by John E. Britton | Jan 23, 2019 | General, Labor and Employment, School Management
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This is a strong decision for the proposition that statutory rights can only be superseded by express language in a collective bargaining agreement.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).
by Ryan LaFlamme | Oct 25, 2018 | Board Policy & Representation, School Management
“Crowdfunding” is the practice of funding a project by raising relatively small amounts of money from a large number of people, usually via the internet. In schools, crowdfunding helps teachers and schools to obtain funding and supplies.
Online Crowdfunding and How It Works
Crowdfunding websites vary in how they raise funds. Some well-known crowdfunding websites include GoFundMe, Adopt-A-Classroom, Kickstarter, Incited, and Donors Choose. Some of these websites will raise money and transfer it directly to the teacher or the school district. Other websites will raise money toward the desired products, which will be shipped to the school when the items are funded. This way, the teacher or school never receives any cash at all. Websites further differ in the amount of support and advice they will give teachers or school districts in securing these donations.
Ohio Auditor of State
In July 2018, the Ohio state auditor released a report titled Crowdfunding Classrooms, which was the outcome of a widespread survey of Ohio’s schools. One-fifth of Ohio districts responded to the survey. Among the districts that reported, the auditor found the following statistics related to crowdfunding policies and use of funds:
- 55.4 percent prohibit crowdfunding
- 59.0 percent have no crowdfunding policy
- 26.2 percent don’t know if teachers are using crowdfunding
- 56.2 percent of those who permit crowdfunding don’t know the amount raised in the last 12 months
Auditor’s Recommended Best Practices
The auditor suggests in its report that schools work with legal counsel and adopt a policy that incorporates as many of the following safeguards as possible:
- Require that all campaigns be reviewed and approved by administration
- Direct administrator to ensure proposal does not violate any federal/state law
- Designate permissible crowdfunding websites
- Require donations to be used for the stated purpose
- Prohibit donations without board approval
- Establish all donations as property of the school
- Enter donations promptly into district inventory
- Deposit into district bank accounts
Furthermore, the auditor recommended that every policy include the following financial controls:
- Require that all crowdfunding campaigns be listed under the school’s name
- Specify that donations are the property of the school district and paid directly to the district and not to the teacher
- Require documentation of donations in financial ledgers for monetary donations or inventory for items
General Policy Guidelines
Districts should have a policy that dictates who may raise funds and which crowdfunding platforms may be used. A policy to ban crowdfunding minimizes risk to school districts, but it would also force districts to forego many of the potential benefits. Such a ban on crowdfunding may also be difficult for school districts to enforce. A ban on crowdfunding would require policing all of the crowdfunding platforms to ensure that the policy is being followed.
A policy that allows crowdfunding creates risk, but this risk can be minimized with the right safeguards in place so that schools can reap the benefits of crowdfunding. This policy should ensure that the school is not violating any state or federal laws, the money is properly accounted for, and the donations and materials are appropriate for the district.
A district’s policy should include a prohibition against any funds going directly to teachers. All funds raised should be in the name of the board of education and should be treated like any other funds of the board – accounted for and deposited in accordance with policy and state law. Donated funds should be used only for the purpose for which they were donated. Additionally, no student or teacher should receive a benefit from crowdfunding that is proportional to the level of participation by the teacher or student in raising the funds.
A centralized approval process for crowdfunding campaigns is recommended. Requiring an administrative review and approval of all proposed crowdfunding campaigns will provide safeguards against accidental violations of student privacy laws and will ensure the content and goals of the crowdfunding proposal are appropriate. For example, crowdfunding campaign materials that include a photo of a classroom with the students could violate privacy laws. Descriptions or narratives that reveal personally identifiable information also violate confidentiality. Additionally, administrators will want to ensure that the crowdfunding proposal does not imply that the district is falling short of its state and federal obligations, which may prompt inquiry by a regulating body.
Considerations
Some existing sources of law are implicated by crowdfunding performed by public school districts in Ohio. The Ohio Revised Code mandates that all money be deposited with the treasurer within a specified time (R.C. 9.38). Specifically for public schools, R.C. 3313.51 establishes that the treasurer of the board of education is the treasurer of all school funds. This is important because the treasurer could be held liable through a finding for recovery for any unaccounted funds. For this reason, the treasurer’s office should be part of the crowdfunding process.
