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Are we required to offer a coaching position to a teacher before hiring a non-licensed individual?

Wednesday, May 12th, 2010

Yes.  The general rule is that boards must first offer the opportunity to direct, supervise, or coach a pupil activity program to qualified, licensed individuals in the district (RC 3313.53).  Boards of education are permitted to employ non-licensed individuals who have pupil activity permits to direct, supervise, or coach a pupil activity program, but only if the board passes a resolution that outlines two things.  First, the resolution must outline that the board has offered the position to a licensed individual in the district and that no one qualified has applied for or accepted the position.  Second, the resolution must outline that the board has offered the position to other licensed individuals not employed by the district and that no one qualified has applied for or accepted the position.

A board’s decision as to who is “qualified” to run the program is generally subject to deference and will not be overturned absent an abuse of discretion.  With that said, if a board of education decides to employ a non-certified person over a certified employee who is both qualified and who has expressed an interest in the position, the board should have reasonable justification for its determination.

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Are members of the governing board of a community school subject to the Ohio Ethics Law and related statutes?

Monday, May 3rd, 2010

Yes. On April 22, 2010, the Ohio Ethics Commission (OEC) issued Advisory Opinion No. 2010-01 regarding the application of the Ethics Law to community school officials. All governing boards of community schools are required to sign contracts agreeing to be bound by RC Chapter 102 and Section 2921.42. Because governing boards of community schools are agents of public agencies, the governing board members are also subject to RC 2921.43.

All officers and employees of a community school are also subject to the revolving door, confidentiality, conflict of interest, representation, public contract, and supplemental compensation restrictions in the Ethics Law and related statutes. Teachers who do not perform and have no authority to perform supervisory or administrative functions are exempted from revolving door and conflict of interest prohibitions.

What prompted this new opinion? The OEC first considered this question in Advisory Opinion No. 2003-01. At that time, the law that governed the application of the Ethics Law to community school officials and employees included several exceptions. Recently, the law was amended and the exceptions were removed. The Commission issued this opinion to make certain that all community school officials and employees subject to the law were aware of the statutory changes. This opinion specifically overrules the conclusions in Advisory Opinion No. 2003-01 regarding limits on the application of the Ethics Law and related statutes.

A copy of Advisory Opinion No. 2010-01 can be found at http://www.ethics.ohio.gov/opinions/2010-01.html.

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I have received a public records request for information related to the district’s curriculum. What am I required to provide?

Wednesday, April 28th, 2010

A number of districts have received public records requests asking for specific information relating to the curriculum that is being provided in the district. Please keep the following points in mind when complying with these requests:

  • Trade secrets are exempt from the Public Records Act. Trade secrets are defined in R.C. 1333.61(D) and includes information that gets its value from the fact that it is not generally known or readily ascertainable by other people who can obtain economic value from the information’s disclosure or use. In order to be considered a trade secret, the district must make reasonable efforts to maintain the information’s secrecy.  In determining whether your district’s curriculum falls within the trade secret exemption, consider the following factors: 1) the extent to which the information is known outside the district; 2) the extent to which it is known to those inside the district (i.e. by employees); 3) the precautions taken by the district to guard the secrecy of the information; 4) the savings effected and the value to the district in having the information as against competitors; 5) the amount of effort or money expended in obtaining and developing the information; and 6) the amount of time and expense it would take for others to acquire and duplicate the information. State ex. rel. Perrea v. Cincinnati Pub. Schools, 123 Ohio St. 3d 410, 2009-Ohio-4762.

  • Copyright laws may limit a district’s ability to provide copies of textbooks, DVDs, and other protected materials. Educators are permitted to reproduce materials for classroom use in limited circumstances. In general, the reproduction of materials for other uses and copies of “consumable” items like workbooks, exercises, standardized tests, and answer sheets are protected by copyright laws and may not be copied without obtaining permission from the copyright holder. While you may offer available textbooks and DVDs to the requester at cost, districts should be cautious of making copies of the materials without first acquiring either a license to reproduce the materials or permission from the copyright holder.

