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.

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.

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.

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.

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.

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.

This spring, the United States Supreme Court will hear the case of City of Ontario v. Quon, which questions whether the Fourth Amendment protects the privacy of text messages that a government employee sends by electronic device.

In 2001, the city of Ontario, California distributed pagers to a number of the employees in its police department. Jeff Quon, a member of the department’s SWAT team, received one of the pagers. The city had no official policy governing use of the pagers, however, the city did have a general “Computer Usage, Internet, and Email Policy” that limited the use of city-owned equipment to city business. The policy also provided that the city maintained the right to monitor and log network activity with or without notice and that there was no expectation of privacy when using city email or the Internet. Quon attended a meeting during which the police department informed those present that pager messages would fall under the city’s policy as eligible for auditing. The city also set up an informal policy governing the use of the pagers. Each pager was allotted 25,000 characters, after which the individual was required to pay overage charges. So long as employees agreed to pay for any overages, the police department made it clear that they would not audit the pagers. In August 2002, Quon exceeded the 25,000 character limit by over 15,150 characters. The chief of police requested the transcript of the pager for auditing purposes. The company responsible for contracting out the pagers voluntarily disclosed the transcripts to the city without notifying Quon. The transcripts showed that a number of Quon’s messages were personal in nature and many of them were sexually explicit.

In response to the search, Quon filed suit against the police department, claiming that the search violated his rights under the Fourth Amendment. The district court held that, in light of the informal policy that the pager would not be audited so long as the user paid the overage charges, Quon had a reasonable expectation of privacy in his text messages. The court held that the police department’s liability hinged on whether the city’s intent was to uncover misconduct or to discover the usefulness of the usage limit. If it was the former, the search was unreasonable; if it was the latter, the search was reasonable. A jury found that the police chief’s intent was to determine the usefulness of the character limit. Therefore, the search was reasonable and the city was absolved of liability for the search.

The Court of Appeals for the Ninth Circuit reversed, holding that the city employees had a reasonable expectation of privacy for the text messages they sent because there was no formal text message privacy policy in place. The court also noted that the police department’s review of the text messages was unreasonable in its scope because the department could have used “less intrusive methods” to determine whether employees had properly used the text messaging service.

The United States Supreme Court has been asked to review two questions: 1) whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy, but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers; and 2) whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.

The National School Boards Association has filed an amicus brief (also known as a “friend of the court” brief) in the case, citing concerns with the Ninth Circuit’s holding that an unauthorized informal policy can create an expectation of privacy in workplace electronic communications, despite an official policy to the contrary and the public nature of the communication under public records laws. This ruling, they claim, “eviscerates a school district’s ability not only to efficiently and effectively manage the workplace, but also to ensure the health, welfare and safety of its students.”

The United States Supreme Court is expected to hear arguments in the case in the spring and issue a decision by the end of June 2010.

In the case of Lowery v. Jefferson County Bd. of Educ., a high school football coach from Jefferson County High School in Tennessee dismissed three students from the football team for challenging his leadership. After the students’ parents were unsuccessful with their complaints to school officials, they addressed their concerns to the Jefferson County Board of Education.

The Jefferson County Board of Education had a policy in place that allowed an individual to apply to speak for five minutes at a board meeting, so long as the individual’s appearance was “not frivolous, repetitive, nor harassing.” The board granted the parents’ initial application to speak. The parents then requested another speaking spot at the next scheduled board meeting. This time, the board denied the request pursuant to their policy, finding the parents’ request to be both repetitive and harassing. The parents sued, claiming that the board deprived them of their First Amendment rights by refusing to allow them to speak at the second board meeting.

Both the District Court and the Sixth Circuit Court of Appeals found for the board, ruling that the board meeting was a limited public forum and that the board’s denial of the parents’ opportunity to speak was a time, place, and manner restriction that was content-neutral and narrowly tailored to serve a significant governmental interest. The Court held that the board’s ban on repetitive presentations was content-neutral because it had nothing to do with the subject of an individual’s proposed speech and everything to do with conducting orderly, productive meetings. The Court also felt that the policy left open ample alternative channels for the communication of the information.

It should be noted that the facts of this case initiated in Tennessee, so the application of its ruling may be limited in Ohio courts. With that said, Lowery seems to suggest that school boards may establish content-neutral rules that restrict public participation in order to better facilitate efficient and orderly board meetings. We encourage boards to review their policies to ensure they have given themselves the latitude to prevent unnecessary disruptions to the productivity of board business. We also encourage boards to take care to implement these policies in a content-neutral fashion.

On January 1, 2010, changes became effective regarding background check requirements for licensed educators in Ohio. For initial applicants for a license, the requirements are the same: initial applicants for a license must complete both an Ohio criminal background check (BCII) and an FBI criminal background check. These checks need to be less than 365 days old to be considered valid for licensing purposes.

However, HB 1 modified the requirements for educators who need to renew a license or permit. Prior to HB 1, educators who renewed a license or permit needed to complete both the BCII and FBI checks whenever they renewed. After HB 1, however, educators who are renewing a license or permit who have lived continuously in the State of Ohio for the previous five years, and have a BCII background check on file with ODE, will need to complete only an FBI criminal background check once every five years. This makes some sense. BCII has a “rap-back” database that is designed to continuously check SSNs against arrests and conviction reports across the state. Because this database runs a continuous check, there is no longer a need for a separate check on a periodic basis.

Educators who have not lived continuously in the state for the past five years will still need to complete both a BCII and FBI background check.

ODE has posted a website of frequently asked questions regarding to Background Check Requirements, which is available online at: http://links.osba-ohio.org/88873/

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.