by Erin Wessendorf-Wortman | Aug 14, 2019 | General
It is no secret that board of education members and school employees often communicate with one another through their personal cell phones. However, board members and employees rarely consider that these private text messages could potentially be disclosed to the public. Two recent decisions have highlighted the need for board members and school employees to proceed with caution as these text messages may be considered public records subject to disclosure upon request.
On May 15, 2019 a special master determined that a school district did not deny a requester public records when it declined to provide her with the cell phone call and text detail logs of particular district employees. (Paule v. Woodmore Local Schools, 2019-Ohio-2625.) The requester in this case argued that the administrators conducted district business through calls and texts with their personal cell phones that the district paid for. The special master found the district did not require the administrators to provide copies of their wireless bills or expense reports related thereto, and therefore had no obligation to disclose documents that did not exist and were not in their possession.
The special master also went on to conclude that the call and text message logs were not records subject to disclosure because a “record” is defined as
Any document, device, or item, regardless of physical form or characteristic, *** created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.
R.C. 149.011(G). The special master stated that there was no evidence that the district required their administrators to document their cell phone usage or that this usage information would document the organization, functions, policies, decisions, procedures, operations, or other activities of the district. Therefore, the personal cell phone call and text detail logs were not records subject to disclosure.
However, shortly after this report and recommendation was handed down, a similar case reached the Ohio Court of Claims. In this case, the presiding Judge concluded that the text messages on personal cell phones of city council members were subject to the Public Records Act. (Sinclair Media III, Inc. v. Cincinnati, 2019-Ohio-2623) In this case, the plaintiff requested text messages of particular public officials in which the employment status of the city manager was discussed. The city argued that the text messages did not meet the definition of a “record” subject to disclosure and that the messages were not “kept by” a public office because they were located on the personal cell phones of the city council members.
In rejecting the city’s argument, the court noted that Ohio courts generally treat text messages and emails sent by public officials in the same manner as other records, regardless of whether they are on privately-owned or publicly-issued devices. The issue is not whether the text messages were sent or stored on personal devices, but whether they document the functions, policies, procedures, operations, or other activities of the city. The court determined that the text messages reflecting on the employment decisions of public offices clearly document the operations and activities of that office. Therefore, the text messages in this case were public records subject to disclosure.
In each of these cases, the decisions focused on whether or not the messages document the functions, policies, procedures, operations or other activities of the public office. The key is the content of the messages not the device on which they are sent. If the messages document the functions, policies, procedures, operations or other activities of the school district, these messages could be subject to a public records request even if located on a personally owned device. As a result of these decisions, school districts should inform and educate their board of education members and employees that their text messages could be subject to disclosure depending on the content of the message. Boards of education may need to update their current records and retention policies to ensure compliance in accordance with these decisions.
by Jeremy Neff | Jun 24, 2019 | General, Legislation, Student Education and Discipline
The use of restraint and seclusion in schools continues to be a high priority for state and federal policy makers. Ohio’s first regulations specifically addressing restraint, seclusion, and positive behavior intervention and supports took effect in 2013 as Ohio Administrative Code (OAC) 3301-35-15. In June 2018, the General Assembly passed House Bill (HB) 318, also known as “the SAFE Act”. This law addresses a variety of student discipline issues, including a requirement to rewrite Ohio’s restraint and seclusion regulations.
Ohio Administrative Code 3301-35-15 was due for review by August 2018, but the process has not been completed. HB 318 set a deadline for revision of OAC 3301-35-15 by early February 2019. Again, no revisions were made. However, work is ongoing at the Ohio Department of Education (ODE) and various stakeholder groups are being presented with draft rule revisions this summer. It is anticipated that in the coming months, there will be a proposed rule presented for public comment and consideration by the State Board of Education.
In the meantime, existing requirements for the use of restraint and seclusion remain in place. This includes absolute restrictions on certain practices, and significant data tracking and reporting requirements. The summer “break” is a good time for administrators to review existing training programs, plan for which staff members may require additional training due to student assignments and program changes, and review reporting data for the recently completed school year to determine if there are any patterns or gaps that need to be addressed.
While the use of restraint and seclusion generally should be rare, consistent reports of zero incidents may raise a red flag. A recent report from the federal Government Accountability Office (GAO) found that nine of the nation’s 30 largest school districts reported no incidents of restraint or seclusion in the last reported year (2015-2016). The GAO and U.S. Department of Education presume that such reports are inaccurate, with the GAO reporting that, “We are encouraged that Education recognizes the seriousness of this issue and the data quality issues it has allowed to persist when districts inappropriately and inaccurately report zero incidents of restraint and seclusion.”
