by Ryan LaFlamme | Oct 17, 2018 | Board Policy & Representation, School Management
On September 13, the Federal Bureau of Investigation (FBI) issued a public service alert to raise awareness of cybersecurity concerns for K–12 students. While education technologies have helped to engage community involvement and improve the educational environment, security risks lurk beneath the surface. Large amounts of student data are collected and stored online, and this data is at risk of compromise or exploitation if not stored securely enough to escape hackers.
Education technologies include software programs and online apps used in classrooms, mobile apps to enhance the learning experience, administrative platforms that assist educators and administrators with class and school management, and others. At-risk data collected by ed-tech can include students’ personally identifiable information, behavioral and disciplinary information, academic records, biometric data, geolocation, and more. The FBI warned that malicious use of this data can lead to social engineering – using deception to manipulate people into disclosing confidential or personal information – identity theft, bullying, tracking, and other means of targeting children.
School Security Hacks in 2017
The FBI’s alert included reports of two serious security breaches in 2017. In the first, multiple school districts’ servers across the country were hacked, giving the hackers access to student contact information, education plans, medical records, and counselor reports. This information was then used to contact, extort, and threaten students with physical violence and release of their information. Parents received text messages, and students’ private information was publicized and posted on social media, giving child predators access to new targets.
Additionally, two large ed-tech companies were breached in 2017, resulting in public access to the data of millions of students. One of the companies had stored their data on public-facing servers, and breached data from the other company was posted for sale on the dark web.
FBI Recommendations
The FBI recommends that parents be aware of student privacy requirements, discuss ed-tech with their local school districts, conduct research for support and additional resources, research security breaches to inform of vulnerabilities, consider monitoring credit for identity theft, and conduct regular internet searches on their children.
Issues for Schools
Always at the bottom line, additional security costs additional money. Schools that face budget decisions and scarce resources for internet security may prioritize value-added expenditures over those with no visible benefit, such as cyber security.
School District Legal Requirements
School districts should know and consider legal requirements when adopting ed-tech resources and considering the importance of cyber security.
The Family Education Rights and Privacy Act (20 U.S.C. § 1232(g); 34 CFR Part 99) as well as state law (R.C. § 3319.321) and board policy place stringent restrictions on how “student records” must be maintained and protected. Board records retention schedules require districts to maintain certain types of records for years, if not permanently. Staff should be trained to understand what constitutes an education record as well as state and federal laws and board policy that limit release and maintenance of student records.
The Children’s Online Privacy Protection Act (15 U.S.C. § 6501–6506; 16 CFR Part 312) imposes requirements on operators of websites, internet services, and apps directed to children under age 13 and on operators that have actual knowledge that they are collecting personal information online from a child under age 13. The purpose is to give parents control over their children’s information that is collected online by seeking parental consent. Schools that contract with third-party websites or apps solely for the benefit of students can consent to data collection and the use or disclosure of students’ personal information by acting as an agent on the parents’ behalf. Such consent is restricted to educational purposes only. Additionally, at the school’s request, the operator must provide a description of the types of personal information collected, the opportunity to review the child’s personal information and/or have the information deleted, and the opportunity to prevent further use or online collection of a student’s personal information.
Tasked with enforcing COPPA, the Federal Trade Commission recommends that schools or districts – not teachers – decide whether a provider’s information practices are appropriate. Districts should have a centralized process to assess these practices. The FTC cautions that schools should know how student information is collected, used, and disclosed. Districts should also ensure that these operators appropriately protect the security, confidentiality, and integrity of student information and should understand the operator’s data retention and deletion policies.
The Protection of Pupil Rights Amendment (20 U.S.C. § 1232h; 34 CFR Part 98) requires that districts adopt policies and provide direct notification to parents at least annually regarding the specific or approximate dates of activities involving the collection, disclosure, or use of students’ personal information for the purpose of marketing or selling that information (or otherwise providing the information to others for that purpose), as well as the parents’ right to opt out of these measures.
by Gary Stedronsky | Aug 28, 2018 | Board Policy & Representation, Labor and Employment, School Management, Unemployment, Workers’ Compensation
In 2016, Ohio became the twenty-sixth state to legalize the use of marijuana for certain specified medical conditions. Medical marijuana facilities and patient registries are expected to be fully operational in the near future. School districts should be aware of how the medical marijuana law might impact current policy and operations.
