A comment was posted implying that the district can close buildings. Keep in mind that an opinion from a school-paid attorney is worthless.
If the superintendent was looking to be truthful, he would have asked the county prosecuting attorney for an opinion. Yost -- county prosecutor --- likely would have asked for a state attorney general's opinion. That is the proper way to obtain a legal opinion.
Ironically, that is the manner that was used in Morgan County when Davis was superintendent there (refer to the AG opinion noted below).
So, Davis knows the right way to get an opinion yet he games the system in order to have a worthless opinion in hand. Davis played Olentangy for Kids as well as district residents and churches.
I call that dishonest, but standard for this administration and this campaign.
But it's important to understand the level of deceit used to pass this levy. It also calls into question other "fact" being stated by the schools. I suggest that you read additional posts on this blog to get the facts.
Olentangy Levy: Closing schools and rewriting law
or, how Scott Davis spun a tale and Pat Schmitz opined nonsense
The Olentangy district and the Olentangy for Kids levy committee state that, should the levy fail and the proposed cuts be enacted, the district can close its buildings to the public next year. Never mind that Ohio law and opinions from the state attorney general have a completely different view, the district and its paid attorney have reinterpreted state law to their benefit.
I have previously posted that the district cannot close its schools to the public. This is the straightforward read of 3313.76 of the Ohio Revised Code:
3313.76 Schoolhouses available for educational and recreational purposes.District buildings must be available to the public as long as the activity does not "seriously infringe upon the original and necessary uses of (the buildings)." (emphasis added) Of course, the district must "prescribe rules and regulations for their occupancy and use as will secure a fair, reasonable, and impartial use of the same." It's all plain and simple.
Upon application of any responsible organization, or of a group of at least seven citizens, all school grounds and schoolhouses, as well as all other buildings under the supervision and control of the state, or buildings maintained by taxation under the laws of this state, shall be available for use as social centers for the entertainment and education of the people, including the adult and youthful population, and for the discussion of all topics tending to the development of personal character and of civic welfare, and for religious exercises. Such occupation should not seriously infringe upon the original and necessary uses of such properties. The public officials in charge of such buildings shall prescribe such rules and regulations for their occupancy and use as will secure a fair, reasonable, and impartial use of the same.
Effective Date: 10-01-1953
When challenged, the district sought an opinion from its attorney, Pat Schmitz of the Scott, Scriven, and Wayhoff. The opinion reads:
Scott,Schmitz opined that the district can close its buildings to the public based on its fiscal condition next year should the levy fail; he reinterpreted the law. Very interesting.
I am responding to your question about the use of school buildings by outside organizations. You indicated that the Board of Education has proposed closing its buildings after the school day as a cost-saving measure if the March ballot issue fails. An individual has claimed that Ohio Revised Code Section 3313.76 compels the Board to keep its buildings open for public use. You asked whether the Board may limit public use of its buildings after the school day. Based upon the information that you have provided to us, we believe the Board may do so.
Ohio Revised Code Section 3313.76 states, "Upon application of any responsible organization, or of a group of at least seven citizens, all school grounds and schoolhouses, as well as all other buildings under the supervision and control of the state, or buildings maintained by taxation under the laws of this state, shall be available for use as social centers for the entertainment and education of the people, including the adult and youthful population, and for the discussion of all topics tending to the development of personal character and of civic welfare, and for religious exercises. Such occupation should not seriously infringe upon the original and necessary uses of such properties. The public officials in charge of such buildings shall prescribe such rules and regulations for their occupancy and use as will secure a fair, reasonable, and impartial use of the same." (Emphasis added.)
The Ohio Attorney General has opined on several occasions that Ohio Revised Code 3313.76 does not give any organization a vested right to use school buildings. (See, e.g., Ohio Attorney General Opinion No. 2004-002 and opinions cited therein.) The Board of Education retains its discretion and authority to establish policies that limit building use, and the statute expressly allows the Board to limit any use that would infringe upon the "original and necessary uses" of its buildings. You indicated the Board has concluded that if the ballot issue fails it would be compelled to make a series of budget cuts to reduce expenses, and that limiting the public's use of its buildings outside of the school day would be one of many reductions made to pay for the School District's essential programs.
Boards are permitted to charge a "reasonable fee" for building use, but the fee typically cannot cover all the costs of usage, which include labor, utilities and other expenses. As such, the Board's proposal is consistent with Ohio Revised Code Section 3313.76 and the Board's broad discretionary authority to manage, control and make necessary rules for the government of its schools pursuant to Ohio Revised Code Sections 3313.20 and .47. Please note that if the Board limits public use of its buildings as part of its reduction package, the Board should amend its building use policy to reflect this decision.
In sum, for the reasons stated above, we believe the Board may limit public use of its buildings after the school day if the March ballot issue fails. If you have any other questions about this issue, please contact me at your convenience.
Patrick J. Schmitz
Scott, Scriven & Wahoff LLP
50 West Broad Street, Suite 2600
Columbus, OH 43215
In his opinion, Schmitz references Ohio Attorney General Opinion No. 2004-002. What does this opinion state?
