by Gary Stedronsky | Mar 30, 2016 | General
Senate Bill 297 was proposed by Senator Jim Hughes on March 21, 2016. This Bill seeks to amend Ohio’s student discipline statutes to address threats of violence made by students.
The proposed Bill would allow a board of education to adopt a resolution to permit a superintendent to expel a student for up to 60 days for “communicating a threat to kill or do physical harm to persons or property” if all of the following conditions are met:
- The threat is communicated verbally or in writing, in person or via telephone, computer, or with another electronic communication device; and
- The threat is made against persons or property at a school, on a bus, at an athletic competition, extracurricular event, other program or activity sponsored by the school district or in which the district participates, or at any other property controlled by the board of education; and
- The student engaged in “conduct that constitutes a substantial step in a course intended to culminate in the commission of the threatened act, as determined by the superintendent in consultation” with law enforcement.
As a condition to reinstatement from expulsion, the board of education can require the student to undergo an assessment to determine whether the student poses a danger to himself/herself or to others. The superintendent may extend the expulsion for not more than one calendar year if the student fails to undergo the assessment.
A student expelled under this Bill can only be reinstated if the superintendent determines that the student has shown sufficient rehabilitation.
Another provision in this Bill allows a board of education or law enforcement agency to file a civil action seeking recovery for restitution from the parent, guardian, or custodian of a student who is expelled under this Bill. Restitution sought is for the costs of the school district or law enforcement agency that are incurred with the student’s conduct that gave rise to the expulsion.
This Bill was just recently introduced and must make its way through the legislative process before it becomes law. We will continue to keep our clients updated on its status.
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 Ryan LaFlamme | Jan 18, 2016 | General
The University of Toledo undertook a construction project consisting of an addition connecting two existing portions of the University’s hospital and a remodel of existing hospital space. The University hired an electrical contractor for the electrical trades work on the project. There were a number of delays on the project including material deliveries and progress of the work itself. There were additional issues with the project schedule that caused the electrical contractor to have to accelerate its work at additional expense.
The contractor, from time to time, issued letters to the University outlining various issues on the project and their impacts on the contractor’s work. Ultimately, about a month after the contractor’s work was substantially complete, the contractor provided the University with a “certified claim” in the amount of $450,898.29 representing additional compensation the contractor was due from the University due to the various delays and issues on the project that were not the fault of the contractor. The dispute was not resolved informally and a suit was filed by the contractor in the amount of $473,455.00.
In its defense, the University asserted that the contractor failed to comply with the procedures for submitting a claim to the University as required by the construction contract. The contract provided that any claims must be asserted within ten days of the time the event which gave rise to the claim occurred. According to the contract, failure to do so would result in a waiver of the contractor’s claim. Additionally, once the claim was submitted, there were additional steps required of the contractor to substantiate the claim. These too were not fully complied with by the contractor.
The Court of Claims sided with the University finding that the contractor did indeed fail to comply with the contractor claims requirements of the contract. Hence, even if the contractor was correct in its claim and was entitled to additional compensation, its failure to comply with the contractual procedures for submitting claims to the project owner had the effect of waiving such claims.
Districts should be aware that the burden is on them to prove a defense of non-compliance with contractual requirements. The District’s construction managers, architects, and owner representatives should take care to fully document the chain of events regarding any contractor claims in the event it becomes necessary to assert a defense such as this.
IPS Elec. Servs., L.L.C. v. Univ. of Toledo
by Pamela Leist | Nov 20, 2015 | General
The U.S. Department of Education Office of Civil Rights found that an Illinois district discriminated against a transgender student by failing to offer her the same facility access as other female students.
Each of the district’s five high schools have policies in place that allow transgender students to both use the restroom of their identified genderand to play on a sports team of their identified gender. However, an issue arose when it came to the locker rooms. Citing privacy, the district restricted transgender students’ use of the locker room of their gender identity.
The case began when the ACLU filed a complaint on a transgender student’s behalf in 2013. The student is a transgender female student who participates on a girls’ sports team, is referred to as “she” by school staff, is referred to by a female name, and is undergoinghormone therapy. She was denied unrestricted access to the girls’ locker room because of her transgender status.
The U.S. Department of Education Office for Civil Rights spent almost two years investigating the alleged violation under Title IX. It seemed that negotiations of the complaint would soon be ending when the school district decided to hang privacy curtains in the locker rooms. However, the district required only the transgender student to use the curtains. No other students were required to do so. Although thestudent indicated that she would probably use the curtain in the girls’ locker room, the ACLU argued that she should have to right to make that decision voluntarily and not be forced by school requirements.
OCR found that the school district’s action was a violation of the student’s rights under Title IX, which prohibits sex discriminationin education programs and activities that receive federal funding, because the district only compelled the transgender student to use the curtain. Federal officials deemed the solution insufficient.The district has 30 days to settle the matter or face an enforcement action which could involve administrative proceedings or a lawsuit by the U.S. Department of Justice. The district could also lose its Title IX funding.
by Pamela Leist | Nov 13, 2015 | General, Legislation
House Bill 64 directed the State Board of Education to develop standards for the evaluation of school guidance counselors. Just last week, the Ohio Standards for School Counselors were approved by the State Board. The standards-based framework for counselor evaluations must still be developed by the State Board of Education by May 31, 2016.By September 30, 2016, each school district board of education must adopt a school counselor evaluation policy in accordance with the framework and state law. The policy must reflect the implementation of the framework beginning with the 2016-2017 school year, and procedures for using the evaluation results beginning with the 2017-2018 school year.This will be an important subject for collective bargaining with teachers unions for the ensuing contract year.
Section 3319.61 of the Ohio Revised Code sets forth the requirements for the standards.The standards as approved by the State Board of Education and released last week outline the roles and responsibilities of school counselors, in general, and there are a total of six (6) standards upon which guidance counselors are to be evaluated. Those standardsare: comprehensive school counseling program plan; direct services for academic, career and social/emotional development; indirect services including partnerships and referrals; evaluation and data; leadership and advocacy; and professional responsibility, knowledge and growth.
Each standard as adopted contains the overarching goal and theme that provides a framework for effective practices, a narrative summary, and elements that define the various skills and characteristics that demonstrate effectiveness within the standard. Each element has an indicator which is an observable or measurable statement that provides evidence of the standard and the elements in action.
Click here for Ohio Standards for School Counselors
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.
