Update on New Guidance Regarding Joint Purchasing Programs Under Revised Code Section 9.48

Update on New Guidance Regarding Joint Purchasing Programs Under Revised Code Section 9.48

For those of you familiar with the web of statutes and Ohio Attorney General opinions regarding competitive bidding and cooperative purchasing for construction and other services, the Ohio Attorney General (“OAG”) recently added a new section to the web.

For those of you that are not so familiar, some brief context: Boards of education are required by R.C. Section 3313.46 to competitively bid when they determine to build, repair, enlarge, improve, or demolish any school building and the cost of the work is more than fifty thousand dollars ($50,000). However, R.C. Section 9.48 permits school boards to use cooperative purchasing contracts to acquire equipment, materials, supplies, or services. The OAG released an opinion in 2019 finding that school boards may not use R.C. Section 9.48 to obtain construction services, because the General Assembly did not specify so in the statute.

On March 18, 2024, the OAG issued Opinion No. 2024-003, to clarify the scope of services that may be obtained under R.C. 9.48. The opinion revisits the definition of “services” within R.C. 9.48 and clarifies that the interpretation of the term “services” is to include installation, maintenance, repairs, and similar activities, particularly when associated with equipment, materials, and supplies procured under the program. This clarification aims to differentiate between the terms “construction services” and “related services.” While the opinion explores some possible definitions of “construction” and “construction services,” the opinion ultimately concludes that determining whether a service falls under impermissible “construction services” is a factual inquiry beyond the OAG’s purview, emphasizing the need for legal counsel’s guidance.

To put it briefly, repair services that do not constitute construction work are able to be procured through RC 9.48. Equipment purchases that have only incidental installation requirements, are also likely permissible items for RC 9.48 cooperative purchasing. Maintenance services are also safe because maintenance is not a service that is required to be bid. Careful consideration should be given to whether a particular project is a repair or just maintenance.

Keep in mind that there are cooperative options available to school districts that do include construction and construction services. If you are considering a project and are exploring your cooperative procurement options, do not hesitate to contact an Ennis Britton attorney to discuss your available options!

Career Tech Corner: CTC Construction Program Builds Interest in Construction Delivery Methods

Career Tech Corner: CTC Construction Program Builds Interest in Construction Delivery Methods

The last Biennium Budget Bill included grants for the expansion of career technical opportunities. Last fall, the Governor’s office announced that of the 59 applicants for the Career Technical Construction Program, 35 were awarded almost $200 million. This funding will be used to build and expand classrooms and training centers at JVSDs, compacts, and comprehensives across Ohio in various programs like engineering, manufacturing, health sciences, construction, and more.

There are various construction delivery methods available to recipients of these funds who choose to use the for construction projects. The main three delivery methods utilized by school districts are summarized below.

1. Design-Bid-Build (“DBB”). This is the more traditional method of construction delivery. With this method, the owner hires an architect to develop the plans, specifications and estimates of cost. This requires a qualifications-based selection process. The architect then assists the owner with bidding the various bid packages for the contract either through a single general contract or multiple contractors. This method is typically used for smaller projects such as minor renovations, pre-fabricated buildings, athletic facility upgrades, etc., but can be utilized for larger projects as well. The Owner would contract with the architect and each prime contractor coming onto the project.

2. Design-Build (“DB”). This is often confused with DBB even though it is an entirely different delivery method. Through this method, the architect is responsible for both the design and the construction of the project. The owner has a single contract with the design-build firm. The design-build firm is selected according to a two-stage selection process that first considers qualifications then technical and price components for the delivery of the project. Prior to selecting a design-build firm, the Owner must hire a criteria architect to develop the design criteria for the project. The criteria architect is hired using a qualifications-based selection process in the same manner as hiring an architect or engineer for professional design services. Design-build is considered a faster delivery method, however, this is because there is not a lot of owner input on the actual design itself, only the criteria for the design, i.e., what components and functions the finished build must have. This method is good for projects such as an additional wing of traditional classrooms that do not have unique design components.

3. Construction Manager at-Risk (“CMR”). This is currently the most popular delivery method for new school construction, major renovations and additions projects, and projects where the owner wants to have a lot of input on the design and functional components of the build. With CMR, the owner hires an architect for the necessary professional design services. The Owner goes through a two-stage selection process first considering qualifications, then technical and pricing proposals. The Owner combines the scores across both stages and awards a contract to the winner. The CMR serves as both the construction manager and the builder. The Owner has a single contract with the CMR and the CMR is responsible for bringing in all materials, labor, and equipment to the Project.

