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In this issue: Attendance • Collective Bargaining • Executive Session • First Amendment — Free Speech • Fourteenth Amendment • Hazing and Bullying — Board Liability • Immunity — Employee of Political Subdivision • Individuals with Disabilities • Liability • Public Records • Statute of Limitations — Public Servant • Student Discipline — Mootness • Tax — Valuation/Real Property • Teaching License — Appeal • Termination — Employee • Termination — Teacher • Termination — Retaliation
Sixth circuit affirms summary judgment for Michigan district sued for enforcing attendance-zone policy.
Strehlke v. Grosse Point Pub. School Sys., 6th Cir. No. 14-2352 (June 29, 2016).
http://links.ohioschoolboards.org/38091
The parents of six students in the Grosse Pointe Public School System in Michigan brought a civil rights action against the board. The families resided in the northwest corner of the City of Grosse Pointe Farms and alleged that by placing their children in the North High School attendance area, rather than the South High School attendance area with all the other children who live in Grosse Pointe Farms, the district deprived their children of the equal protection of the laws, freedom of association and privileges and immunities of U.S. citizenship. The district court entered summary judgment for the district. The parents appealed.
On appeal, the court affirmed the judgment of the lower court. The court held that although the “assumption underlying the filing of [the] suit must be that South is the superior high school,” the families never said as much or explained how attendance at North implicated unequal educational opportunities. The court also found that the district’s decision to tie the high school boundaries to the elementary school zones provided a rational basis for the district’s policy. Citing case precedent, the court found that “the fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.” As a result, the court found that the district court did not err in granting the district summary judgment on the families’ equal protection claim.
Ohio court of appeals finds that prohibition against picketing the private employer of a public official is a constitutional content-neutral regulation.
Harrison Hills Teachers Assn. v. State Emp. Relations Bd., 7th Dist. No. 15 HA 0008 (June 17, 2016).
http://links.ohioschoolboards.org/48902
As their collective bargaining agreement ended in June 2007, the Harrison Hills Teachers Association and the Harrison Hills City School District board of education conducted negotiations for a successor contract. In September, the union provided a notice of its intent to strike (to occur on October 1). On September 26, union members picketed on a public street outside a school board member’s private employer.
The school board filed an unfair labor practice (ULP) with SERB. The union essentially admitted it violated RC 4117.11(B)(7), which prohibits unions and their members from picketing the residence or place of private employment of any public official or representative of a public employer. The union, however, argued that the statute was unconstitutional. On March 31, 2010, SERB issued an order finding a ULP and pointed out that it had no authority for declaring the statute unconstitutional. The union appealed to the trial court.
On July 23, 2015, the trial court issued a decision upholding the administrative order and found that because RC 4117.11(B)(7) was content-neutral, rather than content-based, the speech restriction was incidental to the law, not the reason for the law. The trial court found the law narrowly tailored as it prohibited picketing at only two specific locations. The union appealed.
On appeal, the court of appeals affirmed the judgment of the lower court. The court found that RC 4117.11(B)(7) was justified without regard to the content of the regulated conduct and was a reasonable time, place or manner restriction, most specifically a place restriction. The court also found that the ban on picketing a private employer was a content-neutral regulation and targeted only the issue it sought to remedy (the effects of secondary labor picketing) and left open ample alternative channels for communication. As a result, the court found that the prohibition set forth in RC 4117.11(B)(7) was constitutional.
Ohio district court finds that board cannot prevent board member from testifying on executive session discussions that are not confidential or subject to attorney-client privilege.
Kamenski v. Wellington Exempted Village Schools, N.D.Ohio No. 1:14-cv-01589 (May 2, 2016).
https://docs.justia.com/cases/federal/district-courts/ohio/ohndce/1:2014cv01589/210681/78
Christopher Kamenski (Kamenski) is a former employee of Wellington Exempted Village Schools (WEVS) whose employment ended in June 2013. Kamenski alleged retaliation and retaliatory harassment in violation of state and federal law. He asserted that WEVS Board of Education (Board), during its July 2013 meeting, discussed and decided to send a derogatory and defamatory letter to his new employer. The board denied this allegation. Kamenski alleged that an unsigned letter regarding him was sent to his new employer and others in August 2013. On June 19, 2013, the board received a noticed from the US Equal Employment Opportunity Commission (EEOC) of a scheduled mediation on July 24, 2013 regarding Kamenski.
The board filed a Motion for Protective Order (Motion) seeking to prevent the deposition of one of the members of the Board. The board also sought to prevent the Board member from testifying concerning executive session discussions, including but not limited to discussions during the July 16, 2013 executive session where the board’s legal counsel was present for the purpose of dispensing legal advice.
The board asserted that the discussions were privileged under Ohio’s statutorily created executive session privilege and/or were protected from discovery under the attorney-client privilege. Kamenski argued: (1) state created statutory privileges are not recognized in federal court, (2) even if the Board properly adjourned into executive session, any discussions that occurred during that executive session were for an improper governmental purpose (i.e., taking retaliatory action against Kamenski) and are therefore not protected, and (3) the mere presence of an attorney at an executive session does not shield discussions occurring during that executive session from discovery.
In discussing applicable law, the court noted that Kamenski’s complaint raised both federal and state claims. Where federal claims are present, federal law governs. In its discussion of state-created executive session privilege, the court noted that because federal law governed, the board’s argument that discovery was barred due to executive session privilege lacked merit. The court also noted that this fact does not prevent the court from considering state-created privileges.
The court found that the board hadn’t shown that the statutes created an absolute privilege shielding from discovery all discussions occurring during an executive session. The board also did not show that the statute should shield discussions during executive session that are unrelated to topics properly discussed in executive session. The court noted that the statutes do not protect any and all discussions occurring in executive session, and that the board didn’t even show that the relevant statutes apply to the facts of this case.
Ohio Revised Code (RC) 102.03(B) expressly limits the scope of information employees are prohibited from disclosing, citing the requirements that the information has been “confidential because of statutory provisions or clearly designated to the employee as confidential when the confidential designation is warranted because of status of proceedings or circumstances under which the information was received and preserving its confidentiality is necessary to the proper conduct of government business.” In this case, the board did not establish that discovery Kamenski sought regarding discussions about contacting his new employer was “confidential because of statutory provisions” or “clearly designated as confidential” and that preserving the confidentiality of such discussions would be “necessary to the proper conduct of government business.”
In adjourning to executive session at its July 2013 meeting, the Board cited RC 121.22(G)(1) to consider the appointment, employment, dismissal, discipline…or the investigations of charges or complaints against a public employee, official…” The court noted that the issue in question was not a charge against a public employee, but rather Kamenski’s charge against WEVS filed with the EEOC. Additionally, Kamenski was not an employee at the time the Board entered executive session. The court found that, as a result, discussions during the July 16, 2013 executive session did not fall within the scope of the board’s resolution to enter executive session.
The court also noted that RC 121.22(G)(3) allows executive session to be held for “conferences with an attorney for the public body concerning disputes involving the public body that are the subject of pending or imminent court action.” This option did not apply here, because the Board did not properly cite it in the resolution as the reason to adjourn to executive session. The court also noted that even if the Board had properly cited this option in its resolution, the defendant couldn’t show that the information Kamenski sought to discover would fall within this option because it didn’t relate to the charge being discussed. As a result, the court denied the board’s request for protective order.
The court then turned to the board’s argument that the discussions that occurred during the July 16, 2013 executive session were protected by attorney-client privilege. Attorney client privilege includes the following eight elements: (1) where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.” The defendant bears the burden of showing that all elements are present, and in this case the court found that the Board failed to meet that burden.
