The U.S. Citizenship and Immigration Services (USCIS) has recently revised its Employment Eligibility Verification form, Form I-9.  Employers are required to use this form to verify the identity of each new employee hired and to verify that they are authorized to work in the United States.  However, employers are not required to complete the revised version of Form I-9 for current employees that already have a properly completed form on file, unless re-verification is required.  Re-verification is required when a current employee’s employment authorization or employment authorization documentation expires.

The revised Form I-9 has improved its instructions and revamped its layout by expanding to two pages.  The expansion does not include the instructions or list of acceptable documents.  In addition, the form added fields for the employee’s foreign passport information (if applicable), telephone number and email address.

The form must be maintained for as long as an individual is working for the employer and for the required retention period after the termination of an individual’s employment (either three years after the individual is hired or one year after the date that employment ended, whichever is longer).  Additionally, the employer must make the forms available for inspection upon request by officers of the U.S. Immigration and Customs Enforcement (ICE), the Department of Justice (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices, and the Department of Labor.  The employer may face civil money penalties and criminal penalties if the employer does not ensure that the form is properly completed or retained.

Beginning immediately, employers may use Form I-9 with a revision date of (Rev. 03/08/13)N.  Prior versions of the form may not be used after May 7, 2013.  Any employer who does not use Form I-9 (Rev. 03/08/13)N after May 7, 2013, may be subjected to penalties.

For more information on the revisions and copies of the form please visit http://www.uscis.gov.

If you have any questions regarding this information, please feel free to contact OSBA’s division of legal services at (614) 540-4000.

As of September 24, 2012, the deadline for the notification of contract nonrenewals for teachers and all administrators, except superintendents and treasurers, has changed.  SB 316, which became effective on September 24, 2012, requires districts to provide notice to teachers whose contracts will be nonrenewed by June 1 (RC 3319.11).  Previously, districts were required to provide teachers notice by April 30.  In addition, districts must provide notice to administrators, other than superintendents and treasurers, whose contracts will be nonrenewed by June 1 (RC 3319.02).  The previous notification deadline for administrators, other than superintendents and treasurers, was March 31.  The March 1 notification deadline for superintendents (RC 3319.01) and treasurers (RC 3313.22) whose contracts will be nonrenewed did not change.  Click here to view the 2012-2013 Ohio Revised Code Dates and Deadlines.  Please contact OSBA’s legal services division at (614) 540-4000 with any questions.

The Supreme Court of Ohio recently ruled on a public records case between Columbus State Community College and a former employee.  The ruling may assist school districts dealing with overbroad public records requests.

In the case, State ex Rel. Zidonis v. Columbus State Cmty. Coll., 2012-Ohio-4228, Sunday Zidonis was terminated from her employment with Columbus State.  Following her termination, Zidonis made several public records requests to the college for certain emails as well as complaint and litigation files over a six-year period.

After receiving the public records request for copies of emails, Columbus State responded and informed Zidonis that her request was too broad.  Columbus State was unable to determine with specificity which records were being requested.  In addition, the college asked Zidonis to revise her request, but she did not.  Nevertheless, the college created a special computer program to retrieve emails and provided Zidonis with a redacted copy.

Zidonis then requested the college’s complaint and litigation files over a six-year period.  Columbus State also denied the request claiming it was ambiguous and too broad.  The college noted that it was not required “to provide access to entire record series or categories.”

Zidonis filed a writ of mandamus to compel Columbus State to provide her with the requested documents.  She also sought statutory damages and attorneys fees.  The court of appeals denied the writ of mandamus and Zidonis appealed.  On appeal, Zidonis argued that her request for the complaint and litigation files was specific.  She also argued that the college had a duty to maintain its email records so they could be retrieved based on sender and recipient status.

Ultimately, the Supreme Court of Ohio found that Columbus State acted properly.  The court determined that the public records requests were overbroad.  Additionally, the court ruled that a request naming a broad category of records from a records retention schedule did not narrow down the records with reasonable clarity.

The court noted that Columbus State did not have a duty to maintain email records in a manner in which they could be retrieved based on the sender and recipient.  RC 149.43(B)(2) did not require Columbus State to use a program that could easily search work related emails based on sender and recipient status.  Therefore, the court could not require Columbus State to implement such a program.

Furthermore, the Supreme Court ruled that Columbus State provided Zidonis with the opportunity to revise her request by informing her of how it maintained and accessed its records.  However, Zidonis ignored this opportunity.  As a result, the Supreme Court of Ohio held that Columbus State complied with RC 149.43(B)(2).

If you have any questions regarding this case, please contact the OSBA legal services division at (614) 540-4000.

The OSBA Legal Assistance Fund (LAF) recently participated in an Ohio Supreme Court case between The Ohio State University (Ohio State) and ESPN.  The LAF joined the Ohio Legal Rights Service, Community Legal Aid Services, and Northeast Ohio Legal Services, and submitted an amici curiae brief arguing that Ohio State was prohibited from disclosing the records requested by ESPN pursuant to Ohio’s Public Records Act and the Family Education Rights and Privacy Act (FERPA).

