by Ryan LaFlamme | Aug 8, 2016 | Board Policy & Representation, General, Legislation
Laws regarding public records are under scrutiny across the United States, including in Ohio. Advanced technology has brought myriad ways to communicate information to U.S. citizens, who continue to demand increased transparency. Public-records law continues to develop and change in the form of both legislation and court decisions. Below are a few recent Ohio bills and cases dealing with public records that have an effect on school districts throughout the state.
House Bill 585: Body Cameras
The Ohio House introduced HB 585 on July 11, proposing that the record of body cameras worn by law enforcement officers be considered generally a public record if the officer is performing official duties. (This bill does not include any regulations on police dash cams.) The bill will specify circumstances in which a nonpublic record would become a public record, and circumstances in which recordings would not be public records. Personal or nonrelevant information, and generally, recordings of minors or victims, would be redacted. The bill would also require a local records commission to maintain records from a body camera for a minimum of one year unless the law enforcement agency is subject to a records retention schedule that establishes a longer period of time.
Senate Bill 321
This bill, which was signed into law in June, becomes effective in late September. This new law provides a procedure for someone who has been denied access to public records, in the form of mediation or filing with the court of claims.
The bill also contains a provision that a public office which places all of its public records online may limit the number of records a person may request to receive digitally to 10 per month. The requirements and limitations are as follows:
1. All records must be online and accessible to the public except for during outages that are not within the control of the public office.
2. Records that are not online cannot be subject to the limit.
3. The limit also does not apply if the person making such requests certifies that the request responses are not being forwarded or used for commercial purposes.
The bill modifies the attorney fee provisions of the statutes. An award of fees is now mandated to be considered remedial and not punitive, and to enforce this, the bill limits fees to those that are incurred prior to the record being turned over plus the fees incurred to produce the proof of the amount and reasonableness of the fees incurred. The court may reduce the award of fees if it determines that the suit was not necessary and the records could have been obtained through less formal means. Finally, a public office may itself be awarded costs and fees if the court determines that the suit to enforce the fulfillment of a public records request is frivolous.
Attorney Billing Statements
In the 2016 case State ex rel. Pietrangelo v. Avon Lake, the Ohio Supreme Court ruled that, in certain circumstances, the professional fee summary of an attorney-fee billing statement is exempt from disclosure in a public-records request. In this case, the plaintiff, Pietrangelo, had requested certain public records from the City of Avon Lake, including attorney billing statements. The city complied with the request but redacted the following information from the attorney billing statements based on attorney-client privilege and attorney work product:
• Narrative descriptions of particular legal services rendered
• Exact dates on which such services were rendered
• The particular attorney rendering each service
• The time spent by each particular attorney on a particular day
• The billing rate of each particular attorney
• The total number of hours billed by each particular attorney for the invoiced period
• Total fees attributable to each particular attorney for the invoiced period
Pietrangelo then petitioned the Ninth District Court of Appeals for a writ of mandamus to compel the city to provide unredacted invoices, which the court granted. The Ohio Revised Code notes that “public records” do not include records that are prohibited from release by state or federal law.
In a previous decision, State ex rel. Anderson v. Vermilion (134 Ohio St.3d 120, 2012-Ohio-5320), the Ohio Supreme Court held that itemized statements, including dates of services, hours, rates, and money charged for the services, are not exempt from public-records law and therefore must be disclosed. However, in State ex rel. Dawson v. Bloom-Carroll Local School Dist. (131 Ohio St.3d 10, 2011-Ohio-6009), the same court found that the narrative portions of the statements were confidential but a summary of the invoice, including the attorney’s name, the invoice total, and the matter involved, was sufficient for the public-records request. One of the differences between the two cases, Anderson and Dawson, is that the matter in Dawson was pending litigation but the matter in Anderson was for general informational purposes.
In Pietrangelo v. Avon Lake, the Ohio Supreme Court held that this case resembles the Dawson case and that the records relating to the pending litigation were exempt from disclosure. “If disclosed, Pietrangelo may acquire information that would be useful in his litigation strategy against the city, whereas in Anderson, any harm from disclosure of attorney-client communication was remote or speculative.”
State ex rel. Pietrangelo v. Avon Lake, Slip Opinion No. 2016-Ohio-2974.
Directory Information
The Ohio Supreme Court determined that School Choice Ohio was entitled to records that constitute directory information as defined by the district’s public records policy. However, the organization did not have the right to compel the district to amend its student records policy.