Overview of State Law
Under state law, individuals who suffer from any of twenty-one identified medical conditions (listed below) may register with the state to use medical marijuana. In addition to these twenty-one conditions, the state medical board may be petitioned to add other conditions to this list.
Qualifying Medical Conditions
|
| AIDS |
Inflammatory bowel disease |
| Alzheimer’s disease |
Multiple sclerosis |
| ALS (“Lou Gehrig’s disease”) |
Pain that is chronic, severe, or intractable |
| Cancer |
Parkinson’s disease |
| Chronic traumatic encephalopathy |
Posttraumatic stress disorder |
| Crohn’s disease |
Sickle cell anemia |
| Epilepsy or seizure disorder |
Spinal cord disease or injury |
| Fibromyalgia |
Tourette’s syndrome |
| Glaucoma |
Traumatic brain injury |
| Hepatitis C |
Ulcerative colitis |
| HIV |
|
When registering with the state, an individual’s application must be accompanied by a licensed physician’s recommendation. Caregivers of medical marijuana users must also register with the state to avoid criminal prosecution for possession of medical marijuana and to assist registered patients. Medical marijuana may be used in oils, tinctures, plant material, edibles, patches, and vaporizers; however, smoking marijuana is prohibited.
Federal Laws and Regulations
Regardless of Ohio’s legalization of marijuana for medical purposes, marijuana is still a prohibited substance under federal law. The Americans with Disabilities Act requires that employers provide reasonable accommodations to employees with certain disabilities so that they may perform the requirements of their job; however, the ADA does not require employers to permit the use of medical marijuana as a reasonable accommodation. Similarly, the Family Medical Leave Act does not require employers to grant leave for employees so that they may obtain medical marijuana treatments for a serious health condition. Federal law does not interfere with an employer’s right to maintain a drug-free workplace, to implement a zero-tolerance drug policy, or to subject an employee to a drug test. Currently, pending federal legislation to enact the STATES Act would give states the freedom to decide how to legalize or regulate marijuana.
School District Employees
Ohio employers are not required to permit their employees to use medical marijuana at work and may continue to take adverse employment action against employees for their use of medical marijuana – even if the employee has a recommendation from a doctor for use and uses the marijuana outside of work hours. School districts may elect to make accommodations and modify policies to allow employees to use medical marijuana in some circumstances, although employees must continue to comply with state and federal regulations that prohibit use of drugs in safety-sensitive positions. School districts should be clear that employees may not be under the influence of marijuana when they are responsible for the safety or supervision of students and staff.
For workers’ compensation purposes, if an injury occurs at the workplace and the employee tests positive for marijuana, a rebuttable presumption arises that the use of marijuana was the cause of the injury, even if the employee has a recommendation for use from a doctor. To overcome this presumption, the employee must then demonstrate that the marijuana use did not factor into the cause of the injury. If unsuccessful, the employee would not be eligible to receive workers’ compensation benefits. Similarly, with unemployment compensation, an employee’s use of medical marijuana is just cause for termination, and no benefits would be provided to an employee in this scenario.
Ohio’s law does not prohibit an employer’s right to refuse to hire a job applicant because of use, possession, or distribution of medical marijuana.
Patient Protections
A very small section of the Revised Code delineates the rights of patients who are registered with the state to use medical marijuana. Patient rights include the right to use and possess medical marijuana, up to a maximum of a 90-day supply; to possess any paraphernalia or accessories for the use of medical marijuana; and to avoid arrest or criminal prosecution for obtaining, using, or possessing medical marijuana and the necessary paraphernalia and accessories. Registered caregivers have the same rights to possess medical marijuana, paraphernalia, and accessories, but do not have the right to use medical marijuana. Operating a vehicle is prohibited while under the influence of medical marijuana. No minimum age is specified for patients to use medical marijuana.
Activities Prohibited Near Schools
No medical marijuana cultivator, processor, retail dispensary, or testing laboratory may be located within five hundred feet of a school, except for academic research institutes.
by Ryan LaFlamme | May 30, 2018 | Board Policy & Representation
Ohio’s Sixth District Court of Appeals, in a case arising in Erie County, Ohio, upheld the denial of public records requests for all emails from certain elected county officials to other county employees over the span of a month. The requester asked for the following:
all emails sent and received by Wilson and one of her employees from September 3 to October 3, 2017; all emails sent and received by Sigsworth and one of his employees from September 3 to October 3, 2017; all emails sent and received by Binette from September 3 to October 3, 2017; the personnel files for Baxter and two of his employees; all emails sent and received by Tone from September 3 to October 3, 2017; and all emails sent and received by Baxter and 12 of his employees from October 13 to November 13, 2017.
