by Ryan LaFlamme | Apr 5, 2017 | General, Legislation
General Assembly Once Again Changes Rules on Disposal of Real Property
In 2015 Ohio’s General Assembly enacted R.C. 3313.413. This statute added another step to the process for disposing of real property worth $10,000 or more. The statute required school districts to first offer the property to “high-performing” community schools, as designated by the Ohio Department of Education. These schools may be located anywhere in the state of Ohio. Then, assuming no such high-performing school took up the offer, the district was required to offer the property to any start-up community school as well as any college-preparatory boarding school located within the district’s territory.
The designated list of high-performing community schools initially published by ODE contained 22 schools, so any district with an interest in selling a piece of real estate it owned was required to issue 22 offer letters, one to each these schools. Just as with the offer to community schools within a district’s territory, the offer to the high-performing schools could be for no more than the appraised value (the appraisal not being more than a year old) and the offer had to remain open for 60 days.
These relatively new requirements have now been modified by House Bill 438, which was signed in January and becomes effective on April 6. Under the new law, districts are back to the previous system of only having to offer properties to community schools and college-preparatory boarding schools within their territory – including high-performing community schools.
Along with the change in territory is a change in prioritization for districts that receive an offer from more than one high-performing or other community school. If a district receives notice from more than one high-performing community school, it must hold an auction at which only those interested high-performing community schools may bid. If no such high-performing community school expresses interest, the district may move on to the non-high-performing community schools and college-prep boarding schools. If two or more of these schools express interest, the district must hold an auction at which only the interested schools would participate.
If no community school or boarding school expresses interest, the district must hold a public auction for the property with at least 30 days’ prior notice in a newspaper of general circulation in the district. If no bids are accepted through the auction, the district may then sell the property at private sale on its own terms.
ODE will continue to maintain and publish the list of high-performing community schools.
Competitive Bidding Threshold Increased
The threshold for competitive bidding with construction projects was increased in Senate Bill 3, which became effective March 16. Under the new law, construction or demolition projects in excess of $50,000 (the previous threshold was $25,000) must be advertised for bids. All other provisions of R.C. 3313.46 remain the same.
Note about Personal Property
District-owned personal property valued at more than $10,000 is required to be sold at public auction after 30 days’ notice. This statute has not changed (R.C. 3313.41). If a district adopts a resolution that school district property worth less than $2,500 (fair market value) is obsolete or unneeded, it may donate that property to eligible nonprofit entities. The board must adopt a procedure and must publish its intent to donate in a newspaper. Contact an Ennis Britton attorney for the specific requirements and applicability of the law to any personal property being considered for sale or disposal.
by Ryan LaFlamme | Aug 8, 2016 | Board Policy & Representation, General, Legislation
Laws regarding public records are under scrutiny across the United States, including in Ohio. Advanced technology has brought myriad ways to communicate information to U.S. citizens, who continue to demand increased transparency. Public-records law continues to develop and change in the form of both legislation and court decisions. Below are a few recent Ohio bills and cases dealing with public records that have an effect on school districts throughout the state.
House Bill 585: Body Cameras
The Ohio House introduced HB 585 on July 11, proposing that the record of body cameras worn by law enforcement officers be considered generally a public record if the officer is performing official duties. (This bill does not include any regulations on police dash cams.) The bill will specify circumstances in which a nonpublic record would become a public record, and circumstances in which recordings would not be public records. Personal or nonrelevant information, and generally, recordings of minors or victims, would be redacted. The bill would also require a local records commission to maintain records from a body camera for a minimum of one year unless the law enforcement agency is subject to a records retention schedule that establishes a longer period of time.
Senate Bill 321
This bill, which was signed into law in June, becomes effective in late September. This new law provides a procedure for someone who has been denied access to public records, in the form of mediation or filing with the court of claims.
The bill also contains a provision that a public office which places all of its public records online may limit the number of records a person may request to receive digitally to 10 per month. The requirements and limitations are as follows:
1. All records must be online and accessible to the public except for during outages that are not within the control of the public office.
2. Records that are not online cannot be subject to the limit.
3. The limit also does not apply if the person making such requests certifies that the request responses are not being forwarded or used for commercial purposes.
