Wednesday, December 13, 2023
Shawn Jones v. Kent City School District Board of Education, Case No. 2023-0376
Eleventh District Court of Appeals (Portage County)
State of Ohio v. Michael A. Dudas, Case No. 2023-0393
Eighth District Court of Appeals (Cuyahoga County)
Christopher R. Hicks v. Union Township, Clermont County Board of Trustees, Case No. 2023-0580
Twelfth District Court of Appeals (Clermont County)
State of Ohio v. Michael Jones, Case No. 2023-0572
First District Court of Appeals (Hamilton County)
Can Teacher Be Evaluated When Not Present?
Shawn Jones v. Kent City School District Board of Education, Case No. 2023-0376
Eleventh District Court of Appeals (Portage County)
ISSUES:
- Can Ohio school districts establish their own teacher evaluation processes through a collective bargaining agreement or must districts implement the Ohio Teacher Evaluation System developed by the Ohio Department of Education?
- If a teacher evaluation process was set by a collective bargaining agreement, do courts have jurisdiction over a claim that a school district violated requirements for teacher evaluations?
BACKGROUND:
Shawn Jones has taught at Kent City Schools in Portage County for 20 years. For the 2019-2020 school year, Jones was hired in a one-year contract to teach technology at Stanton Middle School.
In October 2019, Jones was accused of leaving the building on six days that month before the end of the school day without notifying or asking permission from the school administration. The school also said he didn’t complete his duties on an early-release day and a teacher-in-service day. At a school board hearing, Jones said he left the building about five minutes early with other teachers on those days. He acknowledged leaving early on the early release and in-service dates but said he had completed his tasks. The school board suspended Jones without pay for three days.
In early January 2020, Jones missed work on a Monday. He stated he was very ill the Sunday before. He said he went into the online school system on Sunday to request a substitute teacher for the next day. After he returned to school that week, he was told that the substitute teacher request wasn’t submitted, and the class was left without a teacher. He said it became clear when he checked the system that he had accidentally selected the wrong Monday.
School Board Considers Not Renewing Teacher’s Contract
After this incident, Thomas Larkin, the assistant superintendent, notified Jones that he would be subject to an evaluation cycle based on the Ohio Teacher Evaluation System (OTES). The OTES is a framework for teacher evaluations adopted by the Ohio Department of Education. The framework and state law require the school district to complete at least three formal observations of a teacher before not renewing a limited contract, which is the type of contract Jones had. The first formal observation occurred during an in-class session on Jan. 29, 2020. The second was on May 1. Because of the COVID-19 pandemic, students were attending classes online. Jones had recorded the class lesson and provided it to the students and the evaluator. The last observation was scheduled for May 11.
Jones said he woke up early that day with heart pains and went to the hospital. His doctor advised him to take three weeks off from work. The doctor’s note for medical leave excused him from work until June 1.
The school district did its third evaluation on May 15 by observing a Google Meets session where the students shared progress on an assignment. Because Jones was out for medical reasons, he wasn’t present. The school board voted on May 19 not to renew Jones’ teaching contract for the following year. Larkin noted that under extended timelines enacted by the General Assembly during the pandemic, school districts had until May 29 to complete written reports of teacher evaluations and until June 1 to notify a teacher of nonrenewal.
Teacher Asks for Hearing
After being notified that his teaching contract wouldn’t be renewed, Jones requested an administrative hearing, which was held at the end of June 2020. The board upheld its decision not to renew the contract.
Jones appealed to the Portage County Common Pleas Court, which affirmed the school board decision. He appealed to the Eleventh District Court of appeals, which reversed the trial court. The Eleventh District ordered Jones to be reinstated and returned the case to the trial court to determine the appropriate back pay for Jones.
The school board appealed to the Supreme Court of Ohio, which agreed to review the issues.
Schools Can Determine Teacher Evaluation Process, Board Argues
The school board notes that teaching contracts are subject to a collective bargaining agreement between the school board and the Kent Education Association, which is the teachers’ union. R.C. 3319.111 also describes the teacher evaluation process for teachers on limited contracts.
