor for her actions. The district held a pre-disciplinary hearing and the superintendent sent notice of his intent to recommend termination. Hiss, through legal counsel, objected to some of the reasons listed in the notice because they had not been addressed at the pre-disciplinary hearing. The superintendent subsequently held another pre-disciplinary hearing and again recommended termination which the board approved. Hiss requested a hearing to challenge the board’s intent to terminate before a state appointed referee. At the termination hearing, Hiss introduced evidence of an incident where a prior coach, Crabtree, had given a student Tylenol to help reduce pain. She argued that the board should not have terminated her contract due to the fact that this teacher merely received a reprimand and a brief suspension from coaching, where she was being terminated.

After conclusion of the five-day hearing, the referee issued his report and recommendation that the board terminate Hiss’s teaching contract. In making this recommendation, the referee found that the board had sufficient policies prohibiting teachers from both possessing and distributing controlled substances and medicines to students without a parent’s permission.

Shortly thereafter, the Board adopted the referee’s recommendation and passed a resolution to terminate Hiss’s teaching contract. Hiss then appealed this decision to the common pleas court. The court applied the Daughtry test of good and just cause, concluding that the board lacked cause to terminate Hiss’s contract. The court focused in particular on the fact that Crabtree, who had engaged in similar behavior, received a much less severe discipline. The district appealed, claiming in part that the court of common pleas abused its discretion in applying this new test and effectively usurping the role of the ODE referee.

On appeal, the Sixth District Court of Appeals agreed that the court of common pleas abused its discretion when it substituted its own judgement in place of the board of education. The court of appeals concluded that the court’s reliance on the Daugherty test to define “good and just cause” was misplaced. The court reasoned that, while an arbitrator may use the Daugherty test to determine the standard of good and just cause in a labor-arbitration matter, the Ohio Supreme Court has failed to adopt the Daugherty test in just cause teacher termination cases. Thus, the common pleas court exceeded its authority by relying on the Daugherty test as opposed to the cases interpreting R.C. 3319.16 as to whether good or just cause exists.

Examining the merits of the case, the court also determined that Hiss’s misconduct was , a “fairly serious matter” that falls within the realm of good and just cause for termination under R.C. 3319.16. Hiss repeatedly gave prescription pain medicine to students in direct violation of district policy that could have ultimately caused serious harm to the students. The court opined that this added to the fact that the board of education complied with procedural requirements of R.C. 3319.16 by providing Hiss with two informal hearings as well as a hearing before the referee justified the board’s decision to terminate. Therefore, the board’s earlier decision to terminate Hiss’s teaching contract was reinstated.

The Licensure Code of Conduct for Ohio Educators

The Licensure Code of Professional Conduct for Ohio Educators (“Code”), which was first adopted in 2008, outlines the framework for professional conduct for individuals who have a license or permit issued by the State Board of Education. On February 13, 2019, the Ohio Department of Education (“ODE”) released a revised draft of the Code. The proposed changes highlight areas that ODE and the State Board have placed renewed focus on.

For instance, Principle One was revised to recognize that educators who have an ongoing physical or mental incapacity violate the Code. This includes an addiction to a substance that renders them unable to effectively perform their duties or maintain the care and custody of children. Under this Principle, ODE recognized acts of sexual harassment and dishonesty violate the Principle as well.

ODE clarified, under Principle Two, the expectation for educators to maintain appropriate relationships with students. The Principle was amended to outline that establishing an unprofessional relationship with a student for emotional, romantic or other reasons is prohibited and has severe implications.

Principle Three spells out in more detail how an educator may violate the Code by falsifying, intentionally misrepresenting, willfully omitting, or negligently reporting professional qualifications and/or prior discipline issued by the State Board. It also indicates that an educator commits a violation by failing to cooperate with a formal inquiry or investigation of any state or federal agency.

Additional language was added in Principle Six, titled “Use, Possession, or Unlawful Distribution of Alcohol, Drugs, and Tobacco,” specifically to detail professional conduct of teachers in their personal behavior outside of school. It states that teachers may not engage in habitual use of alcohol as demonstrated by multiple alcohol-related convictions during a five-year timespan.

A new Principle was created to address technology in light of the ever-growing use of technology in our schools. Principle Nine requires educators to demonstrate responsible and appropriate conduct when using electronic devices and accessing the data that have been entrusted to them. The Code summarizes the expectation that educators must be diligent in preventing students and others from accessing improper or confidential material on their professional and personal devices. Educators may not present inappropriate, non-school media to students or use technology or social media for inappropriate communications with students. Educators under the Code will be held accountable for reporting online harassment or bullying of a student and will be expected to intervene when aware of illegal or inappropriate images and media involving a student or minor. Educators may not use technology to distribute inappropriate material that could be reasonably accessed by the school community. Lastly, educators may not use school technology for their personal business venture.

