Court of Appeals Holds that a Township’s Email Lists are Not Public Records

Court of Appeals Holds that a Township’s Email Lists are Not Public Records

by | Apr 17, 2023 | General, Legislation, School Management, Special Education

Hicks v. Union Twp., 2023-Ohio-874

The Twelfth District Court of Appeals (Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble, Warren) recently ruled in a public records case that a township’s email and mail lists, used by the township for the publication of newsletters and other communications, were not public records because the lists did not “document the activities or operations of the office.”

The requester asked for the “the full email list used for township newsletters” and “the full mail list used for township newsletters.” After several exchanges between the requester and the township, during which the requester was repeatedly told that the lists were not public records and would not be produced, the requester filed suit, pro se.

The requester argued, in essence, that the township uses the lists to and keep citizens informed of the activities of the office.  Thus, according to the requester, the lists document the functions and activities of the township.

The Court of Claims appointed a special master and the case was unsuccessfully referred to mediation.

The township administrator testified via affidavit that a third-party vendor facilitates the mailing of the newsletter and the mailing lists for the newsletter. The township also provides an opportunity for interested persons to subscribe and receive the newsletter electronically. On the township website, subscribers are asked to enter their names and email addresses to receive the newsletter.  The township maintains the list, but it is used only for the administrative purpose of issuing the electronic newsletter.

The requester submitted an affidavit of a former township administrator, but it largely focused on the content and development of the newsletter over time. The affidavit confirmed how the lists were maintained.  Based on the affidavit, the requester argued that the “requested information is essential to the ability of Requester to understand and form a critique of a specific function of the government, staffed and paid for with tax dollars.” The requester indicated he desired to obtain the lists to “evaluate the conduct of the newsletter program.” For example, the requester indicated he wished to learn to whom the newsletter was being sent  (residences and businesses, or only residences), if there were any citizens being omitted, if there was an overlap of individuals receiving the newsletter by mail and email, how “well-saturated” the email list was, and whether the emails included “valid or bot accounts.”

The Court of Appeals reasoned that while the lists did constitute “documents, devices or items” which are “kept” by the Township, the third prong of the analysis, (i.e., that the record document the “organization, functions, policies, decisions, procedures, operations, or other activities” of the public office) was not met. The Court looked to precedents which held that simply because an item is received and kept by a public office does not transform it into a record.  Home addresses have been analyzed in other contexts, such as requests for personnel files.  The Ohio Supreme Court has held that “at best, home addresses represent contact information used as a matter of administrative convenience,” and that they “reveal little or nothing about the employing agencies or their activities.” 

 Furthermore, the Court found that the recipients of the newsletters, (who could be anyone, not just citizens) were not part of the decision-making process surrounding the newsletter and they do not assist the township in the performance of its functions.  The Court applied essentially the same analysis to the hard copy mailing list.

What this Means for Your District

Not every record in the possession of the school district is a public record. The document must meet all three parts of the test in order to be a public record. Careful analysis is always required however. It would not be wise to categorically deny a request for a distribution list, for example, without first considering the nature of the list, what it is used for, how the persons on the list are placed there and for what purpose. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Career Tech Corner: CTC Options for Acquiring Sites for Instruction

Career Tech Corner: CTC Options for Acquiring Sites for Instruction

by | Apr 14, 2023 | Construction & Real Estate, General, Labor and Employment, School Management

As Career Technical Centers (CTC) offer ever-expanding curricula and training in more advanced and technical fields, there may be a need for new space for hands-on learning and training. Perhaps your district is interested in erecting a lab for manufacturing education, or agricultural space for education in farming technology. 