The court addressed each of the requests in turn. The court found that all of the requests for emails were overly broad because the Public Records Act does not entitle anyone to a complete duplication of the files of a public office. Even though the Public Records Act is to be construed liberally and in favor of the person making the request, the duty of the person requesting records is to clearly identify the particular records they are seeking. This is so even when, as in this case, the time period for the records (one month) is relatively short.
People who are seeking public records often take an approach that is similar to litigation discovery – broadly requesting “any and all” documents related to a topic or “all communications” with a person or group of people. This is the wrong approach, as the Public Records Act requires identification of the specific records being sought with “reasonable clarity.”
The request for the personnel files was ultimately fulfilled and was noted by the court as a moot issue.
While this case certainly advances one’s understanding of an overly broad request, keep in mind that no bright-line rule exists. The content and context of each request must be considered. A request is not automatically invalid because it seeks an entire month’s worth of records or even records going back several years. Here the requester was denied based on not the time period of the records but rather the broadness of the request, which made it difficult for the public office to identify with reasonable clarity the records that were being sought. The personnel file, on the other hand, is a specific, identified item and in most cases would not be considered an overly broad request.
– State ex rel. Bristow v. Wilson, 2018-Ohio-1973.
by Gary Stedronsky | May 25, 2018 | Board Policy & Representation, General
The Ohio attorney general recently published an opinion that addressed several questions regarding property valuation settlements when property owners and boards of education contest an auditor’s value (O.A.G. No. 2018-011).
A party such as a board of education or a property owner who contests an auditor’s property valuation will begin by filing a complaint with the board of revision. A party who disagrees with the requested valuation may file a counter-complaint. While the complaint is pending before the board of revision, the complaining parties may enter into a settlement agreement, either dismissing the complaint or stipulating to an agreed property valuation, both of which options may be accompanied with a payment from the property owner to the board of education.
The attorney general’s opinion answered four questions raised by the Stark County prosecuting attorney, all of which used the same hypothetical property valuations:
- The county auditor values a property at $400,000.
- The local board of education files a complaint to increase the property valuation to $550,000.
- The property owner files a counter-complaint to reduce the valuation to $350,000.
Scenario 1
In the scenario in the first two questions, the board of education dismisses the complaint in exchange for a one-time payment of $5,000. In their simplest form, the questions arising from this scenario are as follows:
- Is this scenario permissible?
- If so, may a board of revision require disclosure or approval of the settlement agreement as a condition for the board of education to dismiss the complaint?
The short answer to question 1 is yes, this is permissible. The attorney general explained that a board of education may voluntarily dismiss a pending complaint. Furthermore, a board of education has the authority to enter into a settlement agreement. This includes the terms of the settlement – in this scenario, receiving a payment in exchange for dismissing the complaint.
In answer to question 2, the attorney general noted that a board of revision has no authority to require a party to disclose the settlement agreement, nor to require the board of revision’s approval of the settlement agreement, as a condition for the board of education to dismiss the complaint.
Scenario 2
In the scenario in the final two questions, the board of education and the property owner agree to a property value of $450,000, which is halfway between the differing valuations of the board of education ($550,000) and the property owner ($350,000). Provided the board of revision agrees to the stipulated value, the property owner will then pay the board of education a one-time payment of $2,500. The questions arising from this scenario are as follows:
- Is this scenario permissible?
- If so, prior to the board of revision’s approving the stipulated value, may a board of revision require disclosure of the payment arrangement and consider that arrangement when determining whether to approve or reject the stipulated value?
Again, the short answer to question 3 is yes. A board of education may agree to accept payment from a property owner in exchange for stipulating to a certain property value. Stipulations are common tools that litigating parties employ. However, only the county auditor and board of revision have the authority to determine a property’s valuation. Therefore, although a board of education and a property owner may stipulate to a particular valuation, the board of revision must approve the valuation.
