Senate Bill 29: Implications for Districts

Senate Bill 29: Implications for Districts

Senate Bill 29 (“SB29”) was passed by the Ohio General Assembly at the end of June 2024 and was signed by Governor DeWine on July 24, 2024.  Generally, the bill impacted a number of sections of the Ohio Revised Code with a few amendments and added several new code sections that govern education records and student data privacy.  SB29 contains four main sections, each with its own implications and timelines for implementation in school districts.

Previous to SB29, Ohio protected personally identifiable student information pursuant to O.R.C. §3319.321. Ohio defines “educational records” similar to the definition in the federal Family Educational Rights and Privacy Act (FERPA), as “records, files, documents and other materials that contain information directly related to a student and are maintained by a school district board of education or by a person acting for the school district.”  Educational records do not include records in the sole possession of school personnel, employee personnel records, or records of an adult student that are maintained by a professional providing medical treatment to the student.

Section I: New Public Records Exemption

Effective: October 24, 2024*

Implications: Immediate on Effective Date

SB29 amended O.R.C. §149.43 to include an additional exemption to the list of records that are not be considered “public records” under Ohio’s Public Records law. “Educational support services data” is a new term under the Ohio Revised Code and is not the same as “educational records” as defined above.  It is defined at O.R.C. §3319.325 as:

“…data on individuals collected, created, maintained, used or disseminated relating to programs administered by a school district board of education or an entity under contract with a school district designed to eliminate disparities and advance equities in educational achievement for youth by coordinating services available to participants regardless of the youth’s involvement with other government services.”

Therefore, “educational support services data” is not a public record and may not be released or accessed unless it is pursuant to law. However, O.R.C. §3319.326 specifically outlines that this data shall be made available to the state Opportunities for Ohioans with Disabilities agency for that agencies’ duties in supporting students with disabilities.

Action Required for School Districts: This new definition requires an awareness of a new exception to Ohio’s Public Records law of a category of student records, rather than action from school districts. If there are requests for records meeting the definition of “educational support services data,” those requests should be denied unless otherwise permitted under other statutes.

Section II: Licensure Penalties for Release of Confidential Information

Effective: October 24, 2024*

Implications: Immediate on Effective Date

SB29 added an additional reason for the State Board of Education to refuse to issue a license to an applicant; limit a license to an applicant; suspend, revoke, or limit a license that has been issued; or revoke a license that has been expired as follows:

“…using or releasing information that is confidential under state or federal law concerning a student or student’s family members for purposes other than student instruction.” O.R.C. §3319.31

Action Required for School Districts: The Licensure Code of Professional Conduct for Ohio Educators already includes penalties for educators who fail to comply with student confidentiality requirements. The Licensure Code considers the following to be conduct unbecoming to the teaching profession:

  1. Willfully or knowingly violating any student confidentiality required by federal or state laws, including publishing, providing access to, or altering confidential student information on district or public websites, such as grades, personal information, photographs, disciplinary actions, or individualized educational programs (IEPs) without parental consent or consent of students 18 years of age and older.
  2. Using confidential student, family, or school-related information in a non-professional way (for example, gossip, malicious talk, or disparagement).
  3. Violating local, state, or federal procedures or laws related to the confidentiality of standardized tests, test supplies, or resources.

However, this direction from the Ohio Legislature through SB29 appears to expand what is considered to be a violation of student confidentiality and further limits the use of such confidential information to only student instruction.

This amendment could impact student confidentiality policies for your District, so those should be reviewed for compliance. It also may be important for your district to train staff on this shift in statutory language, as the focus and penalty is on the licensed individual, not the employing school district in this statute.

Section III: Technology Providers and their Use of Educational Records

Effective: October 24, 2024*

Implications: Immediate and by August 1, 2025

SB29 is Ohio’s first substantive step into setting legal expectations for contracts between school districts and technology providers set forth in O.R.C. §§3319.325 and 3319.326.

“Technology providers” means:

“…a person who contracts with a school district to provide a school-issued device for student use and creates, receives, or maintains educational records pursuant or incidental to its contract with the district.”

“School-issued device” means:

“…hardware, software, devices, and accounts that a school district, acting independently or with a technology provider, provides to an individual student for that student’s dedicated personal use.”