Under the law, school districts are “bodies politic and corporate” “capable of…acquiring, holding, possessing, and disposing of real and personal property.” Just like any city, local, or exempted village school district, vocational districts can purchase and lease land for the erection of education facilities.  CTCs may also purchase or lease existing buildings and, as needed, renovate such existing spaces for their purposes.  Lease-purchase agreements are also permissible for this purpose. CTCs may also acquire ownership of real property by donation or an exchange agreement. (By law, CTCs have all the authority and powers as city school districts with the exception of certain matters specifically address in the Revised Code pertaining to Chapters 124 (civil service), 3317 (School Foundation Program), 3323 (special education), and 3331 (age and schooling certificates)).  There are other means by which a CTC could acquire property that occur less frequently, are less desired, and are entirely context based. These are adverse possession and appropriation (condemnation). 

There may be instances where a CTC desires to acquire property not to erect a building for use as classroom space but to facilitate the programming of the CTC.  In some instances, this may involve students performing work that is within the scope of their particular program but that also contributes to a private venture.

The applicable statutes refer to a board of education using its powers to acquire property for its own purposes, i.e., for the operations of the district in carrying out its educational mission.  There is not any express authority in those statutes for a board to acquire property for non-school purposes or to effectuate a purely private development.

However, there are some attorney general opinions, addressing CTCs in particular, that have allowed a CTC to engage in a private venture so long as there is some connection to the curriculum.  See 1976 Op. Atty. Gen. No. 76-065 (A CTC may construct and sell single-family residences on school land.  Students erected the homes under supervision as part of the curriculum, and not for pay); 1971 Op. Atty. Gen. No. 71-068 (A school may engage and compete in private enterprise, even at a profit, so long as the program is reasonably necessary to the vocational education curriculum); 1971 Op. Atty. Gen. No. 71-026 (Use of school facilities for serving meals and banquets to community organizations is justified as part of the vocational education curriculum).

1981 Op. Atty. Gen. No. 81-093 opines that a CTC may, pursuant to R.C. 3313.90, enter into an agreement with a nonprofit corporation whereby students of the district would construct a house on property owned by the corporation with materials and equipment furnished at the expense of the corporation, provided that such an agreement is reasonably necessary to fulfill the requirements of the vocational education curriculum.  Additionally, that opinion holds that a board of education of a CTC may, as part of a vocational education program, purchase land, construct residential dwellings thereon, and thereafter sell such realty.

What does this mean for your district?

Your board is vested with broad powers to acquire property using several different means.  The options available should be carefully considered to ensure which is the best approach for any given project or plan. Attorneys at Ennis Britton stand ready to assist you with achieving your goals in this regard.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Court Confirms Narrative Portion of Attorney Invoices May Be Redacted

Court Confirms Narrative Portion of Attorney Invoices May Be Redacted

by | Feb 14, 2023 | Board Policy & Representation, General

State ex rel. Ames v. Baker, Dublikar, Beck, Wiley & Mathews, 2023-Ohio-263

This particular case and its parties have an extensive legal and procedural history that we will not bore you with here. The pertinent fact for purposes of this article is the Ohio Supreme Court’s holding that “an invoice for a legal service provided to a public-office client is a public record, with the caveat that the narrative portion of the invoice describing the service is protected from disclosure by the attorney-client privilege.” Other information on the billing statements—e.g., the general title of the matter being handled, the dates the services were performed, and the hours, rate, and money charged for the services—is considered nonexempt and must be disclosed.

The Eleventh District Court of Appeals of Ohio (Ashtabula, Geauga, Lake, Portage, and Trumbull) issued this opinion on remand from the Ohio Supreme Court to consider that very holding when analyzing whether invoices for legal services submitted to Rootstown Township, Ohio which were disclosed pursuant to a public records request were properly redacted. The Township redacted the narrative portions of the invoices.

The rationale behind the rule is that billing records describing the services performed for the attorney’s clients, and any other attorney-client correspondence may reveal the client’s motivation for seeking legal representation, the nature of the services provided or contemplated, strategies to be employed in the event of litigation, and other confidential information exchanged during the course of the representation. “A demand for such documents constitutes an unjustified intrusion into the attorney-client relationship.”