The bill modifies the attorney fee provisions of the statutes. An award of fees is now mandated to be considered remedial and not punitive, and to enforce this, the bill limits fees to those that are incurred prior to the record being turned over plus the fees incurred to produce the proof of the amount and reasonableness of the fees incurred. The court may reduce the award of fees if it determines that the suit was not necessary and the records could have been obtained through less formal means. Finally, a public office may itself be awarded costs and fees if the court determines that the suit to enforce the fulfillment of a public records request is frivolous.
Attorney Billing Statements
In the 2016 case State ex rel. Pietrangelo v. Avon Lake, the Ohio Supreme Court ruled that, in certain circumstances, the professional fee summary of an attorney-fee billing statement is exempt from disclosure in a public-records request. In this case, the plaintiff, Pietrangelo, had requested certain public records from the City of Avon Lake, including attorney billing statements. The city complied with the request but redacted the following information from the attorney billing statements based on attorney-client privilege and attorney work product:
• Narrative descriptions of particular legal services rendered
• Exact dates on which such services were rendered
• The particular attorney rendering each service
• The time spent by each particular attorney on a particular day
• The billing rate of each particular attorney
• The total number of hours billed by each particular attorney for the invoiced period
• Total fees attributable to each particular attorney for the invoiced period
Pietrangelo then petitioned the Ninth District Court of Appeals for a writ of mandamus to compel the city to provide unredacted invoices, which the court granted. The Ohio Revised Code notes that “public records” do not include records that are prohibited from release by state or federal law.
In a previous decision, State ex rel. Anderson v. Vermilion (134 Ohio St.3d 120, 2012-Ohio-5320), the Ohio Supreme Court held that itemized statements, including dates of services, hours, rates, and money charged for the services, are not exempt from public-records law and therefore must be disclosed. However, in State ex rel. Dawson v. Bloom-Carroll Local School Dist. (131 Ohio St.3d 10, 2011-Ohio-6009), the same court found that the narrative portions of the statements were confidential but a summary of the invoice, including the attorney’s name, the invoice total, and the matter involved, was sufficient for the public-records request. One of the differences between the two cases, Anderson and Dawson, is that the matter in Dawson was pending litigation but the matter in Anderson was for general informational purposes.
In Pietrangelo v. Avon Lake, the Ohio Supreme Court held that this case resembles the Dawson case and that the records relating to the pending litigation were exempt from disclosure. “If disclosed, Pietrangelo may acquire information that would be useful in his litigation strategy against the city, whereas in Anderson, any harm from disclosure of attorney-client communication was remote or speculative.”
State ex rel. Pietrangelo v. Avon Lake, Slip Opinion No. 2016-Ohio-2974.
Directory Information
The Ohio Supreme Court determined that School Choice Ohio was entitled to records that constitute directory information as defined by the district’s public records policy. However, the organization did not have the right to compel the district to amend its student records policy.
School Choice obtains students’ contact information from Ohio public school districts via public-records requests. In addition to requesting the court to compel the district to disclose the records requested, the organization also attempted to compel the district to amend its policy to expand directory information and to require disclosure to its company by amending the parent notice and opt-out provisions. According to the Family Educational Rights and Privacy Act (FERPA), “directory information” includes the following student information:
• Name, address, telephone listing, and date and place of birth
• Major field of study
• Participation in officially recognized activities and sports
• Weight and height of members of athletic teams
• Dates of attendance
• Degrees and awards received
• The most recent previous educational agency or institution attended
Pursuant to FERPA, districts must determine which of the items listed above are to be considered directory information. Districts must then provide public notice to parents of what it defines as directory information and give them an opportunity to opt out of directory information being disclosed without prior written consent.
Ohio law defines directory information similarly and places an additional condition on disclosure – that directory information cannot be requested or disclosed for profit-making activities. In fact, whether directory information is being used for profit-making activities is the one time in public records law where the public office is permitted to inquire about the purpose of the request.
