Public Records Changes on the Horizon?

Public Records Changes on the Horizon?

by | Aug 28, 2025 | Board Policy & Representation, General

State ex rel. Platt v. Montgomery Cty. Bd. of Elections, Slip Opinion No. 2025-Ohio-2079.

The Ohio Supreme Court ruled in June that some emails were improperly withheld by the Montgomery County Board of Elections (“Board of Elections”) in response to a public records request. However, based on the specific facts at issue, the Court also ruled that an email sent by a Board of Elections member from his personal email account was not a public record. This appears to be a marked change from previous Ohio Supreme Court decisions on public records and will be a case to take with caution.

In December 2023, Mary McDonald filed a petition to be on the March 2024 primary election ballot as a Republican challenger for a seat on the Montgomery County Board of Commissioners. The Democratic candidate for the seat was the unopposed incumbent Debbie Lieberman. Mohamed Al-Hamdani, the chairman of the Montgomery County Democratic Party, along with Brenda Blausser from the City of Trotwood, challenged McDonald’s placement, alleging McDonald was not qualified to be on the ballot because she was an elected member of the Montgomery County Democratic Party Central Committee and had not resigned from that office.

Al-Hamdani was not only the party chair but also a partner of the law firm Flanagan, Lieberman & Rambo. Another partner in the firm, Dennis Lieberman, the husband of Debbie Lieberman, was McDonald’s would-be opponent in the general election.
The Board of Elections conducted a protest hearing where the lawyer representing the protestors referred to a “legal memorandum from the county prosecutor’s office,” and said he received the memo from Dennis Lieberman. At the hearing, it was stated that the memo was a legal opinion requested by the Board and was not to be disclosed because it was covered by “attorney-client privilege.”
After hearing the protest, the Board deadlocked 2-2 on whether to place McDonald on the ballot. Secretary of State Frank LaRose cast the tie-breaking vote to allow McDonald to be on the primary ballot, and she was selected as the Republican candidate. She went on to defeat Lieberman in the November 2024 general election.

The Board of Elections director called for a full investigation into the leak of the attorney-client privileged memorandum. The investigation found the memo was emailed to the four Board members. One of the Board members then forwarded the email to his personal email account, and it was then forwarded via the personal email account to Al-Hamdani, who sent it to Dennis Lieberman, who forwarded the memo to the attorney representing the protestors at the hearing.
At issue before the Court was a records request that came to the Board of Education for emails “to or from any member of the Montgomery County Board of Elections … wherein… the foregoing-referenced “legal memorandum from the county prosecutor’s office” … was sent or received.” The legal memorandum was not requested.

The focus of the requester and the Court was on three emails sent on January 10, 2024, that the Board’s investigative report refers to:

  1. the email sent from the prosecutor’s office to the Board members, which transmitted the memo concerning the protest to McDonald’s candidacy;
  2. the email one Board member sent from his Board email account forwarding the memo to his personal email account; and
  3. the email the Board member sent from his personal email account forwarding the memo to Al-Hamdani.

In its decision, the Ohio Supreme Court found that the emails #1 and #2 above were public records, while the attachment (e.g. the legal memo) was not a public record. The Court acknowledged its previous decisions, finding that a communication does not have to contain purely legal advice to be protected from disclosure by the attorney-client privilege. If the communication “would facilitate the rendition of legal services or advice,” then the communication does not have to be released, the opinion stated. After reviewing the email, however, the Court found the only legal advice the prosecutor provided was in the attached memo, not the email itself. “The email did not reveal any client confidences or contain any substantive text relating to the legal advice from the prosecutor’s office to the board.”

However, the Court appears to have shifted from its prior decisions when it ruled that email #3 was not a public record. The Court acknowledged that “[e]mail messages are records for purposes of the Public Records Act if they were ‘created or received by or coming under the jurisdiction of [a] state agenc[y]’ and ‘serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.’” The Court did not find any evidence that the email from the Board member’s personal email account was created by the Board or fell under its jurisdiction. It was not a public record, in the Court’s opinion, because it was not “’kept by any public office,’ R.C. 149.43(A)(1).”

The Court found the board violated the Public Records Act and awarded the requester the maximum $1,000 in damages, court costs, and the opportunity to seek attorney fees from the board.

What This Means for Your District:
This case could note a marked shift from the Ohio Supreme Court’s prior decisions impacting public records that are contained within personal email accounts and/or personal cell phones.