In the case, State ex rel. ESPN Inc. v. Ohio State Univ., Slip Opinion No. 2012-Ohio-2690, ESPN filed a writ of mandamus to compel Ohio State to provide “all documents and emails, letters and memos related to NCAA investigations prepared for and/or forwarded to the NCAA since January 1, 2010, related to an investigation of football coach Jim Tressel” and “all emails, letters and memos to and from Jim Tressel, Gordon Gee, Doug Archie and/or Gene Smith with the key word Sarniak since March 15, 2007.” Ohio State responded and claimed that FERPA prevented the school from releasing records related to Sarniak and denied the request of records related to the NCAA pending investigation.

ESPN then requested “any report, email or other correspondence between the NCAA and Doug Archie or any other Ohio State athletic department official related to any violation of NCAA rules involving the football program, since January 1, 2005.” Ohio State also denied that request claiming it was too broad under Ohio’s public records laws.

ESPN argued that Ohio State violated Revised Code Section (RC) 149.43 (B)(2) and (3) by denying requests for documents that listed the names of individuals who were barred from access to game tickets as well as documents related to the “ongoing investigation.” ESPN also argued that FERPA penalized educational institutions only by withholding federal funding if those institutions permitted the release of certain records without parental consent. Ohio State contended that the records that were not provided to ESPN were protected under FERPA, the attorney-client privilege, and the work product privilege.

Ultimately, the Ohio Supreme Court denied the writ of mandamus in part because Ohio State “…established that FERPA and the attorney-client privilege prohibited the disclosure of the majority of the requested records”, at ¶ 41. However, the court granted the writ in part after finding that Ohio State committed per se violations of the Public Records Act by denying ESPN the opportunity to amend its request after determining the request was too broad, and by stating that Ohio State had no obligation to provide documents that were part of an ongoing investigation.

The court agreed with Ohio State and ruled that the university was “prohibited by FERPA from systematically releasing education records without parental consent.” Also, the court noted that records that could not be released under state or federal law were exempt from release under RC 149.43 (A)(1)(v).

ESPN contended that FERPA did not apply to any documents related to Sarniak or prior NCAA investigations because those records were not considered education records.  However, the court determined that the records were education records and FERPA did apply because the records contained information that was directly related to students and contained information that identified student athletes.  For FERPA to apply, as stated by the court, the education records need only “contain information directly related to a student and be maintained by an educational agency or institution or a person acting for the institution.”

The court found that Ohio State acted properly when it redacted the identifying information that concerned student athletes, but determined that ESPN was entitled to redacted copies of the few records that were completely withheld based on FERPA. Also, the court ruled that the attorney-client privilege applied to the requested records that were from or between Ohio State officials and attorneys that provided legal advice, interpretation and investigatory fact-finding.

As a result, the court declined to award attorney fees to ESPN because Ohio State complied with RC 149.43, for the most part, when the school responded to ESPN’s records requests, and most of ESPN’s claims were without merit.

What is a public record?

RC 149.43(A)(1) defines a public record as “records kept by any public office including any state, county, city, village, township, and school district units, and records pertaining to the delivery of educational services by an alternative school in this state kept by the nonprofit or for-profit entity operating the alternative school.” A record is defined in RC 149.011 (G) to include “any document, device, or item, regardless of physical form or characteristic, including electronic records.”

Are we required to disclose information kept in an employee’s personnel file?

Generally, the personnel files of a public office employee are considered public records.  This also may include personnel records kept of a former employee.  However, if any item contained in the file does not meet the definition a “record” of the office, or is subject to an exception, the district may not be required to disclose the record. Additionally, districts do not have to create a record that does not exist in order to respond to a public records request.

What information is exempt from being disclosed?

RC 149.43 (A)(1) requires certain items to be redacted before properly responding to a public records request.  Items that must be redacted include, but are not limited to, criminal record checks, medical records, personally identifiable student information from education records, records the release of which is prohibited by state or federal law, and social security numbers.  The State ex rel. Beacon Journal Publishing Company et al., v. City of Akron et al., 70 Ohio St. 3d 605,1994-Ohio-6.

There is also case law that suggests that the home addresses of school employees are not “public records” that must be disclosed.  In The State ex rel. Dispatch Printing Company et al., v. Johnson, Dir.,et. al, 106 Ohio St. 3d 160, 2005-Ohio-4384, the Supreme Court of Ohio held that state employee home addresses are generally not public records when they do not serve to document the actions, operations or procedures of the public office.

If information has been redacted, the public office must inform the requester of the redaction or make the redacted information clearly visible.  Board counsel can assist the district in identifying and making redactions.

Is a copy of a W-2 form a public record?

Probably.  In advisory opinion 92-005 (1992 Op. Att’y Gen. No. 005), a federal income tax form W-2 “prepared and maintained” by an Ohio township acting in the capacity of an employer was considered to be a public record. As noted above, before responding to a public records request certain information must be redacted.