Instead, the board argued that because the Board’s attorney was present, all discussions were privileged. The court disagreed, stating that privilege only protects confidential disclosures made for the purpose of obtaining legal advice. The court noted that, had the board cited RC 121.22(G)(3) as the reason for adjourning to executive session, the court would have further considered the issue of attorney-client privilege, but because the board did not properly cite this option, the court would not consider it further.
As a result, the court denied the Board’s request to prevent a board member from testifying regarding discussion during executive session. The court went on to specify in the order that its holding did not allow Kamenski to seek discovery regarding attorney-client privileged information, and cautioned plaintiff against asking about legal advice the board received from its attorney in regards to Kamenski’s EEOC charges and scheduled mediation.
Sixth circuit court of appeals finds that assistant superintendent’s letter did not violate education association’s constitutional rights.
Hamilton Cty. Edn. Assn v. Hamilton Cty. Bd. of Edn., 6th Cir. No. 15-5749 (April 20, 2016).
http://caselaw.findlaw.com/us-6th-circuit/1732166.html
Hamilton County Education Association (HCEA) is a voluntary association of employees of the Hamilton County Department of Education (HCDE). HCEA brought action against the Hamilton County Board of Education (Board) alleging two violations of the Tennessee Education Professional Negotiations Act (EPNA) and one violation of 42 U.S.C. 1983 for infringing on HCEA’s First Amendment right of expressive association. The parties filed cross-motions for summary judgment. The district court granted the Board’s motion and denied HCEA’s motion, dismissing the case. HCEA appealed that decision.
HCEA was recognized by the Board under EPNA as the exclusive representative of all the Board’s professional employees. They entered into a collective bargaining agreement on May 19, 2011, which was set to expire on June 30, 2014. During this time, the Tennessee legislature passed the Professional Educators Collaborative Conferencing Act (PECCA), which amended and replaced EPNA, but would not govern the parties until their existing agreement expired. HCEA and the Board entered into their most recent collective bargaining agreement under EPNA on September 20, 2013.
PECCA created a new category of Board employees known as “management team” members who are no longer entitled to participate in concerted activities as part of a professional employee organization. PECCA also made it unlawful for a professional organization to “coerce or attempt to intimidate professional employees who choose not to join a professional employee organization.”
HCEA held a monthly meeting of its representatives and building representatives on September 17, 2013. After the meeting, the HCEA representative for the middle school forwarded notes to the middle school teachers. One of the teachers contacted the assistant superintendent to express concerns about a portion of the notes that included reports of other counties in the state where collective bargaining contracts expired and teachers received lengthy code of conduct revisions and lost their retirement benefits. The notes also included suggestions that if HCEA membership dipped, it would cause the contract to be null and void and create consequences for teachers. The teacher forwarded the notes to the assistant superintendent. The assistant superintendent also obtained other materials distributed at the HCEA meeting.
The assistant superintendent wrote a letter to the HCEA president addressing three issues. First, in regards to principals, she noted that under PECCA, HCEA could not represent management team members such as principals and assistant principals nor count them amount membership totals. Second, she pointed to statements made in the meeting notes that described potential consequences of decreasing members and suggested that such statements could be construed as intimidating. And third, she pointed to promotional documentation distributed at the meeting that referred to a competing professional educators association in what the assistant superintendent described as pejorative ways. She ended the letter by citing PECCA’s new prohibition on coercing or intimidating employees who choose not to join a professional organization and stating, “HCDE respectfully asks that HCEA and its representatives refrain from continuing such negative or coercive statements.” She also noted that while the Board hoped to maintain a collaborative relationship with HCEA, continued coercion would either result in an official request for retraction of such statements or in clarification/correction of such statements by the district.
HCEA filed suit against the Board on the basis of the assistant superintendent’s letter, alleging that the letter violated two provisions of EPNA and infringed on HCEA’s First Amendment right of expressive association.
In analyzing HCEA’s two EPNA claims, the court determined that while the National Labor Relations Act (NLRA) was not applicable to this case and the case law interpreting it was not binding, it would consider them to be highly informative and persuasive since it appeared that the Tennessee legislature likely modeled the EPNA provisions after the NLRA. As a result of this analysis, the court found that because the letter expressed the Board’s views on employee-employer relations and contained no threat of reprimand or promise of benefit, the district court correctly granted summary judgment to the Board on HCEA’s EPNA claims.
The court applied a three-step test in its analysis of HCEA’s First Amendment claim. The test included consideration of: 1. Whether the group is entitled to protection by engaging in expressive activity that could be impaired, 2. Whether the challenged government action significantly burdens the group’s expression (affording deference to an association’s view of what would impair its expression), and 3. Whether the government’s interest in any restriction outweighs the plaintiff’s right of expressive association.
The court noted that the significant burden test requires government action that directly or indirectly interferes with group membership or that hinders a group’s expression as a result of its interference with group membership. Under the standards set forth by relevant case law, the court found that the Board’s letter did not interfere with HCEA’s membership or significantly burden its expression and therefore affirmed the district court’s decision granting summary judgment to the Board on the First Amendment claim.
Tennessee court awards summary judgment to board of education and elementary school principal on complaint that after-school dismissal procedure unconstitutionally infringed on parent’s rights to family unity and to make decisions about the care, custody and control of his children.
Howe v. Aytes, M.D. Tenn. No. 2:14-cv-00077 (June 10, 2016).
https://docs.justia.com/cases/federal/district-courts/tennessee/tnmdce/2:2014cv00077/61004/92
A parent filed suit against the South Cumberland Elementary School (school), school principal, school resource officer, Cumberland County Sheriff’s Department, Cumberland County, and Cumberland County Board of Education. At the time the court’s decision was rendered, the only remaining defendants were the Board of Education and the school principal.
The school instituted an after-school dismissal procedure in response to safety concerns. The new procedure required parents to remain in their vehicles, which were marked with windshield placards containing their child’s name. As cars arrived at the school, school personnel would bring children to their parents’ cars. Parents could no longer walk into the school to pick up their children. Further, in order to minimize traffic around the school prior to dismissal and facilitate the new procedure, the school prohibited early school checkout for the last 45 minutes of the school day, except in the case of an emergency.
On two of the first three days after the new procedure was implemented, the parent parked his car, walked into the school, and attempted to pick up his children. The school resource officer denied the parent access to his children. The interaction between the parent and the school resource officer on these two occasions “grew heated” and culminated, on the second day, in the school resource officer placing the parent under arrest and taking him to jail. Subsequently, the parent filed suit.
The court granted summary judgment for the two remaining defendants. The parent alleged that the school’s actions amounted to an infringement of his Fourteenth Amendment rights. The court concluded: “The undisputed facts on the record indicate that Defendants’ minimal interference with Plaintiff’s access to his children falls far short of a constitutional deprivation.”
The parent’s first claim was that the school’s request that he comply with its dismissal policies infringed upon his right to family unity. The court concluded that the facts did not indicate “an encroachment by Defendants that is anywhere near intrusive enough to support a claim for interference with the right to family unity.”
The parent’s second, related claim was that the school’s dismissal policies unconstitutionally interfered with his fundamental right to make decisions concerning the care, custody and control of his children. The court wrote that the parents’ right to control the upbringing and education of their children is “not without limits.” Quoting Epperson v. Arkansas, the court stated that it “cannot intervene in the resolution of conflicts which arise in the daily operation of school systems andwhich do not directly and sharply implicate basic constitutional values.” It concluded: “As much as Plaintiff would prefer to pick up his children on foot, his inability to do so does not violate his constitutional rights.”
HAZING AND BULLYING — BOARD LIABILITY
Sixth circuit court of appeals finds that father could not show that the board of education acted with deliberate indifference or that it was reasonably foreseeable that the complained of harm would befall his son as a result of the Board’s conduct.
