by Pamela Leist | Sep 26, 2019 | Board Policy & Representation, General, Labor and Employment, Legislation, School Management
The Sixth District Court of Appeals delivered a win to school districts recently when it reversed a lower court’s decision ordering the Perkins Local School District to reinstate a former teacher who had been terminated with an award of $367,202.52 in lost wages and benefits. The case was brought by former teacher and coach Tracey Hiss. Hiss was terminated for cause after the district learned she supplied several members of her girls track team with Lidoderm patches – prescription patches containing lidocaine that help with pain relief.
When the superintendent learned of the allegations, he met with Hiss and subsequently placed her on paid leave pending further investigation. He also reported the allegations to the police, who subsequently charged her with a minor misdemeanor for her actions. The district held a pre-disciplinary hearing and the superintendent sent notice of his intent to recommend termination. Hiss, through legal counsel, objected to some of the reasons listed in the notice because they had not been addressed at the pre-disciplinary hearing. The superintendent subsequently held another pre-disciplinary hearing and again recommended termination which the board approved. Hiss requested a hearing to challenge the board’s intent to terminate before a state appointed referee. At the termination hearing, Hiss introduced evidence of an incident where a prior coach, Crabtree, had given a student Tylenol to help reduce pain. She argued that the board should not have terminated her contract due to the fact that this teacher merely received a reprimand and a brief suspension from coaching, where she was being terminated.
After conclusion of the five-day hearing, the referee issued his report and recommendation that the board terminate Hiss’s teaching contract. In making this recommendation, the referee found that the board had sufficient policies prohibiting teachers from both possessing and distributing controlled substances and medicines to students without a parent’s permission.
Shortly thereafter, the Board adopted the referee’s recommendation and passed a resolution to terminate Hiss’s teaching contract. Hiss then appealed this decision to the common pleas court. The court applied the Daughtry test of good and just cause, concluding that the board lacked cause to terminate Hiss’s contract. The court focused in particular on the fact that Crabtree, who had engaged in similar behavior, received a much less severe discipline. The district appealed, claiming in part that the court of common pleas abused its discretion in applying this new test and effectively usurping the role of the ODE referee.
On appeal, the Sixth District Court of Appeals agreed that the court of common pleas abused its discretion when it substituted its own judgement in place of the board of education. The court of appeals concluded that the court’s reliance on the Daugherty test to define “good and just cause” was misplaced. The court reasoned that, while an arbitrator may use the Daugherty test to determine the standard of good and just cause in a labor-arbitration matter, the Ohio Supreme Court has failed to adopt the Daugherty test in just cause teacher termination cases. Thus, the common pleas court exceeded its authority by relying on the Daugherty test as opposed to the cases interpreting R.C. 3319.16 as to whether good or just cause exists.
Examining the merits of the case, the court also determined that Hiss’s misconduct was , a “fairly serious matter” that falls within the realm of good and just cause for termination under R.C. 3319.16. Hiss repeatedly gave prescription pain medicine to students in direct violation of district policy that could have ultimately caused serious harm to the students. The court opined that this added to the fact that the board of education complied with procedural requirements of R.C. 3319.16 by providing Hiss with two informal hearings as well as a hearing before the referee justified the board’s decision to terminate. Therefore, the board’s earlier decision to terminate Hiss’s teaching contract was reinstated.
by Bronston McCord | Sep 5, 2019 | Board Policy & Representation, General, School Management, Student Education and Discipline
On August 9, 2019, a federal judge in Virginia ruled in favor of a transgender student in holding that a school district’s policy violated his rights under Title IX and the Equal Protection Clause. The Grimm v. Gloucester County School Board case stemmed from a school district’s policy requiring students to use restrooms and locker rooms that corresponded to their “biological genders.” The district provided alternative facilities for transgender students.
The court initially ruled that claims of discrimination on the basis of transgender status for gender-stereotyping are actionable under Title IX. The court further found that denying Grimm the ability to access the facilities corresponding with his gender identity were not only actionable but did in fact result in a violation of Title IX and the Equal Protection Clause.