Schools are required to ensure that contracts with technology providers include the following terms:

  • Educational records are the sole property of the school district.
  • Breach of security protocols, including disclosure to the school district to allow the school district to meet its data security requirements in O.R.C. §1347.12.
  • Return or destruction of educational records within 90 days of termination or expiration, unless renewal expected.
  • No selling, sharing or dissemination of educational records by the technology provider.
  • No use of educational records for a commercial purpose by the technology provider.
  • Ensure security safeguards for educational records:
    • Restrict unauthorized access by technology provider’s employees or contractors.
    • Requirement that access is only necessary to fulfill official duties.

By August 1st of each school year, school districts are required to provide parents and students with notice of the curriculum, testing, or assessment technology provider contract affecting the student’s educational records. This notice is required to be sent to the student and the parent via mail, email or other direct form and must include:

  • Identification of each curriculum, testing or assessment technology provider.
  • Identification of the educational records affected by the curriculum, testing or assessment technology provider contract.
  • Information about how to inspect the contract.
  • Provide contact information for a school department to contact with questions or concerns regarding any program or activity that allows a curriculum, testing or assessment technology provider access to educational records.

Action Required for School Districts:  The timeline in the statute requires notice by August 1st each school year, and that deadline has passed for 2024-25 well before the statute is in effect. Therefore, school districts will want to use this school year to gather information on all the curriculum, testing or assessment technology provider contracts it maintains, as well as centralizing the process for approval of curriculum, testing or assessment technology utilized by staff. Only central office administration should authorize and approve each curriculum, testing or assessment technology providers.

Schools will want to consider an approval process for how each curriculum, testing or assessment technology provider will be vetted, as well as verification that each technology provider contract includes the provisions required by SB29, as well as any other implications from FERPA, COPPA (Children’s Online Privacy Protection Rule), CIPA (Children’s Internet Protection Act), and ADA/Section 504.

Additionally, school districts will need to have their notice process established so that all parents and students are provided with the required notice by August 1, 2025, and August 1st each year thereafter.

Section IV: Access or Monitoring of Student Activity on School-Issued Devices

Effective: October 24, 2024*

Implications: Immediate on Effective Date

Under a new statute, O.R.C. §3319.327, school districts and technology providers are prohibited from electronically accessing or monitoring the following:

  1. Location tracking features of a school-issued device;
  2. Audio or visual receiving, transmitting, or recording feature of a school-issued device; or
  3. Student interactions with a school-issued device, including keystrokes and web-browsing activities.

There are several exceptions that allow electronic access and monitoring under this new statute, but the intent of the law was clearly set forth by bill sponsor Senator Huffman:

“Everyone deserves the right to privacy and students are no different,” Huffman said. “Our children need privacy to express themselves, and it should be left to parents, not tech companies, to monitor our children’s online presence.”

The limited circumstances in which a school district or technology provider is permitted to electronically access or monitor a student’s activity on a school-issued device are:

  • Noncommercial educational purposes for instruction, technical support, or exam proctoring by a school district employee, student teachers or contracted staff with notice provided in advance.
  • Judicial warrant.
  • Notice is provided to the school district or technical provider that the school-issued device is missing or stolen.
  • Necessary to prevent or respond to a threat to life or safety, and access is limited to that purpose.
  • Necessary to comply with federal or state law.
  • Necessary to participate in federal or state funding programs.

If a school district elects to electronically access or monitor a school-issued device pursuant to one of the above exceptions, it must provide written notice of the monitoring to the parents of enrolled students (“General Notice”).

Additionally, if a student’s device is electronically accessed because an exception occurs, the school district must provide notice to the student’s parent of the circumstances that caused the school district to access the student’s interactions with the school-issued device within 72 hours of the access (“72-Hour Notice”). The 72-Hour Notice must include details of what features were accessed and, if applicable, a description of the threat. If the 72-Hour Notice itself is a threat to life or safety, then it must be provided within 72 hours after the threat has ended.

Action Required for School Districts: School districts should be ready on October 24, 2024*, to provide both the General Notice and the 72-Hour Notice to the parents/guardians of currently enrolled students.

