Voting for Oneself for Presiding Office
Table of Contents
April 2022 Voting For Oneself For Presiding Officer
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Can a Principal be Held Liable for Excessive Force Used by a School Resource Officer?
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City May Not Delete Public Comments from Facebook Using “Off-Topic” Rule
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The Special Education Team is Leading in Ohio and Beyond
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Cincinnati 1714 West Galbraith Rd Cincinnati, OH 45239 (513) 421-2540 Columbus 300 Marconi Blvd, Suite 308 Columbus, OH 43215 (614) 705-1333 Cleveland 6000 Lombardo Center, Suite 120 Cleveland, OH 44131 (246) 487-6672
The Ethics Commission for the State of Ohio issued an advisory opinion regarding the issue of voting for oneself for presiding officer. Specifically, can a member of a legislative body of a local governmental entity vote for themself to serve as presiding officer of that entity, even where they will receive additional payments? The Ethics Commission starts its analysis by noting that Section 102.03 of the Ohio Revised Code generally prohibits a public official from participating in a public agency’s decisions that could result in a financial benefit for the official. Importantly, the benefit received by a public official for serving as presiding officer is a thing of value for purposes of Section 102.03 of the Ohio Revised Code. While this may seem to bar voting for oneself, the Ethics Commission determined that the benefit received by a member for serving as the presiding officer is not “of such a character as to manifest a substantial and improper influence upon the public official,” since the entities at issue may be required to elect a presiding officer and all members may participate in determining who is the presiding officer. The Ethics Commission also found that the unique nature of the elections at issue ensures that no external conflicts of interest influence the process. An additional area of consideration was the matter of the increase in pay associated with the additional duties of a presiding officer. The Ethics Commission has issued several formal advisory opinions regarding pay increases for public officials. Generally, the Commission has concluded that Section 102.03 of the Ohio Revised Code prohibits a council member from voting on or receiving an in-term increase in compensation for the office they currently hold. However, in this case, the public official is not receiving an in-term pay increase so long as the benefit is determined prior to their election to the position of presiding officer. Under such circumstances, there is no prohibition for the public official, if elected to the position, accepting the higher rate of pay for serving in the new position of presiding officer. What Does This Mean for Your District? In short, members of a legislative body of a local governmental entity are not prohibited from voting to elect themself to serve as a presiding officer of that entity, provided that the amount of any additional payment for this service is set prior to the vote.
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Can a Principal be Held Liable for Excessive Force used by a School Resource Officer? A California student recently sued a principal under 42 U.S.C. § 1983 for violating the Fourth and Fourteenth Amendments for battery, intentional infliction of emotional distress, and negligence. The student, who is on an IEP due to learning disabilities and ADHD, was sent to the principal’s office for allegedly being disruptive in class. As a result, the school resource officer (SRO) was summoned to intervene. While waiting for the SRO to arrive, the student asked the principal if he could call his mother and was granted permission so long as he stayed in the office and did not move into the hall, as he initially requested. Upon his arrival, the SRO asked the student to hang up the phone, despite telling him he was on the phone with his mother. The SRO took the cell phone by force, violently pulling the phone away and forcing him against a counter before handcuffing him. By this time, additional City police officers had arrived on scene and participated in “verbally intimidating” behavior towards the student. As the final authority over student discipline, the principal was present in the office and witnessed the actions taken by the SRO against the student, but did not take any action to intervene. As a result, the student filed suit against the principal for tacitly approving of the “battery” and allegedly placing the student in danger by failing to protect him from harm by a SRO acting under their authority. The principal argued that the suit was brought against him in his official capacity. Under California law, school officials sued in their official capacities are arms of the state and thus, entitled to Eleventh Amendment immunity. However, the court found he was being sued in his individual capacity since in federal court, § 1983 claims are generally presumed to be brought as individual capacity claims and the plaintiff expressly clarified there are no official capacity claims against the principal. The principal further argued that the student failed to plead facts that would establish a claim based on excessive force since he did not use any force himself, and he cannot be held liable under a supervisory liability theory. A supervisor may be liable under §1983 if they are personally involved in the constitutional deprivation, or there is a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Because they are employed by different entities, the principal could not instruct the SRO to disregard criminal conduct on campus, and therefore, it was unlikely that he could control the SRO’s actions. The court, therefore, found that the principal was not the officer’s supervisor and could not direct the officer’s law enforcement conduct. Regarding the student’s negligence claim, they must prove duty, breach, causation, and damages. It is well established that school personnel owe students a protective duty of ordinary care, including protection from third parties. The student argued that the principal could have de-escalated the situation or provided support and did not. The district court dismissed the negligence claim, agreeing with the principal finding, the principal had no duty to call a student's mother when the student is summoned to the principal's office, and there is no duty to not summon a SRO. Ennis Britton April 2022
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All the claims against the principal were dismissed, but the court did grant the student leave to amend his complaint to attempt to show that the principal was given authority over the SRO through an agreement between the district and the police department, making the principal a “supervisor” and possibly liable for the SRO’s actions. What Does This Mean for Your District? While this is a California case, lessons can always be learned from the actions and litigation of others. It is unclear from the higher-level details of this case what the relationship between the school district’s administration and the school resource officer was, and to what extent the school resource officer was utilized in the school. Training can often be a very important tool with both administrators and school resource officers understanding where the individual roles of each start and stop. School resource officers can be amazing resources and additions for schools, but they are not extra administrators within school buildings. Open dialogue and training are key aspects of successful relationships between school districts and school resource officer.
