Court Sides with District in Teacher Termination and Vacates Back Pay

The Sixth District Court of Appeals delivered a win to school districts recently when it reversed a lower court’s decision ordering the Perkins Local School District to reinstate a former teacher who had been terminated with an award of $367,202.52 in lost wages and benefits. The case was brought by former teacher and coach Tracey Hiss. Hiss was terminated for cause after the district learned she supplied several members of her girls track team with Lidoderm patches – prescription patches containing lidocaine that help with pain relief.

When the superintendent learned of the allegations, he met with Hiss and subsequently placed her on paid leave pending further investigation. He also reported the allegations to the police, who subsequently charged her with a minor misdemeanor for her actions. The district held a pre-disciplinary hearing and the superintendent sent notice of his intent to recommend termination. Hiss, through legal counsel, objected to some of the reasons listed in the notice because they had not been addressed at the pre-disciplinary hearing. The superintendent subsequently held another pre-disciplinary hearing and again recommended termination which the board approved. Hiss requested a hearing to challenge the board’s intent to terminate before a state appointed referee. At the termination hearing, Hiss introduced evidence of an incident where a prior coach, Crabtree, had given a student Tylenol to help reduce pain. She argued that the board should not have terminated her contract due to the fact that this teacher merely received a reprimand and a brief suspension from coaching, where she was being terminated.

After conclusion of the five-day hearing, the referee issued his report and recommendation that the board terminate Hiss’s teaching contract. In making this recommendation, the referee found that the board had sufficient policies prohibiting teachers from both possessing and distributing controlled substances and medicines to students without a parent’s permission.

Shortly thereafter, the Board adopted the referee’s recommendation and passed a resolution to terminate Hiss’s teaching contract. Hiss then appealed this decision to the common pleas court. The court applied the Daughtry test of good and just cause, concluding that the board lacked cause to terminate Hiss’s contract. The court focused in particular on the fact that Crabtree, who had engaged in similar behavior, received a much less severe discipline. The district appealed, claiming in part that the court of common pleas abused its discretion in applying this new test and effectively usurping the role of the ODE referee.

On appeal, the Sixth District Court of Appeals agreed that the court of common pleas abused its discretion when it substituted its own judgement in place of the board of education. The court of appeals concluded that the court’s reliance on the Daugherty test to define “good and just cause” was misplaced. The court reasoned that, while an arbitrator may use the Daugherty test to determine the standard of good and just cause in a labor-arbitration matter, the Ohio Supreme Court has failed to adopt the Daugherty test in just cause teacher termination cases. Thus, the common pleas court exceeded its authority by relying on the Daugherty test as opposed to the cases interpreting R.C. 3319.16 as to whether good or just cause exists.

Examining the merits of the case, the court also determined that Hiss’s misconduct was , a “fairly serious matter” that falls within the realm of good and just cause for termination under R.C. 3319.16. Hiss repeatedly gave prescription pain medicine to students in direct violation of district policy that could have ultimately caused serious harm to the students. The court opined that this added to the fact that the board of education complied with procedural requirements of R.C. 3319.16 by providing Hiss with two informal hearings as well as a hearing before the referee justified the board’s decision to terminate. Therefore, the board’s earlier decision to terminate Hiss’s teaching contract was reinstated.

School District Transgender Policy Violates Title IX

On August 9, 2019, a federal judge in Virginia ruled in favor of a transgender student in holding that a school district’s policy violated his rights under Title IX and the Equal Protection Clause. The Grimm v. Gloucester County School Board case stemmed from a school district’s policy requiring students to use restrooms and locker rooms that corresponded to their “biological genders.” The district provided alternative facilities for transgender students.

The court initially ruled that claims of discrimination on the basis of transgender status for gender-stereotyping are actionable under Title IX. The court further found that denying Grimm the ability to access the facilities corresponding with his gender identity were not only actionable but did in fact result in a violation of Title IX and the Equal Protection Clause.

The Board argued that it had not engaged in discrimination and that Grimm had not suffered any harm as a result of its policy. The court found this argument to be unconvincing. The court determined that the district’s policy subjected transgender students to discriminatory treatment by excluding them from places similarly situated students had access to. Further, Grimm did suffer emotional harm due to the fact he was unable to comfortably access restrooms at school. Grimm was further subjected to harm when the school district refused to update his school records in order to reflect his male identity. Failure to do so has negated his male identity and marked him different than other males any time he provided a copy of his transcript to another entity.