In its General Notice, districts must disclose any monitoring of school-issued devices for any of the permissible reasons outlined above. For example, schools that participate in E-Rate and other federal funding programs will automatically be required to notify parents of the monitoring that occurs due to the Child Internet Protection Act (CIPA). As a reminder, under CIPA, not only must your school district have an internet safety policy that includes technology protection measures to block or filter Internet access to pictures that are obscene, child pornography; or harmful to minors, but schools also must monitor the online activities of minors. While this is still permissible under SB29 and required for schools to receive federal E-Rate monies, the General Notice still must disclose monitoring pursuant to federal law.

If your District has other applicable monitoring it utilizes for one of the permissible reasons, these also must be included within your District’s General Notice, including any technology provider that monitors student activity online, filters content, and/or alerts school officials to possible threats, violence, suicidal or self-harm ideation.

Your District should also have a 72-Hour Notice ready for use if a triggering circumstance occurs causing the District to electronically access the school-issued device. It may be necessary to provide training and/or consensus to building administration on implementing these new requirements.

Contact an Ennis Britton attorney if you have questions about any of the new requirements of SB 29 for your district.

 *While Gongwer reports the effective date of SB 29 as October 21, 2024, the Ohio Secretary of State and the Ohio Legislative Service Commission report the effective date as October 24, 2024. For the purposes of this Client Alert, Ennis Britton is using October 24, 2024 as the effective date for SB 29. 

 

CTC Corner:  Accessibility of Online Services and Programs Focus of Enforcement by DOJ andOCR

CTC Corner: Accessibility of Online Services and Programs Focus of Enforcement by DOJ andOCR

On May 19, 2023, the U.S. Department of Justice Civil Rights Division and the U.S. Department of Education Office for Civil Rights issued a joint Dear Colleague letter (“Letter”) reminding postsecondary institutions of their obligations to ensure that the online services, programs, and activities provided by such institutions are accessible to individuals with disabilities.

The Departments’ focus in in this Letter pointedly refers to two federal laws (the Americans with Disabilities Act and Section 504 of the Rehabilitation Act)that require postsecondary institutions (and K-12 entities) to provide equal opportunities to people with disabilities in all of their operations, including equal opportunities to participate in and benefit from online services, programs and activities. Both laws require postsecondary (and K-12) institutions ensure the accessibility of public-facing websites, learning management systems, password-protected student-facing content, mass email blasts, online programming, etc. The key, according to the Letter, is to remove digital barriers and provide access to online services, programming, and content, etc.

Digital accessibility-and enforcement- is an ongoing focus for the Departments in addressing issues related to institutions failing to achieve those goals. It highlights a consent decree in which a postsecondary institution in California was required to make all public online content on its website and other online platforms accessible to people with disabilities, including videos and podcasts on YouTube, Apple Podcasts, and third-party platforms. The consent decree required the institution to designate a “web accessibility coordinator”, accessibility testing of online content, and independent auditing to evaluate whether content provided to students and the public was accessible.

In May 2022, the Office for Civil Rights engaged in over 100 compliance reviews concerning digital accessibility, which included education from K-12 through postsecondary education. During the same time period, the Justice Department also issued guidance involving web access for individuals with disabilities, showing how districts can make sure their websites and services are accessible to people with disabilities as required by the ADA. This guidance may be accessed here.

While this Letter does not address K-12 educational institutions, it does serve as a useful reminder to both K-12 and also those institutions providing both levels of education that educational technology accessibility has been and will continue to be a focus for the Departments in ensuring equal access. Districts should also be watching for the Department of Education’s Notice of Proposed Rulemaking for amendments to Section 504 regulations that was mentioned in this Letter.

What does this mean for your District?
The Departments are laser focused on this topic. As bluntly stated in this guidance: “[o]nline accessibility for people with disabilities cannot be an afterthought.” Districts should conduct a review of the accessibility of online programming, services, activities, etc. provided to ensure that these essential services are accessible to students with disabilities. Internal audits of online programs and services to ensure educational technology is accessible: if barriers are discovered, steps can be taken and documented to ensure these programs are accessible going forward.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Plan For Payment In Lieu of Transportation

Plan For Payment In Lieu of Transportation

Successful transportation programs have had to adjust their timelines for declaring transportation impractical and offering payment in lieu of transportation (PILOT) due to new statutory deadlines and processes enacted in 2021. Here are some reminders about those deadlines and practical tips on preparing for timely and effective PILOT determinations. A cost-efficient and legally compliant transportation program is a key component of district operations, especially with financial penalties for noncompliance.