The school board argues that state law allows school districts to develop their own procedures for teacher evaluations if there is no conflict with R.C. 3319.111. The school board maintains that the state legislature gives school boards and teacher unions the authority to define what “formal observation” means through the collective bargaining process. According to the board, a formal observation means visiting a class period or viewing a class lesson. Jones didn’t have to be present for the third observation, the board contends.
To properly evaluate in an appeal whether a formal evaluation was conducted, the Eleventh District had to review the collective bargaining agreement, but the court didn’t do that, the board argues. Instead, the Eleventh District concluded that the board must comply with the OTES framework, even though it is only a model for teacher evaluations, the board maintains. And the board contends that the appeals court had no jurisdiction to hear Jones’ claim because it didn’t review the bargaining agreement,
The board concludes that upholding the Eleventh District decision will limit the freedom of school districts and unions to develop and implement their own teacher evaluation processes while following state law.
Schools Can’t Violate State Law, Teacher Contends
Jones’ brief points out that the collective bargaining agreement states that it “exclusively governs” the teacher observation and evaluation processes and supersedes the procedures referenced in state law. However, as the Eleventh District concluded, the teacher evaluation process in the statute is mandatory and can’t be altered, regardless of a bargaining agreement’s terms, the brief argues.
It also states that the appeals court had jurisdiction to consider the case and had no need to review the bargaining agreement because it wasn’t relevant to the legal issue.
R.C. 3911.111 requires at least three formal observations of a teacher whose contract the board may not renew. Jones notes that the OTES framework states that a formal observation of a teacher involves observing the teacher’s familiarity how well the students understand a topic, the teacher’s ability to explain the topic, the teacher’s rapport with and feedback to students, and student behavior. The statute and the framework envision observing not only students but also the teacher as part of the evaluation, Jones maintains. He contends that the absence of a teacher prevents a full evaluation of the teacher’s ability. The board’s decision not to renew his contract is invalid because the board didn’t follow the law, he argues.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Kent City School District Board of Education: Patrick Peters, patrick.peters@jacksonlewis.com
Representing Shawn Jones: Daniel Eisenbrei, deisenbrei@milliganpusateri.com
Does Filing Delayed Appeal Impact Deadline for Filing for Postconviction Relief?
State of Ohio v. Michael A. Dudas, Case No. 2023-0393
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- For the purpose of filing a petition for postconviction relief, is a delayed appeal treated the same as a direct appeal?
- Is the time to file a petition for postconviction relief always based on the last day a direct appeal can be filed, or can it be based on a time set by a delayed appeal?
BACKGROUND:
R.C. 2953.21(A)(2)(a) establishes a 365-day time limit for filing a petition for postconviction relief. Postconviction relief is a different type of challenge to a conviction than a direct appeal. However, the timeframe to file for postconviction relief is connected to an offender’s direct appeal of a conviction.
If a defendant files a direct appeal, then the 365-day time limit for seeking postconviction relief runs from the time the trial transcript is filed with a court of appeals. If a criminal defendant doesn’t file a direct appeal, the defendant can ask for a court’s permission to file a delayed appeal. R.C. 2953.21 doesn’t define “direct appeal,” and the law doesn’t specify the procedure for filing postconviction relief petitions based on delayed appeals.
In January 2021, Michael Dudas pleaded guilty to aggravated murder and several other charges. He was sentenced to life in prison with a chance of parole in 28 to 29.5 years. A direct appeal generally must be filed within 30 days of a conviction. Dudas didn’t file a direct appeal but instead received court permission to file a delayed appeal in June 2021.
The month following approval of the delayed appeal, Dudas’ trial transcript was filed with the Eighth District Court of Appeals in July 2021. The Eighth District rejected Dudas’ direct appeal and affirmed his conviction in March 2022.
In July 2022, Dudas filed his petition for postconviction relief, claiming ineffective assistance from his trial counsel and prosecutorial misconduct. The petition was filed within 365 days of his original trial transcript being submitted in July 2021.