  • A compilation of information must already exist before access to it will be ordered. Boards have no duty under the Public Records Act to create a new document by searching for and compiling information from its existing records. Although boards may elect to complete surveys, questionnaires, and other similar documents, they are not required to do so under the Public Records Act. The district should explain how such information is kept, and what records the requester would need to compile the information on their own.

  • A public office is under no duty to create a record to respond to the request. For example, if the district’s processes are not recorded, but rather originated as the result of an unrecorded verbal communication, the district is not required to create a record documenting that process.

  • A public office may charge costs for copies and for delivery of the information. Districts may charge only the actual costs of supplies used to make the copies and for postage, packing supplies, and other actual costs associated with the method of delivery or transmission chosen by the requester. The cost of employee time cannot be included in the cost of copies or delivery. The district may require payment of costs in advance.

  • A public office is not required to provide an estimated response timeline. When a public records request is made, the public office must “promptly prepare” the records and provide copies “within a reasonable period of time.” There is no standard amount of time by which copies of the records must be given. Districts should be cautious about promising timelines for requests. Failure to meet a self-imposed deadline can lead to statutory damages. Districts should instead offer to call or email the requester when the records are ready to be picked up.

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Who is eligible for the health insurance coverage expansion to age 28?

Tuesday, April 13th, 2010

HB 1, which became effective in October 2009, requires insurers, Multiple Employer Welfare Arrangements (MEWAs), health insuring corporations (HICs) and public employee benefit plans to offer parents the opportunity to purchase health care coverage for their children up to age 28. This new opportunity must be provided for all policies or contracts issued or renewed, and plans established or modified, on or after July 1, 2010.

Who is eligible? To receive benefits up to age 28, the unmarried child must be:

  1. the natural child, stepchild, or adopted child of the employee;
  2. an Ohio resident OR a full-time student at an accredited public or private institution of higher education;
  3. not employed by an employer that offers any health benefit plan under which the child is eligible for coverage; and
  4. not eligible for coverage under Medicaid or Medicare.

The coverage expansion applies to the following types of coverage:

  1. group policies that include coverage for dependents, including COBRA and state continuation coverage
  2. individual policies that include coverage for dependents, including conversion, open enrollment basic and standard plans
  3. coverage issued by insurance companies, MEWAs, HICS or public employee benefit plans.

The coverage expansion does not apply to self-insured ERISA plans. It is also important to note that the older age child does not have to live with the parent, be financially dependent upon the parent, or be a student.

Have questions? All technical questions regarding the coverage expansion to age 28 should be directed to the Ohio Department of Insurance (ODI), Product Regulation Division at (614) 644-2644. Also, visit the ODI Web site at www.insurance.ohio.gov for a copy of the Coverage Expansion FAQ issued March 18, 2010.

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How do we handle FMLA for teachers who request leave at the end of a school year?

Tuesday, April 6th, 2010

There are special rules in place for teachers and other instructional employees who take leave under the Family and Medical Leave Act (FMLA) at or near the end of the school year.  The federal regulations contemplate three different scenarios, depending on when the employee takes the leave.

  • More than 5 weeks until summer. If an employee begins FMLA leave more than five weeks before the end of the term, the district may require the employee to continue taking leave until the end of the term if the leave will last at least three weeks and the employee is ready to return to work during the last three weeks of the term.
  • 3-5 weeks until summer.  If an employee begins FMLA leave at some point during the last five weeks of the term, the district may require the employee to continue taking leave until the end of the term if the leave will last more than two weeks and the employee is ready to return to work during the last two weeks of the term.
  • 3 weeks until summer.  If an employee begins FMLA leave at some point during the last three weeks of the term, the district may require the employee to continue taking leave until the end of the term if the leave will last more than five working days.

For example, if an employee plans two weeks of leave to care for a family member which will begin three weeks before the end of the term, the employer could require the employee to stay out on leave until the end of the term.