School Choice obtains students’ contact information from Ohio public school districts via public-records requests. In addition to requesting the court to compel the district to disclose the records requested, the organization also attempted to compel the district to amend its policy to expand directory information and to require disclosure to its company by amending the parent notice and opt-out provisions. According to the Family Educational Rights and Privacy Act (FERPA), “directory information” includes the following student information:
• Name, address, telephone listing, and date and place of birth
• Major field of study
• Participation in officially recognized activities and sports
• Weight and height of members of athletic teams
• Dates of attendance
• Degrees and awards received
• The most recent previous educational agency or institution attended
Pursuant to FERPA, districts must determine which of the items listed above are to be considered directory information. Districts must then provide public notice to parents of what it defines as directory information and give them an opportunity to opt out of directory information being disclosed without prior written consent.
Ohio law defines directory information similarly and places an additional condition on disclosure – that directory information cannot be requested or disclosed for profit-making activities. In fact, whether directory information is being used for profit-making activities is the one time in public records law where the public office is permitted to inquire about the purpose of the request.
Ohio law also provides that a district may not limit the disclosure of directory information to representatives of the armed forces, business, industry, charitable institutions, other employers, and institutions of higher education unless such restriction is uniformly imposed on each of these types of representatives. The court determined that School Choice Ohio is not any of these types of organizations.
However, the court ultimately concluded that even with the limited way in which the district defined its directory information, which was lawful, the organization fit within the definition and was entitled to the records.
What This Decision Means to Your District
Many districts have received the annual requests from this particular organization and from others. This case considered the question of whether the organization is engaged in profit-making activity and answered in the negative. Therefore, districts should continue to disclose records, including directory information, in accordance with the relevant policy. Remember to consult your list of opt-outs whenever directory information is going to be disclosed without prior written consent of the parent. If you are considering changes to your public-records policies, please contact an Ennis Britton attorney for assistance or review.
by Megan Bair | Feb 3, 2016 | Board Policy & Representation, Student Education and Discipline
The Thomas Moore Law Center, on behalf of John and Melissa Wood and their minor daughter, filed suit against the Charles County Public School District Board of Education and the High School Principal and Vice-Principal alleging that the La Plata High School “promoted Islam” by implementing a pro-Muslim lesson plan in its World History class. The Woods claim that the school concealed that it promoted Islam by leaving the topic out of a course syllabus and that students were forced to use a separate textbook for the segment on Islam but were not permitted to take it home. To that end, the Woods allege that their daughter was forced to profess and to write out the Shahada, the Islamic creed, in worksheets and quizzes.
By way of background, the lawsuit alleges that after the Woods learned of the Islamic subject matter being taught, Mr. Woods immediately contacted the school to voice his objections and to obtain an alternative assignment for his daughter. He maintains that the school ultimately refused to allow his daughter to “opt-out” of the assignments and subsequently enforced its “No Trespass” policy on him so that he was no longer permitted to enter onto school premises.
In a January statement, President and Chief Counsel of the Thomas More Law Center Richard Thompson said the school “forced Wood’s daughter to disparage her Christian faith by reciting the Shahada, and acknowledging Mohammed as her spiritual leader.”
“The Woods believe that it is a sin to profess commitment in word or writing to any god other than the Christian God,” the Thomas Moore Society says on its website. “Thus, they object to their daughter being forced to deny the Christian God and to her high school promoting Islam over other religions.”
The Woods seek a court declaration that the Defendants violated their constitutional and statutory rights, a temporary and permanent injunction barring Defendants from endorsing Islam or favoring Islam over Christianity and other religions, and from enforcing the no trespassing order issued against Mr. Wood.
by Pamela Leist | Jan 21, 2016 | Board Policy & Representation, General
On January 26th, 2016, the Ohio Supreme Court will hear oral arguments in a case to determine whether a public school district may implement a more restrictive policy on release of student directory information by requiring that parents “opt in” before the information can be released.
The case was brought by School Choice Ohio, Inc. (“SCO”) against the Springfield City School DistrictBoard of Education(“Springfield”). SCO is a registered non-profit corporation formed in the state of Delaware. The corporation informs students and parents across the state about scholarships the state provides, especially to students of low performing or at risk schools. SCO relies on school directory information that public schools provide through a records request to generate its mailing lists.
In January of 2013, SCO submitted a request for student directory information to Springfield. The District denied the request, citing a new policy it had recently passed which purportedly stopped the District’s collection of directory information, and further required parents to sign a consent to “opt in” to release of the data for lawful records requests. SCO countered that under state public records law, codified in ORC §149.43, the District does not have the authority to refuse an otherwise lawful request for directory information that the District maintains. Through its case, SCO seeks an order from the Ohio Supreme Court that would prevent Springfield from denying SCO’s requests for directory information on that ground.
