Short Series Podcast: Transgender K-12, Case Law Related to Bathroom Policies

by | Jun 22, 2023 | Board Policy & Representation, General

Episode 2:  Overview of Case Law Related to Bathroom Policies

Erin and Giselle take a steadfast review of four interesting cases charting the initial path for school bathroom policies under Title IX and equal protection as they impact transgender students in K-12 schools. The discussion emphasizes how the courts have strived to keep everyone on course as the winds of change continue to blow among different administrations.

You can also listen here or wherever you get your podcasts. Look for new episodes on the first and third Thursdays of the month.

 

Circuit Courts of Appeals Split on Transgender Bathroom Issue

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

On December 30, 2022, a federal circuit court of appeals broke from the decisions from other circuits and held that separating the use of male and female bathrooms on the basis of biological sex does not violate the United States Constitution or Title IX.  In Adams v. School Board of St. Johns County, Florida, the United States Court of Appeals for the Eleventh Circuit (covering Alabama, Florida, and Georgia) upheld what the court described as “the unremarkable — and nearly universal — practice of separating school bathrooms based on biological sex.”  The ruling upheld a school district’s decision to deny a request from a transgender male to access the boys’ restroom.

 The Adams decision directly conflicts with guidance from the Office of Civil Rights of the United States Department of Education, as well as decisions from the Fourth Circuit (covering Maryland, North Carolina, South Carolina, Virginia and West Virginia) and the Seventh Circuit (covering Illinois, Indiana, and Wisconsin).  The decision also conflicts with a decision from the United States District Court for the Southern District of Ohio, which has jurisdiction over portions of Ohio.  The guidance and those decisions have concluded that transgender students may access the bathrooms of their choice.

Based on the split among the circuits, the Supreme Court of the United States may decide to consider the case and settle the issue definitively.  In the interim, clients are encouraged to contact the attorneys at Ennis Britton for consultation.

A copy of the decision can be found here. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Open Meetings and Public Records Law: Three Recent Sunshine Cases in Ohio

Open Meetings and Public Records Law: Three Recent Sunshine Cases in Ohio

by | Jan 15, 2023 | Board Policy & Representation, General

Sunshine law litigation is constantly ongoing in Ohio’s courts. Recently, three new cases expand our understanding of how open meetings and public records law is applied to public bodies.

Must a public entity teach citizens requesting records how to use its software?

The first opinion, issued in October 2022, illuminates the limits of a public office’s duty to explain how it keeps information when it uses software systems to store and access records.

A citizen, who also is an attorney, requested records from the Animal Welfare League of Trumbull County (AWL) about how many criminal complaints were filed by humane officers in any court for a period of seven years. (State ex rel. Huth v. Animal Welfare League of Trumbull County, Slip Op. No. 2022-Ohio-3582)

The request was denied, because the AWL did not maintain a list of that nature and would have had to search every investigation file to determine whether charges were filed. The AWL responded that the request was overbroad, and provided the citizen with the opportunity to revise the request. The AWL suggested limiting the request to specify individual people, addresses, or dates. The citizen filed a mandamus action asking for the AWL to explain to her how its records were stored, and requested statutory damages, attorneys’ fees, and court costs.

The court found that the AWL had provided additional information about how to revise the request for the records sought, and that was sufficient to meet its duty under the law. The citizen argued that the AWL did not tell her which software it used and how to search the software.

The court explained that the law “…requires a public office to explain how its records are organized, so as to help requesters formulate reasonable public records requests. The statute does not require public offices to offer tutorials on how their software systems work.” The court went on to note that even if the public office had explained it, the citizen would have had to have access to the AWL’s files, unless she was planning to ask the AWL to generate reports for her, which it is not required to do. The court denied the request for statutory damages, court costs and attorney’s fees.

Board committees and the Sunshine Law
The second opinion, issued in April 2022, sheds light on the Sunshine law as it relates to board committees. The facts of the case involve the creation of a land use committee by the Colerain Township Board of Trustees. (State ex rel. Mohr v. Colerain Twp., 2022-Ohio-1109, Ct. App. Hamilton, 2022) The purpose of the land use committee was to develop and make recommendations to the trustees. The trustees appointed seven voting and two nonvoting members, consisting of one trustee, a board of zoning appeals member, a zoning commission member, and others not holding public office.

Township planning staff assisted the committee, leading discussion, developing the final document, and engaging with the committee members via email. The committee met informally, did not announce the meetings to the public, did not take roll call and took no votes or minutes. The committee also considered over six months of work in person and interacted via email about a wide range of township land use issues and developed a land use plan and policy recommendations.

The township trustees were sued in mandamus, alleging a violation of the Open Meetings Act for failing to conduct the business of the committee in public and taking minutes. Once the lawsuit was filed, the trustees disbanded the committee and did not vote on the land use plan. The trial court found a violation of the OMA and the trustees appealed.

What did we learn?
The 1st District Court of Appeals in Hamilton County agreed with plaintiffs, finding that the Sunshine Law requires board committee meetings to be announced and open to the public, with minutes available for review. This is because board committees are subject to the OMA.

The court of appeals noted that it made no difference whether the committee had not taken votes. The trustees referred public business to the committee to consider and the committee deliberated and reached consensus in private. The court also found that a quorum of the body met and deliberated reviewing evidence such as pictures, emails, and testimony about the meetings of the body. All these factors resulted in a finding that a majority of the committee met to discuss public business, and in doing so, violated the OMA.