Route Plans
Have the nonpublic and community schools in your district declared their start and end times by April 1? That’s a new deadline. If they have done so, the district’s obligation is to develop a transportation plan for those students in 60 days; i.e., June 1. This is much sooner than districts usually do routing.

If those schools have not yet done so, it is to a district’s benefit, as it plans routes for next year, to request that information, along with student rider names and addresses. Once provided, the district must attempt to respond with the transportation plan by August 1. It is in the district’s interest to get this information quickly so that routing can incorporate these students.

Impracticality Determinations
Districts must determine impracticality of transportation 30 days before school begins. This means most families must be notified by mid-July. Determining whether the costs of transportation for nonpublic or community school students are disproportionate must be made on a case-by-case basis. Districts must also consider the other factors for this determination outlined in R.C. 3327.02. Researching each factor and documenting the results will protect the district.

The Superintendent may make the determination after considering all the statutory factors, with the Board approving the same at its next scheduled Board meeting. A letter detailing the reasons supporting the determination of impracticality must be sent to the parents, the State Board, and the community/nonpublic school.

PILOT
The Board may then offer payment in lieu of transportation (PILOT) to the parents by sending them the resolution, the reasons transportation was declared impractical, notice that the parent may accept or reject the offer and request mediation with ODE, and a contract for the parents to sign if they accept.

Attention to ensuring this process is well underway now is time well spent, with the goal of being ready to make decisions in July. Failure to do so risks missing deadlines, which could result in transporting students the entire year.

Values for payment in lieu of transportation for 2023-24 already have been announced by ODE- a minimum amount of $596.43 and maximum of $1,192.87.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Career Tech Corner: Governor DeWine and the Ohio House Prioritize Career Technical Centers in Ohio Budget

Career Tech Corner: Governor DeWine and the Ohio House Prioritize Career Technical Centers in Ohio Budget

In the proposed budget awaiting Senate approval for the upcoming fiscal year, the Ohio House followed Governor Mike DeWine’s lead and made career technical centers a priority. H.B. 33 which passed the Ohio House on April 26, 2023, includes a $100 million appropriation to support career technical programs. H.B. 33 also includes a one-time appropriation of $200 million for construction projects that establish or expand career-technical education programs.

DeWine has said that he believes career technical centers are essential to preparing Ohioans for the jobs of the future. “The jobs of tomorrow are going to require more skills and training,” DeWine said. “Career technical centers are the best way to make sure that Ohioans have the skills they need to get good-paying jobs.” Both the Ohio Chamber of Commerce and the Ohio Education Association support the increased funding.

The budget proposal is now being considered by the Ohio Senate. It is expected to be debated and voted on in the coming weeks.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Want to Use Cooperative Purchasing Power for Construction Services? Call Your Representatives!

HB 145, 135th  General Assembly

There is legislation currently pending in the House to clarify that ORC 9.48 applies to construction services.  The attorneys here at Ennis Britton frequently hear from superintendents, treasurers, and business managers from around the State that they would like cooperative purchasing to be more accessible for some construction services.  This is an opportunity to do just that, so now is the time to contact your representatives to support this bill.

By way of background, cooperative purchasing is a procurement process whereby large purchasing power is leveraged to secure a wider range of vendors and better prices.  The contracts available through cooperative purchasing are publicly and competitively secured so the individual district taking advantage of an available contract does not have to go through competitive bidding itself.

In 1997, the General Assembly allowed cooperative purchasing for counties and townships. Then, in 2008, cooperative purchasing was expanded to all political subdivisions of the State, including school districts through section 9.48 of the Ohio Revised Code.

9.48 provides that a school district may acquire equipment, materials, supplies, or services through cooperative (joint) purchasing programs operated by any state or national association of political subdivisions.