State and federal law, specifically Ohio Revised Code §3319.321 and the Family Educational Rights and Privacy Act (20 USC §1232g/20 CFR Part 99), permit public schools to release limited student information defined as directory information in certain circumstances. In general, federal law defines directory information to include a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. Ohio’s definition of directory information is more expansive. However, schools are required to provide an annual notice to parents that allow them the opportunity to opt out of directory information releases. Schools also are prohibited from releasing directory information to anyone who may use the information for a profit making plan or venture.
The Supreme Court’s decision in this case could have far-reaching policy implications for districts, and may open the door for additional challenges to the release of directory information in the future. A decision from the Court is not expected before early summer 2016. We will keep you posted on the status of the case. In the meantime, seek legal counsel if you have questions about application of your directory information policies and procedures.
by Pamela Leist | Jan 14, 2016 | Board Policy & Representation, Construction & Real Estate, School Finance, School Management
On December 30th, 2015, the Ohio Supreme Court unanimously declared that real property owned by a public school district board of education is tax exempt regardless of whether it is currently used for school purposes. Ennis Britton Shareholder Gary Stedronsky represented the Talawanda City School District Board of Education at all levels of appeal, including before the Supreme Court.
The case involved a provision in Ohio law that generally exempts real property owned by a public school district from property taxes, which is codified in Ohio Revised Code section 3313.44. In this case, the Talawanda City School District Board of Education (the “Board”) purchased 154 acres of land to build a new high school. A portion of this land was not needed for the high school and was leased by the Board to a farmer.
In January of 2010, the Board filed an application to exempt all 154 acres from real property taxes. The Tax Commissioner approved the exemption application for all but the portion of the land that was leased to the farmer. The Tax Commissioner concluded that the pecuniary benefit realized by the farmer disqualified the land from tax exemption because the property was not being used for school purposes.
The Board appealed the Tax Commissioner’s decision to the Ohio Board of Tax Appeals (“BTA”), which affirmed the Tax Commissioner’s decision. The Board further appealed to the Ohio Supreme Court.
The Supreme Court was tasked with deciding whether the BTA decision was supported by the language in Ohio Revised Code section 3313.44. The applicable version of section 3313.44 simply states: “Real or personal property owned by or leased to any board of education for a lease term of at least fifty years shall be exempt from taxation.” The Board argued that this statute requires that a board of education merely own real property in order for it to qualify for tax exemption. In other words, there is no requirement in the statute that the property must be used for school purposes in order for the tax exemption to apply.
The Ohio Supreme Court agreed with the Board’s argument and concluded that the property that was leased to the farmer was exempt from taxation regardless of the specific use of the property. The Supreme Court acknowledged that past interpretations by the Tax Commissioner may have correctly interpreted an implied use restriction in the prior version of the statute. However, the Court recognized that the General Assembly chose not to include such a restriction when the statute was amended in 2010 even though it had authority to do so. Therefore, the Court held that the statute does not include an implied use restriction and the Board’s property is entitled to tax exemption even though it was leased to a farmer.
The Court also dismissed the Tax Commissioner’s argument that the Board’s request for tax exemption must be denied on grounds that the Board overstepped its legislative authority by leasing the land to a farmer for a commercial purpose. The Court held that a Board of Education’s property is entitled to tax exemption as long as it meets the conditions of the exemption statute in Ohio Revised Code section 3313.44, which merely requires ownership.
Ultimately, the Supreme Court decision clarifies that a board of education is entitled to a property tax exemption for all real property owned by the board of education regardless of how the property is currently being used. This decision is very favorable to school districts and will be used in the future to support applications for tax exemptions.
Talawanda City School District Board of Edu. v. Testa, Tax Commissioner (Ohio 2015), Slip Opinion No. 2015-Ohio-5450.
by Pamela Leist | Nov 3, 2015 | Board Policy & Representation, General, School Management
The Ohio Attorney General’s office recently issued an opinion that concluded a deputy sheriff who is employed in classified service may simultaneously serve as a member of a city or local school district board of education with a few limitations. The opinion was released on October 27th, 2015. The question of law turned on an interpretation of Ohio Revised Code §124.57(A), which states that an officer or employee in the classified service of the state or a public municipality is prohibited from 1) receiving any contribution for a political party or candidate for public office; 2) being an officer in any political party; or 3) taking part in politics other than to vote.
In analyzing the issue, the drafter of the opinion relied on a seven-question test to determine whether the two public positions were compatible. The test includes the following:
1. Is either of the positions considered classified employment within the terms of R.C. §124.57?
2. Do the empowering statutes of either position limit employment in another public position or the holding of another public office?
