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.
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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.
by Giselle Spencer | Mar 23, 2018 | Board Policy & Representation
On March 16, the Ohio Attorney General released Opinion No. 2018-006, which again addresses board member interests in public contracts. In this instance, a member of a board of education leased a building through a limited liability company to the school district for which the part-owner served as a member of a board of education. This action was determined to violate R.C. 3313.33, which provides that no member of the board shall have, directly or indirectly, any pecuniary interest in any contract of the board. When such a condition arises, the board member must resign their position with the board of education or divest themselves of the contract.
In such situations, the lease can be determined void, voidable, or unenforceable at the reasonable discretion of the board of education. The OAG stated that a board of education may reasonably conclude that the lease continues to be valid and enforceable after the part-owner of the limited liability company takes office as a member of the board of education if several conditions are met:
- At the time that the lease was executed, the lease did not constitute a violation of 3313.33 for any member serving on the board of education at execution;
- After the part-owner takes office as a member of the board of education, the board of education takes no action to alter the terms of the lease that was executed before the part-owner took office.
- The board member divests himself or herself of the prohibited interest in the lease within a reasonable period of time after taking office.
For condition 3, the OAG opined that the person must act “immediately” to divest himself from the contract as part-owner if he wishes to remain a board of education member. Moreover, going forward, the board cannot enter into a new lease with the limited liability company after the current lease expires as long as the board member has an impermissible pecuniary interest in the lease.
The OAG also found that this circumstance could fall within the criminal provision in R.C. 2921.42, which makes it a criminal act for a public official to have an unlawful interest in a public contract. The exceptions include the following:
- Contracts for necessary supplies or services
- Where supplies or services that are unobtainable elsewhere or are being furnished as part of a continuing course of business established prior to the officials association with the public entity
- The treatment accorded the public entity is preferential to or the same as to other customers
- The entire transaction was conducted at arm’s length, with knowledge by the public agency and where the official takes no part in deliberations or discussions about the contract.
In this case, none of the exceptions applied.
The full opinion is available here.
by Erin Wessendorf-Wortman | Feb 14, 2018 | Board Policy & Representation
On February 12, 2018, BuzzFeed News issued an article detailing an interview with U.S. Department of Education (USDOE) officials wherein the USDOE spokesperson outlined the department’s policy on how it would handle transgender student complaints. The details of this article, and statements made by the USDOE spokesperson, were later confirmed by NPR’s Education News Desk. (Please note that although BuzzFeed is not typically a news source for Ennis Britton, the details of the interview and the fact that the details were confirmed by another news source renders this information useful and informative.)
Essentially, the USDOE spokesperson has said that the USDOE will not investigate or take action on any complaints filed by transgender students who are banned from restrooms that match their gender identity. If the complaint alleges that the transgender student has been bullied, harassed, or punished due to his or her gender nonconformity, the USDOE will investigate and possibly take action against a school district.
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Substance of Complaint
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USDOE Action
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| Alleges harassment, bullying, or punishment for failing to conform to sex-based stereotypes |
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Will be accepted and possibly investigated by the USDOE |
| Alleges transgender student was denied access to accommodations such as restrooms and locker rooms |
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Will not be accepted by the USDOE |
The USDOE has been noticeably silent on issues dealing with transgender students since it withdrew the May 13, 2016, Dear Colleague Letter on transgender students on February 22, 2017. The withdrawal letter can be found here. This recent interview with the USDOE spokesperson does nothing other than lay out how the USDOE will handle complaints from transgender students. This does not mean that transgender students can never bring a claim for discrimination based on their gender identity or their failure to conform to sex-based stereotypes, but it does mean that such claims will be filed in the courts as opposed to the USDOE.
This is a rather strange parsing for the USDOE and a fine line to walk in terms of what will be classified as bullying, harassment, and punishment. (See the Seventh Circuit Court case discussed below.) Districts need to be aware that if a student claims that he or she has been bullied, harassed, or punished because of being transgender or because of failure to conform to sex-based stereotypes, such a complaint must be processed and investigated pursuant to the school district’s anti-discrimination policies. Failure to do so or to take such complaints seriously could result in complaints filed with and investigated by the USDOE.
The remaining issue is accommodations – specifically, bathroom and changing/locker room access. The USDOE’s statement has made clear that this battle will occur in courts around the country as opposed to the USDOE. Therefore, it is important to see where the courts’ decisions are falling with respect to this issue around the country.
Remember, the U.S. Supreme Court canceled oral arguments in G.G. v. Gloucester County School Board, 82 F.3d 709 (4th Cir. 2016), vacated and remanded, 137 S. Ct. 1239 (U.S. 2017), remanded, 869 F.3d 286 (4th Cir. 2017), after the U.S. Departments of Education and Justice revoked the May 13, 2016, guidance from the previous administration. Based on the rescission, the U.S. Supreme Court remanded the case back down to the Fourth Circuit Court of Appeals to be reconsidered. The student in that case graduated in June 2017 and has since withdrawn his motion for a preliminary injunction and filed an amended complaint for nominal damages. The former student seeks a declaration that the school board violated his rights under Title IX and the Equal Protection Clause, as well as a permanent injunction preventing the school board from excluding him from using the restrooms when he is on school grounds.
In December 2016, the Sixth Circuit Court of Appeals, relying on the now-rescinded advice, agreed with a lower court decision from the United States District Court for the Southern District of Ohio regarding how an Ohio school district treated an eleven-year-old transgender student. The courts found that the eleven-year-old student had a strong likelihood of success in her claims against the Ohio school district and therefore should be allowed to use the school restrooms that correspond to her gender identity and otherwise be treated like other female students during the pendency of the lawsuit. However, please note although these courts have great impact and control in Ohio, they relied on the now-rescinded guidance from the USDOE, and how these courts will rule on the same issue is uncertain now that the guidance has been rescinded. Further, this case still remains to be fully and finally litigated; both the Southern District of Ohio and the Sixth Circuit ruled only on motions for an injunction; they have not yet ruled on the substantive issues at hand. This case is still pending.