Unfortunately, The Ohio Attorney General issued an opinion in 2019 that concluded that political subdivisions could not use cooperative purchasing pursuant to Section 9.48 in order to procure construction services because the statute does not use that term. “If the legislature intended to include “construction services” in R.C. 9.48, it could have used language to do so. R.C. 9.48, however, does not contain the terms “construction” or “construction services.” Consequently, we conclude that the General Assembly did not intend to include construction or construction services among the list of items, which a political subdivision may secure under the purchasing authority described in R.C. 9.48.”

While it is true that an Attorney General opinion is not binding law, school districts are cautioned against using this method or procurement to secure construction services. In the absence of any other interpretation, an auditor or grant coordinator could determine that cooperative purchasing under 9.48 is not a valid method of procurement for construction services using this opinion as support.

This bill would clarify that “services” include “construction services.” This change would grant school districts and other political subdivisions more options, flexibility, and control over their purchasing decisions. The Bill, introduced by representatives Thomas Hall and Brian Lampton, was referred to the State and Local Government Committee on April 28, 2023.

What does this mean for your district?

While caution is warranted about RC 9.48, there are other methods through which cooperative purchasing may be used for improvements. If you have a project for which you are thinking of using cooperative purchasing, contact one of the attorneys at Ennis Britton to make sure you stay in compliance.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Court of Appeals Overrules Trial Court in Employee Termination Matter

Court of Appeals Overrules Trial Court in Employee Termination Matter

Matthews v. Springfield-Clark CTC Bd. of Edn., 2023-Ohio-1304.

Springfield Clark CTC terminated a custodial supervisor for a variety of reasons, including, going into his supervisor’s office and reviewing, copying, and removing documents, all of which were supported by video.  The employee had been the subject of prior discipline and had been placed on an improvement plan which was never started.

During the termination process, the employee was given a pre-disciplinary hearing where he was provided with details of all of the allegations.  He was also given an opportunity to provide evidence in his defense.  Following this meeting, the Superintendent recommended termination, and a hearing was held before the Board of Education from which a transcript was created.  The employee did not call any witnesses.   Following the hearing, the Board of Education terminated the employee.

The employee appealed to the Common Pleas Court which overruled the termination.  As the basis for this reversal, the trial court made several findings.  First, the trial court ruled that an employee had a “presumption of innocence” and that the process violated “fundamental fairness” citing that it was the employer’s burden of proving the misconduct.  In support, the trial court cited a passage from the letter from the Superintendent that stated “because the allegation of misconduct has not been disproven” and thus it is “determined to be an act of malfeasance”. 

The trial court also took issue with the fact that the employee’s supervisor did not testify at the hearing, denying the employee his fundamental right of cross-examination.

Lastly, the trial court gave little to no deference to the Board of Education’s findings and decision, despite the wealth of evidence introduced at the hearing regarding past discipline, the video evidence provided, the Superintendent’s testimony, and the lack of credible evidence in the employee’s defense.  Of note, the trial court stated that the Superintendent’s testimony was unreliable hearsay, despite accepting the employee’s introduction of unsupported hearsay testimony. The Board appealed the trial court’s decision.

The Court of Appeals found that all required due process was provided.  He was given a pre-disciplinary hearing where he was presented with all allegations against him.  He was given the chance to call witnesses and to be represented by an attorney.  The Court of Appeals further stated that the standard applied by the trial court of a presumption of innocence was in error, stating the only burden on an employer is to provide evidence sufficient to justify termination.  The trial court’s characterization of the language in the Superintendent’s letter was described as flawed reasoning.

Regarding the lack of testimony and ability to cross-examine, the Court of Appeals specifically stated that cross-examination is not an absolute requirement for due process.

As to the lack of deference, after reviewing the record, the Court of Appeals found the trial court gave no deference to the Board of Education’s credibility decisions and resolution of evidentiary conflicts, instead expressing the court’s view of what the discipline should have been.  Thus, the Court of Appeals found the trial court erred and reversed the decision.

What this means to your district:  It is absolutely pertinent that the appropriate process is followed.  In this instance, that adherence allowed the District to obtain a positive result even after receiving a decision from the trial court that relied on “flawed reasoning.”