by Pamela Leist | Nov 3, 2015 | Board Policy & Representation, General, School Management
The Ohio Attorney General’s office recently issued an opinion that concluded a deputy sheriff who is employed in classified service may simultaneously serve as a member of a city or local school district board of education with a few limitations. The opinion was released on October 27th, 2015. The question of law turned on an interpretation of Ohio Revised Code §124.57(A), which states that an officer or employee in the classified service of the state or a public municipality is prohibited from 1) receiving any contribution for a political party or candidate for public office; 2) being an officer in any political party; or 3) taking part in politics other than to vote.
In analyzing the issue, the drafter of the opinion relied on a seven-question test to determine whether the two public positions were compatible. The test includes the following:
1. Is either of the positions considered classified employment within the terms of R.C. §124.57?
2. Do the empowering statutes of either position limit employment in another public position or the holding of another public office?
3. Is one position subordinate to, or in any way a check upon the other?
4. Is it physically possible for one person to discharge the duties of both positions?
5. Is there an impermissible conflict of interest between the two positions?
6. Are there local charter provisions, resolutions, or ordinances which are controlling?
7. Is there a federal, state, or local departmental regulation applicable?
The first question about whether a deputy sheriff serves as classified staff was answered in the affirmative, unless the deputy is assigned special duties which alter his or her status as a classified employee. In analyzing the second question, since a board of education member is elected in a nonpartisan election, and no other laws expressly prohibit a sheriff from serving as a board member or vice versa, the Attorney General opined that a deputy sheriff may lawfully run for the position subject to a few limitations discussed more fully below. And, in review of the third question, the opinion concluded that the deputy’s position in particular was not really subordinate to the board of education even when that deputy served as the district’s DARE officer, since the county sheriff and not the board generally determined specific duties and assignments. The opinion quickly dispensed with any concerns about whether an individual could physically perform the duties of both jobs under the fourth question, again affirming there was no issue as long as the deputy was able to serve on the board through use of leave or some other means when he/she was simultaneously assigned to active duty as a deputy.
However, when analyzing the fifth question in the test, the opinion concluded there was the potential for a number of conflicts of interest to arise when the individual carried out his or her duties as deputy and board member. First, there is a potential conflict of interest in preparation of and submission of budgets to the county commissioner, since the county sheriff and the board of education may compete for limited funds. This conflict could be avoided as long as the member did not appear before the county commissioner for budget matters on behalf of either organization. Second, the attorney general also recognized a potential conflict in the event both the sheriff and the board of education sought levies. However, the opinion recognized that the chance for conflict was low, and further could be avoided as long as the individual did not participate in any board member discussions, deliberations, and votes concerning the levy. Third, the opinion notes there is a potential conflict when the deputy is required to investigate an employee or member of the board of education, which can be avoided by reassigning the investigation to another deputy or another law enforcement agent. Fourth, there could be a conflict when contracts are negotiated between the board and the sheriff’s office. Again as long as the deputy refrains from any board deliberations about the contract, and as long as the deputy is not assigned to serve the board through the contract, the conflict is avoidable. Finally, the deputy may avoid any conflict with regard to allocation of trust fund grants such as through the D.A.R.E. program as long as the deputy is not a part of the internal control policy that determines how money is allocated.
The answers to the sixth and final questions in the test mentioned above were in the negative, since there were no applicable state or local regulations that applied in this case. Therefore, as long as the deputy avoided the potential conflicts mentioned above, the attorney general concluded that the positions of deputy sheriff and board of education member were compatible. In closing, however, the author of the opinion recognized that it may be impossible to consider all possible conflicts that could arise. Should the board member find that he or she must frequently refrain from deliberations, it is possible the member will eventually have a duty to resign from one position.
Click here to review the opinion in full.
Ohio Attorney General Opinion No. 2015-032.
by Pamela Leist | May 11, 2015 | General
As building principals finalize this school year and begin to plan out their required drills for the 2015-2016 school year, they should make note of recent changes to the number and type of drills that are now required under state law. House Bill 178, which codified recent changes, passed both houses of the legislature and was signed into law in the final days of 2014. It became effective March 23, 2015.