Districts undertaking large or complex projects may consider hiring an owner’s representative. An owner’s representative is a professional agent who advises the owner and supervises the project to make sure it stays on track. While it is true that the architect and contractor will have contractual obligations to the owner, they are not “in their corner” so to speak and may end up in an adversarial position if a dispute about the work arises. The owner’s rep in turn is the agent of the owner and their focus is on asserting the owner’s interests on the project. The Ennis Britton Consulting Group (“EBCG”) provides owner’s representative services. Barb and Steve Shergalis of EBCG are former architects very experienced in public school construction projects.

Each of these delivery methods has their own unique requirements for properly soliciting the contracts to get the Project off the ground. It is therefore important to make sure that you are taking all the proper steps to ensure you have a valid contract in place that does not expose the Board of Education to unnecessary liability risks. Please do not hesitate to contact a member of the Ennis Britton Construction Practice Group with questions about the right delivery method for your project.

































































































































































































































































































































































































































































































































































































































































Ohio Supreme Court Upholds Appellate Decision Overturning Industrial Commission

Ohio Supreme Court Upholds Appellate Decision Overturning Industrial Commission

State ex rel. Quest Diagnostics, Inc. v. Indus. Comm., Slip Opinion No. 2023-Ohio-2213

In this appeal, the employer won at the Staff Level Hearing Officer level and was overturned by the Workers’ Compensation Review Commission, a rare occurrence. The employer appealed to Court and was successful before both the 10th District Court of Appeals and The Ohio Supreme Court.

Stone, a phlebotomist (draws samples of blood), began her employment with the employer in 1991. In 2018, Stone notified her supervisor that she would be moving to California with her husband, who was taking a new position there. Stone expressed her desire to transfer her employment within the company and, according to her affidavit, was told that she would be permitted to transfer.

Stone submitted multiple transfer requests with the employer in California, which were signed and dated by her supervisor.

Three days later, Stone was injured at work when she fell from a stepladder. Her workers’ compensation claim was allowed for various shoulder injuries. She was released to work with temporary restrictions. For the next few days, Stone’s responsibilities consisted of greeting patients as they entered the office.

Stone informed her supervisor that she was moving to California. Stone had not received any response to her transfer requests. Stone and her supervisor called the employer’s recruiting office, which informed them that Stone could not transfer her employment because she was not certified as a phlebotomist in California.

This new information did not change Stone’s plans to relocate, and Stone’s supervisor asked for a resignation letter. Stone sent her supervisor an email saying, “I am putting in my resignation with Quest Diagnostics due to moving to California this Saturday,” and she moved shortly thereafter. In an affidavit, Stone refers to the resignation letter as a “transfer document” because she intended to become certified and continue to work for the employer.

Stone became certified as a phlebotomy technician in California the following spring. She was not reemployed by the employer. That summer, she applied for temporary total disability (TTD) benefits. She was denied at the District and Staff hearing officer levels. The hearing officers found that she had abandoned the job by resigning with no indication that there was further work for her when she did so.

Stone appealed to the Review Commission for reconsideration. It determined that in denying compensation, the SHO had misapplied the law of voluntary abandonment. The Commission concluded that Stone was entitled to TTD compensation because she did not intend to abandon the workforce and did not voluntarily remove herself from her former position of employment.

The Supreme Court noted that the “question is whether [the] circumstances demonstrate a voluntary abandonment of the workforce—permanent or temporary—such that the injured worker’s wage loss is not the result of the work injury. In other words, do the circumstances indicate that the injured worker would be working—somewhere—but for the injury?” Hence, an injury-induced departure from the workforce (involuntary abandonment) and a departure based on the claimant’s intentional conduct (voluntary abandonment) are mutually exclusive. The former is compensable; the latter is not.

Had Stone not been injured, she would have experienced the same wage loss upon relocating to California without the proper certification. Had Stone remained employed by Quest in Ohio, she would not have experienced any wage loss. Accordingly, Stone’s industrial injury was not the “but for” cause of her lost earnings. Albeit understandable, Stone’s reasons for abandoning the workforce and experiencing lost wages lack the necessary causal relationship to her industrial injury.

What this means for your District
We must always carefully analyze the circumstances of an employee’s departure in the context of a workers’ compensation claim to determine the true cause of the employee’s lost wages. If the loss is due to something other than the injury itself, we may have a defense against liability for TTD payments. Eligibility for TTD compensation has always depended on whether the separation from employment was injury-induced.

Appeals Court Upholds Denial Of Benefits for Employee who Resigned Without Just Cause.