Richardson v. Huber Heights City School Bd. of Edn., 6th Cir. No. 15-4036 (June 2, 2016).
http://caselaw.findlaw.com/us-6th-circuit/1737486.html
Plaintiff Donald Richardson (Richardson) on behalf of his minor son, K.R., claimed that K.R. was sexually assaulted by fellow students with the permission of an assistant baseball coach, and maintained that the Board violated K.R.’s constitutional rights by creating and being deliberately indifferent to a culture of sexualized violence at the high school. The district court granted summary judgment for the board and Richardson appealed.
In November 2010, K.R. was a high school freshman and prospective member of the baseball team. An argument involving K.R. during a voluntary after-school weightlifting session drew the attention of assistant coach Jonathan Soukup (Soukup). A few days later, Soukup approached B.C., another member of the baseball team, inquired about K.R. and allegedly told B.C. to “take care of it.” Soukup denies making this statement. K.R. was assaulted on November 22, 2010, when he left the weight room to get a drink of water in the hallway. K.R. was cornered by B.C. and three other students. K.R. was held down and B.C. then inserted his finger into K.R.’s anus for around 20 to 30 seconds. K.R. did not report the incident until, in tears, he informed his parents late that night. K.R.’s parents met him at school and reported the incident the next morning to the Vice Principal Erica Ford (Ford). K.R.’s mother testified that Ford told the family that “this has been happening, but no one would come forward.” Ford denied making this statement and that she had knowledge that similar incidents had ever occurred at the school.
As part of the investigations, school officials interviewed students involved and reviewed video surveillance tape, which partially captured the incident via a camera in the hallway. Law enforcement subsequently arrested B.C. and another student who was involved and charged them with rape. The high school athletic director, Jay Minton (Minton) also interviewed head coaches at the school regarding hazing and bullying, but testified that no coaches were aware of any such issues. All students involved were suspended and the two students who participated were found guilty of a lesser charge of assault, barred from playing baseball that year, and ordered to not have any contact with K.R.
Richardson argued that the district was “an environment of physical abuse and bullying,” drawing heavily on testimony of several students regarding various forms of male-on-male bullying, including striking of fellow students in the genital region in order to inflict pain, and Minton’s testimony that a variety of this inappropriate touching was once “rampant” at the high school. Students weren’t aware of any formal complaints, but viewed instances of inappropriate touching as “a very common thing.” One student testified that after K.R.’s report of this incident, inappropriate touching drastically declined. Meanwhile, school officials insisted that they were not aware of any unwanted sexualized touching and had no knowledge of “a culture of hazing.” At least one student involved in the incident agreed that teachers wouldn’t tolerate any bullying or hazing and that the school had acted to stop such behavior when it became of aware of previous occasions of the behavior.
The court noted that Richardson’s case centered on the theory of “state-created danger” by way of Soukup’s “take care of it” comment. The court noted that a danger created by a state actor was not alone enough to hold the board liable. To establish liability for the Board, the court noted that Richardson must show “that an officially executed policy, or the toleration of a custom within the school district leads to, causes, or results in the deprivation of a constitutionally protected right.” Such “custom” must be “so permanent and well settled” as to have the force of law.
The court analyzed the facts under a three-prong, state created danger test, which required Richardson to show: 1. an affirmative act by the State that either created or increased the risk that he would be exposed to private acts of violence, 2. a special danger to him created by the state action, as distinguished from a risk that affects the public at large, and 3. the requisite state culpability to establish a substantive due process violation.
Richardson argued that Soukup’s comment to “take care of it” satisfied the first two prongs. The court agreed, reasoning that there was significant evidence to support a jury’s conclusion that some coaches at the high school, or at least Soukup, tolerated a culture of student-on-student hazing in order to encourage team obedience and respect. The court also noted that it would only be a short step for the jury to conclude that Soukup’s remark created a special danger or increased risk to K.R. The court also found the third prong satisfied because, even though a jury could find Soukup may not have envisioned the specific incident that happened, the evidence supported the fact that school officials could not have been unaware of the culture of bullying and the risk it posed.
The court then turned to the question of municipal liability, stating that municipal liability does not attach in the absence of sufficient evidence showing that the need to act is so obvious that the Board’s conscious decision not to act can be said to amount to a policy of deliberate indifference. The court found that Richardson offered no evidence to attach municipal liability, and that there was evidence of the school’s previous successful responses to instances of bullying or hazing by students. Therefore, the court affirmed the district court’s judgment because Richardson failed to establish municipal liability.
IMMUNITY — EMPLOYEE OF POLITICAL SUBDIVISION
Appeals court finds that trial court did not err in determining that middle school principal was not fully protected by statutory immunities.
Schaad v. Buckeye Valley Local School Dist. Bd. of Edn., 2016-Ohio-569.
http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2016/2016-Ohio-569.pdf
Jason Spencer is a middle school principal at Buckeye Valley Local schools. Eric and Trish Schaad are parents of minor child L.S., who was a student in the district. In early August 2014, the parents met with Spencer and two other school officials to develop a “504 Intervention Plan” (504 plan) setting forth accommodations for L.S. who had recently undergone back surgery. During the meeting, the parents allegedly presented the school representatives with a school accommodation form issued on July 23, 2014, by Dr. Walter Samora of Nationwide Children’s Hospital. On or about August 12, 2014, L.S. was issued a second accommodation form for the 504 plan that included the same restrictions set forth on the first form regarding L.S.’s physical activity while at school. The 504 plan was set to take effect at the start of the 2014 school year.
The parents allege that after that time, Spencer contacted (without contacting or receiving authorization from appellees) Nationwide Children’s Hospital and spoke with Danielle E. Greco (Greco), an administrative assistant with the hospital. They allege that Spencer convinced Greco to make changes to L.S.’s August 12, 2014, school accommodation documents without authorization, and that during the conversation Greco discussed details of L.S.’s surgery and course of treatment with Spencer.
On November 14, 2014, the parents filed a complaint against Buckeye Valley Local School District, Spencer, Nationwide Children’s Hospital, and Greco. On January 30, 2015, the parents voluntarily dismissed Buckeye Valley school district from the lawsuit, and on February 6, 2015, filed an amended complaint, naming the Buckeye Valley Local School District Board of Education (Board) as a party to the lawsuit. The Board filed an answer and motion for summary judgment on the pleadings on immunity grounds, and the trial court granted that motion for summary judgment finding that none of the claims raised by the parents against the Board impose specific liability on a political subdivision that undercuts the immunity afforded to the Board under Ohio Revised Code (RC) Chapter 2744, but that several claims against Spencer would survive judgment on the pleadings. Spencer appealed arguing that the court erred in: 1. denying Spencer the benefits of statutory immunity under RC Chapter 2744, and 2. failing to determine that Spencer has been sued in his official capacity only.
The court referred to the immunity protections cited in the statute, which state that the employee is immune from liability unless the employee’s acts or omissions were manifestly outside the scope of employment or official responsibilities, or with malicious purpose, in bad faith, or in a wanton or reckless manner, or where civil liability is expressly imposed upon the employee by the RC.
Based on the facts alleged by the parents, which stated that Spencer intentionally induced unauthorized disclosure of L.S.’s medical information, engaged in malicious, wanton, reckless, or bad faith conduct, and invaded the parents’ privacy, the court found that Spencer could be shown to have attempted to supersede without any authorization the protections to L.S.’s health and safety as duly advised by her own physician, potentially creating a HIPAA issue in the process. As a result, the court held that the parents sufficiently alleged, at a minimum, that Spencer engaged in wanton, reckless or bad faith conduct.