City May Not Delete Public Comments from Facebook Using “Off-Topic” Rule A United States District Court issued a decision on November 22, 2021, that held that the City of Sammamish likely violated the First Amendment when it deleted certain comments attached to its public Facebook posts. The city’s Facebook page was used to post upcoming events, community updates, public safety posts, and livestream city council meetings. The city allowed, and sometimes even encouraged, the public to comment on City content. The city created rules that prohibited certain types of community comments, including comments which were “not related to the particular article being commented on.” The city’s communication team would actively delete any “inappropriate or prohibited content” which included comments that were “off-topic” of the city’s post. Several community members filed a complaint, alleging that their First Amendment rights were violated when their comments, which were critical of the city, were deleted under the “off-topic” rule. They argued that since the city had created the Facebook page and allowed public comment, it had created a “designated public forum.” In addition, the city failed to consistently enforce this rule. Plaintiffs presented examples of where “off topic” comments were not deleted from other posts. The court first recognized that the speech was considered protected speech under the First Amendment. Next, the court analyzed what level of First Amendment scrutiny to which the “off topic” rule is subject. The three main types of forums are each reviewed at different levels of scrutiny. A “traditional public forum” includes places devoted to assembly and public Ennis Britton April 2022
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debate, such as streets and parks. Government entities have very limited ability to regulate speech in these types of forums, and any rules are subject to the highest level of scrutiny, “strict scrutiny.” The second type of forum is a “designated public forum.” These forums are created by government entities for the purpose of establishing a place for public discourse. Any rules created to govern these forums are also strictly scrutinized and governments generally may not control or regulate the content of speech except for in a few narrow circumstances, such as when someone makes a threat or uses obscene language. However, unlike traditional public forums, these forums do not exist except for the government’s creation of them, and the government entity is free to close the forum at any time. Finally, the third type of forum is a “limited public forum.” These also are created by government entities and are specifically designed for discussions from specific groups or on certain topics. The government may impose reasonable restrictions in these types of forums as long as they are viewpoint neutral. Taking these factors together, the court found that the city’s Facebook page was a “designated public forum.” In this case, the city openly encouraged the public to post comments on the page; effectively creating the designated forum. As a result, the rules it passed and attempted to implement were subject to strict scrutiny review. The court determined that the city was required to show its policies regarding the deletion of comments by members of the public furthered a compelling interest and was narrowly tailored to achieve that interest. The city offered a justification that the “off topic” rule avoids distraction from and dilution of governmental posts about public safety and upcoming events; however, they fail to argue that is a compelling interest. Even if it did, while public safety may be a compelling governmental interest, the court concluded the avoidance of distraction and dilution of public safety messages did not appear to be a compelling governmental interest and its policy for deleting “off topic” comments were not narrowly tailored to meet that goal. In short, in this case the deletion of comments on posts by a government entity was found to be a violation of the First Amendment rights of the plaintiffs. What Does This Mean for Your District? If your district has a Facebook or other social media page, carefully consider whether your district’s policies for regulating or deleting comments of the public further a compelling interest and are narrowly tailored to achieve that interest for a designated public forum, or are reasonably necessary for a limited public forum. The type of forum created depends somewhat on the particular facts of the situation. And remember, district social media accounts are not required to permit public comment at all. If there are no comments, there is no forum.