Appeals Court Upholds Denial Of Benefits for Employee who Resigned Without Just Cause.

Gbortoe v. Dir., Ohio Dept. of Job & Family Servs., 2023-Ohio-4844

The Tenth Circuit Court of Appeals (Franklin County) upheld a denial of benefits to an employee who quit work after receiving only a written disciplinary letter.

According to the employee, he resigned his position after “an incident regarding another individual’s gender preferences.” In his telling, he had a phone conversation in which he welcomed a newly promoted member of the team. The employee testified there was no discussion of gender preferences during that call, and it was not until the following week that a different coworker informed the employee about the newly promoted employee’s gender pronouns. The employee responded to this coworker’s comment, expressing he was “not interested” in that topic and he “[does not] believe in that.” That comment led to corrective action meetings with company leadership. In one of the meetings, the employer informed the employee he would receive a disciplinary warning for his conduct.

The manager testified that the employer received a complaint about the employee after he audibly opined the newly promoted employee was not capable of succeeding in their new role. The employer accused the employee of violating the code of conduct by vocalizing his opinion loudly enough to be audible around the office. The manager explained that the employee was issued a written warning, but his job was not in jeopardy at the time of his resignation. In part, the written warning admonished the employee as follows: “You must demonstrate consistently appropriate behavior in the workplace going forward in accordance with [employer’s] Code of Conduct. Failure to do so may result in further corrective action, up to and including termination of employment.”

The employee lost at all levels before the Unemployment Compensation Review Commission and then filed an appeal to the Court of Common Pleas. To no one’s surprise, except perhaps the employee, the Court upheld the Commission’s denial. The employee appealed.

The Court of Appeals held that the employee failed to prove he was entitled to unemployment benefits. “Although he contends his employer created a hostile work environment and threatened to fire him, the record shows employer merely issued [employee] a written warning admonishing him for his behavior. Although the warning noted the employer could impose future sanctions up to and including firing for continued inappropriate workplace behavior, it did not threaten [employee’s] employment status.

What this means for your District
From time to time to time, employees quit and then claim they were threatened with termination or were “constructively discharged,” essentially leaving them with no choice but to resign.

An employee who resigns from employment with good case to do so can obtain unemployment benefits. Such good cause might be the existence of work conditions that are a danger to health and safety when the employer refuses to fix the conditions after being notified (constructive discharge), or the employee was given the option to resign or be fired, and resigned under circumstances where the employer had no cause to terminate employment, If an employee resigns in lieu of being terminated, the Unemployment Commission will analyze whether the employer had just cause to terminate in the first place.

Where here, the employer is not threatening to terminate the employee unless he resigns, and did not refuse to mitigate unsafe working conditions, the employer will be able to defend against the claim for benefits. Make sure you are always documenting the circumstances of an employee’s separation so that you will have evidence to establish what the truth is.

CTC Corner: Ohio Governor Announces Career Technical Construction Grant Recipients and New Equipment Funding Opportunity

CTC Corner: Ohio Governor Announces Career Technical Construction Grant Recipients and New Equipment Funding Opportunity

On November 3, 2023, the Governor announced 35 recipients of $200 million in grant funds for constructing new space for career technical programming enabling more students to receive vocational education in industries such as Agriculture, Construction, Healthcare, IT, manufacturing and more. Among the recipients were JVSDs, Comprehensive Districts, and Compact Districts.  The 35 recipients were selected from among 59 applicants.

Additionally, a new equipment funding opportunity was announced and the application window for that grant is currently open until December 15. 2023. The purpose of the Ohio Career Technical Education Equipment Grant Program is to award competitive grants to schools to establish or expand Career Technical Education (“CTE”) programs, with priority for programs that support careers on Ohio’s Top Jobs List and establish or expand credentialing programs from the Governor’s Office of Workforce Transformation Innovative Workforce Incentive Program list.  Eligible applicants are defined as city, local and exempted village school districts, community schools, Science, Technology, Engineering and Mathematics schools and joint vocational school districts. Eligible applicants “must plan to offer a qualifying CTE program that supports a career on Ohio’s Top Jobs List or a qualifying credential program from the Governor’s Office of Workforce Transformation Innovative Workforce Incentive Program list,” according to the request for applications published by the Department of Education and Workforce. 

Priority will be given to applicants with less than 10% of the student body reported as “CTE concentrators.” A CTE concentrator is a student who has completed at least two CTE courses in a single approved career pathway or program of study. Priority will also be given to applicants proposing programs in priority industry areas, such as advanced manufacturing and telecommunications. 

The request for Applications and additional instructions can be found here.