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.
On December 14, 2018, the Fifth District Court of Appeals (Morrow County) upheld Highland Local School District Board of Education’s decision to non-renew two first year bus drivers.
The Union filed a grievance in response to the Board’s notice of intent not to renew the limited contracts of two bus drivers. The grievance claimed there was no showing of “just cause” and proceeded to arbitration based upon the language of the collective bargaining agreement – only a “just cause” provision for discipline and discharge and silent on the issue of the non-renewal of limited non-teaching contracts. The agreement also included a general statement that the contract “supersedes” all applicable state law.
While arbitration hearing dates were being scheduled, the union’s attorneys filed a declaratory judgment action in court that was decided in favor of the Board on the basis that because the contract did not address the issue of non-renewal, state law applies.
The Court of Appeals of Ohio’s Fifth District agreed with the trial court, rejecting the union’s claim that a general statement in the contract that the collective bargaining agreement “supersedes applicable state law” somehow preempted the application of Ohio’s non-renewal statutes. The Court stated that such overrides can only occur “when a provision specifically addresses a matter and evinces a clear intent to override the statutory law relating to that matter.”
As such, since the contract made no specification about the issuance, sequence, renewal, or non-renewal of limited non-teaching contracts, there was no discernible conflict between the labor agreement and the statutes, therefore, “both R.C. 3319.081 and 3319.083 apply in the case.”
What This Decision Means for Your District This is a strong decision for the proposition that statutory rights can only be superseded by express language in a collective bargaining agreement. This works both ways and districts should take great care in drafting contract proposals that conflict with existing state laws, particularly as they relate to employee rights.
Along those same lines, it is very important that district administration carefully review non-teaching labor agreements relative to the issue of non-renewal given the recent amendments that now extend limited contracts from three years (1, 2, continuing) to seven years (1, 2, 2, 2, continuing). If you have addressed non-renewal in your non-teacher agreement, you will need to verify that you will also be able to take advantage of these additional years before continuing contract status is granted. You should also anticipate proposals from non-teacher unions attempting to restrict the extension of limited contract status.
United Elec. Radio & Machine Workers of Am. v. Highland Local School Dist. Bd. of Edn. 2018 Ohio 5307 (Fifth District Court of Appeals, Morrow County, December 14, 2018).
We are very pleased to announce that the highly reputed organization Super Lawyers has selected Ennis Britton shareholder Gary Stedronsky as a Super Lawyer and shareholders Megan Bair, Pamela Leist, and Erin Wessendorf-Wortman as Super Lawyers Rising Stars for 2019!
Gary Stedronsky is a shareholder who has been with Ennis Britton since 2003. He started as a law clerk while attending law school. As a member of Ennis Britton’s Construction and Real Estate Team and School Finance Team, he provides counsel to school districts throughout Ohio on matters related to property issues, public finance matters, tax incentives, and more. He is a published author and frequent presenter on many education-related topics. Gary received the prestigious Super Lawyers Rising Star award five years in a row and now has received the Super Lawyers award!
Megan Bair is a shareholder who advises school districts on a variety of education law matters. As a member of Ennis Britton’s Special Education Team and School Finance Team, Megan represents boards of education on collective bargaining, student discipline, board policy, and much more. Megan has offices in Cleveland and Mahoning Valley. This is Megan’s third year in a row to receive the Super Lawyers Rising Star award!
Pamela Leist is an Ennis Britton shareholder who assists clients with a variety of education law issues. As a member of the firm’s Special Education and Workers’ Compensation Practice Teams, she has represented boards of education before state and federal courts and multiple state and federal administrative agencies. Ms. Leist frequently presents across the state of Ohio on issues related to school law and operations. This is Pam’s second year in a row to receive the Super Lawyers Rising Star award!
Erin Wessendorf-Wortman is a shareholder with the firm. As a member of the firm’s Special Education and Workers’ Compensation Practice Teams, Erin represents school districts across Ohio on a variety of matters including labor and employment issues, civil rights, special education, public records, and more. She is a published author and frequent presenter on many education-related topics. This is Erin’s third year in a row to receive the Super Lawyers Rising Star award!
Super Lawyers is a national rating service that publishes a list of attorneys from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.
To qualify as a Rising Star, an attorney must score in the top 93rd percentile during a multiphase selection process that includes peer nominations and evaluations combined with independent research. A Super Lawyers rating is considered a very prestigious designation in the legal field. Only those in the top 5 percent of the total lawyers in the state are selected to Super Lawyers, and only 2.5 percent of newer lawyers are selected to Rising Stars. We commend Gary for his selection to Super Lawyers and Megan, Pam, and Erin for their selection to Rising Stars!
Ennis Britton first reported about this case in the May 2018 issue of our newsletter, School Law Review, as it has implications for school districts and athletic organizations. Since then, this case has continued in court, and the Ohio Supreme Court has now weighed in as well.
Steve Schmitz was an NCAA athlete who, during the course of his football career in the 1970s, exhibited several symptoms related to repeated concussions. He was diagnosed with CTE in 2012 and alleged that this was the first time he knew he had suffered a bodily injury. He filed a lawsuit in 2014. Since his death in 2015, his widow has continued the lawsuit.
The Cuyahoga County Court of Common Pleas dismissed the case based on the statute of limitations as more than two years had passed since the bodily injury occurred.
A cause of action for a bodily injury generally accrues from the time the wrongful act that caused the injury was committed. Most often, the bodily injury and the wrongful act occur at the same time; in these cases, the statute of limitations clearly begins tolling at the time of injury. However, in some cases a person is not aware of a bodily injury at the time of the wrongful act. In these cases, it is not as clear when the two-year statute of limitations should begin running.
On October 31, 2018, the Ohio Supreme Court unanimously decided that the lower court had dismissed the case prematurely and that the case should continue. The Supreme Court developed a “discovery rule” for cases of latent bodily injury, in which the injury develops after the incident that caused it. The opinion stated, “[e]ssentially, the statute of limitations begins to run when the plaintiff knows or, in the exercise of reasonable diligence, should know that he has suffered a cognizable injury.”
A similar case previously decided by the Ohio Supreme Court held that the statute of limitations for a latent injury claim began tolling on the “date a competent medical authority” informed the man of his specific bodily injury. Liddell v. SCA Servs. of Ohio, 70 Ohio St. 3d 6 (Ohio 1994).
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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Clients of Ennis Britton receive our School Law Review newsletter, in which we address what this OAG opinion means for school districts in Ohio.