In his second assignment of error, Spencer argued that since the trial court found the Board immune, he also was immune from liability because he was sued only in his official capacity. The court noted that the bottom of the caption in the amended complaint referred to all defendants and stated: “Each in their individual and official capacities, where applicable.” The court also noted that the fact that service of the complaint was made to Spencer at his work address does not impact the capacity in which he is being sued. Additionally, the court looked to the parents’ request for punitive damages, which cannot be awarded against a political subdivision performing a governmental function, which suggests Spencer was being sued individually as well. As a result, the court did not find reversible error in the trial court’s lack of a determination that Spencer was being sued only in his official capacity.
Court affirms the independent hearing officer’s discretion to find one expert more credible than another and give that expert’s testimony more evidentiary weight when concluding that a student’s behavioral incidents were manifestations of the student’s disability.
Maple Heights City School Bd. of Edn. v. A.C., N.D. Ohio No. 1: 2014 cv 1033 (June 27, 2016).
https://docs.justia.com/cases/federal/district-courts/ohio/ohndce/1:2014cv01033/209228/39
Maple Heights City School District Board of Education (board) and a parent of a child with disabilities both appealed the decisions of the state level review officer (SLRO) and independent hearing officer (IHO) regarding the individualized education program (IEP) of the student. The student attended school in the fall of 2011 under an IEP amended in March 2011. In the summer of 2012, the district team reviewing her evaluation team report (ETR) concluded that the student’s behaviors did not constitute a disability, but were a social maladjustment. As a result of this conclusion, the student would no longer be eligible for special education services. The parent disagreed with the ETR finding and filed a due process complaint. While the complaint was proceeding, the district continued to provide the student with special education services. That complaint was resolved with a settlement agreement in December 2012. The district agreed that the student’s qualifying disability was emotional disturbance.
In October 2012, the district discovered that the student possessed marijuana on school grounds. The student was suspended for 10 days. At a manifestation determination review (MDR) meeting, the district concluded that the drug possession was not a manifestation of the student’s disabilities. The IHO concluded that the parents proved, by a preponderance of evidence, that the drug possession was a manifestation of the student’s disability.
In February of 2013, the student was caught stealing another student’s iPod and was suspended a second time. In a March MDR meeting, the district again concluded that the iPod theft was not a manifestation of the student’s disability. The IHO held that the parents had proved, by a preponderance of evidence, that the iPod theft was a manifestation of the student’s disability.
The SLRO affirmed the IHO’s determinations regarding both of these incidents. The district challenged these SLRO conclusions on the basis that the SLRO failed to give any weight to the documentary record evidence, witness testimony and expert testimony it presented in reaching her decision. The district argued that “significant weight should be afforded to the educators themselves who have consistent contact with the student.” The court, however, concluded that deference is due to the findings of both the SLRO and IHO.
Specifically, the IHO was presented with conflicting findings from experts hired by the district and the parent. The IHO determined their credibility and ultimately sided with the parent’s expert, providing “ample support and justification” for her determination. The court noted that the SLRO gave deference to the IHO in matters of assessing witness credibility and demeanor. The court concluded that the SLRO did not err in giving this deference and in determining that the student’s parent proved by a preponderance of the evidence that the two disciplinary matters were a manifestation of the student’s disability. The court affirmed these determinations.
The court also upheld the SLRO’s findings challenged by the parent, including the finding that the district was not required to pay for an out-of-district placement for the student because the district was capable of providing the student a FAPE going forward.
Court concludes that school board’s premature and improper cut off of a student’s disability review process is a procedural violation amounting to a denial of a FAPE and makes parents eligible for reimbursement under the Burlington/Carter test.
Greenwich Bd. of Edn. v. G.M., D. Conn. No. 3:13-cv-00235 (June 22, 2016).
https://ecf.ctd.uscourts.gov/cgi-bin/show_public_doc?2013cv0235-52
The Greenwich Board of Education (board), filed this action claiming to have been aggrieved by the IDEA’s dispute resolution process. The district appealed the decision of the independent hearing officer (IHO) that a student was eligible for special education, that the board erred in denying the parents’ request for special education without evaluating the student, and that the parents were entitled to reimbursement for the cost of the student’s education at a specialized instruction private school.
The court noted that, although IDEA appeals are resolved via cross-motions for summary judgment, the IDEA requires it to grant the relief it determines is appropriate based on the preponderance of the evidence. Regarding a state agency’s decision that a parent is entitled to reimbursement for a private placement under IDEA, the court applied the three-part Burlington/Carter test. The court must: (1) examine whether the school district’s plan will provide the child with a FAPE; (2) examine whether the parent’s private placement is appropriate to the child’s needs; and (3) consider the equities in the case.
Under the first prong of the Burlington/Carter test, the court concluded that the board failed to adhere to the procedural requirements of the IDEA, specifically the Child Find obligation. The court stated: “Although not all procedural violations of the IDEA amount to the denial of a FAPE, this one clearly does. Here, the Board prematurely and improperly cut-off the disability review process. If that were not found to be a procedural violation amounting to the denial of a FAPE, it is unclear which procedural violation could so qualify. Specifically, the Board’s refusal to evaluate [the student] not only impeded Parents’ opportunity to participate in the decision-making process, it foreclosed them from accessing the process at all, a process to which they were entitled.”
The court concluded that the other two prongs of the Burlington/Carter test were satisfied and that the parents’ were entitled to reimbursement for the cost of the student’s education at a specialized instruction private school. Of particular note was the court’s footnote 22, which discusses whether the education provided in a private placement must be “specially designed” or “specifically designed” to meet the unique needs of the disabled child.
The board also challenged the IHO’s affirmative determination that the student had a specific learning disability and was therefore entitled to special education and related services. In another footnote (26), the court noted that the IHO’s determination was unnecessary, given the Child Find violation. Nonetheless, the court addressed each of the board’s four arguments for the “sake of completeness.” The court concluded that the board failed to meet its burden to demonstrate that the IHO’s finding was not supported by a preponderance of the evidence.
Finally, the court upheld the IHO’s order that the board pay the parents the full amount they had spent on tuition at the private school for the entire academic year.
Kentucky court grants summary judgment on the federal claims to district, concluding that the student failed to demonstrate deliberate indifference or state-created danger.
M.P.T.C. v. Nelson Cnty. Sch. Dist., 2016 U.S. Dist. LEXIS 76904 (W.D. Ky. June 13, 2016)
https://docs.justia.com/cases/federal/district-courts/kentucky/kywdce/3:2014cv00041/88931/44
The plaintiff M.P.T.C. was a senior at Nelson County High School in the Nelson County School District in Kentucky, had been identified as an individual with a disability, and was eligible to receive special education services. M.P.T.C. had attended school in the district since kindergarten. According to M.P.T.C.’s complaint, he had been “continually, systematically and intentionally assaulted, abused, harassed, menaced, taunted, threatened, teased and bullied” in the school setting from August 2009 through June 2014.
M.P.T.C. filed claims against the Nelson County School District (district), Nelson County Board of Education (board), and four district employees, asserting that his constitutional rights had been violated under 42 U.S.C. 1983, as well as negligence, violations of 504 of the Rehabilitation Act, and violations of Kentucky Revised Code 344. M.P.T.C.’s claim asserted that the four school officials failed to recognize and reasonably respond to a pattern of bullying incidents while he was a student in the district.
The court considered the defendants’ motion for summary judgment on the plaintiff’s claims. It also considered plaintiff’s motion to file a second amended complaint to allege further instances of harassment and bullying during the 2015-16 school year.
The district, board, and district employees argued that M.P.T.C.’s federal claims were barred because he did not exhaust all administrative remedies available under the Individuals with Disabilities Education Act (IDEA). The court did not accept this argument, and held that the injuries alleged were non-educational in nature and could not be remedied through an administrative process that would not be available to or required of a student who did not have disabilities.