The State Board receives and investigates complaints of Code violations and has the authority to issue discipline. Possible discipline for violations ranges from a letter of admonishment up to the permanent revocation of a license or permit. The draft code may be accessed at:

Federal Procurement Spring Survival Guide

As of this fiscal year, all school districts that purchase goods or services with federal grant funds must comply with new federal regulations that were adopted a few years back. This is an important issue for schools to consider as they enter into contracts this spring to obtain federally funded goods and services.

By way of background, in 2013 the U.S. Office of Management and Budget (“OMB”) published the Uniform Guidelines requiring states and non-federal agencies to follow and adopt procedures and policies for purchasing goods and services with federal grant funds. The Uniform Guidelines became effective in 2014. However, the OMB granted a series of grace periods that delayed implementation of the new rules. The most recent grace period expired in December 2017 and therefore the rules became effective at the expiration of each entity’s fiscal year that occurred after that date.

For most Ohio schools, the new rules took effect July 1, 2018. This means that auditors will begin to audit districts on those procedures this school year. Some districts may have been audited this past year if the district adopted new policies and procedures before the expiration of the last grace period and failed to indicate in writing that they planned to take advantage of the final grace period. It is also important to note that the standards set out in the Uniform Guidance will not apply to contracts that were executed prior to the effective date of the rules.

The Uniform Guidance requires non-federal entities to use one of five specific purchasing methods for all nonpayroll purchases. 2 C.F.R. §200.371-318. The five procurement methods included in the Uniform Guidance are as follows:

  1. Micro Purchase Method – for purchases with an aggregate dollar amount that does not exceed the Micro Purchase Threshold, which is currently set at $10,000 (note that districts may set a lower threshold in board policy). Under this method, a district must consider costs, but is not required to solicit competitive quotes. To the extent practicable, the district must distribute micro-purchases equitably among qualified suppliers.
  2. Small Purchase Method – for purchases that do not exceed the Simplified Acquisition Threshold, which is currently set at $250,000 (note that districts may set a lower threshold in board policy). Here, an agency must obtain price quotations from an “adequate number of qualified suppliers.” The entity’s policy should define the number of quotes they believe to be adequate.
  3. Sealed Bid Method – for purchases that exceed the small purchase threshold where bids are publicly solicited and a firm fixed price contract is awarded to the responsible bidder who confirms all the terms and conditions of the invitation and has the lowest price. School districts will likely not use this method very frequently.
  4. Competitive Proposals – for purchases that exceed the small purchase threshold with more than one source submitting an offer for a fixed price or cost-reimbursement type contract. This method should be used when the Sealed Bid Method is not appropriate. The district is to evaluate the bidders on cost and other factors it has established in order to select the most qualified candidate.
  5. Noncompetitive Proposals – for purchases through a non-competitive solicitation under one of the following conditions:
  • The item is available only from a single source;
  • The public exigency or emergency for the requirement will not permit a delay in purchase;
  • The Federal awarding agency or pass-through entity expressly authorizes noncompetitive proposals in response to a written request from the non-federal agency or;
  • After solicitation of a number of sources, competition is determined to be inadequate.

A school district’s compliance with the Uniform Guidance will be subject to audit each year. The state auditor’s office has stressed that it is critical for school districts to maintain documentation to demonstrate that it has complied with the regulations set forth in the Uniform Guidance. This documentation should illustrate why a particular method was selected and how the district went about purchasing in accordance with their policies and guidelines. School districts should also be aware that a decision to use noncompetitive proposals may trigger stricter scrutiny and review than purchases made with other methods.

It is also important to note that there have been many questions about how the new regulations impact service contracts with Educational Service Centers (“ESCs”) in particular. Many services obtained through ESC contracts are paid for at least in part with federal funds. Two separate statues, R.C. §§3313.843 and 3313.845, define what types of contractual relationships that districts may have with ESCs. State law also specifically requires most districts to have a contract and be affiliated with an ESC if they have a student population at or below sixteen thousand. Unfortunately, this statutory structure does not fit neatly into the new Uniform Guidance, and it is unclear at this time whether school districts may use noncompetitive proposals, specifically through sole source, to procure federally funded services through ESCs. The Ohio Department of Education plans to publish additional guidance about how it believes the new procurement regulations apply to ESC contracts. The guidance is expected in the near future. In the meantime, contact legal counsel if you have questions about which method of procurement you should use for these and any other types of federally funded contracts.

What this means for your district
Districts should carefully review board policies and guidelines that pertain to federal procurement with staff who may be responsible for obtaining goods and services with federal grant funds. They should carefully consider how purchasing will be documented in anticipation of an audit. Districts should also review the terms adopted in policies and procedures with their policy providers to make sure that the policies are up to date.

Legal References: 2 C.F.R. Part 200, R.C. 3313.843, R.C. 3313.845

Concussion Case Involving Former Athlete Allowed to Proceed in Court

Ennis Britton first reported about this case in the May 2018 issue of our newsletter, School Law Review, as it has implications for school districts and athletic organizations. Since then, this case has continued in court, and the Ohio Supreme Court has now weighed in as well.

