OHIO’S LEGAL OHIO’S LEGAL FRAMEWORKFRAMEWORK

FOR UNIVERSITY AND COLLEGE TRUSTEES

Presented by:

Cheryl Hacker and Stephanie Van Meter

Objectives

What are powers & duties of the Board and individual trustees?

What may the Board delegate to the President and Vice Presidents?

What happens when the Board is sued?... What happens when an individual Board

member is sued?

Board Powers and Duties

Duties and responsibilities of the individual trustee.

Authority of the Board as a legal entity.

Effective Board governance is dependent upon individual board members fulfilling his/ her individual responsibilities.

Individual Fiduciary Duties: Common Law Duty of Care and Diligence

A trustee must use the measure of care, skill and diligence that would be exercised under similar circumstances by a person of ordinary prudence and skill in the management of his or her own affairs.

Prepare for meetings Be familiar with bylaws and policies

Individual Fiduciary Duties:Common Law Duty of Loyalty

A trustee must exhibit an undivided allegiance to the institution

Avoid conflicts Observe confidences

Individual Fiduciary Duties:Common Law Duty of Good Faith Compliance (Fiduciary)

A trustee must see that an institution conducts its activities in a lawful manner.

Manage fiscal affairs in a prudent manner.

Individual Duties:Ohio Revised Code Oath of Office

“Each person chosen or appointed to an office…shall take an oath of office before entering upon the discharge of his duties…”

O.R.C. 3.22

Individual Duties:Ohio Revised Code Meeting Attendance

“Any member of a board, commission, council, board of trustees of an institution of higher education, or other public body of the state…, who fails to attend at least three-fifths of the regular and special meetings held by that … board of trustees, or public body during any two-year period forfeits the member's position on that …board of trustees...”

O.R.C. 3.17

Consequences: quorum and validity of votes

Individual Duties:Ohio Revised Code Confidentiality

“A public official may not disclose, without appropriate authorization, any information … that is confidential because of statutory provisions, or ...because…its confidentiality is necessary to the proper conduct of government business.”

O.R.C. 102.03(B) Executive Session Topics; Attorney-Client Privileged Communications

Individual Duties:Ohio Revised Code Ohio Ethics Laws

Conflict of Interest Financial Disclosure

Board Authorities and Powers

Highest authority that may act for the institution (university governance is vested with the Board).

Ultimate responsibility for meeting legal requirements rests with the Board.

Resolutions and Minutes reflect a Board’s official actions.

Board Authority from Ohio Statutes Revised Code

O.R.C. Chapter 3345: General Provisions chapter for universities (some sections also apply to two-years);

Specific code chapters or sections for each university;

Specific code chapters for technical, community and state community college districts

Board Powers and Authority (Broad)

“The board of trustees of any college or university, which receives any state funds in support thereof, shall have full power and authority on all matters relative to the administration of such college or university.”

O.R.C. 3345.021

Board Powers and Authority (Specific)

Employment: President, administrators, faculty, staff & fix compensation; employ law enforcement

Land, Structures, and other Property: “hold, own…for purpose of the institution”;

Instruction: grant degrees, offer programs; establish fees & tuition

Financial: approve budget; adopt investment policy, purchase insurance;

(Authority w/ Strings Attached)

With Authority Comes Responsibility ... Evaluate President Follow competitive bidding requirements Review audit reports Hold investments in trust Prescribe policies and bylaws for effective

operation

Board Authority to Delegate

“The board of trustees of any college or university... shall have full power and authority on all matters relative to the administration of such college or university.”

BUT...

Board Authority to Delegate

Revised Code Limitations

“The authority of government vested by law in the boards of trustees of state-assisted institutions of higher education shall in fact be exercised by those boards…”

H.B. 119 (uncodified)

Board Authority to Delegate

Board has exclusive authority to decide: Utilization of available resources Organizational structure Disciplinary procedure Operation and staffing of auxiliary facilities Administrative personnel

H.B. 119 (uncodified)

Board Authority to Delegate

“Any delegation of authority by a board of trustees in other areas of responsibility shall be accompanied by appropriate standards of guidance concerning expected objectives in the exercise of such delegated authority and shall be accompanied by period review of the exercise of this delegated authority…”

H.B. 119 (uncodified)

Duty of Care:What Board Members Should Have University or college policies Board bylaws Copy of board minutes from past year Copy of institution’s last budget Copy of last audit report Media relations policy

And understand Ohio’s Open Meetings Law

Ohio’s Open Meetings Law

Any public body has a duty to conduct its business in meetings open to the public

Known as the “sunshine law”

Definitions

Public Body: Any decision-making body of state, county, township, municipal corporation, school district or political subdivision, or local public institution. O.R.C. 121.22(B)(1)(a)

Meeting: Prearranged gathering of a majority of members of a public body conducting or discussing public business. O.R.C. 121.22(B)(2)

Obligations

To take action and deliberate on public business in open session. O.R.C. 121.22(A)

To give appropriate notice of the meeting. O.R.C. 121.22(F)

To take and file minutes of the meeting. O.R.C. 121.22(C)

Types of Meetings

Regular meeting: Meeting held at prescheduled intervals. Must have a reasonable method to establish time and place. O.R.C. 121.22(F)

Special meeting: Any meeting that is not a regular meeting. Must still give 24 hours notice. O.R.C. 121.22(F)