This is a case to apply with caution. There is no clear indication that this is a full change from the Court on public records, or if this was a fact-specific decision. Litigation challenges are expected to flesh out the full extension of this decision on records within personal emails and personal cell phones. Please feel free to contact your Ennis Britton attorney to discuss the implications your school district may have with its records, or any applicable records requests, considering this case.

 

 

 

Ohio Supreme Court Remands Eighth District Decision Denying Arbitration of Union’s Termination Grievance

Ohio Supreme Court Remands Eighth District Decision Denying Arbitration of Union’s Termination Grievance

by | Jun 18, 2025 | Board Policy & Representation, Labor and Employment

Ohio Council 8, AFSCME, AFL-CIO v. Lakewood, Slip Opinion No. 2025-Ohio-2052. Decided June 12, 2025

A City of Lakewood employee was fired for misconduct while under a last chance agreement. The last chance agreement was entered into after the employee was terminated for “insubordinate, inappropriate, and intimidating acts in the workplace.” The Union filed a grievance challenging the termination in response.

The grievance was resolved by entering into the last chance agreement and returning the employee to work. As is typical, the agreement provided that any further misconduct would result in the employee’s termination, and the termination would not be subject to the grievance process.

The agreement did not last long. Exactly one year later, the City moved to terminate the employee again. The Union filed a grievance. Puzzled, the City responded that the grievance process was not available due to the last chance agreement. The Union claimed that the City had violated the CBA, and that was the basis of the grievance (the decision does not specify what the nature of the alleged violation was).

Based on the City’s refusal to process the grievance for arbitration, the Union filed suit seeking an order compelling the City to participate in the arbitration of the grievance. The Court obliged, and the City appealed. The City argued that the suit alleges violations of Chapter 4117, over which the State Employment Relations Board has exclusive jurisdiction, not the Court. The City alleged on appeal that the lower court made two errors:

  1. The lower court had erred by exercising jurisdiction over the case; and
  2. the lower court had erred by granting the Union’s application and motion to compel arbitration.

The Eighth District Court of Appeals (Cuyahoga) decided in favor of the City, addressing only the City’s first allegation of error by the lower court. The court held that because the Union was bringing claims that “arise from or depend on collective bargaining rights created by R.C. Chapter 4117,” the lower court did not have jurisdiction to hear the Union’s case.  The court stated that while the Union was not explicitly seeking relief under Chapter 4117 of the Revised Code, it was substantively alleging that the City had interfered with the employee’s collective bargaining rights by refusing to arbitrate the grievance under the CBA.

The Union appealed and the Ohio Supreme Court decided to accept the case.  The Supreme Court looked to the nature of what the Union was trying to do, which was to compel the City to obey the collective bargaining agreement when it alleged that the City violated it by refusing to participate in arbitration. The Union was not alleging that the City had engaged in or was committing an unfair labor practice under Chapter 4117.

The Supreme Court then determined that, even though there is some overlap between the subject matters covered by 4117 regarding unfair labor practices, exclusive representation, and actions to enforce rights under a collective bargaining agreement, the law provides remedies for both situations. The Court expressly stated that its decision does not mean that a party may bring any claim for a violation of a collective bargaining agreement in a court of common pleas. If a CBA has an arbitration provision, the arbitration provision governs. If one party refuses to arbitrate, the Court concluded that R.C. 4117.09(B)(1) allows a party to bring a suit in the Common Pleas Court to attempt to compel the arbitration guaranteed by the CBA.

Although the lines of distinction can be a bit hazy, readers can take three things from this case:

  1. SERB has exclusive jurisdiction over unfair labor practice charges filed with SERB, as well as complaints filed with a court that allege conduct that would constitute an unfair labor practice. In other words, if you try to run to court with a ULP, the court should send you packing.
  2. If a CBA has an arbitration provision, the parties are bound to resolve disputes governing the terms and conditions of the CBA, solely by the arbitration procedure (subject to limited appeals to court). If, for example, a district is alleged to have improperly disciplined an employee or improperly denied a vacation or a personal leave day, the parties must resolve the dispute through the grievance process. The employee cannot simply run to court and sue the district over the denial of a personal day.
  3. Where a party refuses to perform under the CBA, such as by refusing to arbitrate when the CBA requires it, that party can be sued in court to be compelled to follow the CBA.