The Ohio attorney general has issued an opinion (OAG Opinion 85-085) that donations must be used for the purposes stated in a crowdfunding campaign. Ohio ethics law (R.C. 2921.43) includes some important considerations. Employees are not permitted to accept additional compensation for performing their duties. (OEC 2008-01). Teachers should not divert any amount of the funds raised for personal gain, as an administrative fee or for any other reason. Remember that any funds and items donated are school district property.
by Ryan LaFlamme | Oct 17, 2018 | Board Policy & Representation, School Management
On September 13, the Federal Bureau of Investigation (FBI) issued a public service alert to raise awareness of cybersecurity concerns for K–12 students. While education technologies have helped to engage community involvement and improve the educational environment, security risks lurk beneath the surface. Large amounts of student data are collected and stored online, and this data is at risk of compromise or exploitation if not stored securely enough to escape hackers.
Education technologies include software programs and online apps used in classrooms, mobile apps to enhance the learning experience, administrative platforms that assist educators and administrators with class and school management, and others. At-risk data collected by ed-tech can include students’ personally identifiable information, behavioral and disciplinary information, academic records, biometric data, geolocation, and more. The FBI warned that malicious use of this data can lead to social engineering – using deception to manipulate people into disclosing confidential or personal information – identity theft, bullying, tracking, and other means of targeting children.
School Security Hacks in 2017
The FBI’s alert included reports of two serious security breaches in 2017. In the first, multiple school districts’ servers across the country were hacked, giving the hackers access to student contact information, education plans, medical records, and counselor reports. This information was then used to contact, extort, and threaten students with physical violence and release of their information. Parents received text messages, and students’ private information was publicized and posted on social media, giving child predators access to new targets.
Additionally, two large ed-tech companies were breached in 2017, resulting in public access to the data of millions of students. One of the companies had stored their data on public-facing servers, and breached data from the other company was posted for sale on the dark web.
FBI Recommendations
The FBI recommends that parents be aware of student privacy requirements, discuss ed-tech with their local school districts, conduct research for support and additional resources, research security breaches to inform of vulnerabilities, consider monitoring credit for identity theft, and conduct regular internet searches on their children.
Issues for Schools
Always at the bottom line, additional security costs additional money. Schools that face budget decisions and scarce resources for internet security may prioritize value-added expenditures over those with no visible benefit, such as cyber security.
School District Legal Requirements
School districts should know and consider legal requirements when adopting ed-tech resources and considering the importance of cyber security.
The Family Education Rights and Privacy Act (20 U.S.C. § 1232(g); 34 CFR Part 99) as well as state law (R.C. § 3319.321) and board policy place stringent restrictions on how “student records” must be maintained and protected. Board records retention schedules require districts to maintain certain types of records for years, if not permanently. Staff should be trained to understand what constitutes an education record as well as state and federal laws and board policy that limit release and maintenance of student records.
The Children’s Online Privacy Protection Act (15 U.S.C. § 6501–6506; 16 CFR Part 312) imposes requirements on operators of websites, internet services, and apps directed to children under age 13 and on operators that have actual knowledge that they are collecting personal information online from a child under age 13. The purpose is to give parents control over their children’s information that is collected online by seeking parental consent. Schools that contract with third-party websites or apps solely for the benefit of students can consent to data collection and the use or disclosure of students’ personal information by acting as an agent on the parents’ behalf. Such consent is restricted to educational purposes only. Additionally, at the school’s request, the operator must provide a description of the types of personal information collected, the opportunity to review the child’s personal information and/or have the information deleted, and the opportunity to prevent further use or online collection of a student’s personal information.
Tasked with enforcing COPPA, the Federal Trade Commission recommends that schools or districts – not teachers – decide whether a provider’s information practices are appropriate. Districts should have a centralized process to assess these practices. The FTC cautions that schools should know how student information is collected, used, and disclosed. Districts should also ensure that these operators appropriately protect the security, confidentiality, and integrity of student information and should understand the operator’s data retention and deletion policies.
The Protection of Pupil Rights Amendment (20 U.S.C. § 1232h; 34 CFR Part 98) requires that districts adopt policies and provide direct notification to parents at least annually regarding the specific or approximate dates of activities involving the collection, disclosure, or use of students’ personal information for the purpose of marketing or selling that information (or otherwise providing the information to others for that purpose), as well as the parents’ right to opt out of these measures.
by Gary Stedronsky | Aug 28, 2018 | Board Policy & Representation, Labor and Employment, School Management, Unemployment, Workers’ Compensation
In 2016, Ohio became the twenty-sixth state to legalize the use of marijuana for certain specified medical conditions. Medical marijuana facilities and patient registries are expected to be fully operational in the near future. School districts should be aware of how the medical marijuana law might impact current policy and operations.