The trial court rejected Dudas’ postconviction relief petition without issuing written findings. Dudas appealed that decision, arguing the law required the trial judge to make such findings. The Eighth District affirmed the judge’s opinion, arguing the judge didn’t have to consider Dudas’ petition because Dudas had missed the deadline to file.
Citing R.C. 2953.21(A)(2)(a), the appeals court used Dudas’ original conviction date to start the timeline. Since he was convicted in January 2021, he had 30 days to file an appeal. Based on the appeals court calculation, Dudas had one year from February 2021 to file his postconviction relief petition. Since it was submitted in July 2022, it was five months late, and the trial court didn’t have to consider it, the Eighth District concluded.
Dudas appealed the Eighth District’s decision to the Supreme Court of Ohio, which agreed to hear the case.
Delayed Appeals Treated the Same as Direct Appeals, Offender Argues
Dudas argues the appeals court misinterpreted the law. R.C. 2953.21(A)(2)(a) states that a postconviction relief petition “shall be filed no later than three hundred sixty-five days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication.” The law further states, “If no appeal is taken,… the petition shall be filed no later than three hundred sixty-five days after the expiration of the time for filing the appeal.”
Dudas maintains the Eighth District interprets the law to only apply to the traditional direct appeal. However, he argues that a delayed appeal is actually a “delayed direct appeal.” He cites the Supreme Court’s 2008 State v. Silsby decision, in which the Court found that a delayed appeal should be treated the same as a direct appeal.
If a delayed appeal is to be treated the same as a direct appeal, then the Court need only to look at the first sentence of R.C. 2953.21(A)(2)(a). In his case, the delayed appeal was granted in June 2021, and the transcript was filed in July 2021. He then had until July 2022 to file for postconviction relief, which he did, Dudas argues. Because the law doesn’t have any specific other provision on how to treat delayed appeals, it demonstrates that lawmakers also considered delayed appeals to be delayed direct appeals, he maintains.
Law Sets One Timeline, Prosecutor Asserts
The Cuyahoga County Prosecutor’s Office supports the Eighth District’s finding, which held that the purpose of R.C. 2953.21(A)(2)(a) was to prevent endless delays in resolving cases. Because a delayed appeal can be requested and granted at any time, offenders could stall and delay challenges to their convictions for years if the filing deadline for a postconviction relief petition was based on the timeline set by a delayed appeal, the Eighth District wrote.
The prosecutor argues that when read in context with the laws surrounding the postconviction relief statute, the two sentences of R.C. 2953.21(A)(2)(a) set the timeline for filing. An offender can pursue a direct appeal, generally within 30 days of the conviction, the prosecutor explains. A trial transcript is then submitted to an appeals court, and the offender would then have 365 days to file for postconviction relief. If no direct appeal is filed, the clock starts on the last day an offender can file an appeal. Dudas’ deadline for filing a direct appeal was in February 2021, the prosecutor asserts, and Dudas didn’t file one. Under the second sentence of the law, he had until February 2022 to file his postconviction petition, and he missed the deadline, the prosecutor argues.
The prosecutor maintains that Dudas cannot add words to the law or change the meaning of direct appeal to include delayed appeals.
Friend-Of-The-Court Brief Submitted
An amicus curiae brief supporting Dudas’ position was submitted by the Office of the Ohio Public Defender.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Michael Dudas from the Cuyahoga County Public Defender’s Office: Michael Wilhelm, mwilhelm@cuyahogacounty.us
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Daniel Van, dvan@prosecutor.cuyahogacounty.us
Are Township Newsletter Distribution Lists Public Records?
Christopher R. Hicks v. Union Township, Clermont County Board of Trustees, Case No. 2023-0580
Twelfth District Court of Appeals (Clermont County)
ISSUE: Are the mailing address and email distribution lists for a township newsletter public records?