This ultimately led the court to grant a permanent injunction against the school district’s restroom and locker room policy. The injunction further awarded Gavin nominal damages and ordered the school district to change his school records to conform with his gender identity.

While the decision from the Fourth Circuit Court of Appeals is not controlling on Ohio school districts, the Sixth Circuit did rule on a very similar case back in 2016. In Dodds v. United States Department of Education, the Sixth Circuit Court of Appeals agreed with a lower district court decision and determined that an eleven-year-old transgender girl had a strong likelihood of success in her claims against the school district and should therefore be allowed to use the school restrooms conforming with her gender identity.

It is important to note the decision in Dodds relied on guidance from the United States Department of Education that has since been rescinded. The current position of the USDOE is that they will not accept any complaints alleging a transgender student was denied access to restrooms and locker rooms and will only accept complaints of harassment or bullying for failing to conform to sex-based stereotypes. Thus, in light of this new guidance, it remains unclear how an Ohio court would rule on this issue today.

What this means for your district:
The issue of providing accommodations to transgender students remains unclear and is a matter that will doubtless be subject to further litigation before any clarity is provided. Districts should proceed with caution when faced with these issues. For additional advice on handling requests for accommodations for transgender students, please contact an Ennis Britton attorney for assistance.

Arming School Personnel

The Ohio Attorney General’s Office recently released an opinion in response to a request for legal advice on the issue of arming school staff. The letter requested, among other things, an analysis on how the training requirements under R.C. 109.78(D) apply to school employees authorized by the board of education to carry or possess a deadly weapon on school property under R.C. 2923.122(A).

R.C. 109.78(D) in full provides:

“(D) No public or private educational institution or superintendent of the State Highway Patrol shall employ a special police officer, security guard, or other position in which such person goes armed while on duty, who has not received a certificate of having satisfactorily completed an approved basic police officer training program, unless the person has completed twenty years of active duty as a police officer.”

As noted, R.C. 2923.122(A) prohibits any person from knowingly conveying, or attempting to convey, a deadly weapon into a school safety zone. However, there is a specific exception set out in R.C. 2923.122(D)(1)(a) which excludes any other person from this prohibition:

“who has written authorization from the board of education or governing body of a school to convey deadly weapons… in a school safety zone or to possess a deadly weapon… in a school safety zone and who convey or possesses the deadly weapon… in accordance with that authorization.”

The letter sought advice on whether or not a school employee who has been authorized to carry a deadly weapon by the board of education under R.C. 2923.122(D)(1)(a) is subject to the training requirements of R.C. 109.78(D). The Attorney General’s Office reiterated their argument laid out in their amicus brief in the appeal of Gabbard v. Madison Local School Dist. Bd. of Edn. The court in that case concluded that school employees authorized by the board of education to carry firearms on school premises were not subject to the training requirements of R.C. 109.78(D) because they were not employed by the district in a security capacity. The Attorney General’s Office agreed and opined that in order to determine which provision outlined above is applicable to an employee hired by a school district, we must analyze whether the individual is employed in a role comparable to that of a security guard or police officer. In doing so, we must look to the person’s job title along with the duties and responsibilities assigned to them.

If an employee is hired by the district in a security capacity, then they are subject to the training requirements expressed in R.C. 109.78(D). (I.e. approved basic training police program, or twenty years active duty of a police officer). However, any other employee hired by a school district who does not serve in such a role, i.e. teacher, principal, custodian, and who is authorized by the board to carry or possess a firearm under R.C. 2923.122(D)(1)(a), is not subject to the training requirements of R.C. 109.78(D).

Can a School Board Member Serve as a Coach?

Given their choice to enter into elective office, school board members are typically service oriented individuals. They are very active in their communities and are often interested in the athletic programs of their district. Thus, it is not surprising that many school board members would want to help out by coaching or assisting a coach with an athletic team. On January 9, 2019 the Ohio Ethics Commission received a request from a district’s superintendent for an advisory opinion letter on behalf of a board member. The member wanted to pursue a coaching position with the district and asked if he could accept employment as a paid coach or serve as a volunteer coach.