Overview of State Law
Under state law, individuals who suffer from any of twenty-one identified medical conditions (listed below) may register with the state to use medical marijuana. In addition to these twenty-one conditions, the state medical board may be petitioned to add other conditions to this list.
Qualifying Medical Conditions
|
| AIDS |
Inflammatory bowel disease |
| Alzheimer’s disease |
Multiple sclerosis |
| ALS (“Lou Gehrig’s disease”) |
Pain that is chronic, severe, or intractable |
| Cancer |
Parkinson’s disease |
| Chronic traumatic encephalopathy |
Posttraumatic stress disorder |
| Crohn’s disease |
Sickle cell anemia |
| Epilepsy or seizure disorder |
Spinal cord disease or injury |
| Fibromyalgia |
Tourette’s syndrome |
| Glaucoma |
Traumatic brain injury |
| Hepatitis C |
Ulcerative colitis |
| HIV |
|
When registering with the state, an individual’s application must be accompanied by a licensed physician’s recommendation. Caregivers of medical marijuana users must also register with the state to avoid criminal prosecution for possession of medical marijuana and to assist registered patients. Medical marijuana may be used in oils, tinctures, plant material, edibles, patches, and vaporizers; however, smoking marijuana is prohibited.
Federal Laws and Regulations
Regardless of Ohio’s legalization of marijuana for medical purposes, marijuana is still a prohibited substance under federal law. The Americans with Disabilities Act requires that employers provide reasonable accommodations to employees with certain disabilities so that they may perform the requirements of their job; however, the ADA does not require employers to permit the use of medical marijuana as a reasonable accommodation. Similarly, the Family Medical Leave Act does not require employers to grant leave for employees so that they may obtain medical marijuana treatments for a serious health condition. Federal law does not interfere with an employer’s right to maintain a drug-free workplace, to implement a zero-tolerance drug policy, or to subject an employee to a drug test. Currently, pending federal legislation to enact the STATES Act would give states the freedom to decide how to legalize or regulate marijuana.
School District Employees
Ohio employers are not required to permit their employees to use medical marijuana at work and may continue to take adverse employment action against employees for their use of medical marijuana – even if the employee has a recommendation from a doctor for use and uses the marijuana outside of work hours. School districts may elect to make accommodations and modify policies to allow employees to use medical marijuana in some circumstances, although employees must continue to comply with state and federal regulations that prohibit use of drugs in safety-sensitive positions. School districts should be clear that employees may not be under the influence of marijuana when they are responsible for the safety or supervision of students and staff.
For workers’ compensation purposes, if an injury occurs at the workplace and the employee tests positive for marijuana, a rebuttable presumption arises that the use of marijuana was the cause of the injury, even if the employee has a recommendation for use from a doctor. To overcome this presumption, the employee must then demonstrate that the marijuana use did not factor into the cause of the injury. If unsuccessful, the employee would not be eligible to receive workers’ compensation benefits. Similarly, with unemployment compensation, an employee’s use of medical marijuana is just cause for termination, and no benefits would be provided to an employee in this scenario.
Ohio’s law does not prohibit an employer’s right to refuse to hire a job applicant because of use, possession, or distribution of medical marijuana.
Patient Protections
A very small section of the Revised Code delineates the rights of patients who are registered with the state to use medical marijuana. Patient rights include the right to use and possess medical marijuana, up to a maximum of a 90-day supply; to possess any paraphernalia or accessories for the use of medical marijuana; and to avoid arrest or criminal prosecution for obtaining, using, or possessing medical marijuana and the necessary paraphernalia and accessories. Registered caregivers have the same rights to possess medical marijuana, paraphernalia, and accessories, but do not have the right to use medical marijuana. Operating a vehicle is prohibited while under the influence of medical marijuana. No minimum age is specified for patients to use medical marijuana.