Question 4 is whether the board of revision may require disclosure of the payment arrangement and consider that arrangement when deciding whether to approve the stipulated property value. To determine the property value, the auditor considers not only the land and the improvements to the land, but also the present use of the land and the best probable use of the land. These factors include such things as supply and demand, financing, time and cost of development, and many others – all of which are physical and geographic characteristics. These considerations do not include any agreed payment amount between a board of education and a property owner. Therefore, a board of revision may neither require the disclosure of any such payment nor consider such payment in making a decision on the stipulated property valuation.
* * * * *
Clients of Ennis Britton receive our School Law Review newsletter, in which we address what this OAG opinion means for school districts in Ohio.
by Bronston McCord | Apr 27, 2018 | Board Policy & Representation
In a dispute filed against a Columbus area school district, the Ohio Court of Claims found one part of a four-part public records request overly broad and ambiguous. The other three parts were dismissed as moot.
Upper Arlington Schools received a public records request in September 2017 asking, in part, for “any pictures, video surveillance, written correspondence, notes from phone conversations, emails, texts, records of calls made involving the investigations launched by the school.” The treasurer replied to the requester, Matthew Frank, that the request was overly broad and ambiguous and that any responsive records were enclosed. Frank then filed a complaint in the court of claims, in accordance with Ohio’s new process to challenge the denial of a public records request. A Special Master with the Ohio Court of Claims made a determination based on the merits of the case.
With regard to the assertion that the public records request was overly broad and ambiguous, the court noted, “In making a request, ‘it is the responsibility of the person who wishes to inspect and/or copy records to identify with reasonable clarity the records at issue.’” State ex rel. Zidonis v. Columbus State Cmty. College, 133 Ohio St.3d 122, 2012-Ohio-4228, 976 N.E.2d 861. Frank’s request was not time-limited, and a request for an entire category of records is improper. The court found Frank’s request overly broad, noting that it would require an “unbounded search” through many different categories of school records.
Furthermore, the court noted, “A records request is also unenforceable if it is too vague or indefinite to be properly acted on by the records holder.” A court cannot order compliance with a request if it is vague and unclear. Therefore, the court found Frank’s request improperly ambiguous.
Finally – and importantly – “a public office is not obliged to ‘seek out and retrieve those records which would contain the information of interest to the requester.’” Because Upper Arlington Schools does not maintain its records in such a way that Frank requested, it would be required to seek out and retrieve the responsive records. Based on this, the court found Frank’s request improper because it required the school district to “conduct research to seek out and retrieve” responsive records.
The court’s report and recommendation does note one fault of the school district. When a public office denies a public records request as overly broad and ambiguous, it must inform the requester of the manner in which the records are maintained and accessed, and provide the requester with an opportunity to revise the request accordingly. In this case, the school district failed to communicate this information to Frank. Although the court found that this violates the Ohio Revised Code, it did not order Upper Arlington to inform Frank of the way the district maintains its records, simply because Frank did not make this request of the court.
– Frank v. Upper Arlington Schools, 2018-Ohio-1554.
by Bronston McCord | Apr 11, 2018 | Board Policy & Representation, Labor and Employment
The U.S. Department of Labor (DOL) has issued an official statement of Wage and Hour Division policy concerning athletic coaches for public schools. Opinion Letter FLSA2018-6, issued on January 5, 2018, is an exact reproduction of a previous Wage and Hour Division opinion that was issued in 2009 and then rescinded less than two months later.
This Opinion Letter states that community members who coach public school athletic teams qualify as teachers under the Fair Labor Standards Act (FLSA) and are therefore exempt from FLSA’s minimum wage and overtime pay provisions.
It is important to note that this exemption applies only to coaches who are not employees of the school district. It does not apply to coaches who are employed in another nonteaching capacity by the school district. In the latter case, these coaches are not exempt from the FLSA’s minimum wage and overtime pay provisions.
The DOL explains that coaches spend most of their time instructing student athletes in the rules and fundamentals of their respective sports. When not instructing players, coaches recruit students, supervise them during trips to and from games, discipline them when necessary, and account for their equipment. “Coaches qualify for the exemption if their primary duty is teaching and imparting knowledge to students in an educational establishment.”
Furthermore, a teaching certificate is not required to qualify for this FLSA exemption, nor is a certain minimum education or degree. “Thus, coaches whose primary duty is teaching qualify for the exemption whether or not they hold a teaching certificate or an academic degree.”
Therefore, based upon this new guidance, a school may pay its coaches as it deems appropriate so long as they are not otherwise employed by the district in a nonteaching capacity.