The court concluded that M.P.T.C. could not demonstrate that the school administrators acted with deliberate indifference to the complaints of harassment and granted summary judgment to the four defendant school employees on the student’s 1983 equal protection claim.
M.P.T.C. also argued that his 1983 claims should be analyzed under the “state-created danger” theory. M.P.T.C. alleged that the due process clause applied because the district, board, and district employees: (1) established a “special relationship” with M.P.T.C.by acting with deliberate indifference to the district’s bullying policy; and (2) created a “state-created danger,” and increased the risk that M.P.T.C.would be exposed to violence, by failing to inform law enforcement, contact the parents, enforce the law and school policy, take steps to protect the student, and discipline the offending students at all or sufficiently. The court concluded that M.P.T.C.’sdue process claims could not prevail under either theory, and grated summary judgment to the individual district employees.
The court then granted the motion for summary judgment filed by the school district and the board of education. The court concluded that the lack of any constitutional deprivation precluded a finding of municipal liability. The court declined to exercise pendent jurisdiction of M.P.T.C.’sstate law claims, and remanded them to the county circuit court and also denied M.P.T.C.’s motion to file a second amended complaint.
Ohio court of appeals upholds finding that district is immune from liability with respect to the illumination of school zone signs.
Slane v. Hilliard, 2016-Ohio-306.
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2016/2016-Ohio-306.pdf
On October 16, 16-year-old Crystal Slane was struck by a vehicle after she entered the crosswalk at an intersection. According to Slane, the “walk” and “don’t walk” pedestrian signals at the intersection had either not worked properly or not worked at all for quite some time. Slane brought a negligence claim against the city, the driver of the vehicle and the Hilliard City School District. The district and the city filed a motion for summary judgment, claiming immunity. The trial court granted the motions for summary judgment. Slane appealed.
On appeal, the court of appeals affirmed the judgment of the trial court. The court found that the student sustained her injury prior to the normal school day and prior to the time of day when the city illuminated school zone signs. Additionally, the court found that even if the school district owed the student a duty with respect to the school zone sign and the “walk/don’t walk” signal, the district was immune from liability because the student’s injury occurred on a “public road,” which was not within the grounds of buildings the district used in connection with the performance of its governmental function.
As a result, the court found that the trial court did not err when it determined that the city and district were immune from liability from any negligence with respect to the illumination of the school zone signs.
Connecticut court holds that although city was accountable for negligence of board of education, governmental immunity applied.
McCarroll v. City of E. Haven, Conn. Super. Ct. No. CV146044518S (May 9, 2016).
In April 2012, Mason McCarroll, a kindergarten student at a public elementary school in Connecticut, was playing on a wooden playscape located on the district’s grounds. The playscape and its surroundings were in a “decrepit condition.” One day, Mason was playing on the playscape during recess and attempted to climb a rubber-coated metal ladder. Upon reaching the fifth rung, which was missing a bolt, Mason slipped and fell to the ground. Mason suffered serious injuries and sued the City of East Haven for negligence. The city filed a motion for summary judgment, alleging immunity under the doctrine of governmental immunity.
The city argued that it did not have a duty to maintain school facilities because, by statute, those duties fell to the local board of education and superintendent. The plaintiffs argued that local boards of education act on behalf of the municipality, and therefore the board and its employees are agents of the city, making the defendant ultimately accountable for the negligence of the board and its employees.
The court relied on case precedent and statutory language to find that local boards of education in Connecticut serve as agents of the municipality that they serve. As a result, the court found that the plaintiffs properly sued the city as a party, because the city owed a duty of care to the plaintiffs for maintaining the school’s facilities.
However, the court found that the city was entitled to judgment as a matter of law under the doctrine of governmental immunity. The court found that the duty to maintain the school facilities involved the exercise of judgment and discretion, and since their conduct was discretionary, rather than ministerial, governmental immunity applied.
Court determined that school district’s policy giving district superintendent discretion about release of student information did not limit the scope of affirmative parental consent for release.
State ex rel. School Choice Ohio, Inc. v. Cincinnati Pub. School Dist., Slip Opinion No. 2016-Ohio-5026.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-5026.pdf
School Choice Ohio (SCO) filed a mandamus action seeking to compel Cincinnati Public School District and Springfield City School District (district) to comply with the company’s public-records requests. [Cincinnati Public School District was dismissed as a respondent in this case when it entered into a settlement agreement with SCO.]
In 2013, SCO submitted a public records request to the district, requesting:
- Student’s and parent’s/guardian’s name,
- Parent’s/guardian's complete address and email address,
- Parent’s/guardian’s telephone contact information,
- Student’s grad level for the 2013-14 school year, and
- Student’s school building for the 2013-14 school year.
Prior to receipt of this request, the district had revised its student records policy. In the revised policy, the district provided parents of current students with a form entitled “Consent for Disclosure of Student Information for Superintendent Approved Purposes.” The consent form listed nine categories of information, called “personally identifiable information,” that could be disclosed if parents consented.
Once the consent form was signed, the district could release personally identifiable student information “for purposes approved by the Superintendent or his designee.” The two approved categories were: (1) School-directed events or activities, such as yearbook publication; and (2) Educational, health, service, or other non-profit programs which may provide a benefit to the students of the district and that were directed by community leaders, community organizations, and school-related organizations approved by the Superintendent as partnering organizations.
Based on the revised policy, the district denied SCO’s request for student records. The district argued that none of the student records were designated as directory information in its policy. Therefore, the Family Educational Right to Privacy Act (FERPA) and RC 3319.321 prohibited releasing the records, which were not “public records” subject to RC 149.43.
The Court concluded that, because both FERPA and RC 3319.321 permited the release of student “directory information,” some of the information SCO sought was within the category of “public records.” The Court ordered the district to give SCO the records it had requested for those students whose parents had affirmatively consented to the release of the information. The Court did not accept the district’s argument that, because its policy did not classify any of the records as directory information, the information was protected unless release was for a purpose approved by the Superintendent.
The decision stated: "Allowing the superintendent to make discretionary limitations after consent has been given does not limit the scope of parental consent. ... Because School Choice fits within the limitations specified in Springfield's consent form and because the superintendent cannot create a FERPA prohibition by making post-consent discretionary decisions, disclosure of Springfield's student-directory information to School Choice would not be prohibited by FERPA.”
However, the Court denied SCO’s request to compel the district to amend its student-information policy so that the policy required the disclosure of requested information to SCO. This decision was consistent with the position that school districts “possess the authority to enact policies that, within their sound discretion, are for the betterment of their own district[s],” as argued by the OSBA Legal Assistance Fund in an amici curiae brief filed on behalf of OSBA, OASBO and BASA.
Finally, the Court awarded reasonable attorney fees because it found that the district did not provide a timely affirmative or negative response to SCO’s October 2013 public records request, making SCO entitled to a mandatory award. The Court also declined to exercise its discretion to reduce attorney fees.
Court denies student and parent’s request for sealed records as “unnecessarily oppressive” where production might subject keeper of records to liability.
Crochran v. Columbus Bd. of Edn., S.D. Ohio No. 2:15-cv-632 (Apr. 27, 2016).
http://law.justia.com/cases/federal/district-courts/ohio/ohsdce/2:2015cv00632/180404/31/
Naqis Crochran is a child with autism attending South Mifflin STEM academy in the Columbus City School District (district). Crochran and his parent, Amatullah Shields, alleged that his rights were violated when he was injured after being placed in a “body sock,” and that the use of the sock was not in Crochran’s IEP and constituted an illegal restraint. The Columbus Board of Education claims that the use of the body sock was an effort to control the student’s unruly behavior.
