by Gary Stedronsky | Nov 21, 2019 | Board Policy & Representation, General, School Management
The Court of Appeals in Logan County, Ohio recently upheld a decision of the Indian Lake School District Board of Education terminating its superintendent after he was arrested for gross sexual imposition of a minor.
The superintendent was placed on paid administrative leave the day following his arrest. The Board adopted a resolution nine days later that initiated the termination process based on the nature of the charges, including that the arrest required a report to the Ohio Department of Education and suspension from all duties during the pendency of criminal action. The resolution also noted that the arrest generated extensive media coverage that resulted in staff, parents, students, and community members becoming aware of the charges. The Board determined that the superintendent was thus unable to effectively perform his duties.
The superintendent elected to have a hearing on his termination before a state appointed referee. After a five-day hearing, the referee issued a report and recommendation concluding the Board failed to provide reliable, probative, and substantial evidence that just cause supported the superintendent’s termination. The referee focused on the fact that the Board failed to demonstrate that the superintendent engaged in any conduct warranting termination. Instead, the Board alleged that it was the fact of his arrest that rendered him unable to perform his duties. The referee believed this could not support a termination order and recommended that the superintendent remain on unpaid leave pending the criminal proceedings.
The Board rejected the referee’s recommendation, and in accordance with R.C. 3319.16 terminated the superintendent. The superintendent appealed to the court of common pleas. As it turned out, the superintendent was convicted and sentenced during the pendency of his appeal. He subsequently filed a motion to strike the Board’s reference to his conviction in his appeal. The court denied that motion and upheld the Board’s decision to reject the referee’s recommendation and terminate the superintendent.
The court specifically found that the nature of the allegations, in light of his position and loss of community trust, prevented him from effectively performing his duties. The court also held that it could not ignore the fact that the superintendent was convicted while his appeal was pending. The court also found that the Board did not need to indefinitely postpone the termination action until after the criminal proceedings were resolved, meanwhile suffering the damage caused by the turmoil created by the uncertainty and doubt as to the strength of the school system’s integrity.
Despite his conviction, incarceration, and inability to work as a superintendent or teacher under law, the superintendent appealed to the court of appeals. The court of appeals noted that courts cannot substitute their judgment for the judgment of the Board if substantial and credible evidence is presented to support the charges. The court of appeals held that the lower court did not abuse its discretion in upholding the Board’s decision. The superintendent was required to be suspended from all duties requiring the care, custody, or control of children pursuant to R.C. 3319.40 and 3319.31. The court noted that he was unable to perform his job duties based on that fact alone. As a result, the lower court’s conclusion that the superintendent was terminated for good and just cause was not an abuse of discretion and the termination was permitted to stand.
by Ryan LaFlamme | Nov 19, 2019 | Board Policy & Representation, General, School Management, Student Education and Discipline
A dispute over
the disclosure of student records has led to the Court of Appeals for Ohio’s
Second Circuit to analyze whether a student’s right to privacy in education
records extinguishes upon death.
Both federal
and state laws protect the confidentiality of student education records and
personally identifiable information. The Family Educational Rights and Privacy
Act (“FERPA”) protects against the disclosure of education records without the
prior written consent of the parent or guardian of the student. Education records
are defined by the Act as “those records, files, documents, and other materials
which (i) contain information directly related to a student; and (ii) are
maintained by an educational agency or institution or by a person acting for
such agency or institution.” The right to consent to the disclosure of student
records transfers to a student upon reaching the age of 18, unless the student
remains a dependent of their parents.
R.C. 3319.321
also provides protection for student information. This statute is broader in
its scope, forbidding the disclosure of any personally identifiable student
information other than directory information.
The request at
issue surrounded a former student who committed a mass shooting in August of
2019, killing 9 people and injuring 27. The shooter was killed by law
enforcement officials at the scene. The Associated Press, among other media
outlets, made requests to the school for records of the shooter, particularly
discipline records. The school released only directory information, citing to
the privacy protections of FERPA and R.C. 3319.321.
The media
filed a lawsuit asking the Court to force the school to release the requested
records. The media alleged that while a student’s right to privacy protections
under the applicable laws transfers to the student into adulthood, there should
be an exception that the right to privacy in this regard ceases upon
death.
The Court
found the analysis inapplicable due to the school’s obligations under the laws
in addition to the individual’s privacy rights conferred by the laws. The two
are simply not comparable. The Court, noting that neither FERPA nor R.C.
3319.321 contains an exception for the death of a student, declined to create
one from the bench.