Under all three sets of rules, only the leave the employee needs to use shall be charged against the employee’s FMLA leave entitlement. In the example provided, only the two weeks of leave should be counted as FMLA leave. However, the employee maintains the right to group health insurance and job restoration during the entire three weeks of leave.

Finally, there may be situations where a teacher’s need for FMLA will start at the end of the school year and carry over to the beginning of the next school year. In those cases, the period during the summer vacation when the employee would not have been required to report for duty is not counted against the employee’s FMLA leave entitlement.

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Can we withhold the grades of students who haven’t paid their fees?

Tuesday, March 2nd, 2010

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.

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Can we offer our board members free admission to school-sponsored events (sporting events, music concerts, etc)?

Friday, January 15th, 2010

Boards are generally permitted to adopt a resolution to grant board members free admission to school-sponsored events, but should be cognizant of the relevant ethics laws and the potential for appearances of impropriety.

The Ohio Revised Code prohibits public officials, including school board members, from using their office to solicit or accept things of value from those parties they regulate or with whom they do business.  The Ohio Ethics Commission provides general guidance on accepting gifts, meals, entertainment or other things of value in Information Sheet #7, which is available online at http://links.osba-ohio.org/89545/.  As the guidance suggests, the facts and circumstances of each situation determine whether a gift, meal, entertainment or other thing of value could have a substantial or improper influence upon an official in the performance of his or her duties.

In these types of situations, there is a strong public purpose argument behind providing board members with free admission since it enables them to more knowledgeably perform their duties as they relate to overseeing the activities of the school district.  As a result, permitting board members to attend school-sponsored events free of charge is generally permissible, but may give rise to the appearance of impropriety.  Districts that elect to grant board members free admission to school-sponsored events should limit the complimentary passes to the actual board member.  There is generally no reasonable justification or public purpose argument for giving board members a family pass or additional free passes for friends.

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May a school district charge students transportation costs for field trips?

Friday, June 5th, 2009

With foreclosures and the economy affecting school districts across the state, many districts are looking at ways to save money.  One question recently raised was whether a district could pass along transportation costs for field trips to students and parents.

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Can we buy a “jammer” to cut cell phones in certain areas of a school?

Friday, May 15th, 2009

So-called “jammers” block the signals of telecommunications devices so
that they do not function in certain areas. Given the proliferation of cell phones in schools, many educators would love to have an “off” switch they could flip in classrooms or during testing periods.
The Federal Communications Commission (FCC) takes the position
that the use of jammers violates the Communication Act of 1934. Its Web site states:

“The operation of transmitters designed to jam or block wireless communications is a violation of the Communications Act of 1934, as amended (”Act”). See 47 U.S.C. Sections 301, 302a, 333. The Act prohibits any person from willfully or maliciously interfering with the radio communications of any station licensed or authorized under the Act or operated by the U.S. government. 47 U.S.C. Section 333. The manufacture, importation, sale or offer for sale, including advertising, of devices designed to block or jam wireless transmissions is prohibited. 47 U.S.C. Section 302a(b). Parties in violation of these provisions may be subject to the penalties set out in 47 U.S.C. Sections 501-510. Fines for a first offense can range as high as $11,000 for each violation or imprisonment for up to one year, and the device used may also be seized and forfeited to the U.S. government.”

While the ability to shut down telecommunications in some areas of school buildings would be a huge help to many districts, given the FCC’s position, districts are discouraged from purchasing these  jammers or similar technology for use in schools.  Maybe it’s time for Congress and the FCC to reconsider this position…

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What’s the penalty for destruction of records?

Friday, April 10th, 2009

RC 149.351 prohibits the removal, destruction, mutilation, transfer,  damaging or disposal of public records except as permitted by law.  The law allows a school district to dispose of records only in accordance with its records retention schedule adopted by its records commission. The penalty in this statute is that a person who is harmed by the improper records destruction can sue and obtain $1,000 per destroyed record and attorneys’ fees.

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