Ohio law also provides that a district may not limit the disclosure of directory information to representatives of the armed forces, business, industry, charitable institutions, other employers, and institutions of higher education unless such restriction is uniformly imposed on each of these types of representatives. The court determined that School Choice Ohio is not any of these types of organizations.
However, the court ultimately concluded that even with the limited way in which the district defined its directory information, which was lawful, the organization fit within the definition and was entitled to the records.
What This Decision Means to Your District
Many districts have received the annual requests from this particular organization and from others. This case considered the question of whether the organization is engaged in profit-making activity and answered in the negative. Therefore, districts should continue to disclose records, including directory information, in accordance with the relevant policy. Remember to consult your list of opt-outs whenever directory information is going to be disclosed without prior written consent of the parent. If you are considering changes to your public-records policies, please contact an Ennis Britton attorney for assistance or review.
by Ryan LaFlamme | Jul 19, 2016 | Workers’ Compensation
An Ohio court has denied a workers’ compensation claim by an employee who was injured in a traffic accident while traveling to obtain paintbrushes to use at a job site.
The employee worked for a waterproofing company applying a special paint to newly constructed homes to waterproof the foundations. He received $50 plus mileage reimbursement for each house the employer assigned him to paint, and could typically complete five houses in a single day. His employer supplied the paintbrushes and paint. The employee obtained needed supplies at the headquarters but also stored some paint and paintbrushes at his house. He could also purchase supplies such as paintbrushes when needed and would be reimbursed.
On his day off, when the employee went to the headquarters to pick up his paycheck, his employer let him know that three jobs needed to be done that day. The employee’s brother was with him at the time. He decided to go home to pick up paintbrushes and then drop off his brother on the way to the job site. Before he reached his home to pick up the brushes, however, he was in an auto accident and sustained serious injuries.
The employee filed for and was granted workers’ compensation benefits after the accident, but the employer appealed. The employer lost at every administrative level, including at a hearing before the full Industrial Commission, which ultimately approved the prior allowances. The employer then appealed to the Franklin County Court of Common Pleas and won.
The employee then filed an appeal in the Tenth District Court, which analyzed the “coming and going” rule. According to this rule, an injured worker must prove that he or she was injured in the “course and scope of employment and that the injury arises out of the employment relationship.” The rule is “a tool used to determine whether an injury suffered by an employee in a traffic accident occurs ‘in the course of’ and ‘arises out of’ the employment relationship so as to constitute a compensable injury.”
The coming and going rule applies only to “fixed situs” employees, which are employees whose work location is assigned by the employer. An employee can be considered fixed situs even if the particular job location changes on a weekly or even daily basis. So long as the employee commences his or her substantial employment duties only after arriving at a “specific and identifiable workplace designated by the employer,” the employee will be considered fixed situs.
After determining that the claimant was a fixed situs employee, the court then analyzed whether the coming and going rule would be a bar to an allowance under the facts of the case. The court further determined that because the claimant was not required to store supplies at his house – but rather did so for his own convenience – he was not engaged in “substantial employment duties” when he travelled home to get the supplies. He did not begin his duties until he arrived at the job site. Accordingly, his accident did not occur within the course and scope of and arising out of the employment relationship.
The court also discussed exceptions to the coming and going rule that apply even to fixed situs employees. The “zone of employment” exception would permit an allowance for injury where the employee was injured in an area under the control of the employer, though perhaps not yet engaged in the performance of substantial job duties. A “special hazard” exception applies to employees who would not have been at the location of the injury but for the employment, and the employment itself creates a special risk “distinctive in nature or quantitatively greater than the risk common to the public.” The “special mission” exception applies when the injury is sustained by the employee while performing a special task, service, mission, or errand for his employer, even before or after customary working hours, or on a day on which he does not ordinarily work. Finally, a “totality of the circumstances” exception looks at all of the relevant factors of the accident to determine (1) the proximity of the scene of the accident to the place of employment, (2) the degree of control the employer had over the scene of the accident, and (3) the benefit the employer received from the injured employee’s presence at the scene of the accident.
The Tenth District Court found that none of the exceptions apply and upheld the trials court’s denial of benefits.