 

 

 

Elimination of Property Tax Proposal Moves Forward

Elimination of Property Tax Proposal Moves Forward

by | Jun 18, 2025 | Board Policy & Representation, Labor and Employment, School Finance

On May 14, 2025, the Ohio Ballot Board voted to certify a proposed constitutional amendment from Citizens for Property Tax Reform to ban property taxes in the state of Ohio. Many individuals joined the group after receiving letters related to the state-mandated reappraisal in 2024. The state-mandated reappraisal happens every six years in Ohio. No state has yet abolished property tax, although a few have limited it significantly.

In order to make it onto the November 2025 ballot, at least 413,487 voters must give their signatures prior to July 2, 2025. These signatures must come from voters in at least 44 of Ohio’s 88 counties. Supporters of the proposed amendment say they are worried about seniors on fixed income who cannot afford the increase in property taxes. Critics say that abolishing the property tax will make it difficult to fund essential services.

 What would this mean for your school district?

The proposed amendment does not include any indication of how major public programs like public education would be funded without property taxes. Nor is there any legislative solution proposed at this time. Ohio Governor Mike DeWine told reporters that, in what he has seen so far, the effect would be devastating to our schools. Banning property taxes outright could put children, families, and communities at risk because the government would not be able to provide services. This includes not only public education, but libraries, police, firefighters, or other services that are funded with property taxes.

 

 

Ohio Supreme Court Remands Eighth District Decision Denying Arbitration of Union’s Termination Grievance

Ohio Supreme Court Upholds School Board’s Authority to Suspend Administrative Contracts under Local Policy

by | May 14, 2025 | Board Policy & Representation, Labor and Employment, Special Education

On May 1, 2025, the Supreme Court of Ohio issued a decision in State ex rel. Ruble v. Switzerland of Ohio Local School Dist. Bd. of Edn., 2025-Ohio-1510, affirming the Seventh District Court of Appeals’ denial of a writ of mandamus sought by four former school administrators. The administrators had petitioned for reinstatement to their former positions with back pay and benefits, arguing that the school district’s administrative contract suspension policy (Policy 1540) was invalid under R.C. 3319.171. The Court held that the administrators failed to establish a clear legal right to the relief sought and clarified the limited scope of mandamus in the context of contract suspensions under local board policy.

The case arose after the Switzerland of Ohio Board of Education, acting on a recommendation from a new superintendent seeking to streamline an overstaffed central office, suspended the contracts of several administrators in 2021. The Board relied on Policy 1540, a policy adopted more than a decade earlier pursuant to R.C. 3319.171, which allows boards of education to develop local procedures for suspending administrative personnel contracts. The administrators challenged the validity of Policy 1540, arguing it failed to include two elements required by the statute: a method for determining the order of suspension and a restoration provision.

The Ohio Supreme Court rejected the administrators’ argument. It emphasized that while R.C. 3319.171 requires a locally adopted policy to contain certain elements, it does not create an enforceable right to reinstatement through mandamus. Unlike statutes that impose specific procedural safeguards for nonrenewal or termination of contracts (e.g., R.C. 3319.02 or R.C. 3319.111), R.C. 3319.171 is permissive in nature and vests discretion in local boards. The Court held that, absent a statutory right to reinstatement, mandamus is not an appropriate vehicle for relief.

Implications for School Districts:

This decision affirms the authority of local boards of education to suspend administrative contracts under their own policies, provided those policies were adopted under R.C. 3319.171. The Ruble decision provides a measure of protection against challenges that rely solely on technical arguments lacking clear statutory remedies.

 

 

U.S. Department of Education Releases FAQ on February 14, 2025 Dear Colleague Letter Regarding Ending Racial Preferences, Demands that States and Public Schools Certify Compliance

U.S. Department of Education Releases FAQ on February 14, 2025 Dear Colleague Letter Regarding Ending Racial Preferences, Demands that States and Public Schools Certify Compliance

by | Apr 17, 2025 | Board Policy & Representation, General

The U.S. Department of Education (the “Department”) has mandated that all Local Education Agencies (LEAs), which include public school districts, provide certification of their compliance with certain legal obligations described in an April 3rd document titled “Reminder of Legal Obligations Undertaken in Exchange for Receiving Federal Financial Assistance and Request for Certification under Title VI and SFFA v. Harvard.” The certifications are due by April 24, 2025, and must be submitted to applicable State Educational Agencies (SEA). ODEW, as Ohio’s SEA is requesting that certifications be submitted by April 18 even though they are not due until April 24th. This order came from the federal government via executive orders issued on January 20 and January 21, 2025, and was clarified to schools via the Department’s February 14, 2025, “Dear Colleague” letter (“Letter”).