The language of R.C. 3313.76 provides that certain public buildings must be made available to responsible organizations and groups for educational and recreational purposes, under reasonable rules and regulations for their occupancy and use, and with the limitation that providing such access “should not seriously infringe upon the original and necessary uses of such properties.” R.C. 3313.76. By its terms, this statute applies to school grounds and schoolhouses, other buildings under the supervision and control of the state, and buildings maintained by taxation under the laws of the state. It contemplates that the buildings to which it applies are being put to necessary use by the governmental entities that supervise and maintain them.Ironically, the opinion relates to Morgan County Schools while Davis was still there. The opinion reasserts the "must" with regard to districts opening their buildings to the public, with the standard exceptions regarding infringement on the original and necessary uses of the buildings.
Though the opinion was based on issues that are not relevant to our current situation, viz., the use of a building where the then-current fitness and public uses had not yet been determined, the essense of 3313.76 stands.
Request for Clarification: a simple yes/no
Confused, I asked Schmitz for clarification. In essence, can a school district reporting an $8.5 million ending cash balance close its buildings just as he had opined.
I read your opinion regarding the Olentangy district's claim that it can close schools, and I have a few questions:
You state that:
- The district is "compelled" to make cuts when, in fact, the district only has to correct it's reported negative balance of $2 million for FY09. Compel is an interesting choice of words, the state does not "compel" cutting programs, only correcting the negative balance. And, it is an especially interesting choice of words given that ThisWeek Olentangy (Feb. 14, 2008) is reporting that Davis states "he is 'not claiming that state law is mandating' the cuts he's proposed."
- Closing schools to the public will protect "essential programs" when, in fact, the district is reporting no savings from closing buildings. Since the district has never quantified any dollar savings from closing buildings (refer to the district website), any savings resulting from closing buildings is not part of the $10.5 million in proposed cuts, and, hence, has no impact on programming.
Just so that you are aware: though the district is facing a $2 million negative balance in FY09, it is proposing $10.5 million in cuts. Once these cuts are enacted, the district will be reporting an $8.5 million positive balance. Therefore, the cuts would put the district in a better financial position than most districts in Ohio. Closing buildings to the public will not affect FY09 programming under this scenario.
The $2 million can be corrected by any means, such as tighter negotiations with the unions. So, once again, the word "compel" -- as in compelling cuts -- does not apply in this situation.
Since general funds are more or less fungible, based on your opinion, Olentangy could have closed buildings years ago due to cost saving reductions. The district could make the claim that open buildings always impact programming since it could be argued that the district would have initiated program X if it could rid itself of expenses associated with open buildings, all the while reporting positive carry-over balances in its general fund.
And, if it were the case that districts can close buildings to the public based on these types of cost savings, no district would ever have to comply with 3313.76 in our world of scarcity and alternate choices. The law then has no teeth; it's invalidated by your opinion.
Is this what you are opining? That districts can close buildings on any claim
of supposed cost reductions and savings.
note: I recognize that you only opined on the information provided, but your opinion is being used based on the current situation in the district. Also, please refer to NCLB and Boy Scouts. Allowing the PTO's in the schools would require the district to allow Boy Scouts, unless, of course, the district is willing to forgo federal funding.
A simple yes/no question deserves a simple yes/no answer. Yet, Schmitz equivocated:
Jim,Now, to be fair to Schmitz, he is employed by the district in this instance. But there would have been no reason not to have responded yes to my question, if yes was indeed the correct response. He didn't. Why?
I have received your messages. If there is need for further discussion, I will let you know.
A Records Request
In order to dig deeper, I sent a public records request to the treasurer. I wanted to read the story conveyed to Schmitz. The request reads:
(P)lease forward a copy of the letter(s) or email(s), along with all information provided, sent by Superintendent Davis or any other district employee to an attorney or attorneys at Scott, Scriven & Wayhoff LLP requesting an opinion regarding the district's authority to close buildings to the public.
The treasurer did some research and provided this:
JimStill at a Loss
We have no emails/written correspondence by any employee regarding the closing of buildings to the public.
So the conversation between Schmitz and the superintendent was via phone or some other means. But what was the message? Did the superintendent tell the true story? Did Schmitz rewrite Ohio law with his opinion? Or, was some other story told to Schmitz? A story that would necessarily result in the opinion that the district desired.
The Truth about Opinions
An attorney can only opine on the information provided: the tale. It's not his duty to research the validity of the claims -- in this instance, the fiscal condition of the district after the cuts are enacted, should they be enacted.
And, someone fishing for an opinion to hold in hand can obfuscate reality -- spin the tale. Certainly the opinion wouldn't stand up in court, but it looks impressive in hand, providing psychic cover for the levy committee.
What We Do Know?
This we do know: Schmitz appears to have opined new meaning into 3313.76; his name is on the opinion. Based on Schmitz's opinion and his unwillingness to respond to a yes/no question, I have no choice but to assume that he continues to claim that school districts can close buildings while reporting an $8.5 million cash balance. Schmitz is legal light years ahead of everyone else in Ohio
Maybe other Ohio districts will now use this opinion to threaten their voters. Or, just maybe, Schmitz will respond to a yes/no with a yes/no. Don't hold your breath.
The district cannot close its buildings to the public; it's a threat, plain and simple. But what about the ethics of a superintendent who will take any action, make any statement, with the exception of the honest, forthright one? Hmmm.
So a lot of time, money, and effort went into lying to churches. But, in the end, it's the district taxpayers who end up paying for nonsense opinions that end up being wielded as threats. Fiscal accountability. Huh.