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The Special Education Team is Leading in Ohio and Beyond The attorneys on Ennis Britton's Special Education Team continue to be in the national spotlight sharing guidance on legal compliance during the time of COVID. While client district student service directors may be more familiar with the webinars and coffee chats the Special Education Team has hosted throughout the pandemic, we've also been busy on the national stage, too. Erin Wessendorf-Wortman and Jeremy Neff have been interviewed for more than twenty LRP Special Ed Connection stories over the past two years. Additionally, Jeremy spoke at last year's virtual LRP National Institute and has also presented several national webinars. This month Pam Leist and Jeremy Neff will be speaking at the LRP National Institute in Louisville, Kentucky. Pam will present on career tech/vocational programs and special education compliance, as well as telehealth during the pandemic and beyond. Jeremy will address evaluation requests in the wake of COVID and extended school year compliance. The Special Education Team regularly participates in national conferences to ensure that we are able to provide cutting edge guidance to our clients, and this year's National Institute will be no different. Giselle Spencer and Hollie Reedy will also be down in Louisville this month. This year's National Institute is an easy drive for many of our clients. If you would like to join Giselle, Hollie, Pam, and Jeremy down in Louisville make sure to register today. The National Institute runs from April 24-27. Learn more and register at lrpinstitute.com. Make sure to say hello to our team if you're there.
Ennis Britton Speakers Is This Normal? Evaluation Requests When You Return to Learn Presented By: Jeremy Neff April 26; 10 a.m. & 3 p.m.
Ensuring Special Ed Legal Compliance for Career Tech/Vocational Programs Presented By: Pamela Leist April 26; 3 p.m. April 27; 8 a.m.
Tackling Telehealth Challenges During the Pandemic and Beyond Presented By: Pamela Leist April 26; 10:15 a.m. April 27; 11:15 a.m.
Ennis Britton April 2022
An Extended Review of Extended School Year Presented By: Jeremy Neff April 27; 8 a.m. & 11:15 a.m.
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Upcoming Presentations and Events Administrator’s Academy Series
BASA April Regional Meetings BASA - Hollie Reedy - April 4
December 9, 2021 – Treasurer’s Clinic
ESC of Northeast Ohio - Robert McBride - April 5
April 7, 2022 – Special Education (11 a.m. - noon)
Wood County ESC - Jeremy Neff - April 6
Complimentary for Ennis Britton Clients
Hamilton County ESC - Pamela Leist - April 8
Payment in Lieu of Transportation, Part Two
East Central Ohio ESC
February 4, 2022 – Human Resources
July 21, 2022 – Legal Update (10 a.m. - noon)
Hollie Reedy with Special Guest Pete Japikse April 7, 2022; 10 - 11:30 a.m. Registration $99
William M. Deters & Hollie Reedy - April 11
Other Notable Presentations OASBO Mentoring Program Monthly Lunch and Learn
To register, please email hreichle@ennisbritton.com.
A Closer Look at Non-Teaching Contracts John Britton; - April 21
Superintendent Meetings Brown County ESC - William M. Deters II - April 8 Butler County ESC - Ryan LaFlamme - April 14 Clermont County ESC - Pamela Leist - April 21
Ohio School Psychologists Association Spring Conference Erin Wessendorf-Wortman - April 27 Ohio Association of EMIS Professionals Annual Conference Gender and the Law
Butler County ESC - Pamela Leist - May 12
Hollie Reedy - May 2
Brown County ESC - Hollie Reedy - May 13
OSBA Board Leadership Institute
Hamilton County ESC William M. Deters II - May 13
Board-Superintendent Relations: Checking Your Alignment
Legal Updates SST Region 12 (Special Education) Jeremy Neff & Erin Wessendorf-Wortman - April 11 OESCA - Giselle Spencer - May 3 CAPE Ohio - Ryan LaFlamme & Jeremy Neff - May 5 Muskingham Valley ESC - Hollie Reedy - May 16
Ennis Britton April 2022
John Britton - May 7 Southern Ohio ESC School Counselors Roundtable Serving LGBTQIA+ Students Jeremy Neff & Erin Wessendorf-Wortman - May 12 Five County OASBO, Cuyahoga Falls Giselle Spencer - May 20
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Our Practice Ennis Britton has assembled a team of attorneys whose collective experience provides solutions for a variety of issues that school districts may encounter. From sensitive labor negotiations to complex real estate transactions, our legal experts offer the resources to ensure you remain compliant. We provide full legal representation for Ohio schools including: • Labor & Employment Law
• Construction & Real Estate
• Special Education
• Student Education & Discipline
• Workers’ Compensation
• School Finance
• Board Policy & Representation
John Britton jbritton@ennisbritton.com
Robert J. McBride rmcbride@ennisbritton.com
Gary T. Stedronsky gstedronsky@ennisbritton.com
William M. Deters II wmdeters@ennisbritton.com
C. Bronston McCord III cbmccord@ennisbritton.com
Erin Wessendorf-Wortman ewwortman@ennisbritton.com
J. Michael Fischer jmfischer@ennisbritton.com
Jeremy J. Neff jneff@ennisbritton.com
Ryan M. LaFlamme rlaflamme@ennisbritton.com
Hollie Reedy hreedy@ennisbritton.com
Pamela A. Leist pleist@ennisbritton.com
Giselle Spencer gspencer@ennisbritton.com
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