State
ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Schools,
2019-Ohio-4187
by Robert McBride | Nov 4, 2019 | Board Policy & Representation, General, Labor and Employment, School Management
Under Title VII of the Civil Rights Act of 1964, employers may not discriminate against employees on the basis of several protected classes, including sex. Thus, courts and administrative agencies have interpreted Title VII to prohibit an employer from engaging in discrimination related to pregnancy, childbirth or maternity/paternal leave. Employers must treat a woman who is disabled due to pregnancy, childbirth, or related medical conditions in a similar manner to other disabled employees. However, any additional benefits provided to male or female parents, whether discretionary or mandated by statutes such as the Family and Medical Leave Act, must be made available in a non-discriminatory fashion.
The Equal Employment Opportunity Commission (“EEOC”) has stressed the importance of employers clearly explaining the types of leave available to all employees. Employers should distinguish between leave related to the physical limitations due to pregnancy or childbirth and leave related to bonding with or providing care for a child. An employer may limit leave related to the physical conditions of pregnancy or childbirth to the women affected by these conditions. However, if an employer extends leave to new mothers beyond the recuperation period of childbirth in order to care or bond with the baby, an equivalent amount of leave must be available to fathers for the same purpose.
This guidance was put into practice in 2017 when a class of male employees filed a lawsuit against JP Morgan Chase (“Chase”). A group of male employees alleged that Chase’s parental leave provisions were discriminatory in violation of Title VII. Chase allowed a parent to take 16 weeks of paid parental leave if they were the primary caregiver to the child. Chase automatically granted this additional leave to women. When male employees applied for this leave, however, they were required to prove that their partner had returned to work or was incapable of caring for the child. If the male employees could not make this showing, Chase provided a mere 2 weeks of paid leave. In May of 2019, Chase ultimately agreed to settle the dispute for $5 million and agreed to maintain a gender-neutral leave policy moving forward.
If your district offers maternity leave strictly to women who are disabled due to pregnancy, childbirth or related conditions, you do not need to offer the same kind of leave to men. However, if your district offers additional leave to allow the mother to bond or care for the child, then the father is entitled to the same leave as the mother would be. Lastly, regardless of the district’s parental leave policy, it is important that all districts ensure that they do not discriminate hen determining who is eligible for parental leave.
You can review guidance on this topic from the EEOC. EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues, Number 915.003, (June 25, 2015). Click here to access it.
by Pamela Leist | Nov 4, 2019 | General
Ennis Britton is proud to be a Platinum Sponsor of the 2019 Ohio School Boards Association Capital Conference. This means you will see our team of attorneys and firm logo in a lot of places! The firm is the exclusive sponsor of the OSBA Conference App, which will be activated this month. The conference app is a very helpful tool to schedule your activities, download handouts, learn more about track sessions, and find your way around the conference.
A new feature this year allows you to log in and track your certificates of attendance. You can download the free app through the Apple App Store or Google Play Store. You also may access the app online at http://conference.ohioschoolboards.org/app.
In addition, the firm is sponsoring the Conference Spotlight Session Lifting Leaders – How to Grow Leadership. The spotlight session takes place Sunday, November 10 from 1:30 p.m. to 3:30 p.m. in Room A210-212.
The Ennis Britton Consulting Group will have a booth at the trade show. Stop by Booth 813 and to see the services they can provide to your district and management team.
Join our attorneys presenting at Capital Conference this year for exciting, informative (and entertaining!) track sessions. Here is when and where you can find us:
Sunday, Nov. 10th
1:00 p.m. – Room A123-125
Evaluation, Nonrenewal and Termination
Presented by John Britton
Monday, Nov. 11th
9:00am – Room A210-212
Into the Woods: Advanced Public Records Law
Presented by Hollie Reedy
10:30 a.m. – Room A220-222
Disproportionality Discipline Dilemmas
Presented by Jeremy Neff, Darrell Yater and Mona Burts-Beatty
2:30pm – Room A213-215
Regulating Employee Social Media Use
Presented by John Britton
3:00pm – Room A210-212
We’re Under Attack – This is Not a Drill!
Presented by Robert J. McBride
Last but not least, don’t forget to join us for Ennis Britton’s Capital Conference reception. All attendees are welcome to attend. Please R.S.V.P. to Barbara A. Billow at bbillow@ennisbritton.com.
Monday, November 11, 2019
4:00 p.m. to 6:00 p.m.
Hyatt Regency Columbus
Franklin Rooms A, B & C
We are thrilled to be a part of this annual event and hope to see you there!
by Pamela Leist | Oct 1, 2019 | General
Ennis Britton is excited to announce that attorney Robert J. McBride has joined our team! Bob has dedicated his practice to representing public school districts and private sector clients in the areas of employment law, civil rights defense, board leadership, labor relations, general civil litigation and construction law.
