At a recent telephone meeting with Ohio school district treasurers, Auditor of State (AOS) Keith Faber took questions about school district finances and audits as affected by the COVID-19 school building closures. AOS Faber answered a wide range of questions and provided valuable insight for school board members and district treasurers.
One of the questions raised to AOS was whether districts should continue to pay teaching and nonteaching employees, and what role the board should play regarding these payments, during the school building closure. Robert Hinkle, Chief Deputy Auditor, has issued a written answer to the question:
While the Auditor of State does not serve as legal counsel to local school districts, we recognize the challenges school districts are facing in this emergency. ORC 3319.08 and ORC 3319.081 address contracts for teaching and nonteaching employees. Section (B) of 3319.08 indicates that; teachers must be paid for all time lost when the schools in which they are employed are closed due to an epidemic or other public calamity, and for time lost due to illness or otherwise for not less than five days annually as authorized by regulations which each board shall adopt; and Section (G) of 3319.081 indicates that; all nonteaching employees employed pursuant to this section and Chapter 124. of the Revised Code shall be paid for all time lost when the schools in which they are employed are closed owing to an epidemic or other public calamity. Nothing in this division shall be construed as requiring payment in excess of an employee's regular wage rate or salary for any time worked while the school in which the employee is employed is officially closed for the reasons set forth in this division. AOS considers this statute to include custodians, cooks, and aides that are employed under a contract approved by the Board of Education. School districts should consider this statute, taken together with the terms and conditions of their individual bargaining agreements and employee contracts, as they consult with their legal counsel on the appropriate course of action. As always, during an audit, the Auditor of State will defer to the well-reasoned opinions of legal counsel on interpretations of the law. Entities should rely on legal counsel as to which employees are governed by statute, and this should be taken together with the terms and conditions of their individual bargaining agreements and employee contracts. While it is not required, and not a fatal flaw if not completed, as the Auditor stated during the teleconference, as a matter of best practice, the AOS encourages members of the governing authority to approve decisions regarding employee pay during this pandemic. This approval will serve to help document the decisions made regarding each class of employee. Refer to AOS Coronavirus FAQs related to employee pay on our website at: www.ohioauditor.gov for more information.
This answer has not been posted to the AOS website yet. If it is more formally posted, we will share that link.
OSBA’s legal division will continue to monitor and share any guidance from AOS and other state offices as it is issued. If you have any questions, please contact the legal division at (855) 672-2529 or (855) OSBA-LAW.