The Ohio Attorney General has released a formal opinion finding that the board of education of a joint vocational school district (JVS) has no authority to establish a sick leave donation program for non-teaching employees of the district who are not members of a collective bargaining unit.
The JVS explained its donation program to the Attorney General thusly:
“The sick leave donation program would allow non-teaching employees to donate unused sick leave accrued by those employees into a bank for the use of eligible employees. Upon application and approval, unused sick leave in the bank would be accessible to an eligible employee, meaning that an employee with a serious illness could exhaust his or her accrued sick leave and then access the donated sick leave in the bank, all accrued by other joint vocational school non-teaching employees. The board of education itself would not provide any additional sick leave. The donation program would consist only of donated leave accrued by other non-teaching employees. Nor would there be any cash payment or any other incentive to any employee to compensate them for donating the sick time to the donation program.”
The Attorney General reasoned that as political subdivisions of the state, school districts are creatures of statute and can only act as expressly authorized or as may be necessarily implied to carry out such express grants of authority. Sick leave is a benefit school boards are permitted to provide their employees by statute (R.C. 3319.141). That statute provides that employees may use sick leave for their own personal illness or for illness of a family member. Because the statute limits the purposes for which sick leave can be used, a school board has no authority to permit sick leave to be used for another purpose, i.e., for the illness of another person who is not a family member.
The opinion, of course, does not apply to employees who are members of a collective bargaining unit who have negotiated the establishment of a sick leave donation program through collective bargaining. This is because, generally, collective bargaining agreements can supersede the requirements of statute, except where prohibited by law.
Districts should be cautious in permitting sick leave donation outside of the confines of a collective bargaining agreement. This opinion could be used as a basis for a finding for recovery for sick leave that is improperly paid to an employee under an unlawful donation program.
A new law may impact the obligations of schools, School Resource Officers, and law enforcement agencies, in general, in responding to a request for dash cam or body cam recordings. HB 425, which added new exceptions to the R.C. 149.43 definition of public records, becomes law on April 8, 2019. Under this new provision, portions of a body worn camera (BWC) or dashboard recording are not included in the definition of a public record. Those exceptions include:
•The image or identity of a child, or information that could lead to the identification of a child, who is the primary subject of recording, if police know or have reason to know the subject is a child. •The death of a person or images of a dead body, unless the death was caused by a police officer or if the executor or administrator of the deceased’s estate grants consent to production of the images. Similarly, images of grievous bodily injury or acts of severe violence resulting in severe physical harm are excluded, unless the same applies. •Images of the death of a police officer or first responder in the course of their duties, unless the executor or administrator of the deceased’s estate gives consent. •Depictions of acts of severe violence resulting in severe physical harm to a police officer or first responder in the course of their duties, unless consent is obtained. •Images of a person’s nude body unless consent is obtained. •Protected health information or other identifying information including the identity of a person in a health care facility who is not the subject of a law enforcement encounter. •Any information that could identify a victim of a sex offense, menacing by stalking or domestic violence.
Further exceptions are:
•Information that could identify an informant and endanger the safety or property of such information. •Personal information of those not arrested, charged, given a written warning or cited by law enforcement. •Proprietary police contingency plans or tactics for crime prevention, public order and safety. •Personal conversations unrelated to work of law enforcement and employees, or conversation between police officer and citizen not concerning law enforcement activities. •The interior of a residence or the interior of business not open to the public, unless the residence is the location of an adversarial encounter or use of force by law enforcement.
If a request for body cam footage is denied pursuant to these provisions, the law now allows the requester to file either a mandamus action in civil court or a complaint in court of claims. To receive the requested relief, there must be clear and convincing evidence that the public interest in recording outweighs the privacy interests and other interests asserted as reasons to deny release.
It is unknown how, or if, this new law will impact the case of Cincinnati Enquirer v. City of Cincinnati Police Department set for oral argument before the Ohio Supreme Court on May 19, 2019. Cincinnati Enquirer stems from a plainclothes police response to a call for adult children to leave the home of a parent, resulting in the use of force and a call for additional police reinforcements at the home. As expected, the responding officers were equipped with BWCs. The Cincinnati Enquirer requested the BWC footage and the request was denied based on the claim that the images constituted a Confidential Law Enforcement Investigatory Record (CLEIR). A CLEIR is not a public record if it pertains to a “law enforcement matter” involving a specific suspicion of misconduct and the investigating agency has the authority to enforce the law. The Cincinnati Police Department further claimed that disclosure of the footage would compromise the prosecution of the defendants (two adults in the home) by revealing work product. Nonetheless, the footage was disclosed after defendants plead guilty. If reviewed in conjunction with this new legislation, the court may provide further directive on the relation between BWC or dash cam recordings and the broader personal information revealed by such footage.
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
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
In a 5-4 decision made last June, the U.S. Supreme Court ruled that the extraction of agency fees from Illinois State’s nonconsenting employees of the public-sector violates their First Amendment rights. After the decision was made, all workers who attempted to withdraw their consent to extract agency fees, were refunded the money taken under the policy. The court stated that, “States and public-sector unions may no longer extract agency fees from nonconsenting employees. … employees must choose to support the union before anything is taken from them.”
The Supreme Court decision is sparking class action lawsuits across the country. In Ohio, Smith v. AFSCME has been monumental for post-Janus rulings. The suit was filed by several employees across Ohio who are employed by local government agencies. All of the employees attempted to withdraw their union membership and their dues deduction authorization following the Janus ruling. They were each denied their First Amendment right as union officials continued to extract dues. Officials followed the “15-day window period” that only allowed for resignation of the union 15 days prior to the expiration of the collective bargaining contract. This led to the employees filing suit against AFSCME, alleging that the policy was unconstitutional.