3. Is one position subordinate to, or in any way a check upon the other?
4. Is it physically possible for one person to discharge the duties of both positions?
5. Is there an impermissible conflict of interest between the two positions?
6. Are there local charter provisions, resolutions, or ordinances which are controlling?
7. Is there a federal, state, or local departmental regulation applicable?
The first question about whether a deputy sheriff serves as classified staff was answered in the affirmative, unless the deputy is assigned special duties which alter his or her status as a classified employee. In analyzing the second question, since a board of education member is elected in a nonpartisan election, and no other laws expressly prohibit a sheriff from serving as a board member or vice versa, the Attorney General opined that a deputy sheriff may lawfully run for the position subject to a few limitations discussed more fully below. And, in review of the third question, the opinion concluded that the deputy’s position in particular was not really subordinate to the board of education even when that deputy served as the district’s DARE officer, since the county sheriff and not the board generally determined specific duties and assignments. The opinion quickly dispensed with any concerns about whether an individual could physically perform the duties of both jobs under the fourth question, again affirming there was no issue as long as the deputy was able to serve on the board through use of leave or some other means when he/she was simultaneously assigned to active duty as a deputy.
However, when analyzing the fifth question in the test, the opinion concluded there was the potential for a number of conflicts of interest to arise when the individual carried out his or her duties as deputy and board member. First, there is a potential conflict of interest in preparation of and submission of budgets to the county commissioner, since the county sheriff and the board of education may compete for limited funds. This conflict could be avoided as long as the member did not appear before the county commissioner for budget matters on behalf of either organization. Second, the attorney general also recognized a potential conflict in the event both the sheriff and the board of education sought levies. However, the opinion recognized that the chance for conflict was low, and further could be avoided as long as the individual did not participate in any board member discussions, deliberations, and votes concerning the levy. Third, the opinion notes there is a potential conflict when the deputy is required to investigate an employee or member of the board of education, which can be avoided by reassigning the investigation to another deputy or another law enforcement agent. Fourth, there could be a conflict when contracts are negotiated between the board and the sheriff’s office. Again as long as the deputy refrains from any board deliberations about the contract, and as long as the deputy is not assigned to serve the board through the contract, the conflict is avoidable. Finally, the deputy may avoid any conflict with regard to allocation of trust fund grants such as through the D.A.R.E. program as long as the deputy is not a part of the internal control policy that determines how money is allocated.
The answers to the sixth and final questions in the test mentioned above were in the negative, since there were no applicable state or local regulations that applied in this case. Therefore, as long as the deputy avoided the potential conflicts mentioned above, the attorney general concluded that the positions of deputy sheriff and board of education member were compatible. In closing, however, the author of the opinion recognized that it may be impossible to consider all possible conflicts that could arise. Should the board member find that he or she must frequently refrain from deliberations, it is possible the member will eventually have a duty to resign from one position.
Click here to review the opinion in full.
Ohio Attorney General Opinion No. 2015-032.
by Ryan LaFlamme | Oct 27, 2015 | Board Policy & Representation, Construction & Real Estate
Stetz v. Copley Fairlawn School Dist., 2015-Ohio-4358
The Ninth Appellate District Court of Appeals has reaffirmed political subdivision immunity for public school districts in a slip and fall case. The Copley Fairlawn School District was sued after a student slipped and fell. The student worked in the office during her study hall. During her office time, the student was directed by a vice principal to go and change the letters on a marquee. The student did so and reentered the building. Forty five minutes after re-entering the building, the student slipped as she began to descend a stair case. The student fell backwards and hit her head on concrete. The student did not recollect any water being present on the floor at the time of her fall.
The school moved for summary judgment on the basis that it was immune from suit under Ohio law. The trial court denied summary judgment, finding that there were genuine issues of fact in dispute for the jury to decide as to whether an exception to immunity applied.
There are five exceptions to political subdivision immunity provided by Revised Code Chapter 2744. If one of these exceptions applies, the school district is not protected by immunity. The exceptions for which political subdivisions (including school districts) are liable for injury, death, or loss to person or property are as follows:
1. The negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority.
2. The negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.
3. Negligent failure to keep public roads in repair to remove obstructions from public roads.
4. Injury, death, or loss to person or property that is caused by the negligence of employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function (e.g., a school building).
5. Civil liability is expressly imposed upon the political subdivision by a section of the Revised Code
The student here argued that the buildings and grounds exception (number 4 above) applied. However, the Court of Appeals found that the student had not set forth sufficient evidence that there was a defect in the building where she fell or that the school employees were negligent. Particularly here, the defect would have been that the staff permitted a wet substance to remain on the floor causing a safety hazard. The court found that there was not sufficient information to determine if the floor was even wet at the time she fell, let alone whether a hazard had negligently been permitted to remain. Accordingly the school district was entitled to immunity and the case was dismissed.
Districts should keep in mind that while they may be protected by the immunity grants of Chapter 2744, immunity is not automatic as there are exceptions to the rule.