BACKGROUND:
Starting in 2005, Union Township in Clermont County began producing a quarterly newsletter that consisted solely of government generated and approved content. The newsletters are now distributed through three channels: a printed version is mailed to all residential and commercial addresses within the township; an online version is posted on the township website; and an electronic version is emailed to those who voluntarily sign up to receive it. A township employee develops the newsletter, and a township database is used to maintain the email distribution list. An outside vendor prints the newsletter and distributes it to a mailing list that the vendor procured.
Christopher R. Hicks, who subscribes to the electronic version of the newsletter, noticed that some of the newsletters were being sporadically distributed. In January 2022, Hicks submitted a public records request to Union Township, asking for the mail distribution list and the email distribution list for the newsletter. The township denied the request, stating the records were not public records.
In May 2022, Hicks filed a complaint in the Ohio Court of Claims, arguing the distribution lists were public records that he was entitled to receive. A special master for the Court of Claims determined the lists weren’t public records. The Court of Claims adopted the special master’s opinion and denied the records.
Hicks appealed to the Twelfth District Court of Appeals, which affirmed the Court of Claims’ decision.
Hicks appealed to the Supreme Court of Ohio, which agreed to hear the case.
Records Are Public Because They Document Activity, Requestor Asserts
Under the Ohio Public Records Act, R.C. 149.43, records kept by public offices must be provided to the public unless a specific exemption prevents the release of the information, Hicks explains. To be a public record, the item sought must meet the definition of a “record” under R.C. 149.011(G). The Twelfth District ruled that Hicks had to prove the distribution lists met the definition of a public record and that a three-part test is used to determine if a record is a public record. The appeals court found Hicks met two parts of the test – that the lists were documents, and they were created by or under the jurisdiction of the township. However, the court found he did not prove the third aspect – that the lists “serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the township.”
Hicks argues the lower courts used case law that was completely irrelevant to his request to determine that the lists failed the test. In all other cases, the courts noted, the lists of names and addresses were collected for purely administrative purposes, such as sending tax and insurance information to public employees or contacting prospective jurors. The Union Township use is different, Hicks argues, because the township created the lists to send outbound communications intended to influence the public’s opinion of the township government.
While in past cases, courts have found distribution lists to be assembled for “administrative convenience,” these lists differ, he argues. The lists meet the definition of a record because they document “activities of the township,” he maintains. Hicks argues the only way to verify if the township is actually mailing the newsletter to all addresses in the county is to see the list. He also argues that no one can know if the township is curating special email distribution lists that include a favored group of recipients. A person cannot see if they are being excluded from the distribution of information unless the public can see the email list, he asserts.
The decision of who to send outbound messages to is a township activity, and the lists document that activity, which means the lists are public records, he concludes.
Lists Do Not Document Activity, Township Counters
The township maintains the lower courts relied on clear precedent that distribution lists of private citizen information don’t document the activity or function of the township and aren’t a record. The township explains that there is no blanket exemption that bars access to list of addresses or email addresses. But to be a public record, those lists do have to document the activities, functions, policies, and duties of the office that keeps them. The township provides the example of a county auditor’s office. Because an auditor assesses a tax valuation for each parcel of property in the county, the auditor’s list of all physical addresses is a public record as it demonstrates that the auditor has carried out the function of the office.
The township also notes that the distribution lists aren’t records, but other records related to the newsletter are. Hicks has access to or can request records related to the content of the newsletters, any invoices to the vendor who prints and mails the newsletter, drafts of the newsletters and the articles, any email communications among the township personnel regarding the newsletter, and any township policies regarding the newsletter. The distribution lists don’t give any insight into how the newsletters were created, what they cost, who worked on them, or what problems might have existed when they were created, the township notes. The lists simply serve as a contact list, and they don’t meet the definition of a record under R.C. 149.011(G), the township concludes.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting Hicks’ position was submitted by the Buckeye Institute.
The Ohio Attorney General’s Office filed an amicus brief supporting Union Township. A joint brief supporting the township was submitted by:
- Buckeye Association of School Administrators.
- Coalition of Large Ohio Urban Townships.
- County Commissioners Association of Ohio.
- Ohio Association of School Business Officials.