The employees were represented by the National Right to Work Legal Defense Foundation, who also represented Mark Janus in Janus. At the end of January 2019, the case was finally settled. Under the terms of the settlement agreement, AFSCME agreed to pay back all union dues that were extracted after the employees attempted to withdraw their consent. The union will not deduct any agency fees or dues that were previously subject to the window policy. This is monumental because it is the first class action lawsuit since the Janus ruling in which union officials have reversed their policy on the window period. President of the National Right to Work Foundation, Mark Mix, said, “This first-in-the-nation victory in a class action case to enforce workers’ rights under Janus should be the first of many cases that result in union bosses dropping their illegal restrictions on workers seeking to exercise their rights secured in the Foundation’s Janus Supreme Court victory.” As of January 24th, Foundation was litigating 20 cases nationwide to enforce employee’s rights.
What this Means for Your District In light of the ruling in Janus and the Smith settlement, districts should be mindful that any “window policy” on withdrawing union membership may present legal complications for the district if challenged. Districts should review their collective bargaining agreements and consult with their local unions regarding its position on that provision given Smith.
Now that marijuana is being sold in dispensaries in Ohio, with more to open in the coming weeks, we can expect to see more people applying for a medical marijuana card, which is obtained by having a physician’s recommendation for one of the approved qualifying conditions. As the dispensaries opened, news outlets reported that approximately 3,500 Ohioans had medical marijuana cards (a person with a physician’s recommendation must register on a state website, then get a card that authorizes them to purchase from a dispensary). The number of people applying for and receiving cards is expected to “explode” now that dispensaries are open.
Ohio is the 26th state in the U.S. to adopt some type of legalized marijuana scheme with each state has its own laws and regulations governing its programs. Some states have recreational marijuana while others have authorized medical marijuana As Ohio implements its program, public school districts can prepare for what will inevitably create employment and student related issues along with federal funding concerns by looking to the experience of other states that have already passed laws permitting the use of marijuana.
Employment issues The law authorizing medical marijuana in Ohio does not require an Ohio employer to change their drug-free workplace policies and does not prevent an employer from disciplining an employee, up to and including termination, for possessing or using drugs. Even if marijuana possession and use is legal for qualifying conditions in Ohio, Ohio employers do not have to permit it for their employees or accommodate those who have cards. In addition, marijuana remains an illegal Schedule I drug at the federal level. The federal law on this impacts schools as we discuss federal grants, below.
Student issues We expect that issues concerning student and medical marijuana will come up in the context of a child with special needs who has a qualifying condition for whom the child’s parents have obtained medical marijuana. For example, a seizure disorder for which a medical marijuana tincture is recommended for management of the condition, which the parents would then request to be administered to their student either by the parents or by a school district employee pursuant to a health care plan or a 504 plan.
In fact, a lawsuit was filed in Illinois on these same general facts in 2018. The parents had requested that the student, who received services for multiple disabilities as outlined in her IEP, be allowed to receive medical marijuana during the school day under the Illinois Medical Cannabis Pilot Program. The student had leukemia, and chemotherapy treatments had resulted in epilepsy and seizures. The student wore a cannabis patch on her foot and sometimes used cannabis drops on her tongue or wrists to regulate her epilepsy and seizures.
The Illinois law allowing cannabis to be present in various locations excluded schools, school buses and school grounds. Their statute specifically stated that school personnel are not required to be qualified care givers who can administer medical cannabis. The school district was willing to administer the medical cannabis, but it ultimately denied the request for accommodations due to the issues of state and federal liability and criminal prosecution for violating the Illinois law. The parents sued in federal court, alleging violations of the ADA and Section 504 as well as denial of FAPE pursuant to the IDEA.
The district eventually filed a motion asking for a temporary restraining order, indicating it was willing and able to administer the medical cannabis to the student during the school day, but asked the federal court to issue an order allowing the District to possess and administer the medical cannabis, and to protect it from state or federal prosecution from doing so pursuant to the order. The court did not issue the order, and the matter settled in April of 2018, so we have no public resolution or legal precedent. However, this case illustrates the potential claims and the difficulties school districts face as medical marijuana use expands.
Medical marijuana and federal grant funds Given the federal position that marijuana remains an illegal drug, is the issue of medical marijuana and its impact on federal grants to schools. Ohio as a state educational agency and many Ohio local educational agencies (school districts) receive federal grants in the form of Title I and U.S. Department of Agriculture school nutrition programs for low income students.
As a condition of receiving and maintaining these grants, grantees and sub-grantees are required to make “a good faith effort” to maintain a drug-free workplace. This includes school buildings where work is done in connection with a grant award.
The federal agencies have discretion in determining whether a grantee or sub-grantee is in compliance with the conditions of the grant and have a range of options to compel compliance. However, suspension of grant payments and termination of awards are compliance options available to the agencies, and while it would ordinarily be considered a last resort or extreme action, it is a possible consequence that districts should consider as this issue continues to unfold in Ohio.
The federal agencies that award these grants have as yet declined to address the issue of medical marijuana or provide any exception for medical marijuana in as it relates to the drug free requirement of the workplaces where grant activities are carried out.
While each state’s scheme of authorizing the use of medical marijuana is different, we can look to their laws and the experience of other states’ school districts in addressing employment and student issues. Ennis Britton will continue to monitor and report on the issues and legal developments in this area of the law on behalf of our clients.
