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.
by Giselle Spencer | Sep 25, 2015 | Board Policy & Representation, Construction & Real Estate, General, Labor and Employment, Legislation, School Finance, School Management, Special Education, Student Education and Discipline
As with most other provisions of the budget bill (Am. Sub. HB 64) some significant provisions impacting Ohio school districts go into effect on September 29, 2015, including the following:
- The maximum amount of a scholarship awarded under the Autism or Jon Peterson scholarship programs increases to $27,000 (up from $20,000).
- School districts must offer real property it intends to sell first to a “high performing community school,” then to other community and college preparatory boarding schools located in the district.
- ODE, in conjunction with an Ohio educational service center association and an Ohio gifted children’s association, must complete and submit a feasibility study for establishment of sixteen regional community schools for gifted children.
- The State Board must develop rules waiving any additional coursework requirements for renewal of an educator license for teachers who are consistently high performing.
- The duration of a pupil activity permit for individuals holding a valid educator license is changed from three (3) years to the same number of years as the educator license.
- The State Board of Education will develop a standards based framework for the evaluation of school counselors. Furthermore, all school districts must adopt a counselor evaluation policy by September 30, 2016, that conforms to the framework and will be implemented beginning in the 2016-2017 school year (will include annual evaluations with ratings of accomplished, skilled, developing, and ineffective just like OTES).
- The alternative teacher evaluation framework is revised to decrease SGM to 35%, maintain the performance rating at 50%, and authorize school districts to determine the appropriate measure or combination of measures for the remaining 15%.
- Exemplary community schools may now operate a preschool program for general education students.
- School districts may enroll under interdistrict open enrollment policies an adjacent or other district student who is a preschool child with a disability. ODE will deduct $4,000 from the resident district and pay that same amount to the enrolling district.
- School districts cannot appropriate monies to purchase an assessment developed by PARCC for use as the state elementary or secondary achievement assessments. Additionally testing for the 2015-2016 school year is reduced.
- Safe harbor provisions in effect during the 2014-2015 school year for state report cards are extended by two years.
- School districts may now enter into a contract with a health care provider for the provision of health care services for students.
- The new requirements for issuance of diplomas to home school students and students from non-chartered nonpublic schools are now in effect.
STEM schools can now enroll out-of-state students.
- Schools may install security doors or barricades as part of an emergency management plan.
- The filing date for financial disclosure statements with the Ohio Ethics Commission is May 15 (instead of April 15).
by Pamela Leist | May 11, 2015 | General
As building principals finalize this school year and begin to plan out their required drills for the 2015-2016 school year, they should make note of recent changes to the number and type of drills that are now required under state law. House Bill 178, which codified recent changes, passed both houses of the legislature and was signed into law in the final days of 2014. It became effective March 23, 2015.
Drills or Rapid Dismissals
While the number of certain types of drills has changed, all district schools will still be required to complete nine overall drills, rapid dismissals, or school safety drills per school year. For most schools with newer infrastructure, HB 178 reduces the number of regular drills or rapid dismissals required for schools to six, but increases the number of safety drills that must be performed from one to three for a total of nine. If a school does not have smoke detectors or a sprinkler system in all classroom buildings, the drills/dismissals must be conducted at least nine times during the school year. However, the new law permits schools that fall in to this second category to count the three safety drills toward the nine required. Additionally, instruction regarding tornado warning precautions must still be provided in conjunction with the drills/rapid dismissals, and tornado drills must be conducted at least once per month during tornado season (April 1- July 31).
School Safety Drills
As indicated above, the bill increases the number of safety drills, such as lockdowns and evacuations, from one drill to three safety drills per school year. Safety drills provide students with instruction in responding to situations in which students must either rapidly evacuate or be secured in the building in response to a threat caused by an act of violence. The law mandates that at least one of these three drills require students to be secured in the building. The new law also requires that each of these three drills be planned and executed in conjunction with “the police chief or other similar chief law enforcement officer, or designee, of the municipal corporation, township, or township or joint police district in which the school or institution is located, or, in absence of any such person, the county sheriff of the county, or designee, in which the school or institution is located.” Principals must continue to provide law enforcement with 72 hours advanced written notice of the safety drills. The safety drills must also be conducted pursuant to the school’s emergency management plan. HB 178 removed the December 1st deadline for completing a school safety drill.
Theoretical School Safety Drill
Schools must also conduct one staff safety planning exercise, called a theoretical school safety drill, at some point during the school year in addition to the safety drills mentioned above. The purpose of this planning exercise is to provide staff and faculty with instruction regarding procedures to be followed in response to a threat of violence. The planning exercise does not require student participation and may be completed during the annual school safety drill training session required under ORC 3737.73(D)(3).
Timing of Drills
At least one drill/rapid dismissal or school safety drill must be conducted every month of the school year. Additionally, the first drill or rapid dismissal must be within 10 days of the start of classes, and drills/rapid dismissals must be conducted at varied times of the day.
Documentation Requirements
Principals are still required to keep documentation of the date and time of each drill conducted. The deadline for providing this documentation to law enforcement from the prior school year has not changed (December 5th each year), but what documentation must be submitted has changed. Under the new law, principals must provide both the date and time of each school safety drill conducted during the previous school year, and the date and time each drill will be conducted during the current school year. The law expanded the options for submitting this document to include not only regular mail, but also facsimile or electronic submission.
The Department of Commerce created a Technical Bulletin with FAQ about the new requirement titled “Drills or Rapid Dismissals and School Safety Drills.” You can access the bulletin at the following web address: https://saferschools.ohio.gov/sites/default/files/HB178-TB15-001%20-%20FAQ%20-%20final.pdf