His experience includes negotiating collective bargaining agreements and labor arbitrations, as well as advising clients on compliance with statutes such as the Ohio Public Employees’ Collective Bargaining Act and the Fair Labor Standards Act. Bob also advises clients on compliance with civil rights laws covering race, sex, national origin, religion, age, disability, genetic information, family and medical leave and veteran status. He represents clients before administrative agencies such as the Equal Employment Opportunity Commission, the Ohio Civil Rights Commission, the Ohio Unemployment Compensation Review Commission, the United States Department of Labor Wage and Hour Division, the National Labor Relations Board, and the State Employment Relations Board. Bob is frequently asked to present at conferences across the state on topics related to school operations, employment and more. He is a member of the firm’s School Finance and Construction and Real Estate practice teams.
Bob has practiced law for more than twenty-four years. He graduated cum laude from the University of Notre Dame Law School in 1995. He also holds a Bachelor of Arts degree from the University of Dayton, where he graduated magna cum laude, as well as a Masters of Public Administration from the University of Akron. Bob is a recognized community leader. He is member and past chair of the Stark County Bar Association’s Grievance Committee and a member of the SCBA Labor Law Committee. He also serves on the Board of Directors and is Chair of Operations Committee for ComQuest Services. He is a former board member of both the YMCA of Central Stark County and Meyers Lake YMCA, where he served as board chair. Bob was a proud member of the Leadership Stark County’s 12th graduating class as well.
We hope you help us in welcoming Bob to the firm! You can contact Bob at our Cleveland Office.
6000 Lombardo Center
Suite 120
Cleveland, Ohio 44131
Phone: (216) 487-6672
Fax: (216) 674-8638
rmcbride@ennisbritton.com
by Pamela Leist | Sep 26, 2019 | Board Policy & Representation, General, Labor and Employment, Legislation, School Management
The Sixth District Court of Appeals delivered a win to school districts recently when it reversed a lower court’s decision ordering the Perkins Local School District to reinstate a former teacher who had been terminated with an award of $367,202.52 in lost wages and benefits. The case was brought by former teacher and coach Tracey Hiss. Hiss was terminated for cause after the district learned she supplied several members of her girls track team with Lidoderm patches – prescription patches containing lidocaine that help with pain relief.
When the superintendent learned of the allegations, he met with Hiss and subsequently placed her on paid leave pending further investigation. He also reported the allegations to the police, who subsequently charged her with a minor misdemeanor for her actions. The district held a pre-disciplinary hearing and the superintendent sent notice of his intent to recommend termination. Hiss, through legal counsel, objected to some of the reasons listed in the notice because they had not been addressed at the pre-disciplinary hearing. The superintendent subsequently held another pre-disciplinary hearing and again recommended termination which the board approved. Hiss requested a hearing to challenge the board’s intent to terminate before a state appointed referee. At the termination hearing, Hiss introduced evidence of an incident where a prior coach, Crabtree, had given a student Tylenol to help reduce pain. She argued that the board should not have terminated her contract due to the fact that this teacher merely received a reprimand and a brief suspension from coaching, where she was being terminated.
After conclusion of the five-day hearing, the referee issued his report and recommendation that the board terminate Hiss’s teaching contract. In making this recommendation, the referee found that the board had sufficient policies prohibiting teachers from both possessing and distributing controlled substances and medicines to students without a parent’s permission.
Shortly thereafter, the Board adopted the referee’s recommendation and passed a resolution to terminate Hiss’s teaching contract. Hiss then appealed this decision to the common pleas court. The court applied the Daughtry test of good and just cause, concluding that the board lacked cause to terminate Hiss’s contract. The court focused in particular on the fact that Crabtree, who had engaged in similar behavior, received a much less severe discipline. The district appealed, claiming in part that the court of common pleas abused its discretion in applying this new test and effectively usurping the role of the ODE referee.
On appeal, the Sixth District Court of Appeals agreed that the court of common pleas abused its discretion when it substituted its own judgement in place of the board of education. The court of appeals concluded that the court’s reliance on the Daugherty test to define “good and just cause” was misplaced. The court reasoned that, while an arbitrator may use the Daugherty test to determine the standard of good and just cause in a labor-arbitration matter, the Ohio Supreme Court has failed to adopt the Daugherty test in just cause teacher termination cases. Thus, the common pleas court exceeded its authority by relying on the Daugherty test as opposed to the cases interpreting R.C. 3319.16 as to whether good or just cause exists.
Examining the merits of the case, the court also determined that Hiss’s misconduct was , a “fairly serious matter” that falls within the realm of good and just cause for termination under R.C. 3319.16. Hiss repeatedly gave prescription pain medicine to students in direct violation of district policy that could have ultimately caused serious harm to the students. The court opined that this added to the fact that the board of education complied with procedural requirements of R.C. 3319.16 by providing Hiss with two informal hearings as well as a hearing before the referee justified the board’s decision to terminate. Therefore, the board’s earlier decision to terminate Hiss’s teaching contract was reinstated.