The email correspondence of committee members was likewise found to be a violation of the Sunshine Law; deliberation by a majority of the members outside of a public meeting using serial electronic communication is a violation of the law. The court affirmed the trial court’s decision invalidating the land use plan, ordering an injunction for the trustees not to violate the Sunshine Law again, finding a violation because the committee did not issue public notice of its meetings, hold the meetings in front of the public, and keep minutes. The trustees were ordered to pay statutory damages, attorneys fees and costs.

A claims handling service for a public entity is subject to the OMA
The last case in this tour of recent Sunshine Law litigation ends with frequent public records litigator bringing an action against the Ohio Township Association Risk Management Authority (OTARMA), its third-party claims handling entity, Public Entity Risk Management Services of Ohio (PERSO), and its law firm. (State ex rel. Ames v. Baker, Dublikar, Wiley & Mathews et al., 2022-Ohio-0170, Ohio Supreme Court, 2022).

Decided in November 2022, the Ohio Supreme Court considered the question of whether the unredacted invoices of the law firm advising PERSO, the third-party claims service, were public records. Plaintiff had previously sued the Rootstown Township Trustees for violations of the Sunshine Law three times, and the trustees had made claims with the OTARMA. The law firm provided legal services to PERSO in connection with that litigation. Plaintiff sought the unredacted invoices outlining the services provided by the law firm for those cases.

The law firm provided the invoices, but redacted the narrative portion describing the services provided, claiming that was protected by attorney-client privilege. The court of appeals agreed and dismissed the suit, and Plaintiff appealed.

Applying the quasi-agency test applied in previous cases, the Ohio Supreme Court noted that private entities may be subject to public records law when a public entity has delegated a duty to it, such as defending against lawsuits, and the private entity prepared records to carry out the public office’s duties. The court found that PERSO was not immune from a public records lawsuit.

Second, the court remanded the case to the court of appeals, instructing it to conduct an in camera review (i.e., for the court itself to review the invoices in chambers) of the invoices to determine if they contained attorney-client privileged information.

What did we learn?
Public entities participating in consortia and/or risk management entities which provide services may be subject to public records requests. This is because the public entity has delegated a duty it has to that entity, bringing the record generated into the ambit of public records law under the quasi-agency test. The court noted previous instances in which the General Assembly changed public records statutes when it disagreed with case law and that it could do the same in the future.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ohio Court Denies Temporary Restraining Order to Halt Return to In-Person Instruction

by | Mar 1, 2021 | Board Policy & Representation, COVID-19 (Coronavirus), General, School Management

Earlier this month, a judge in Hamilton County sided with the Board of Education of the Cincinnati Public School District (“Board”) when she denied the Cincinnati Federation of Teachers’ (“Union”) motion for a temporary restraining order and preliminary injunction that sought to delay the return to in person learning. Cincinnati Fed. of Teachers v. Bd. of Education of the School District of Cincinnati, No. A2100376 (Feb. 1, 2021).

This case was the result of the Board voting to resume in-person instruction beginning February 1, 2021. As a result, the Union filed a motion for a temporary restraining order on the basis that the Board’s decision to resume in-person instruction violated provisions of their collective bargaining agreement (“CBA”). In particular one of the provisions of the CBA provides that the Board and the Union will cooperate with one another in making reasonable provisions for the health and safety of its teachers. Additionally, the CBA provides that if a teacher believes that they are being required to work under unsafe or unhealthy conditions beyond the normal hazards of the job, then they have a right to file a grievance. In return, the Board argued that the court should dismiss the case because it lacked jurisdiction and because the Board had the express authority to make decisions regarding in-person instruction.

In reaching its decision, the court looked to § 4 of the Norris-Laguardia Act, 29 U.S.C. § 104, which generally prevents courts from granting injunctive relief involving labor disputes. However, an exception to this general rule applies if the controversy involves a labor dispute, an evidentiary hearing is held, the underlying dispute is subject to the arbitration procedure of the collective bargaining agreement, and the basis for injunctive relief are satisfied.

In evaluating the union’s claim, the court relied on previous Supreme Court precedent which held that a union’s claim that a board failed to provide them with notice and opportunity to discuss the closure of a facility fell under the exclusive jurisdiction of the State Employment Relations Board (“SERB”). State ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106 (2003). The court in this particular case analogized the union’s failure to cooperate claim to the claim in Reed. Thus, the court concluded that SERB had exclusive jurisdiction to the claim and it therefore was not subject to the arbitration process. Because they were not subject to the arbitration process, the union’s claim did not meet the exception to the general rule that prevents courts from granting injunctive relief in a labor dispute.

The teachers in this case also filed a grievance due to their belief that they were being required to work under conditions which were unsafe or unhealthy. Though the arbitration process with respect to this grievance was proceeding, the union asked the court to issue a status quo injunction while the grievance was being resolved. In evaluating this claim, the court looked to a particular section of the CBA which stated that the Board is invested with the governmental authority and control of Cincinnati Public Schools. The provision further stated that the Board’s authority includes the authority to make rules, regulations and policies that are necessary for the government of schools, the employees, and their students.

This court further noted that the Ohio legislature has vested superintendents and boards of education with almost unlimited reasonable authority to manage and control the schools within their districts. Courts will not interfere with grant of discretionary power, so long as it is exercised in good faith and is not a clear abuse of discretion. Here, the court determined that the return to in-person instruction clearly fell within the authority granted to the Board. Thus, the court concluded that the claims brought by the Union were not arbitrable and the court could not issue an injunction.

What this means for your district?

Ohio superintendents and boards of education have the ultimate decision-making authority in determining whether their schools return to in-person instruction. Courts recognize that Ohio has granted superintendents and boards of education with almost unlimited authority to manage and govern the schools within their districts. So long as boards and superintendents exercise this power reasonably and in good faith without violating the laws of the state of Ohio, courts will seldom interfere.