House Bill 66, which takes effect May 4, 2012, requires the Auditor of State to maintain a system for the reporting of fraud, including the misuse of public money by any public official or office.  The system allows individuals to make anonymous complaints through a toll-free telephone number, the Auditor of State’s website, or through the United States mail.  The Auditor’s office is required to keep a log of all complaints filed.

Who may file a complaint with the Auditor of State’s office?
Ohio residents and the employees of any public office may file a complaint.

What information will the Auditor’s log contain?
According to the statute, the log must contain the following information: the date the complaint was received, a general description of the nature of the complaint, the name of the public office or agency against which the complaint is directed, and a general description of the status of the review by the Auditor’s office.

Is the Auditor’s log a public record?
In most cases, the log will be a public record.  Information in the log may be redacted if a statute provides an applicable exemption.  Information will also be redacted during the course of an investigation conducted by the Auditor of State’s office.

What other impact does this bill have on public employers?
On May 4, 2012, school districts must make their current employees aware of the fraud-reporting system.  Districts must also provide information about the fraud-reporting system to all new hires. All new employees must confirm that they received this information within 30 days after beginning employment.

How should the district notify new employees of the fraud-reporting system?
Districts may require new employees to sign forms acknowledging that they were notified of the fraud-reporting system.  The Auditor of State has created a model acknowledgement form for this purpose, which is available online at: www.auditor.state.oh.us/services/lgs/bulletins/2012/2012-003.pdf.  Alternatively, districts may provide the fraud-reporting system information in the district’s employee handbook and instruct employees to sign and verify their receipt of the handbook.

Are current employees required to sign an acknowledgement form?
The statute requires only newly hired employees to acknowledge that they were notified of the fraud-reporting system.  Although the statute requires employers to make all of their employees (both new and current) aware of the fraud-reporting system, only newly hired employees are required by statute to acknowledge that they received the information.

Does the bill require us to make any changes to our current policies?
No.  HB 66 does not require districts to create or update any policies.  However, OSBA will be updating its whistleblower policy to reflect the changes in HB 66.  The updates will be included in the May 2012 edition of OSBA’s Policy Development Quarterly.

Yes. RC 3313.642 (D) allows a school board to charge students for instructional materials and for the loss, damage or destruction of school equipment, musical instruments, library materials, or textbooks. If a student who is required to pay fees refuses to pay any fees or charges he or she is assessed, the student’s grades and credits may be withheld by the board until such payment is made. Keep in mind that recent changes to RC 3313.642 now prohibit school boards from charging instructional fees to students who are eligible for a free lunch under the National School Lunch Act and the Child Nutrition Act of 1966 if those fees are normally assessed as a result of the student’s participation in a course of instruction. Obviously, students who are eligible to have their fees waived should not have their grades or credits withheld by the board if they refuse to pay for any fees associated with materials needed to enable the student to fully participate in a course of instruction.

The Supreme Court held today that a strip search of a teenager violated the 4th Amendment. See coverage from the New York Times for details on Safford v. Redding. The Court also issued an opinion in the legal battle that started in 1988 over Arizona’s funding of English language education. See coverage from the Arizona Republic on Horne v. Flores.

The Ohio Supreme Court released an important decision in favor of Ohio school districts yesterday._ The case, Doe v. Marlington (2009), 2009-Ohio-1360, arose out of a tragic incident in which a young girl with special needs was sexually assaulted on the school bus by another student. The court held that the exception to the sovereign immunity law imposing liability for the “negligent operation of a motor vehicle” does not include supervision of the students on the bus. OSBA’s Legal Assistance Fund participated in this case by providing an amicus curiae brief written by Nicole Donovsky at Means, Bichimer, Burkholder and Baker. OSBA Director of Legal Services, Hollie F. Reedy stated, “OSBA believes the case was correctly decided according the law. The ruling ensures that the limited financial resources of school districts are protected from an erosion of sovereign immunity.” The student who assaulted the female student eventually pled “true” to a delinquency count of gross sexual imposition. After the assault, the student’s parents sued the school district, and the school district asserted its sovereign immunity defense under RC 2744.02. Ohio’s sovereign immunity laws (RC Chapter 2744) grant immunity to public entities when they are engaged in governmental functions. Public education is a governmental function. There are several exceptions to immunity, one of which reads:

“RC 2744.02(B)(1): Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority.”

The Does sought to avail themselves of this exception in their suit. They argued that the “negligent operation of a motor vehicle” encompassed everything the operator was trained to do, including supervising students. The board of education argued that this exception was limited to injuries caused by driving or moving the vehicle, such as motor vehicle accidents. The board moved for summary judgment at the trial court, and the trial court denied the motion. The court of appeals reversed, holding that “operation” did not encompass supervision of students. Yesterday, the Ohio Supreme Court affirmed the decision of the court of appeals. In its opinion, the court sided with the board:

“While the facts alleged in this case are distressing, the plain language of R.C. 2744.02(B)(1)‘s exception to political subdivision immunity for the negligent operation of a motor vehicle does not include within its scope the negligent supervision of the conduct of students on a school bus as alleged here. It is our duty to apply the statute as the General Assembly has drafted it; it is not our duty to rewrite it.”