Drills or Rapid Dismissals
While the number of certain types of drills has changed, all district schools will still be required to complete nine overall drills, rapid dismissals, or school safety drills per school year. For most schools with newer infrastructure, HB 178 reduces the number of regular drills or rapid dismissals required for schools to six, but increases the number of safety drills that must be performed from one to three for a total of nine. If a school does not have smoke detectors or a sprinkler system in all classroom buildings, the drills/dismissals must be conducted at least nine times during the school year. However, the new law permits schools that fall in to this second category to count the three safety drills toward the nine required. Additionally, instruction regarding tornado warning precautions must still be provided in conjunction with the drills/rapid dismissals, and tornado drills must be conducted at least once per month during tornado season (April 1- July 31).
School Safety Drills
As indicated above, the bill increases the number of safety drills, such as lockdowns and evacuations, from one drill to three safety drills per school year. Safety drills provide students with instruction in responding to situations in which students must either rapidly evacuate or be secured in the building in response to a threat caused by an act of violence. The law mandates that at least one of these three drills require students to be secured in the building. The new law also requires that each of these three drills be planned and executed in conjunction with “the police chief or other similar chief law enforcement officer, or designee, of the municipal corporation, township, or township or joint police district in which the school or institution is located, or, in absence of any such person, the county sheriff of the county, or designee, in which the school or institution is located.” Principals must continue to provide law enforcement with 72 hours advanced written notice of the safety drills. The safety drills must also be conducted pursuant to the school’s emergency management plan. HB 178 removed the December 1st deadline for completing a school safety drill.
Theoretical School Safety Drill
Schools must also conduct one staff safety planning exercise, called a theoretical school safety drill, at some point during the school year in addition to the safety drills mentioned above. The purpose of this planning exercise is to provide staff and faculty with instruction regarding procedures to be followed in response to a threat of violence. The planning exercise does not require student participation and may be completed during the annual school safety drill training session required under ORC 3737.73(D)(3).
Timing of Drills
At least one drill/rapid dismissal or school safety drill must be conducted every month of the school year. Additionally, the first drill or rapid dismissal must be within 10 days of the start of classes, and drills/rapid dismissals must be conducted at varied times of the day.
Documentation Requirements
Principals are still required to keep documentation of the date and time of each drill conducted. The deadline for providing this documentation to law enforcement from the prior school year has not changed (December 5th each year), but what documentation must be submitted has changed. Under the new law, principals must provide both the date and time of each school safety drill conducted during the previous school year, and the date and time each drill will be conducted during the current school year. The law expanded the options for submitting this document to include not only regular mail, but also facsimile or electronic submission.
The Department of Commerce created a Technical Bulletin with FAQ about the new requirement titled “Drills or Rapid Dismissals and School Safety Drills.” You can access the bulletin at the following web address: https://saferschools.ohio.gov/sites/default/files/HB178-TB15-001%20-%20FAQ%20-%20final.pdf
by Pamela Leist | Apr 24, 2015 | General
On April 13th, 2015, the State Board of Education voted to amend a rule which previously mandated that school districts employ a minimum number of elementary art, music and physical education teachers, as well as a minimum number of nurses, library media specialists, social workers and visiting teachers. The standard was commonly referred to as the “5 of 8 rule,” and was originally adopted in 1983. The rule specifically required schools to have at least five of the eight positions mentioned above for every 1,000 enrolled students.
Members of the State Board had considered elimination of the rule for a number of years before passing a resolution on December 9th to formally reconsider it. The State Board conducted a public hearing before it voted on April 13th to officially amend the rule. On that day, the State Board rejected a proposal to refer the rule back to committee for further review before passing the final resolution to amend.
The new rule adopted by the State Board provides school districts with much more discretion to determine what the appropriate number of these positions may be. The rule, codified in OAC 3301-35-03, as amended states “[t]he local board of education shall be responsible for the scope and type of educational services in the district. The district shall employ educational service personnel to enhance the learning opportunities of all students. Educational service personnel assigned to elementary fine arts, music and physical education shall hold the special teaching certificate or multi-age license in the subject to which they are assigned.”
Opponents of the rule change argued that schools may use the new rule to eliminate important programs such as art and music, especially in lower income districts with high numbers of poor and minority students. However, many districts and proponents view the change as an opportunity to provide school administrators with more autonomy and control over staffing and programming. School administrators believe that they can more effectively tailor the programs to the unique needs of a particular school through the new rule.