Steve Schmitz was an NCAA athlete who, during the course of his football career in the 1970s, exhibited several symptoms related to repeated concussions. He was diagnosed with CTE in 2012 and alleged that this was the first time he knew he had suffered a bodily injury. He filed a lawsuit in 2014. Since his death in 2015, his widow has continued the lawsuit.

The Cuyahoga County Court of Common Pleas dismissed the case based on the statute of limitations as more than two years had passed since the bodily injury occurred.

A cause of action for a bodily injury generally accrues from the time the wrongful act that caused the injury was committed. Most often, the bodily injury and the wrongful act occur at the same time; in these cases, the statute of limitations clearly begins tolling at the time of injury. However, in some cases a person is not aware of a bodily injury at the time of the wrongful act. In these cases, it is not as clear when the two-year statute of limitations should begin running.

On October 31, 2018, the Ohio Supreme Court unanimously decided that the lower court had dismissed the case prematurely and that the case should continue. The Supreme Court developed a “discovery rule” for cases of latent bodily injury, in which the injury develops after the incident that caused it. The opinion stated, “[e]ssentially, the statute of limitations begins to run when the plaintiff knows or, in the exercise of reasonable diligence, should know that he has suffered a cognizable injury.”

A similar case previously decided by the Ohio Supreme Court held that the statute of limitations for a latent injury claim began tolling on the “date a competent medical authority” informed the man of his specific bodily injury. Liddell v. SCA Servs. of Ohio, 70 Ohio St. 3d 6 (Ohio 1994).

Schmitz v. Natl. Collegiate Athletic Assn., Slip Opinion No. 2018-Ohio-4391.

Service Animals in Schools

In October, a flight from Charlotte to Cleveland was delayed when a woman carrying what she characterized as an emotional support animal refused to deplane from the aircraft. Although the airline permits air travel for emotional support animals, the passenger failed to tell employees that her support animal was a squirrel. The airline does not allow rodents of any kind – including squirrels – aboard their aircraft, so the passenger was asked to deplane prior to takeoff. When the woman refused to deplane, all other passengers were forced to do so until the woman and the squirrel could be removed.

Would an Ohio public school district be required to permit the squirrel to accompany an individual onto school property? The answer to this question is no, because the animal does not meet the definition of a service animal under state or federal law.

Although public school districts are not regulated by the same rules as airlines, they are generally required to permit service animals to accompany individuals with disabilities on school premises and at school-related functions. Emotional support animals may be treated differently, as discussed below. It is important for school district staff to know how state and federal law define the term service animal and also to understand when an animal may and may not accompany an individual.

What is a service animal under the law?

Under federal law, a service animal is defined as a dog that is trained to do work or perform tasks for the benefit of an individual with a disability. Although the definition restricts the meaning of “service animal” to only a dog, federal law also permits a miniature horse to accompany an individual with disabilities under limited circumstances.

To determine whether a miniature horse must be permitted to accompany an individual with a disability, a public entity may consider four factors:

  • The type, size, and weight of the horse and whether the facility can accommodate based on these factors
  • Whether the handler has sufficient control of the horse
  • Whether the horse is housebroken
  • Whether the presence of the horse compromises legitimate safety requirements that are necessary for safe operations

It is important to note that an emotional support animal is not defined as a service animal under federal law. Emotional support animals provide comfort by being with a person rather than being trained to perform a specific task for an individual with a disability. A public entity may therefore not be required to treat an emotional support animal in the same fashion.

Also understand that other species of animals, whether wild or domestic, trained or untrained, are not defined as service animals either.

State laws may also apply to service animals. Ohio further classifies dogs into four groups (R.C. 955.011):

  • Assistance dog – a guide dog, hearing dog, or service dog that has been trained by a nonprofit special agency
  • Guide dog – a dog that has been trained or is in training to assist a blind person
  • Hearing dog – a dog that has been trained or is in training to assist a deaf or hearing-impaired person
  • Service dog – a dog that has been trained or is in training to assist a mobility-impaired person

When may a school district exclude a service animal?

A school district may exclude a service animal in a few circumstances. For instance, if the presence of the animal would require the district to modify policies, practices, or procedures in a way that would “fundamentally alter” the district’s services, programs, or activities, it may be excluded. This is a very high threshold to meet. A district may also be able to exclude animals that present legitimate safety concerns, are not housebroken, or do not remain under effective control of the handler.

What about individuals who might be allergic to the service animal?

A school district is expected to carefully consider the risks to all parties involved, including those with a service animal and those who are allergic to one. A district should thoroughly explore ways to reasonably accommodate the needs of all individuals involved before it considers excluding a service animal because of an allergy.

Can a district restrict the animal’s access to certain areas?

Generally, a service animal must be permitted to accompany an individual in all areas where the public is permitted to go. This includes access to facilities and to all school-sponsored activities and events, even if they occur after hours, unless a legitimate reason for a restriction or exclusion applies (see above).

A school district’s obligation to permit service animals applies not only to students but also to parents and visitors. Generally, public entities must allow individuals with disabilities to be accompanied by service animals in all areas that are open to the public. You should contact your district’s legal counsel if you have questions about service animals in your school facilities and programs.