The court ruled on several motions related to discovery. The Crochran and Shields filed motions to: (1) compel defendant school board of education and several employees of the district to provide adequate answers to three interrogatories and produce subpoenaed documents; and (2) compel a non-party, the Columbus Police Department (CPD), to produce subpoenaed documents. The court also considered a motion to quash subpoenas filed by the Franklin County Children Services Board (FCCS) and plaintiffs’ corresponding motion to compel.
Regarding the discovery motions involving the school, the court denied the motion to compel further response to one interrogatory but granted the motions to compel additional answers to the other two and to produce the documents requested. Further, although the court acknowledged, “it is hard to characterize Defendants’ responses as being designed to secure the ‘just, speedy, and inexpensive determination’ of the case,” it declined to award plaintiffs’ attorney fees as a sanction in connection with these motions.
FCCS’s motion to quash relied on RC 5153.17 and 2151.421, which provide that its records of abuse and neglect reports are confidential. The court concluded that, notwithstanding the state statutes cited by FCCS, there was no federally based privilege for the records. The court ordered the production of the records without redaction under whatever level of confidentiality the parties agree is appropriate.
The court denied Crochran and Shields’s motion to compel the CPD to produce documents. In response to the original subpoena, CPD explained that the documents sought had been sealed and were to be deemed not to exist under RC 2921.52 et seq. CPD also noted that it is unlawful for any officer or employee of the department to release or make available sealed records. The court found that it would be “unnecessarily oppressive to require [a CPD officer] to produce the requested documents in a way that might subject him to liability.” The court directed the plaintiffs to apply to the court that sealed the records for an order unsealing them.
STATUTE OF LIMITATIONS — PUBLIC SERVANT
Sixth district court of appeals finds that two-year statute of limitations began when defendant ceased to be a public servant.
State v. Fox, 2016-Ohio-2745.
http://www.supremecourt.ohio.gov/rod/docs/pdf/6/2016/2016-Ohio-2745.pdf
On March 11, 2015, appellant State of Ohio indicted appellee, Frederick Fox (Fox), the former superintendent of the Huron City School District alleging that Fox unlawfully failed to disclose gifts valued at $1,007.32 in 2011 while he was a public servant in his capacity as a public school superintendent. Fox initially began employment as superintendent at Huron City school district in July 2001. On June 6, 2012, a board member in the district submitted a report alleging various acts of misconduct by Fox during 2010-2011. On June 19, 2012, Fox was suspended without pay pending an investigation into the claims alleged in the report. The initial suspension was rescinded on June 25, 2012.
On September 6, 2012, Fox was again suspended without pay from his superintendent position. This was the final day Fox performed any services as superintendent. After that date, Fox was banned from being on school grounds and was required to return his office keys and all school property. September 6, 2012, was also the final day Fox received salary, and after that day his life insurance and all forms of medical insurance were canceled. School district contributions to Fox’s retirement fund ceased as of that date as well. The board resolution memorializing Fox’s September 6, 2012, cessation of employment as superintendent occurred on April 2, 2013.
After the March 11, 2015, indictment, Fox filed a motion to dismiss based on action being filed after the two-year statute of limitations. Fox argued that his employment as a public servant ceased on September 6, 2012, and the state argued that employment continued until April 2, 2013, the date of the subsequent board resolution.
The trial court granted Fox’s motion to dismiss citing the facts that after September 6, 2012, Fox no longer received compensation or accumulated sick or vacation time. The trial court further cited the fact that Fox received payment of earned and unused sick and vacation time on September 7, 2012, something that his employment contract with the district notes “shall be paid to the administrator at the time of separation.”
The state appealed the decision, again arguing that Fox’s employment as a public servant for the purposes of the statute of limitations did not cease until April 2, 2013, so as to render the indictment timely filed. The District court concurred with the trial court’s conclusion that the key issue in this case was when Fox ceased to be a public servant for purposes of statute of limitations considerations. The District court found that, because the two-year statute of limitations governing this matter commenced on September 6, 2012, the March 11, 2015, indictment was filed approximately seven months after the expiration of the controlling statute of limitations.
Eighth District Court of Appeals finds that an administrative appeal is moot when a student graduated timely and expulsion was not referenced in the student’s permanent record.
Burton v. Cleveland Hts.-Univ. Hts., 2016-Ohio-2841.
http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2016/2016-Ohio-2841.pdf
In November 2014, the plaintiff (Burton), then 18 years old, attacked two younger students (brothers) walking home from school. Burton was arrested, charged for the incident, and pled guilty to the felonious assault. The next day, the high school principal suspended Burton for 10 days and recommended expulsion based on video evidence of the incident. At that time, notice of the suspension was sent to Burton and his mother. Burton never appealed the principal’s decision to suspend and recommend expulsion to the school board (Board). Burton served the 10-day suspension and the letter was placed in his student record without objection.
Notice of the expulsion hearing was sent to the Burton family. During the expulsion hearing, Burton, for the first time, claimed that the older of the two brothers he attacked had on previous occasions bullied Burton. Although there were no previous reports or allegations, the school district took the allegation seriously and investigated it. The principal could not find any evidence to support Burton’s claim, so no further action was taken. On December 1, 2014, the school district expelled Burton for 72 days, but held the expulsion in abeyance as long as Burton complied with an education placement plan set to commence on December 12, 2014.
Burton appealed the school district’s decision to expel him on December 11, 2014. The appeal went forward on February 27, 2015, when Burton declined to present a case in favor of his appeal after cross-examining the school district’s witnesses. The hearing officer who heard the appeal concluded that even if bullying had occurred, Burton’s attack was an unwarranted and blatant violation of the district’s anti-fighting policy. The expulsion was affirmed and held in abeyance with the goal to allow Burton to continue earning credits toward graduation requirements. Burton followed the plan and timely graduated from high school. He later filed an administrative appeal to the trial court, which was dismissed as moot in light of the fact that Burton graduated from high school.
Burton then appealed, citing continuing harm from the expulsion being noted on his academic records or, in the alternative, that the issue presented a debatable constitutional question or matter of great public interest. The court noted that Burton was not appealing the district’s policy or authority to enforce the anti-fighting policy, which could potentially have created a debatable constitutional consideration.
The court concluded that if the student’s education was not interrupted or delayed by the sanction and there was no evidence that it was referenced in the student’s permanent record, any administrative appeal was moot following the student’s graduation. Alternatively, if the student had already graduated, but the sanction was referenced on his permanent school record, an administrative appeal was not moot.
In this case, the court noted, Burton served a short out of school punishment with no educational detriment, and while the suspension notice letters were included in his permanent student record, Burton did not demonstrate that his permanent school record included reference to the expulsion. Therefore, the court found the administrative appeal to be moot.
Ohio court of appeals affirms board of tax appeal’s decision that sale of a property to a taxpayer was an arm’s-length transaction.
Columbus City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 2016-Ohio-4554.
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2016/2016-Ohio-4554.pdf
Since 2005, First Impressions Collision, Inc. has operated an automobile collision repair business at a building located in the Columbus City School’s taxing district. First Impressions leased the property from Frazier Development. In 2012, Frazier informed First Impressions that it intended to sell the property and would sell the property for a sales price of $1,325,000 (less $260,000 for personal property). First Impressions agreed to purchase the property at that price and the property was transferred in March 2012.
The Franklin County Auditor originally assessed the value of the property at $550,000. The board of education of the Columbus City Schools filed a complaint with the Franklin County Board of Revision (BOR) seeking to increase the valuation of the property from $550,000 to the sales price of $1,065,000.
In April 2014, the BOR held a hearing regarding the valuation of the property. The BOR issued a decision in which it valued the property at $550,000. The BOR found that the sale of the property was not an arm’s-length transaction because “compelling business circumstances” negated the arm’s-length nature in the case. As support, the BOR highlighted First Impressions’ statement that had it not remained on the property, it would have had a negative effect on business and possibly closed the business. The board of education appealed and, in May 2014, the board of tax appeals (BTA) determined that the April 2012 sale was both recent and an arm’s-length transaction and, therefore, the property’s value was $1,065,000. First Impressions appealed.