The appeals court conducted a confidential review of the invoices and determined the narrative portions of the invoices were properly redacted before being disclosed. The Court then went on to resolve the legal issues concerning the motion to dismiss in the case.

What does this mean for your District?

As the court noted in a footnote to the decision, the relator in this case, Brian Ames, was attempting to establish a new rule of law—the “[a]ttorney-client privilege does not apply to invoices for legal services provided to a public body.”  The relator was not successful here and the contrary holding of the Ohio Supreme Court in this regard remains good law today.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Court of Appeals Reverses Trial Court that Upheld a Nonrenewal

Court of Appeals Reverses Trial Court that Upheld a Nonrenewal

by | Feb 14, 2023 | Board Policy & Representation, General

Jones v. Kent City School Dist. Bd. of Edn., 2023-Ohio-265

 

The Eleventh District Court of Appeals of Ohio (Ashtabula, Geauga, Lake, Portage, and Trumbull) reversed a trial court’s decision affirming a board of education’s decision to nonrenew a teacher. During the 2019-20 school year, the teacher had several instances of misconduct that resulted in a three-day suspension. Later that same school year, the teacher failed to report to work and did not follow the proper protocols for entering an absence, resulting in students being unsupervised. The teacher was told he would be placed on a full evaluation cycle and was likely to be non-renewed.

An in-person observation was conducted in January, and a second took place while observing a distance learning class on May 1. On May 15, an observation of a Google Meets session was conducted where the students “shar[ed] progress on their Google Sheets assignment.” The teacher was not present during this session, as he was on a medical leave, and the evaluation consisted of observing the students working on a project the teacher designed. The teacher was invited to but did not attend a post-conference meeting on May 28th.

The Board then took action to nonrenew the teacher’s contract, as recommended by the Superintendent. The teacher was advised of this decision, asked for the reasons for nonrenewal and was informed it related to those days he left early, failure to fulfill duties on an early release day and teacher work day, and his absence which left students unattended.

In April 2020, a Memorandum of Understanding was entered into by the Board and the teachers’ union, which specified the process to complete teacher evaluations for 2019-20 in accordance with House Bill 197. It provided that for those teachers subject to an evaluation under the CBA, if all required observations were completed by March 16, 2020, the evaluator shall complete the evaluation report by May 22, 2020, and if the required observations were not completed by that date, they would be conducted virtually. It provided that, based upon completion of such procedures, “all teachers subject to evaluation for the 2019-20 school year shall be deemed to have evaluations complied with for purposes of R.C. 3319.11.”

The court of appeals noted the standard on appeals in cases concerning nonrenewals. Under the applicable statute, the court does not have the jurisdiction to consider the merits of the decision of the Board concerning the reasons for nonrenewal. The Court may overturn such a decision only if there are procedural defects, i.e., failure to provide the required evaluations.

The court of appeals also addressed the jurisdictional argument of the Board, which was that only SERB had jurisdiction over the dispute because the dispute arose from an MOU that is part of the collective bargaining agreement. The court noted that while there can be cases in which even statutory rights may be subject to interpretation through an applicable CBA, which in turn could divest a court of jurisdiction, the statute applicable here may not be superseded by the CBA.  Therefore, since determination of the evaluation procedures is statutory, and the application of the law is not dependent upon a collective bargaining agreement, the lower court had jurisdiction to hear this matter.

Having resolved the jurisdictional issues, the court turned to the merits of the teacher’s challenge, which in essence was that the third observation did not comply with the statutory requirements because the teacher was not present and the observation consisted of watching students work virtually on a project designed by the teacher. On this, the court agreed, holding that the statutes applicable to nonrenewal must be liberally construed in favor of teachers and that strict compliance, not substantial compliance is required with regard to nonrenewal procedures.  The teacher was not present at all during the third evaluation and even though it was due to his own illness, there was no pre or post-observation conference. These were determined to be fatal procedural defects. The Ohio Supreme Court has previously held that a teacher’s medical leave of absence does not excuse a school board from complying with required nonrenewal procedures.