The opinion indicates that a board member is prohibited, under Ohio ethics laws, from being employed as a paid coach by the district they serve. Ohio Revised Code section 3313.33(B) expressly states that members of the board may not “be employed in any manner for compensation.” RC 2921.42 (A)(4) also provides that a public official is prohibited from having an interest in the profits and benefits of a contract of the public agency he or she serves. A school board member who is a compensated employee of a district would have an interest in the district by entering into an employment contract as a coach. As a result, the commission’s opinion states that “RC 2921.42(A)(4) prohibits the school board member from serving simultaneously as a paid district coach.”

The opinion further provides that a board member may volunteer as a coach without any compensation. There is no statute that prohibits a member from serving as a volunteer coach. Additionally, there is no prohibited interest in a public contract when a board member volunteers his or her time without compensation. Although, members in this position may be required to abstain from participating in matters directly affecting the athletic department. This could include voting, discussing, deliberating or taking any other actions regarding athletic department personnel. They may also be required to abstain from voting on an employment/supplemental contract for an employee who works in that sport/activity or who oversees the program in which the board member volunteers (ie – athletic director) because of concerns about undue influence. However, the Ethics Commission found that a member was “not prohibited from participating in matters that affect all athletic department personnel within the district uniformly” (i.e. voting on a CBA that includes an increase in compensation to supplemental positions) or from participating in general budgetary matters that might include funding for athletics and compensation or benefits for employees.

It appears that the Ethics Commission likely issued the opinion to address the situation where board members volunteer to take the place of a paid supplemental coach rather than to serve as a volunteer in some other capacity, such as announcing the game, taking tickets, etc. However, the Ethics Commission was not very clear in delineating between someone who volunteers as a coach versus someone who volunteers in another capacity. For that reason, board members who volunteer in a capacity other than taking the place of a supplemental position are also advised to follow the advice in this Ethics Commission opinion.

The Licensure Code of Conduct for Ohio Educators

The Licensure Code of Professional Conduct for Ohio Educators (“Code”), which was first adopted in 2008, outlines the framework for professional conduct for individuals who have a license or permit issued by the State Board of Education. On February 13, 2019, the Ohio Department of Education (“ODE”) released a revised draft of the Code. The proposed changes highlight areas that ODE and the State Board have placed renewed focus on.

For instance, Principle One was revised to recognize that educators who have an ongoing physical or mental incapacity violate the Code. This includes an addiction to a substance that renders them unable to effectively perform their duties or maintain the care and custody of children. Under this Principle, ODE recognized acts of sexual harassment and dishonesty violate the Principle as well.

ODE clarified, under Principle Two, the expectation for educators to maintain appropriate relationships with students. The Principle was amended to outline that establishing an unprofessional relationship with a student for emotional, romantic or other reasons is prohibited and has severe implications.

Principle Three spells out in more detail how an educator may violate the Code by falsifying, intentionally misrepresenting, willfully omitting, or negligently reporting professional qualifications and/or prior discipline issued by the State Board. It also indicates that an educator commits a violation by failing to cooperate with a formal inquiry or investigation of any state or federal agency.

Additional language was added in Principle Six, titled “Use, Possession, or Unlawful Distribution of Alcohol, Drugs, and Tobacco,” specifically to detail professional conduct of teachers in their personal behavior outside of school. It states that teachers may not engage in habitual use of alcohol as demonstrated by multiple alcohol-related convictions during a five-year timespan.

A new Principle was created to address technology in light of the ever-growing use of technology in our schools. Principle Nine requires educators to demonstrate responsible and appropriate conduct when using electronic devices and accessing the data that have been entrusted to them. The Code summarizes the expectation that educators must be diligent in preventing students and others from accessing improper or confidential material on their professional and personal devices. Educators may not present inappropriate, non-school media to students or use technology or social media for inappropriate communications with students. Educators under the Code will be held accountable for reporting online harassment or bullying of a student and will be expected to intervene when aware of illegal or inappropriate images and media involving a student or minor. Educators may not use technology to distribute inappropriate material that could be reasonably accessed by the school community. Lastly, educators may not use school technology for their personal business venture.

The State Board receives and investigates complaints of Code violations and has the authority to issue discipline. Possible discipline for violations ranges from a letter of admonishment up to the permanent revocation of a license or permit. The draft code may be accessed at:

Federal Procurement Spring Survival Guide

As of this fiscal year, all school districts that purchase goods or services with federal grant funds must comply with new federal regulations that were adopted a few years back. This is an important issue for schools to consider as they enter into contracts this spring to obtain federally funded goods and services.