If you have an employee who has been injured while traveling to or from a job location, all of the facts must be carefully analyzed to determine whether you are likely to succeed in a challenge asserting the coming and going rule. Please do not hesitate to contact Ennis Britton to assist in that analysis.
Cunningham v. Bone Dry Waterproofing, Inc., 2016-Ohio-3341
by Ryan LaFlamme | Jan 18, 2016 | General
The University of Toledo undertook a construction project consisting of an addition connecting two existing portions of the University’s hospital and a remodel of existing hospital space. The University hired an electrical contractor for the electrical trades work on the project. There were a number of delays on the project including material deliveries and progress of the work itself. There were additional issues with the project schedule that caused the electrical contractor to have to accelerate its work at additional expense.
The contractor, from time to time, issued letters to the University outlining various issues on the project and their impacts on the contractor’s work. Ultimately, about a month after the contractor’s work was substantially complete, the contractor provided the University with a “certified claim” in the amount of $450,898.29 representing additional compensation the contractor was due from the University due to the various delays and issues on the project that were not the fault of the contractor. The dispute was not resolved informally and a suit was filed by the contractor in the amount of $473,455.00.
In its defense, the University asserted that the contractor failed to comply with the procedures for submitting a claim to the University as required by the construction contract. The contract provided that any claims must be asserted within ten days of the time the event which gave rise to the claim occurred. According to the contract, failure to do so would result in a waiver of the contractor’s claim. Additionally, once the claim was submitted, there were additional steps required of the contractor to substantiate the claim. These too were not fully complied with by the contractor.
The Court of Claims sided with the University finding that the contractor did indeed fail to comply with the contractor claims requirements of the contract. Hence, even if the contractor was correct in its claim and was entitled to additional compensation, its failure to comply with the contractual procedures for submitting claims to the project owner had the effect of waiving such claims.
Districts should be aware that the burden is on them to prove a defense of non-compliance with contractual requirements. The District’s construction managers, architects, and owner representatives should take care to fully document the chain of events regarding any contractor claims in the event it becomes necessary to assert a defense such as this.
IPS Elec. Servs., L.L.C. v. Univ. of Toledo
by Ryan LaFlamme | Oct 27, 2015 | Board Policy & Representation, Construction & Real Estate
Stetz v. Copley Fairlawn School Dist., 2015-Ohio-4358
The Ninth Appellate District Court of Appeals has reaffirmed political subdivision immunity for public school districts in a slip and fall case. The Copley Fairlawn School District was sued after a student slipped and fell. The student worked in the office during her study hall. During her office time, the student was directed by a vice principal to go and change the letters on a marquee. The student did so and reentered the building. Forty five minutes after re-entering the building, the student slipped as she began to descend a stair case. The student fell backwards and hit her head on concrete. The student did not recollect any water being present on the floor at the time of her fall.
The school moved for summary judgment on the basis that it was immune from suit under Ohio law. The trial court denied summary judgment, finding that there were genuine issues of fact in dispute for the jury to decide as to whether an exception to immunity applied.
There are five exceptions to political subdivision immunity provided by Revised Code Chapter 2744. If one of these exceptions applies, the school district is not protected by immunity. The exceptions for which political subdivisions (including school districts) are liable for injury, death, or loss to person or property are as follows:
1. The negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority.
2. The negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.
3. Negligent failure to keep public roads in repair to remove obstructions from public roads.
4. Injury, death, or loss to person or property that is caused by the negligence of employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function (e.g., a school building).
5. Civil liability is expressly imposed upon the political subdivision by a section of the Revised Code
The student here argued that the buildings and grounds exception (number 4 above) applied. However, the Court of Appeals found that the student had not set forth sufficient evidence that there was a defect in the building where she fell or that the school employees were negligent. Particularly here, the defect would have been that the staff permitted a wet substance to remain on the floor causing a safety hazard. The court found that there was not sufficient information to determine if the floor was even wet at the time she fell, let alone whether a hazard had negligently been permitted to remain. Accordingly the school district was entitled to immunity and the case was dismissed.
Districts should keep in mind that while they may be protected by the immunity grants of Chapter 2744, immunity is not automatic as there are exceptions to the rule.