What does this mean for your district?

Procedural defects are essentially the only pathway a teacher has to overturn the decision of a board to nonrenew. Complying with those procedures is crucial. It would be wise to have a gameplan in place for any teacher being considered for nonrenewal.  A checklist is also a good tool to make sure you are meeting procedural requirements in the lead-up to the Board’s action to nonrenew the contract.  Finally, consider addressing how absences will be handled in the context of evaluations and nonrenewal in your collective bargaining agreements. Attorneys at Ennis Britton can assist you with crafting language to meet your needs.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Court of Appeals Holds that a Township’s Email Lists are Not Public Records

Appeals Court Rejects Hyper-Technical Procedural Defenses in Upholding the Termination of a Principal

by | Dec 12, 2022 | General

DeVito v. Clear Fork Valley Local Schools Bd. of Edn., 2022-Ohio-3894

The Fifth Appellate District upheld the termination of a principal accused of, among other things, misconduct related to her evaluation duties. The principal allegedly asked a teacher to sign a blank document, recorded inaccurate observation/walkthrough times on six occasions, and copied/cut out signatures and stapled them into other documents.

The referee appointed to the termination appeal agreed with the Board on almost all specifications given for the termination.  The Board adopted the referee’s 237-page report, but also expressed disagreement with the specifications the referee did not uphold, citing its interpretation of the relevant facts found by the referee and applying them to its own policies. As such, the Board voted in favor of termination.

The principal appealed to the court of common pleas, which upheld the Board’s decision. On appeal, the principal raised a plethora of defenses the trial court allegedly ignored and errors that it made. Many were hyper-technical defenses related to due process and some were just seemingly made out of thin air. While on the one hand, this is eye-roll inducing for the reader (and the defense attorney), on the other hand, this gave the appellate court the opportunity to make some definitive statements about the law in this arena, which is always helpful.

First, the Plaintiff tried to argue that there were procedural defects, such as the failure to issue a twenty-one-day notice of the hearing, the treasurer failing to sign the notice informing the plaintiff that the Board would consider her termination, and that the referee and the Board both departed from the specifications for termination originally provided by the Board.

The court rejected these arguments essentially on the basis that there was no harm caused by minor procedural defects. It held that the hearing scheduling requirements are merely directory and not mandatory or jurisdictional.  With regard to the treasurer’s signature, the court found that the notice contained a typed signature line containing the treasurer’s name, thereby giving appellant the identity of the treasurer and informing her that the letter came from the treasurer’s office.  The notice was in substantial compliance with the law and was therefore sufficient.

 As to the minor deviations between the referee’s findings and the Board’s specifications for termination, the court noted that the very cases cited by the principal all reject a rigid standard of matching a Board’s specification of grounds with identical grounds for termination found by the referee. Rather, Ohio appellate courts have allowed the Board’s evidence to stand as long as the totality of the circumstances indicate that the teacher was sufficiently apprised of the issue in question to present countervailing evidence if so inclined.

The principal also attempted to attack the merits of the Board’s decision on even more ridiculous grounds than her procedural defenses and the court was predictably unassuaged. It went sort of like this:

Principal: The Board had to give me a chance to change my conduct before they could terminate me!

Court: No, they did not.

Principal: The Board had to consider my employment record before terminating me!

Court: No, they did not.

Principal: They didn’t read the transcript! The Board had to read the entire transcript of the hearing before making its final decision!

Court: No, they did not. The Board only had to consider the referee’s report in making its final decision. The trial court did, however, have to read the transcript, and concluded that the transcript showed you deserved to be terminated.

What does this mean for my District?

We should always of course be careful to meet all procedural requirements of the applicable law and CBA. But if you forget to put the letter in the mailbox with your left hand while blinking twice, the court is not going to hold that against you so long as the employee has sufficient information to assert their rights and prepare a defense.