Failure to provide certification of compliance may result in a loss of school funding from the federal government. The original deadline was extended to April 24th pursuant to an agreement between the ACLU, National Education Association-New Hampshire (NEA-NH”), and the Department. This agreement came in response to an emergency Motion for a Temporary Restraining Order in a New Hampshire lawsuit by the ACLU and NEA-NH against the Department based on the February 14 Letter and request that the court find the Letter and the requirement to end DEI to be unconstitutional.

The plaintiffs in the New Hampshire lawsuit are seeking a nationwide injunction. A preliminary injunction hearing is scheduled for April 17th over the certification requirement. It is certainly possible that the court issues a ruling on the preliminary injunction by the April 24th deadline for certification. As a result, school districts may wish to wait until after April 17th to learn whether the New Hampshire court issues a nationwide injunction preventing the certification requirement.

On February 28, 2025, the Department Provided Some Clarification of the Letter

On February 28, 2025, the Department published frequently asked questions and answers (“Q&A”) in relation to the Letter. The Q&A provides some clarification on the Letter and the potential consequences schools may face if they fail to comply with the Letter.

The Letter stated that schools found out of compliance on February 28, 2025, would face a loss of funding. However, in the Q&A the Department clarifies that the Office of Civil Rights (“OCR”) will follow its normal process for determining if a school is out of compliance and at risk of a loss of funding.

Clarification Regarding DEI Programs:

As for DEI, the Department clarifies that OCR’s assessment of school policies and programs depends on the facts and circumstances of each case. Further, the Department states that “whether a policy or program [fails to comply] does not depend on the use of specific terminology such as ‘diversity,’ ‘equity,’ or ‘inclusion.’ Schools may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races.”

Finally, in terms of “covert discrimination” which is neutral on its face but discriminatory in purpose, the Department clarified how OCR will make this determination. OCR may analyze different types of circumstantial evidence that, taken together, raise an inference of discriminatory intent. The Department outlined a simple test that OCR may utilize:
1. Did the school treat a student or group of students of a particular race differently from a similarly situated student or group of students of other races?
2. Can the school provide a legitimate, nondiscriminatory reason for the different treatment that isn’t pretextual?

Clarification Regarding What is Deemed Racial Preferencing:

The Q&A also outlines more specifics on the Supreme Court decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023) (“SFFA”) upon which the Letter states that the Department is relying for the standard of compliance. The Court held that admissions programs violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and, coextensive with the Equal Protection Clause, Title VI of the Civil Rights Act by considering students’ race when making admissions decisions. With that, the Court found that the admissions programs were unlawful because they employed racial stereotypes, disadvantaged members of particular races, were not sufficiently measurable, and lacked a logical endpoint.
The Department states that the Court’s decision in SFFA has broad implications regarding racial preferences with students. The first of these implications being that schools cannot, in any competitive admissions process, or other competitive process for a benefit at an educational institution, legally treat membership in any racial group as a plus factor, because a plus factor for one racial group is necessarily a negative factor for those not in that racial group. Second, even when racial classifications or distinctions do not necessarily involve making conscious stereotypes about members of a particular race or placing members of a particular race at a disadvantage in a zero-sum process, they still raise constitutional concerns under the Fourteenth Amendment. The Department mentions that this applies both for admissions and hiring.

The Department also reiterates in multiple answers that schools are responsible for ensuring they are not partnering with third parties in race-based discrimination. They state that “schools may not administer or advertise scholarships, prizes, or other opportunities offered by third parties based on race” and that “[a] school may not engage in racial preferences by laundering those preferences through third parties.”

Clarification Regarding What is Considered Unlawful DEI:

The Department states that “schools must consider whether any school programming discourages members of all races from attending, either by excluding or discouraging students of a particular race or races, or by creating hostile environments based on race for students who do participate.” The Department also clarifies that First Amendment rights are not being restricted and control over curricula is not being exercised but “the First Amendment rights of students, faculty, and staff, and the curricular prerogatives of states and local school agencies do not relieve schools of their Title VI obligations not to create hostile environments through race-based policies and stereotypes; nor does it relieve them of their duty to respond to racial harassment that creates a hostile environment.”

