by Giselle Spencer | Aug 16, 2019 | Board Policy & Representation, General, Labor and Employment, Legislation, School Finance, School Management
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).
by Gary Stedronsky | May 23, 2019 | Board Policy & Representation, General, Labor and Employment
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.
by Pamela Leist | Mar 19, 2019 | Board Policy & Representation, General, Labor and Employment
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: http://education.ohio.gov/getattachment/Topics/Teaching/Educator-Conduct/Licensure-Code-of-Professional-Conduct-for-Ohio-Ed/2019-DRAFT-Licensure-Code-of-Professional-Conduct-for-Ohio-Educators.pdf.aspx?lang=en-US
by Pamela Leist | Mar 5, 2019 | Board Policy & Representation, General, School Finance
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:
- 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.
- 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.
- 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.
- 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.
- 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
by Jeremy Neff | Dec 19, 2018 | Board Policy & Representation
This time of year questions can arise in schools and the communities they serve regarding religion in public education. Community members may question the inclusion of Christian Christmas music in a winter choir concert, or parents may scoff at calling the upcoming days off “Winter Break” instead of “Christmas Break.” A Jewish employee might question why Christmas is a paid holiday, but she does not get paid time off for Hanukkah. An enterprising student may mount a campaign to ensure that a Christmas tree in the office is surrounded by symbols of other winter celebrations.
These issues are ultimately about the first two clauses of the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Over the years the separation of church and state has been repeatedly litigated. In one case, the U.S. Supreme Court allowed the display of a city-owned nativity scene, reasoning that it did not constitute an endorsement of any particular religion because it was part of a display celebrating a secular holiday (other parts of the display included a tree, Santa Claus, and a banner that read “Season Greetings”) and it merely highlighted the origins of the Christmas holiday. Lynch v. Donnelly, 465 U.S. 668 (1984). Just five years later, the Court prohibited the display of a privately owned nativity scene on the steps of a courthouse. County of Allegheny v. ACLU, 492 U.S. 573 (1989). In the latter case, the display stood on its own and was placed at a major government building. The Court concluded that a reasonable person might understand this to be an endorsement of Christianity.
Many other cases have been decided over the years. These disputes are not limited to December. Cases involving prayer at football games, reciting the Pledge of Allegiance at the beginning of the school day, funding private schools with tax-dollar-supported vouchers, and displaying the Ten Commandments and images of Jesus are among the cases that have directly involved schools and the First Amendment.
While these cases are highly fact-dependent, a few themes emerge relevant to winter holidays and public schools. The courts are willing to treat Christmas as a secular (nonreligious) holiday. Polling indicates more than 80 percent of non-Christian Americans celebrate Christmas. As a result, many symbols of Christmas do not implicate the First Amendment. A Christmas tree in a school building lobby is unlikely to be successfully challenged. Also, context matters. A high school choir concert that includes religious pieces among other songs is likely to be viewed as an artistic event rather than as an endorsement of religion. On the other hand, a first-grade reading assignment of the Biblical Christmas story is more problematic, especially given the age and impressionability of the students.
Finally, the courts are generally willing to protect the religious speech of students even as they limit that of school officials. The Supreme Court ultimately declined to hear a case arising in Texas involving a third-grade student who was prohibited from distributing candy cane pens with the message “Jesus is the Christ” at a class party. By passing on the case, the Court left in place the appellate court decision, which found that the child’s First Amendment rights were violated. Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011).
Constitutional questions are complex matters and are very fact-dependent. It is best to be proactive and consult legal counsel when questions arise. With this in mind, we hope you enjoy the final days of school before your winter break. Happy holidays!
by Jeremy Neff | Dec 17, 2018 | Board Policy & Representation, Special Education
School districts frequently ask how to balance the rights of a person who brings a service animal onto school grounds against the rights of others. For example, if one child in a classroom is allergic to pet dander, but another child demands to bring her service dog to school, whose rights prevail? These concerns are not limited only to the rights of students but also can easily arise with an employee’s request for accommodations under the Americans with Disabilities Act. In other scenarios, members of the public, including parents or spectators at a sporting event, could also be covered.
A court decision this month out of New York gives one example of conflicting rights of different members of the school community. The parents of a student with asthma and severe allergies filed a wide-ranging lawsuit in the U.S. District Court for the Southern District of New York, arguing that a school district violated their child’s rights by not having a policy prohibiting service animals and by allowing a service animal on the school grounds several times in violation of their child’s 504 plan.
In this case, the parent of a different student required the use of a service animal and brought the animal to multiple school events in which the student with the allergy participated. The student with the allergy had a 504 plan that required the school to, among other things, ensure no animals come within 30 feet of the student, keep the student out of contact with service animals, implement a cleaning protocol after animals are within the school building, and communicate in advance with her parents when a service animal was anticipated to be within the school building.
Additionally, the parents had requested other accommodations that are not discussed in the court decision and had also requested a blanket policy banning service animals from school. The school district rejected the latter request, explaining that it had an obligation under federal disability law to allow service animals within the building.
The court dismissed most of the claims but will allow the disability discrimination claim to proceed. This relates to alleged violations of the 504 plan. The court recognized that the school is required under federal law to allow service animals but noted that this does not excuse a school district from fulfilling its obligations under a 504 plan to protect a student against allergies. This case shows how distinct legal rights can come into direct conflict.
While the public court filings do not provide sufficient detail to determine what, if anything, the school might reasonably have done differently (or even if it did, in fact, violate the student’s rights), one lesson is that in allowing a student, staff member, or school visitor to exercise her right to use a service animal, a school district must consider whether accommodations are necessary to ensure that the rights of students with allergies are protected. This is a difficult balance that will depend very much on the individual facts of each case.
– Doe v. United States, 118 LRP 49416 (S.D.N.Y. 2018).