Additionally, although not controlling in Ohio, the Seventh Circuit Court of Appeals issued a decision in May 2017 (after the USDOE rescinded its previous guidance) that may be informative both in Ohio and around the country. The Seventh Circuit Court found that a school district was sex stereotyping a transgender student when it required the transgender male student to use the girls’ restroom or a private restroom. In its decision, the court held that a “policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX” (emphasis added). The school district filed a petition for a writ of certiorari with the U.S. Supreme Court requesting that the Court overturn the lower court’s decision. The U.S. Supreme Court granted this petition; however, the parties have since settled their dispute, agreeing on a payment of $800,000 to the student (and presumably the attorneys for fees), as well as permission for the student to use the men’s restroom if he returns to the district as an alumnus (the student graduated and no longer would be in daily attendance). As a result, although the U.S. Supreme Court will not be ruling on this case, the Seventh Circuit Court’s decision in favor of accommodating the transgender student stands.
Conclusion
In sum, the “new” information out of the USDOE does not change anything for school districts. The USDOE has simply communicated how it will handle complaints from transgender students. If the complaint deals with accommodations (restrooms, locker rooms, etc.), the USDOE will not accept the cases; but if the complaint has to do with bullying, harassment, or punishment based on transgender status, it will.
Instead, the question of whether and how to provide accommodations to transgender students will be a matter to be litigated through the court system in the years to come. For additional advice on handling requests for accommodations for transgender students or working through complaints of discrimination, please contact an Ennis Britton attorney for assistance.
by Hollie Reedy | Jul 24, 2017 | Board Policy & Representation, Legislation
To continue our review of the education-related provisions of the state budget, we will look at the temporary law, or uncodified sections, of the budget. If you scroll toward the end of the five thousand-plus pages of the budget, you will find some odd numbering. You have found what is called temporary law or uncodified law.
This is separated as temporary or uncodified law for several reasons. Appropriations are uncodified because they cannot (per the Ohio Constitution) be made for more than two years. Other things found in temporary law may describe how the appropriations will be used (for the establishment and function of committees, task forces, stakeholder groups, preparation of a report, etc.). This temporary law expires at the end of the biennium (in two years).
Several provisions in this somewhat-obscure section of the budget affect Ohio schools, and below is a short summary of those provisions.
- The graduation changes applicable only to the class of 2018 are found in the uncodified law because they are intended to apply only to that class. These changes establish additional ways for these students to demonstrate eligibility for a high school diploma. These additional options are presented for both academic and career-technical students. Stay tuned for an upcoming blog post with specifics on these graduation options.
- A new state workgroup on related services will be tasked with the goal of “improving coordination of state, school and provider efforts to address the related services needs of students with disabilities.” This group and its study will sunset on June 30, 2019.
- Expanding the SNAP program and drawing down federal match dollars for the employment and training of low-income individuals will be the subject of a planning committee, which will be established by the Ohio Department of Job and Family Services and the chancellor of higher education.
- There will be changes to tuition payments for students in private residential treatment centers who are placed by a court or other state agency order (not parental placements). Additional provisions set out who is responsible for providing the educational program when a child is placed in one of those facilities, which include private facilities for the treatment of juvenile sex offenders, mental health and drug addiction, and other, severe behavior issues.
- ODE was directed to study the appropriate funding for each category of gifted students and propose a method for funding gifted education courses and programs; a report is due May 1, 2018.
- Under a new “flexible funding” program, school districts, including educational service centers and career-technical districts, may transfer foundation and special education enhancement funding to a new funding pool called the Family and Children First Funding Pool.
- The “Straight A” governing board and committee will cease to exist and records will be transferred to ODE. Straight A grant recipients that received funds in FY 2016 and 2017 and will have remaining funds to spend in FY 2018 may do so in accord with the grant agreement; however, even if grant provisions specify additional funds, these funds will not be paid in future fiscal years. ODE will not pay any additional Straight A grant funds, and ODE’s function will be limited to ensuring districts spend remaining funds in accordance with the agreement. ODE was directed to report to the legislature on the grants awarded, recipients, effectiveness, and recommendations for Straight A grant projects that might warrant repeating in the future.
- An appropriation was made to ODE for a policy analysis service, whose purpose is to develop reports, briefings, and analyses to inform education policymakers of current trends in education practice, efficient and effective use of resources, and evaluation of programs to improve education results.
- An early childhood education program appropriation will fund and monitor existing and new early childhood education programs provided by city, local, exempted village, joint vocational, and educational service centers, community schools sponsored by an exemplary sponsor, chartered nonpublic schools, and other licensed early childhood education providers. The appropriation requires these providers to meet “Step Up to Quality” program standards.
- An Early Childhood Education Pilot Program in Appalachia in two counties of the Appalachian region of the state will be established, with funding given to existing or new providers of early childhood education to serve 125 children in each fiscal year. The data from the pilot program will be studied.
- In addition, a parental choice early childhood education pilot program will be funded, to implement “one or more parent choice models to deliver early childhood education to eligible children.”
The appropriations section of the education department begins in the budget on page 4,523. You can see all the appropriations for FY 2018 and 2019, as well as all the uncodified law applicable to the Department of Education. Or you can call your friendly Ennis Britton attorney for more information on provisions that interest you.