By way of background, in 2013 the U.S. Office of Management and Budget (“OMB”) published the Uniform Guidelines requiring states and non-federal agencies to follow and adopt procedures and policies for purchasing goods and services with federal grant funds. The Uniform Guidelines became effective in 2014. However, the OMB granted a series of grace periods that delayed implementation of the new rules. The most recent grace period expired in December 2017 and therefore the rules became effective at the expiration of each entity’s fiscal year that occurred after that date.

For most Ohio schools, the new rules took effect July 1, 2018. This means that auditors will begin to audit districts on those procedures this school year. Some districts may have been audited this past year if the district adopted new policies and procedures before the expiration of the last grace period and failed to indicate in writing that they planned to take advantage of the final grace period. It is also important to note that the standards set out in the Uniform Guidance will not apply to contracts that were executed prior to the effective date of the rules.

The Uniform Guidance requires non-federal entities to use one of five specific purchasing methods for all nonpayroll purchases. 2 C.F.R. §200.371-318. The five procurement methods included in the Uniform Guidance are as follows:

  1. Micro Purchase Method – for purchases with an aggregate dollar amount that does not exceed the Micro Purchase Threshold, which is currently set at $10,000 (note that districts may set a lower threshold in board policy). Under this method, a district must consider costs, but is not required to solicit competitive quotes. To the extent practicable, the district must distribute micro-purchases equitably among qualified suppliers.
  2. Small Purchase Method – for purchases that do not exceed the Simplified Acquisition Threshold, which is currently set at $250,000 (note that districts may set a lower threshold in board policy). Here, an agency must obtain price quotations from an “adequate number of qualified suppliers.” The entity’s policy should define the number of quotes they believe to be adequate.
  3. Sealed Bid Method – for purchases that exceed the small purchase threshold where bids are publicly solicited and a firm fixed price contract is awarded to the responsible bidder who confirms all the terms and conditions of the invitation and has the lowest price. School districts will likely not use this method very frequently.
  4. Competitive Proposals – for purchases that exceed the small purchase threshold with more than one source submitting an offer for a fixed price or cost-reimbursement type contract. This method should be used when the Sealed Bid Method is not appropriate. The district is to evaluate the bidders on cost and other factors it has established in order to select the most qualified candidate.
  5. Noncompetitive Proposals – for purchases through a non-competitive solicitation under one of the following conditions:
  • The item is available only from a single source;
  • The public exigency or emergency for the requirement will not permit a delay in purchase;
  • The Federal awarding agency or pass-through entity expressly authorizes noncompetitive proposals in response to a written request from the non-federal agency or;
  • After solicitation of a number of sources, competition is determined to be inadequate.

A school district’s compliance with the Uniform Guidance will be subject to audit each year. The state auditor’s office has stressed that it is critical for school districts to maintain documentation to demonstrate that it has complied with the regulations set forth in the Uniform Guidance. This documentation should illustrate why a particular method was selected and how the district went about purchasing in accordance with their policies and guidelines. School districts should also be aware that a decision to use noncompetitive proposals may trigger stricter scrutiny and review than purchases made with other methods.

It is also important to note that there have been many questions about how the new regulations impact service contracts with Educational Service Centers (“ESCs”) in particular. Many services obtained through ESC contracts are paid for at least in part with federal funds. Two separate statues, R.C. §§3313.843 and 3313.845, define what types of contractual relationships that districts may have with ESCs. State law also specifically requires most districts to have a contract and be affiliated with an ESC if they have a student population at or below sixteen thousand. Unfortunately, this statutory structure does not fit neatly into the new Uniform Guidance, and it is unclear at this time whether school districts may use noncompetitive proposals, specifically through sole source, to procure federally funded services through ESCs. The Ohio Department of Education plans to publish additional guidance about how it believes the new procurement regulations apply to ESC contracts. The guidance is expected in the near future. In the meantime, contact legal counsel if you have questions about which method of procurement you should use for these and any other types of federally funded contracts.

What this means for your district
Districts should carefully review board policies and guidelines that pertain to federal procurement with staff who may be responsible for obtaining goods and services with federal grant funds. They should carefully consider how purchasing will be documented in anticipation of an audit. Districts should also review the terms adopted in policies and procedures with their policy providers to make sure that the policies are up to date.

Legal References: 2 C.F.R. Part 200, R.C. 3313.843, R.C. 3313.845