Emergency meeting: A special meeting that requires immediate action due to unforeseen emergency. Requires immediate notification. O.R.C. 121.22(F)

Work Sessions

Work sessions are subject to the Open Meetings Law

Work sessions, where public business is discussed among a majority of members of the public body, are meetings. Notice must be given, and they are open as any other meeting

Teleconferencing

Teleconferencing*, videoconferencing, and e-mail are all prohibited as ways to attend or conduct a meeting. A member must be present in person to vote, deliberate, or be counted in a quorum. O.R.C. 121.22(C)

* Teleconferencing may be allowed by statute (Ohio Board of Regents, for example)

Voting at Meetings

The Open Meetings Law does not govern the method by which a public body must vote unless a particular statute requires a specific method

The public body may use its own discretion in determining the method of voting it will use. State ex rel. Roberts v. Snyder (1948), 149 Ohio St. 333, 78 NE 2d 716)

Exception: Executive sessions. O.R.C. 121.22(G)

Executive Session Procedures

Must have a majority of quorum Must always begin and end in an open

meeting Must be preceded by a specific motion, a

second, and a roll-call vote Motion should state the specific topic that will

be discussed in executive session. O.R.C. 121.22(G)

Executive Session Topics

Acceptable topics for discussion: Personnel Property Court action Collective bargaining Confidential matters Security arrangements County hospitals’ trade secrets

Executive Session Restrictions

There can be no decision-making No actual voting other than to vote on a

motion to adjourn or recess Non-excepted matters may not be discussed

in private even if intertwined with permitted matters

Liability for Violating

Fines, of $500. O.R.C. 121.22(I)(1) Injunction, filed in common pleas court within

two years of violation. O.R.C. 121.22(I)(1) Costs and attorney’s fees Action invalidated. O.R.C. 121.22(H)\ Possible removal from office, in an action for

removal brought by prosecutor or Attorney General. O.R.C. 121.22(I)(4)

Public Records

Public offices have an obligation to provide prompt inspection of public records, but which includes time for legal review; and

Upon request, provide copies within a reasonable period of time and during regular business hours. The office may charge for costs of copies. O.R.C. 149.43(B)(1)

Defining a Public Office

A public office is any state or local governmental entity, or any private entity that: Performs a public service, and Is supported by state funds. O.R.C. 149.011

Defining a Public Record

A record held by a public office. O.R.C. 149.43(1)

Record is any device (paper, tapes, videos, films, photos, e-mails, etc.) that is:

Stored on a fixed medium Created, received, or sent under the jurisdiction

of a public office AND Documents the functions, policies, procedures,

operation, or other activities of the public office O.R.C. 149.011(G)

Providing Documents to the Public

Requester may choose any of the following mediums in which to receive the public documents. O.R.C. 149.43(B)(2): In paper format In the same medium in which the entity keeps

it Upon any other medium which the public

office determines that the document can be reasonably duplicated as part of normal operations

Providing Documents to the Public

Public entity may charge actual costs for providing the documents. O.R.C. 149.43(B)(2)

May require advance payment of costs. O.R.C. 149.43(B)(3)

Required to mail the requester the documents in the format chosen (from the list of acceptable formats). O.R.C. 149.43(B)(3)

Rules of Special Note

Anyone can make a public records request, including corporations and other governmental agencies

No special format or special language required A request may be written or verbal The requester’s motive is not relevant. However,

the request must at least be specific and describe in detail the records being sought

A public office cannot require the requester to put it in writing or reveal his/her name

Catch-all Exemptions

Attorney-client privileged information Medical board records Child abuse reports Student education records Criminal background checks Records sealed pursuant to court order DNA database records

Express Exemptions

Medical records Trial preparation records Peace officers, firefighter, EMT residential

and familial information Security and infrastructure records CLEIRS

Exemptions Summary

If a record falls squarely in the “catch-all” exemption, withhold

If the record falls squarely under one of the other express exemptions, use caution and consult your attorney

If a record is clearly public with no applicable exemptions, disclose

Family Educational Rights & Privacy Act Protects the privacy of education records Establish the right of students to inspect and

review their education records

Defining an Education Record

Maintained by an institution Directly related to a student Containing information from which an

individual student (or students) can be personally identified

Includes files, documents, and materials in any medium

Liability for Violating

No criminal liability Civil liability: Fine of $100/day; capped at

$1,000 Mandamus case: A legal action filed in

common pleas, appellate court, or the Ohio Supreme Court to enforce the public records act

What happens if we, or our institution, gets sued?

Attorney General Representation

The Attorney General shall be the attorney for each state college and university and shall provide legal advice in all matter relating to its powers and duties R.C. 3345.15

In-house counsel has an appointment approved by the Attorney General

Special counsel (private attorneys) may be appointed in certain matters but requires Attorney General approval

Immunity and Indemnification

Per 3345.122, trustees of institutions of higher education are generally immune from civil actions arising under state law UNLESS The actions were manifestly outside the scope

of official responsibilities OR The official acted with malicious purpose, in

bad faith, or in a wanton or reckless manner For technical and community colleges limited

to tort liability per 2744.07

Contact Information

Office of the Ohio Attorney General

Education Section

30 East Broad Street, 16th Floor

Columbus, OH 43215

Phone: (614) 644-7250

Fax: (614) 644-7634

Web: http://www.ag.state.oh.us/