In addition to whatever new requirements might be rolled out by the U.S. Department of Education to address its concerns, long-proposed federal legislation is expected to be reintroduced later this year. The bill, called the “Keeping All Students Safe Act,” is likely to overlap significantly with Ohio’s restraint and seclusion regulations.
by Gary Stedronsky | May 23, 2019 | Board Policy & Representation, General, Labor and Employment
Given their choice to enter into elective office, school board members are typically service oriented individuals. They are very active in their communities and are often interested in the athletic programs of their district. Thus, it is not surprising that many school board members would want to help out by coaching or assisting a coach with an athletic team. On January 9, 2019 the Ohio Ethics Commission received a request from a district’s superintendent for an advisory opinion letter on behalf of a board member. The member wanted to pursue a coaching position with the district and asked if he could accept employment as a paid coach or serve as a volunteer coach.
The opinion indicates that a board member is prohibited, under Ohio ethics laws, from being employed as a paid coach by the district they serve. Ohio Revised Code section 3313.33(B) expressly states that members of the board may not “be employed in any manner for compensation.” RC 2921.42 (A)(4) also provides that a public official is prohibited from having an interest in the profits and benefits of a contract of the public agency he or she serves. A school board member who is a compensated employee of a district would have an interest in the district by entering into an employment contract as a coach. As a result, the commission’s opinion states that “RC 2921.42(A)(4) prohibits the school board member from serving simultaneously as a paid district coach.”
The opinion further provides that a board member may volunteer as a coach without any compensation. There is no statute that prohibits a member from serving as a volunteer coach. Additionally, there is no prohibited interest in a public contract when a board member volunteers his or her time without compensation. Although, members in this position may be required to abstain from participating in matters directly affecting the athletic department. This could include voting, discussing, deliberating or taking any other actions regarding athletic department personnel. They may also be required to abstain from voting on an employment/supplemental contract for an employee who works in that sport/activity or who oversees the program in which the board member volunteers (ie – athletic director) because of concerns about undue influence. However, the Ethics Commission found that a member was “not prohibited from participating in matters that affect all athletic department personnel within the district uniformly” (i.e. voting on a CBA that includes an increase in compensation to supplemental positions) or from participating in general budgetary matters that might include funding for athletics and compensation or benefits for employees.
It appears that the Ethics Commission likely issued the opinion to address the situation where board members volunteer to take the place of a paid supplemental coach rather than to serve as a volunteer in some other capacity, such as announcing the game, taking tickets, etc. However, the Ethics Commission was not very clear in delineating between someone who volunteers as a coach versus someone who volunteers in another capacity. For that reason, board members who volunteer in a capacity other than taking the place of a supplemental position are also advised to follow the advice in this Ethics Commission opinion.
by Ryan LaFlamme | May 1, 2019 | General, Student Education and Discipline
A Federal District Judge recently ruled that a charter school dress code policy which required girls to wear skirts and prohibited girls from wearing pants or shorts, violates the equal protection clause of the U.S. Constitution. Many challenges in the past have rested on First Amendment grounds regarding freedom of expression. However, this case was brought on a theory of gender discrimination.
The Plaintiffs argued that the girls suffered tangible disadvantages due to the policy. The court found that the Plaintiffs established that “the girls are subject to a specific clothing requirement that renders them unable to play as freely during recess, requires them to sit in an uncomfortable manner in the classroom, causes them to be overly focused on how they are sitting, distracts them from learning, and subjects them to cold temperatures on their legs.”
The Defendant, the Charter Day School, argued the dress code was designed to garner mutual respect between the boys and the girls, particularly in that the skirts represented visual cues to promote respect between the two sexes. Striking down the policy, the school argued, would remove those visual cues and hinder a sense of respect for the opposite sex. The Court noted that even if these were legitimate interests of the state, the school failed to show how the policy advanced such interests.
The Court further noted that school dress code policies have been upheld by numerous courts and that the state does have legitimate interests in the grooming and dress of students attending schools supported by the state. However, these interests must be addressed in a uniform, gender-neutral way that does not penalize a student simply for being one sex or the other.
by Ryan LaFlamme | Apr 25, 2019 | General, School Management
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.
by Giselle Spencer | Mar 28, 2019 | General, School Management
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.