Activities Prohibited Near Schools
No medical marijuana cultivator, processor, retail dispensary, or testing laboratory may be located within five hundred feet of a school, except for academic research institutes.
by Bronston McCord | Dec 8, 2017 | Legislation, School Management
The Senate Education Committee has announced a fourth hearing on Senate Bill 216 to be held on Wednesday, December 13, at 9:45 a.m. in the North Hearing Room of the Senate Building in Columbus. The time of the meeting has been changed to allow for a longer meeting, as a large volume of testimony is expected. A number of school superintendents have provided testimony at previous hearings. It is rumored that the Education Committee Chair, Sen. Peggy Lehner, is opposed to at least some of the bill provisions. If the bill is not referred out of the Senate Education Committee before their December break, there might be closed, interested party meetings (instead of open hearings in committee) into January.
How to Provide Testimony
Anyone who is interested in providing testimony for next week’s hearing, whether oral or written or both, may do so by completing and sending an Education Witness Slip and written testimony to kate.rossman@ohiosenate.gov no later than 24 hours prior to the committee hearing. The committee is anticipating a large volume of testimony, so requests will be granted on a first-come, first-served basis. Oral testimony will be limited to 5 minutes (2–3 pages written).
First Hearing
The first hearing was held on October 18. The sponsor of the bill, Sen. Matt Huffman, introduced the bill to the Education Committee. He noted that burdensome paperwork and tedious tasks distract teachers and superintendents from their primary role of educating students. Sen. Lehner said that although a number of things may be cumbersome, there may be valid reasons to keep them, such as the Kindergarten Readiness Assessment (KRA).
Second Hearing
At the second hearing on November 8, several superintendents and other supporters of the bill provided testimony that the proposed changes will remove “unnecessary burdens” that draw attention away from teaching and learning. School leaders and teachers argued that they can more effectively educate students without the overwhelming number of regulations that dictate how schools should be run. Specific provisions supported:
- College Credit Plus – specifically, the cost of textbooks
- Teacher licensure – narrow grade bands make it difficult to fill substitute and regular positions
- Testing changes
Third Hearing
The third hearing, on December 6, was for opponent and interested party testimony. At this hearing, State Superintendent Paolo DeMaria called the bill “a step backward” and “a reactive approach.” He testified as an interested party, noting that he had considered each provision of the bill and whether it would benefit students. He opposed many of the changes in the bill, including the following:
- Eliminating the KRA
- College Credit Plus and requiring ODE to study the effectiveness of CCP
- Changes to substitute teacher licensure
- Eliminating number of excused absences from “excessive absences”
- Eliminating the student growth measure from OTES
- Changes to grade bands for licensure
In all, 13 individuals provided testimony at the third hearing, mainly in opposition to removing the KRA and the licensure grade band changes. Several others were prepared to provide testimony, but because of the length of the meeting, they were asked to come back for the fourth hearing.
Overview of SB 216
For an overview of SB 216, introduced on October 10 by Ohio Sen. Matt Huffman, refer to our previous blog post, Unboxing the Education Deregulation Bill: What’s Inside SB 216.
by Pamela Leist | Mar 24, 2017 | Board Policy & Representation, General, Legislation, School Management
Senate Bill 199, which was passed during the lame duck session and signed by the governor in December, significantly expands the rights of certain individuals to possess weapons on public school grounds.
State law generally prohibits an individual from conveying or possessing a deadly weapon or dangerous ordnance in a school safety zone (R.C. 2923.122). R.C. 2901.01 defines a school safety zone to include a school, school building, school premises, school activity, and school bus. Violators may be charged with misdemeanor or felony criminal offenses.
There are a few exceptions to this prohibition, including one that grants a school district board of education the authority to issue written permission for an individual to possess a weapon on school grounds. Additional, narrowly tailored exceptions apply for police officers, security personnel, school employees, and students under certain circumstances. The new law further expands these exceptions in three key areas.
First, the bill specifically authorizes an individual to possess a concealed handgun in a school safety zone as long as the individual either remains in a motor vehicle with the gun or leaves the gun behind in the locked vehicle. For this exception to apply, the individual must have an active concealed-carry permit or must be an active-duty member of the armed forces who is carrying a valid military identification card and documentation of successful completion of firearms training (the training must meet or exceed requirements for concealed permit holder training).
Next, the new law expands the right of law enforcement officers to carry a deadly weapon or dangerous ordnance in a school safety zone at any time regardless of whether the officer is on active duty. The prior version of the law limited such rights to law enforcement officers who were on active duty only.
Finally, the new law now permits the possession and use of an object indistinguishable from a firearm during a school safety training.
The law became effective March 21, 2017. School districts should review board policies that regulate use and possession of weapons on school grounds and should contact legal counsel with questions about how the law will impact district operations.