The court held that the best evidence of the true value of real property is “an actual, recent sale of the property in an arm’s-length transaction.” The court affirmed BTA’s determination that the sale was an arm’s-length transaction. The court found no evidence that the purchase price was inflated or that lenders refused to finance the sale. An appraisal report also supported the purchase price. The court held that the fact that the property had not been listed in the open market did not negate the arm’s-length nature of the transaction.
Ohio Supreme Court finds that board of education was not entitled to rely on the auditor’s valuation as a default value, when a building owner presents evidence of an appraised value adopted by the board of revision.
Dublin City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, Slip Opinion No. 2016-Ohio-3025.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-3025.pdf
This case addressed the tax year 2010 valuation of a two-story office building with a bank branch in half of the lower floor. The auditor valued the property at $2,205,000, and the property owner (owner) filed a complaint seeking a reduction to $1,500,000. At the board of revision (BOR) hearing, the owner presented an appraisal report and testimony of a state-certified general appraiser who valued the property at $1,000,000 for 2010. The Dublin City Schools Board of Education (Board) cross-examined the appraiser. Ultimately, BOR adopted the value for 2010 and carried it over to 2011, causing the Board to appeal. At the Board of Tax Appeals (BTA), failed to produce new evidence, but argued that flaws in the appraisal made it not probative and that BTA should revert to the auditor’s original valuation of the property. The Board also argued that the reduced valuation shouldn’t have been extended to tax year 2011, since 2011 was a reappraisal year outside the triennium. The BTA affirmed the BOR’s determination for tax year 2010, but vacated it for tax year 2011 on the grounds that carryforward did not apply to a reappraisal year. The Board again appealed arguing that the BTA should revert to the auditor’s original valuation.
The Ohio Supreme Court noted that this case presented a straightforward application of the Bedford rule, which comes from Bedford Bd. of Edn. V. Cuyahoga Cty. Bd. of Revision, 115 Ohio St.3d 449, 2007-Ohio-5237, 875 N.E.2d 913. The Bedford rule states that “when the BOR has reduced the value of the property based on the owner’s evidence, that value has been help to eclipse the auditor’s original valuation and the Board as an appellant before the BTA may not rely on the latter as a default variation.” Therefore, the BOR’s adoption of a new value based on the owner’s evidence shifted the burden to the Board on appeal to the BTA. The Bedford rule essentially provides that BOR’s reduced value becomes the default valuation of property and the burden shifts to the Board to prove a new value, regardless of whether that new value is the auditor’s original valuation or some other value.
In its application of the Bedford rule, the court applied the facts to each of four necessary rule elements. First, the property owner either filed the original complaint or filed a counterclaim. In this case, the owner filed the initial complaint. Second, the BOR ordered a reduced value based on competent evidence offered by the owner. Third, the board of education was the appellant before the BTA. The rule does not apply when the auditor was the appellant. And finally, the BOR’s determination of value was based on appraisal evidence rather than sale price offered as property value. The Bedford rule does not apply where the issue is whether sale price established the property’s value.
The Board first argued that BTA could not ever adopt a real property valuation without probative evidence in the record supporting its determination. The court then noted that this causes an issue in situations when such evidence is lacking. The Board then went on to argue that BTA should have reverted to the auditor’s valuation, even though no probative evidence supporting that valuation existed in the record. In making this argument, the Board essentially negated its own proposition of law.
The court went on to note that the ultimate issue in this case was not which evidence was more probative, but rather, which value served as the default when the Board is the appellant. In this case, because BOR ordered the reduction based on competent evidence, the Board was then assigned the burden of proof before the BTA to show a value different from the BOR-determined value. The Board argued that there were several issues with the appraisal. The Supreme Court determined that the appraisal concerns cited by the Board were matters of expertise of the appraiser, the BOR and the BTA as fact-finders, and therefore, affirmed the BTA’s decision.
Court holds that, in the absence of demonstration of an arm’s length transaction, absolute auction sale price was not competent evidence of a property’s value and could not be relied upon to determine true value of the property.
Brecksville-Broadview Heights Bd. of Educ. v. Cuyahoga County Bd. of Revision, 2016-Ohio-3166.
http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2016/2016-Ohio-3166.pdf
Appellant TMMC Ohio, L.L.C. (TMMC) appealed a decision of the Cuyahoga County (county) Board of Tax Appeals (BTA) regarding the valuation of commercial property owned by TMMC. In March 2012, TMMC purchased the property at an absolute auction for $368,500. For tax year 2012, the county fiscal officer assigned a total value of $729,200 to the property. TMMC filed a complaint with the county Board of Revision (BOR) against the valuation of the property and sought to have the property’s true value for tax purposes set at the price it paid for the property at auction. The Brecksville-Broadview Heights Board of Education (board of education) filed a counter-complaint seeking to maintain the fiscal officer’s valuation.
Following a hearing, the BOR reduced the true value of the property to $368,500. The BOR indicated that TMMC had provided testimony and evidence demonstrating that its purchase of the property was an arm’s length transaction, which supported revision of the tax value of the property to the purchase price.
The board of education filed an appeal with the BTA, arguing that the purchase price of the property at an absolute auction was not a legal basis for reducing the property’s value. The BTA concluded that there was insufficient evidence to demonstrate that the auction sale was an arm’s length transaction and that the BOR’s reliance on the auction sale price was improper. It reversed the BOR and reinstated the county fiscal officer’s valuation.
The court stated that its review of the BTA’s decision was limited to whether the decision was reasonable and lawful, and that it would defer to the BTA’s factual findings provided that they were supported by reliable and probative evidence in the record. The issue before the court was whether the BTA acted reasonably and lawfully when it concluded that there was insufficient evidence that the auction sale was an arm’s length transaction, reversed the BOR’s decision, and reinstated the county fiscal officer’s original valuation.
The court reviewed RC 5713.04, requiring taxing authorities to presume that an auction sales price is not a voluntary arm’s length transaction unless evidence was presented to rebut that presumption. The court focused on whether TMMC presented any evidence to assert that the auction sale of the property was an arm’s length transaction in which both buyer and seller were typically motivated and pursuing their own financial interests. It relied on three relevant factors, identified by the Ohio Supreme Court—whether the: (1) sale was voluntary; (2) sale took place in an open market; and (3) buyer and seller acted in their own self-interest.
The court concluded that theBTA acted reasonably in concluding that TMMC presented insufficient evidence to rebut the presumption that the absolute auction sale was not arm’s length. The court relied on the third of the three factors and stated that TMMC did not provide sufficient evidence that the seller in an absolute auction, with no indication that the seller had the right to refuse to sell or to reject a bid, was acting in its own self-interest. The court upheld the BTA’s decision to fix the value of the property at the amount assessed by the fiscal officer.
Appeals court upheld dismissal of teacher’s administrative appeal regarding the denial of her application for a five-year teaching license.
Jackson v. Ohio Dept. of Edn., 2016-Ohio-2818.
http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2016/2016-Ohio-2818.pdf
Plaintiff Jackson was a licensed elementary school teacher who taught first grade. In September 2014, the State Board of Education (board) issued a resolution denying Jackson’s application for a five-year elementary teaching license until September 2015. On October 3, 2014, the Ohio Department of Education (ODE) sent Jackson a letter, via certified mail, informing her of her right to appeal the board’s decision. The letter included a copy of the action taken by the board and a timetable for appeal.
Jackson filed her administrative appeal with the Summit County Court of Common Pleas on October 30, 2014. ODE filed a motion to dismiss asserting that the common pleas court lacked jurisdiction because the appeal was not filed within 15 days as required by law. The common pleas court dismissed Jackson’s appeal on these grounds.