The Board argued that it had not engaged in discrimination and that Grimm had not suffered any harm as a result of its policy. The court found this argument to be unconvincing. The court determined that the district’s policy subjected transgender students to discriminatory treatment by excluding them from places similarly situated students had access to. Further, Grimm did suffer emotional harm due to the fact he was unable to comfortably access restrooms at school. Grimm was further subjected to harm when the school district refused to update his school records in order to reflect his male identity. Failure to do so has negated his male identity and marked him different than other males any time he provided a copy of his transcript to another entity.
This ultimately led the court to grant a permanent injunction against the school district’s restroom and locker room policy. The injunction further awarded Gavin nominal damages and ordered the school district to change his school records to conform with his gender identity.
While the decision from the Fourth Circuit Court of Appeals is not controlling on Ohio school districts, the Sixth Circuit did rule on a very similar case back in 2016. In Dodds v. United States Department of Education, the Sixth Circuit Court of Appeals agreed with a lower district court decision and determined that an eleven-year-old transgender girl had a strong likelihood of success in her claims against the school district and should therefore be allowed to use the school restrooms conforming with her gender identity.
It is important to note the decision in Dodds relied on guidance from the United States Department of Education that has since been rescinded. The current position of the USDOE is that they will not accept any complaints alleging a transgender student was denied access to restrooms and locker rooms and will only accept complaints of harassment or bullying for failing to conform to sex-based stereotypes. Thus, in light of this new guidance, it remains unclear how an Ohio court would rule on this issue today.
What this means for your district:
The issue of providing accommodations to transgender students remains unclear and is a matter that will doubtless be subject to further litigation before any clarity is provided. Districts should proceed with caution when faced with these issues. For additional advice on handling requests for accommodations for transgender students, please contact an Ennis Britton attorney for assistance.
by Giselle Spencer | Aug 16, 2019 | Board Policy & Representation, General, Labor and Employment, Legislation, School Finance, School Management
The Ohio Attorney General’s Office recently released an opinion in response to a request for legal advice on the issue of arming school staff. The letter requested, among other things, an analysis on how the training requirements under R.C. 109.78(D) apply to school employees authorized by the board of education to carry or possess a deadly weapon on school property under R.C. 2923.122(A).
R.C. 109.78(D) in full provides:
“(D) No public or private educational institution or superintendent of the State Highway Patrol shall employ a special police officer, security guard, or other position in which such person goes armed while on duty, who has not received a certificate of having satisfactorily completed an approved basic police officer training program, unless the person has completed twenty years of active duty as a police officer.”
As noted, R.C. 2923.122(A) prohibits any person from knowingly conveying, or attempting to convey, a deadly weapon into a school safety zone. However, there is a specific exception set out in R.C. 2923.122(D)(1)(a) which excludes any other person from this prohibition:
“who has written authorization from the board of education or governing body of a school to convey deadly weapons… in a school safety zone or to possess a deadly weapon… in a school safety zone and who convey or possesses the deadly weapon… in accordance with that authorization.”
The letter sought advice on whether or not a school employee who has been authorized to carry a deadly weapon by the board of education under R.C. 2923.122(D)(1)(a) is subject to the training requirements of R.C. 109.78(D). The Attorney General’s Office reiterated their argument laid out in their amicus brief in the appeal of Gabbard v. Madison Local School Dist. Bd. of Edn. The court in that case concluded that school employees authorized by the board of education to carry firearms on school premises were not subject to the training requirements of R.C. 109.78(D) because they were not employed by the district in a security capacity. The Attorney General’s Office agreed and opined that in order to determine which provision outlined above is applicable to an employee hired by a school district, we must analyze whether the individual is employed in a role comparable to that of a security guard or police officer. In doing so, we must look to the person’s job title along with the duties and responsibilities assigned to them.
If an employee is hired by the district in a security capacity, then they are subject to the training requirements expressed in R.C. 109.78(D). (I.e. approved basic training police program, or twenty years active duty of a police officer). However, any other employee hired by a school district who does not serve in such a role, i.e. teacher, principal, custodian, and who is authorized by the board to carry or possess a firearm under R.C. 2923.122(D)(1)(a), is not subject to the training requirements of R.C. 109.78(D).
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.
by Bronston McCord | Feb 26, 2019 | General, Labor and Employment, School Management
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.