- Ohio Library Council.
- Ohio Municipal League.
- Ohio School Boards Association.
- Ohio Township Association.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing himself: Christopher R. Hicks: chris@hickspub.com
Representing Union Township, Clermont County Board of Trustees: Brody Conover, bconover@brickergraydon.com
Were Protective Sweep and Later Search of Alleged Drug House Constitutional?
State of Ohio v. Michael Jones, Case No. 2023-0572
First District Court of Appeals (Hamilton County)
ISSUES:
- Must law enforcement officers take steps to obtain a search warrant when they have a good faith belief that a valid exception to the warrant requirement authorized a search?
- Is an appeals court limited to reviewing only the evidence the trial court admitted into the record?
- Is an appeals court authorized to send a case back to the trial court, ordering the defendant to file a motion to suppress evidence that raises specific issues and keeping the defendant’s convictions in place?
BACKGROUND:
The Cincinnati Police Department received anonymous complaints from the community about drug activity at a Cincinnati residence. Officers from the police gang unit conducted surveillance of the house for a few weeks in May 2020.
Officers said they saw Michael Jones come and go from the house multiple times. One day, they saw Jones leave the house and get into the passenger side of a black van. The officers followed the van and reported that it pulled up alongside a parked car, and something was exchanged between the vehicles. The officers contacted a uniformed officer in a cruiser to pull over the van. Jones’ mother was driving. Police searched the van and found a digital scale, $1,000 in cash, a container with what police thought was a small amount of drugs, cellphones, and keys. The substance thought to be drugs was tested and found not to be drugs. The keys were checked later, and one worked on the front door of the house under surveillance.
Jones was arrested. He denied any association with the house police had been surveilling.
Police Go to House and Conduct Sweep
Several officers went to the house. The door was unlocked. They opened the door and announced their presence. William Gaston came to the door, and they talked on the front porch. He said he lived there, and his nephew occasionally stayed at the house. He said no one was home at that time. The police handcuffed Gaston and conducted a protective sweep of the house to ensure their safety. They discovered a man, who wasn’t Gaston’s nephew, on the second floor and saw a small safe in a third-floor room.
About two hours later, police secured a signed form from Gaston to conduct a search of the house. Police asked if he owned the house, and Gaston responded that he didn’t. Officers took the safe to the police station and obtained a search warrant to open the safe. They found about $6,000 in cash; four digital scales, one with drug residue; and several drugs, including fentanyl, methamphetamine, and a heroin-fentanyl mixture. Also in the safe were copies of documents with Jones’ name, including copies of his Social Security card and birth certificate.
Jones was indicted on charges of drug possession, aggravated drug possession, drug trafficking, and aggravated drug trafficking. Before his trial, Jones asked the court to suppress the evidence found in the safe. The hearing on the motion included evidence from police body cameras and testimony from Jones, Gaston, the owner of the house, and the two officers.
The trial court denied the motion to suppress the evidence. The jury convicted Jones on all charges. He was sentenced in December 2021 to prison for 22 to 24.5 years.
Man Appeals, Arguing Attorney Was Ineffective
Jones appealed to the First District Court of Appeals. Among his arguments, he asserted that he was denied the effective assistance of counsel and the trial court should have granted his motion to suppress the evidence. The First District reviewed the body-camera footage that was part of a defense exhibit from the suppression hearing and trial. The appeals court ruled that the representation provided by Jones’ attorney wasn’t competent because the lawyer didn’t challenge the protective sweep and Gaston’s consent to search the home. Those steps led police to find and take the safe. Because Jones’ attorney didn’t raise these issues, the prosecutor didn’t have the opportunity to respond to them, the court noted. It stated:
“[W]e recognize that trial counsel’s ineffective assistance prevented the state from fully developing the facts surrounding the protective sweep, the search, and inevitable discovery [of the safe and its contents]. … [W]e remand the case to the trial court for the limited purpose of permitting Jones’s [new] counsel to submit a new motion to suppress that raises the constitutional issues omitted by his previous counsel, and for the trial court to hold a new suppression hearing to determine whether the evidence from the safe should be suppressed.”