The amended rule became effective on April 24th, 2015. You may view copies of both the new and old versions of OAC 3301-35-03 at http://www.registerofohio.state.oh.us.
by Pamela Leist | Mar 17, 2015 | General, Labor and Employment, Special Education
USDHHS Center for Medicare & Medicaid Services recently withdrew its prior guidance on the “free care” policy as expressed in the School-Based Administrative Claiming Guide. Under CMS’s new guidance, Medicaid reimbursement is available for covered services under the approved state plan regardless of whether there is any charge for the services to the beneficiary or the community at large. Also under CMS’s new guidance, schools are not considered to be legally liable third parties to the extent schools act to ensure that students receive needed medical services to access a free appropriate public education consistent with federal law. The guidance also states that even if a state determines that schools are legally liable third parties, the Medicare statute contains an exception which requires that Medicaid serve as the primary payer to schools and providers of services in an IEP under IDEA; noting that nothing in IDEA permits states to reduce medical or other assistance available.
by Pamela Leist | Oct 30, 2014 | Board Policy & Representation, General, School Management
As districts transition to the new minimum school year reporting system, the Ohio Department of Education (“ODE”) recently released guidance about how it will allocate funding for students that attend school for less than a full day. In July of 2013, House Bill 59 became effective and mandated that the state funding formula for schools be based on annualized full- time enrollment (“FTE”). In order for a district to receive full per pupil funding, each student is expected to receive instruction for the entire day that the student’s grade level is scheduled to attend.
However, school districts typically have a number of students that do not attend for a full day, including students who participate in alternative school programs or who receive home instruction. Currently, districts are required to report in EMIS the percent of time that these students attend school as compared to the full day. In its guidance, ODE states that schools may experience a decrease in funding for part- time students as follows.
Alternative School Programs
Many students who are enrolled in alternative school programs are given the option to complete online modules independently. Often these students do not attend school for the entire day. According to ODE’s guidance, beginning this school year districts will be expected to provide an entire day of instruction for alternative school students unless they apply for and receive a waiver from ODE. ODE cites ORC §3313.533(B)(1), which states that an alternative school student must attend school or participate in another program named in the district’s plan for a period equal to the minimum school day mandated by state law. ODE states that a district may obtain a waiver if it can demonstrate that “the minimum hourly requirements are not workable for a particular student population.”
Districts that wish to apply for a waiver this school year are instructed to submit an email request to ODE at daystohours@education.ohio.gov.
Home Instruction
ORC §3323.12 requires a board of education to provide home instruction for children with disabilities who are unable to attend school. The statute further clarifies that for the purpose of determining formula ADM, five hours of home instruction is equivalent to five school days. Relying in part on this statute, school districts sometimes place students temporarily on home instruction, and provide five hours of instruction each week to ensure full funding. However, ODE notes that unless an IEP expressly requires home instruction, students who receive home instruction for less than a full day, including special education students, must be reported in EMIS as attending part-time. These students may trigger a percentage reduction in funding as a result.
Senior Late Arrival and Early Release
For years, school districts have rewarded seniors who have completed most of their graduation requirements early with the option to arrive late or leave early from school each day. Beginning this summer, ODE indicated to districts that these students must be reported as attending school part-time. ODE recognized in the new guidance that districts may lose funding for the percentage of time the seniors are out of school because of late arrival or early release.
However, ODE also indicates that districts may apply for a waiver from the state superintendent that would allow them to count certain seniors who miss one period of class as fully enrolled, but only if those students take sufficiently rigorous courses. The guidance includes several examples of what would be considered “rigorous” for the waiver, such as when a student 1) takes two or more AP classes; 2) takes two courses through a dual enrollment program, or 3) completes a certain number of hours in an internship or apprenticeship program. A district that wishes to request this waiver/exemption should send the request along with a draft policy to daystohours@education.ohio.gov.
Work Release Programs
For work release, a district may count a student’s work time as instruction time if he/she participates in an official work study program or an approved educational option. However, if a student has been released for employment due to financial hardship, a district has two options:
1) The district may report the student as part-time and include only the hours the student actually attends class (this is required if the absence is for more than ten days); or
2) Under certain circumstances, the district can count the absence as an excused absence if in accordance with board policy and approved by the district’s superintendent as an emergency or some other circumstance considered “good and sufficient cause” for an absence from school. Under this option, the absence will not impact the school’s funding but will affect the attendance rate.
Zero Periods
The last exemption for FTE that was included in the guidance involves zero periods. A zero period occurs when a district offers an additional period of instruction that is optional for students. With regard to the zero period exception, ODE will permit a district to report a student as attending full-time if he/she attends a district-created optional instruction period/zero period but is released from a period later in the day.
If you would like to view ODE’s guidance on Annualized Full- Time Enrollment, click here.
LEGAL REFS: ORC 3313.533, 3317.03, 3321.04, 3323.12
