Monday, March 03, 2008

Olentangy Levy: Closing schools and rewriting law

Let me visit this one more time.

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 Law

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.
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
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.

The Opinion

When challenged, the district sought an opinion from its attorney, Pat Schmitz of the Scott, Scriven, and Wayhoff. The opinion reads:



Scott,

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.

Pat
--
Patrick J. Schmitz
Scott, Scriven & Wahoff LLP
50 West Broad Street, Suite 2600
Columbus, OH 43215
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.

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.



Pat,

I read your opinion regarding the Olentangy district's claim that it can close schools, and I have a few questions:

You state that:

  1. 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."
  2. 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.

Respectfully,

Jim Fedako

The Response

A simple yes/no question deserves a simple yes/no answer. Yet, Schmitz equivocated:



Jim,

I have received your messages. If there is need for further discussion, I will let you know.

Pat Schmitz
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?

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.

A Response

The treasurer did some research and provided this:



Jim

We have no emails/written correspondence by any employee regarding the closing of buildings to the public.

Becky
Still at a Loss

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.




7 comments:

Anonymous said...

The schools will close the buildings. They have a legal opinion that states they can and the state will back them up as long as they are consistent in their policy.

You can file a suit to get the schools back open and we can spend taxpayer dollars for you to see if your are correct. However, reading your material and doing my own research, the schools have considerable leeway in determining their use policy.

You are also incorrect in your statement on the PTO. The PTO will not have after school access to the buildings. They will need to meet during school hours.

Jim Fedako said...

anonymous,

You are incredibly naive.

If the district wanted an opinion that was worth anything, it would have asked the state Attorney General for one.

An opinion from a paid school attorney has no weight whatsoever.

If the district was looking to be truthful, it would have asked the county prosecuting attorney for an opinion. Likely, Yost would have asked for a state attorney general's opinion.

That is the proper way you get to a legal opinion.

Ironically, that is the manner that was used in Morgan County when Davis was superintendent there.

So, he knows the right was to get an opinion. Yet, he games the system -- and you -- in order to have a bogus opinion in hand.

I call that dishonest.

Jim Fedako said...

Oddly, the PTO's are never listed as organizations excluded from the schools after-hours. Hmmm.

Anonymous said...

actually Jim...I believe the list says buildings will be closed to all groups excepts for extra-curricular and co-curricular activities...so...yes...it does say PTO organizations....

You are incredibly naive...make sure you read before you post...

Jim Fedako said...

Actually ... I believe that pigs can fly ... but, what does that get us?

PTO's are neither extra- nor co-curricular activities. They are legally separate from the district.

Anonymous said...

Neighborhood Volunteers -



Many of you have asked us for support in refuting Jim Fedako's blog. We hope this helps. This email from our OFK chairwoman will also be sent to those neighbors whose email addresses you collected. Feel free to forward to others as you see fit.





Hello Friends and Neighbors –



Some of you have expressed concern about a blog written by an ex-board member who is against Olentangy’s bond and levy. We would like to provide you with some answers.



1. Who is Jim Fedako? Mr. Fedako was a school board member from 2000-2006. Though he accomplished a considerable amount as an Olentangy board member, he has since stopped supporting the public school system as a whole. If you read through his posts prior to this levy campaign, you will find that he believes that the public school system should be abandoned. He supports both home schooling and the privatization of all schools; however, private schooling and home schooling are not viable or even necessarily desirable options for the 13,000 Olentangy children and their families now. Feel free to look into the cost of a private school education, especially if you have more than one child to educate. Costs will likely run much higher than the school portion of your property taxes.