The Department further states that “[i]n determining whether a racially hostile environment exists, OCR will examine the facts and circumstances of each case, including the nature of the educational institution, the age of the students, and the relationships of the individuals involved.” The Department provides examples of programs that would amount to creating a hostile environment such as ones that would act to bring shame or intrinsic guilt upon members of certain races or ethnicities. Finally, within this section, the Department warns that schools must not discriminate based on race with “how they discipline in response to complaints or allegations of harassment, or in response to speech that would be protected under the First Amendment, whether through use of bias response teams, mandatory trainings, or compelled statements.”

How This Affects Your District

Unless a court issues an injunction applying to Ohio, all districts have been directed to submit the certification of compliance by April 24, 2025.
However, for Ohio Districts, ODEW is requesting certification by April 18, 2025. This request does not appear to be a legal mandate since the Department has clearly given public school districts until April 24th to submit their certifications. Prior to providing your certification, consider the clarification the Q&A document provides.

Since this Q&A also provides more insight into what the DEI programs are, this gives your District a chance to ensure a “racially hostile environment” is not occurring via school programming or in disciplinary measures for harassment. As for racial preferencing in enrollment or employment decisions, the Department is asking your District to ensure that there is nothing in your practices or policies (or those of a third-party that your District utilizes) that takes race into consideration on its face or under the surface.

For inquiries specific to your school district, and situations you want to review as it relates to this Letter, please contact any of the attorneys at Ennis Britton if you have questions or concerns regarding the Department of Education’s letter and your compliance.

[1] Frequently-asked-questions-about-racial-preferences-and-stereotypes-under-title-vi-of-civil-rights-act-109530.pdf

[1] See our article on the February 14, 2025 Dear Colleague Letter: https://ennisbritton.com/blog/2025/u-s-department-of-education-gives-until-february-28-to-comply-with-new-federal-anti-discrimination-orders-of-risk-loss-of-funding

Signed, Sealed, and Delivered: Ensuring Proper Diploma Requirements Are Met

Signed, Sealed, and Delivered: Ensuring Proper Diploma Requirements Are Met

by | Nov 18, 2024 | Board Policy & Representation, General, School Management

 

It may only be November, but it is never too early to start planning for graduation. As we begin looking ahead to the big day, let us revisit a law that impacts our obligation to our students as they reach this major milestone in their academic journey. 

O.R.C. 3313.61 lays out the graduation requirements for high school students and guidance for districts when issuing diplomas. Under the statute, the board of education of any city, exempted village, or local school district that operates a high school shall grant a diploma to any student who successfully meets the minimum academic standards, credit requirements, and assessments necessary for graduation. Ohio law expects districts to maintain accurate and verifiable records of each student’s progress toward graduation, and based on these records, schools must proactively notify students and parents of requirements, assessment deadlines, and available pathways to meet the criteria to graduate on time. Proper record-keeping and communication is essential. It makes it easier to identify if a student may need additional academic support services, and it can help districts determine if a student may be a better fit for an alternative pathway to graduation, such as dual enrollment in a CCP program or exploring work-based learning opportunities.

The often-overlooked signature provision in O.R.C. 3313.61(D) requires that each diploma awarded under this section be signed by the following individuals:

  • the president and treasurer of the issuing board;
  • the superintendent of schools; and
  • the principal of the high school.

Additionally, each diploma shall bear the date of its issue, be in such form as the district board prescribes, and be paid for out of the district’s general fund. Districts may fail to comply with the statute in a variety of ways. Maybe a district routinely only requires the principal to sign the diploma instead of including the Board of Education President and Treasurer, or vice versa.

Forgetting a signature or two may seem trivial, but compliance ensures that we protect the integrity of the diploma. Issuing a diploma should be meaningful. The diploma is supposed to signify that a student has the skills, knowledge, and credentials necessary for the next step in their lives – not to mention that the signatures are a legal requirement. Although it may seem unlikely, failure to adhere to this law could have potential legal consequences for the district if an action is brought by students, their parents, or advocacy groups.

What does this mean for your district? The bottom line is that districts must comply with O.R.C. 3313.61 to ensure that all students meet the necessary requirements for graduation and are equipped for future success. This includes specific signature requirements for issuing diplomas. High school graduation is an important milestone for our students that requires over a decade of focus and dedication. They have spent countless hours preparing for this moment that symbolizes their transition to adulthood. We must work together to support all students in meeting their graduation goals, and we owe it to them to get it right when they walk across that stage.