The First District stayed consideration of Jones’ other legal claims until the trial court rules on the suppression issue.
The Hamilton County prosecutor appealed to the Supreme Court of Ohio, which agreed to hear the case.
Parties Dispute Whether Discovery of Safe by Police Was Inevitable
Generally, evidence obtained in violation of a criminal defendant’s rights is not admissible at trial. However, illegally obtained evidence can be admitted if it is shown that the evidence inevitably would’ve been discovered during an investigation. This exception is called the inevitable discovery doctrine.
The Hamilton County Prosecutor’s Office maintains that discovering and seizing the safe was inevitable because of the facts already known to police before they entered the house for the sweep and the subsequent search. The prosecutor contends that the anonymous community complaints were about Jones dealing drugs. Jones also lied about his connection to the house; the police found money, a scale, and cellphones in the van; and Jones had prior drug and weapons convictions, the prosecutor notes. The officers had a good faith belief that a valid exception to the requirement to obtain a warrant authorized the search of the house, the prosecutor asserts.
Jones counters that the prosecutor misstates certain facts. Jones’ brief asserts that the community complaints were that drug activity was taking place at the house but didn’t mention Jones specifically. Nor did police observe any drug deals during their surveillance, the brief maintains.
Jones also argues that the police never tried to obtain a warrant to search the house. The protective sweep and search of the house aren’t constitutional just because the prosecutor claims that the police could have obtained a search warrant, Jones contends. He adds that the prosecutor didn’t raise the good faith claim in the appeals court so the issue is waived and can’t be argued now.
State Disagrees With Appeals Court’s Actions, Analysis, and Order
The prosecutor asserts that the First District decision relies on body camera footage that wasn’t in the case record. According to the prosecutor, the defense exhibit contained 13 videos, but only two were played in court. The appeals court’s review of the evidence included the 11 that weren’t played, but those weren’t part of the record, the prosecutor argues. The prosecutor notes that the two played in court don’t show the officers’ approaching the house, opening the door, announcing their presence, entering the house, saying they had a search warrant, or sweeping the house. The prosecutor’s brief states that the appeals court’s review of the other videos “demonstrates a fundamental misunderstanding of the law and its duties as a reviewing court.”
The prosecutor further contends that the First District departed from the standard for reviewing ineffective assistance of counsel claims. In the prosecutor’s view, the court failed to assess whether the outcome of the case would have been different if the motion to suppress the evidence had been granted.
The prosecutor also contests the limited remand order from the appeals court. The action isn’t authorized by the state appellate court rules, and the state isn’t aware of any precedent for this kind of remand, the prosecutor argues.
Man Argues Ineffective Legal Counsel Led to Appeals Court Ruling
Jones states the defense bodycam recordings that weren’t played in court are significant because his attorney didn’t use them. The videos were essential for supporting the request to suppress the evidence found in the safe, and his attorney was ineffective for not presenting them, Jones argues.
He maintains that the standard for establishing ineffective counsel requires a reasonable probability that the motion would have been granted if the video evidence had been presented. No evidence presented showed a reasonable suspicion of danger at the house or that the protective sweep was justified without a warrant, Jones asserts. He contends that the defense exhibit, with all the videos, also indicates that Gaston’s consent to search the house was coerced. Had the defense attorney raised these claims, there was a reasonable probability that the motion would have been granted and the case would have been dismissed, Jones concludes.
Jones disagrees with the state’s view of the remand order. The appeals court stated that the prosecutor wasn’t able to present evidence in the trial court to oppose claims of constitutional violations because defense counsel never made those claims. Jones points out the First District didn’t reverse the convictions because it concluded it was only fair for the prosecutor to have a chance to present its arguments at a new suppression hearing in the trial court.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Sean Donovan, sean.donovan@hcpros.org
Representing Michael Jones from the Hamilton County Public Defender’s Office: David Hoffmann, dhhoffmann@hamiltoncountypd.org