Here’s what Mr. Fedako has said:



“I am using the remaining months I have on the school board to try to make a change. No, I am not expecting any improvements in the current system . . . Instead I am working for a revolutionary change, one that takes us back to the private system of education that was the primary education-delivery structure at the time of the Revolution; revolutionary indeed. Do not buy the “education is a public good” mantra, and do not accept the current system – a system patterned after the 19th century collectivist and socialist Prussian state. Instead work for a free-market education system . . . That is the means to reestablish liberty in the United States .” (A Misesian on the School Board, posted 5/5/06)



2. Mr Fedako’s postings are too numerous for OFK to refute one by one, but we would like to address a few of his more recent postings:



· He states that it is illegal to close schools at the end of a school day and that the district’s attorney’s opinion should be dismissed. The district’s attorney is charged with protecting the school district from lawsuits, so it isn’t logical that the district’s attorney would provide an erroneous opinion. Furthermore, Mr Fedako is not an attorney.



· He states that local school district property taxes have been rising at a rate that is double inflation. How does he arrive at that? Over what time period? Does any of that time period include the time that he was on the board and voting for levies to go on the ballot? And he completely discounts the fact that the rising costs aren’t just about inflation, they’re about growth too – a 50% increase in student enrollment in the last four years. Additional students cost the district additional money.



· He states that the average employee has been reaping yearly salary increases of close to 6.5%. In our research, we couldn’t find any time when Mr Fedako voted against the teachers’ salary increases while he was on the board. Maybe that's because he was aware that Olentangy is not operating in the private sector. The district operates in the public school sector where salaries and benefits need to be competitive with other schools in our area in order to attract and retain the best teachers and staff. Olentangy’s average teacher salary is lower than Bexley, Worthington , Upper Arlington , Dublin , Gahanna , Westerville , Columbus , Hilliard, and New Albany and lower than the state average.



· He takes issue with Dr Davis’ compensation, yet our understanding is that Mr Fedako not only approved his contract in 2006, he was also instrumental in developing that contract when Dr Davis was hired.



· He states that the district doesn’t need to cut $10.5 million. Actually, to cut $10.5 million if this levy fails is simply the most financially prudent course of action. For the 2007-08 school year, the district is spending $10.5 million more than it is taking in. If this issue fails, the district’s cash balance will be at risk. Mr. Fedako’s argument is to take the district’s cash balance down to zero. Who would deliberately wait until their checkbook is at $0 before working to make changes to ensure they could pay their bills? Dr. Davis and the school board believe that to allow the district to have virtually no “savings” would be fiscally irresponsible. Thus, if the levy fails, the district will cut the rate of spending to bring expenses in line with incoming revenue. This principle is supported by Stacy Overly, an expert on school district cash management. His opinion can be found at www.olentangyforkids.org and clicking on “Opinion on Cash Balances”.



In addition, according to its bond agencies, the district risks lowering its bond rating by depleting its cash balance. A lower bond rating means higher borrowing costs. Dublin is currently cutting costs to rebuild its cash balance in order to retain its bond rating.



3. Olentangy For Kids is not the only voice speaking out about Mr. Fedako. Even people who are not necessarily in support of our ballot issue recognize that Mr. Fedako’s motives are questionable. Here’s the opinion of an Olentangy resident named “Dave”, who posted a response to a parent on a blog discussing another school district’s levy:



“Be leery of putting yourself in the same boat as Mr. Fedako. Mr. Fedako doesn't want quality schools. He wants no schools. At least no public schools.

You seem to be understanding and thankful for your children and their quality education. Mr. Fedako home schools (which is a great choice for those who can negotiate the challenges) but laughs at anyone who thinks their children can get a quality education in a public facility.

Although he won't come out and say it he would take a school with a 200/1 student teacher ratio and find financial fault. He would find a way to cut their budget. He would outsource the teachers to India if he thought it would save him one penny of his tax dollars.”



Bottom line: The district and Olentangy For Kids have published fact after fact showing that Olentangy’s total costs are competitive with other districts. Visit www.olentangyforkids.org to get the facts.






Archana Springer, Chairwoman

Olentangy For Kids

Jim Fedako said...

My response is here