In her appeal, Jackson claimed that the board failed to give proper notice of its action because the board’s resolution required that the Superintendent give her notice. She argued that, because the ODE notice did not come from the Superintendent, it did not comply with the board’s resolution. Jackson argued that, as a result, the time to file her appeal had not begun to run. The court, relying on the version of RC 119.12 in effect at the time ofJackson’s attempt to appeal the board’s decision, concluded that the law did not require any specific ODE employee to notify the plaintiff of the board’s decision. The court dismissed this argument.
The plaintiff also argued that her appeal was timely because she filed it within 15 days after service of notice was made. The court rejected this, concluding that an administrative appeal must be filed within 15 days of the mailing of the notice, as required in the statute in effect on the date of plaintiff’s attempt to appeal.
Court grants summary judgment in favor of defendant police officer and City of Warren in case involving arrest of a school employee for larceny on school property.
Zavatson v. City of Warren, E.D. Mich. No. 14-10623 (June 9, 2016).
https://docs.justia.com/cases/federal/district-courts/michigan/miedce/2:2014cv10623/288715/66
The plaintiff, Daniel Zavatson, had been a custodian for Fitzgerald Public Schools (schools) in Michigan. In November 2012, school employees reported the theft of money from two offices in the school. Following investigations by school personnel and the City of Warren Police Department, an arrest warrant on two charges of larceny was issued against Zavatson. Zavatson turned himself in, was arraigned, and was released on personal bond on January 24, 2013. One of the two charges was dismissed at the conclusion of a preliminary hearing in March 2013. The second charge was quashed in May 2013.
Zavatson brought 42 U.S.C. 1983 claims, and state claims of false arrest and false imprisonment, malicious prosecution, abuse of process, gross negligence, and intentional infliction of emotional distress, against the City of Warren and Police Officer Donald Seidl in connection with his arrest. Zavatson also filed claims against the Fitzgerald Public Schools, Fitzgerald Board of Education, and five school employees (the school defendants) in connection with the investigation, arrest, and his later termination. The court considered separate summary judgment motions filed by the Zavatson, the City of Warren and Officer Seidl, and the school defendants.
The court granted summary judgment for Seidl and the city on the plaintiff’s 42 U.S.C.1983 claims on the basis that the police officer had qualified immunity and had not made, influenced or participated in the decision to prosecute the plaintiff. The court also granted summary judgment for Seidl and the city on all of the state claims. At the same time, the court denied the Zavatson’s corresponding motions for summary judgment on these claims.
The court will address the remaining motions for summary judgment, filed by or involving the school defendants, separately.
Ohio district court holds district had legitimate nondiscriminatory reason for discharging teacher after her poor performance.
Jones v. Toledo Pub. Schools, N.D.Ohio No. 3:14CV911 (March 16, 2016).
https://casetext.com/case/jones-v-toledo-pub-sch
Coral Jones was hired in 2008 as a classroom teacher for Toledo Public Schools. While employed, Jones was a member of the Toledo Federation of Teachers union. The collective bargaining agreement with the union provided for an agreed-upon system of evaluating teachers entitled “the Toledo plan.”
In 2009, Jones’ principal noted his concerns about Jones’ performance in lesson planning, lesson presentation and classroom management. As a result, the principal recommended that Jones not be re-employed for the subsequent year. Jones then requested a peer evaluation as permitted under the Toledo plan. A consulting teacher observed Jones’ class twice and rated Jones’ teaching performance as unsatisfactory, documenting the same deficiencies in the same areas the principal had noted. The Intern Board of Review then reviewed Jones’ evaluations and recommended that the district not renew Jones’ teaching contract.
Jones filed a grievance with her union. The Union denied her grievance. Jones filed a charge against the union with the Ohio Civil Rights Commission (OCRC) alleging that the union discriminated against her on the basis of her race by failing to represent her. OCRC conducted an investigation and found no credible evidence supporting Jones’ allegations.
Jones also filed a charge with OCRC against the district alleging her teaching contract was not renewed because of her race and sex. OCRC found no information or records that would “raise an inference that the district unlawfully discriminated” against Jones. Jones next filed a complaint against the district in federal court.
The district court found for the district, finding that Jones did not produce evidence that she was treated differently than similarly situated, non-protected employees. It was undisputed that there was a legitimate, nondiscriminatory reason for Jones’ discharge. Jones’ principal, a peer evaluator, her union, the Intern Board of Review, the board of education and OCRC all deemed her performance unsatisfactory. The court found that poor performance is a legitimate reason for discharging an employee and rejected Jones’ Title VII claim.
Plaintiff’s retaliation claim fails because court finds that Board was seeking to decrease expenses by elimination of administrative positions.
Crawford v. Notar, 2016-Ohio-3010.
http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2016/2016-Ohio-3010.pdf
Plaintiff John Crawford (Crawford) filed suit again the Warren City School District Board of Education (Board) and superintendent Michael Notar (Notar) on August 11, 2014, alleging unlawful discriminatory practices and that his employment was terminated in retaliation for his complaint of race discrimination related to his salary. Crawford is an African-American male who began working for the Board in November 2007. In early February of 2013, he found out that his Caucasian counterparts were being paid more than he was. He alleged that he complained about the salary inequity to Notar in early February 2013, and a meeting to discuss the situation was scheduled for February 13, 2013, but Notar canceled that meeting. In March 2013, Notar recommended that Crawford’s position be eliminated and Crawford argued that this was done in retaliation for his salary inequity complaint. Crawford also noted that, in January 2013, after meeting with Notar about his complaint, Crawford received a letter from the assistant superintendent dated January 30, 2013, that, effective February 4, 2013, he should report to a different building each work day and would no longer report to his office in the administration building.
Notar testified that when he interviewed with the Board for his position as superintendent in 2012, he told the Board he would submit a plan for elimination of both administrative and teaching positions in order to reduce expenditures. He and the Board began discussions in August or September 2012 to determine which administrative positions should be eliminated, and Notar recommended the elimination of five positions. Of the five positions, Crawford was the only African-American employee, with three positions being held by Caucasian employees and the final position being held by an Indian employee. The Board decided to wait until the spring of 2013 to eliminate the five positions, but the associate superintendent changed her plans and announced her retirement at the end of December 2012, so the board decided to eliminate one of the five positions in conjunction with the associate superintendent’s retirement.
Several board members testified and confirmed Notar’s account of the events leading up to Crawford’s termination. The treasurer also recommended to the board the elimination of positions to address the district’s poor financial condition.
The court applied a four-prong test under which, to establish a claim of retaliation, a claimant must prove that: (1) he/she engaged in a protected activity, (2) the defending party was aware that the claimant had engaged in that activity, (3) the defending party took an adverse employment action against the employee, and (4) there is a causal connection between the protected activity and adverse action. The court noted that a plaintiff must show that retaliation is the determinative factor, not just a motivating factor in the employer’s decision.
Here, Crawford argued that there was no evidence of Notar proposing elimination of specific positions in the Board’s meeting minutes in 2012. The court noted that the Board meeting minutes confirmed that, at several board meetings in the fall of 2012, executive sessions were called to discuss “Consideration of Appointment, Employment, Promotion, etc. of Public Employees.” Crawford also argued that the Board was vicariously liable for the retaliatory actions of its employee, due to Notar’s recommendations as he alleged being related to Crawford’s salary complaint. The court found that in this case, there was no evidence that the Board had any knowledge of Crawford’s salary complaint or that it was motivated by anything but economic considerations when it terminated Crawford’s contract. Therefore, the court affirmed the judgment of the Trumbull County Court of Common Pleas-, granting summary judgment in favor of Notar and the Board.