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COVID-19 school reopening plan leads to lawsuit

TRACEY BLAIR
Legal News Reporter

Published: October 25, 2021

On July 27, 2020, the Lowellville Board of Education held a special meeting to adopt a comprehensive school reopening plan.
However, after the superintendent later amended the plan due to safety and financial concerns about COVID-19, plaintiffs Christopher and Gina Crilley filed suit against the district in Mahoning County Common Pleas Court. The Crilleys claimed the Board of Education violated the Open Meetings Act by failing to provide the requisite statutory notice of a special meeting on Aug. 10, 2020.
After a bench trial, the trial court concluded an OMA violation occurred, but denied the Crilley’s request for statutory attorney’s fees. The trial court also declined to invalidate the amended school reopening plan, finding a prior Board resolution vested complete discretion in the superintendent to alter or amend the original reopening plan at any time prior to or during the 2020-2021 school year.
The 7th District Court of Appeals recently reversed the trial court’s decision to deny attorney’s fees and remanded the matter for the trial court to apply the two-part statutory test in R.C. 121.22(I)(2)(a), which requires public officials to take official action and to conduct all deliberations upon official business only in open meetings unless the subject matter is specifically excepted by law.
The reopening plan included an option for either in-person attendance or remote learning for the entirety of the approaching school year. A deadline of Aug. 10, 2020 was set for parents to select either the in-school or online modality for their child or children.
At trial, the superintendent said he decided to amend the reopening plan after learning many teachers were at risk and unable to participate in the in-class modality. In addition, as of Aug. 10, 2020, between 20 to 25 percent of students had reported they suffered from underlying health conditions.
The superintendent also testified the cost to hire substitute teachers would cost more than $1 million, and that there was a shortage of substitute teachers in Mahoning County. He also cited cleaning costs ($1.50 per square foot for a 100,000 square foot building), if a pandemic outbreak occurred.
The Board rule concerning public notice of special meetings states, “Notice of the time, place and purpose must also be given at least 24 hours in advance of the meeting to all news media and individuals who have requested such notice.”
In his opinion, appellate Judge David A. D’Apolito noted testimony at the trial established the district attempted to publish the notice in the local newspaper and the agenda for special meetings was posted on the school district’s website.
“Further, both the superintendent and the treasurer testified that the Board rule was adopted without revision from a model rule drafted by the Ohio School Board Association,” the judge added. “The notice for the Aug.10, 2020 special meeting provided to the Tribune Chronicle reads, in its entirety, ‘The Lowellville Board of Education will hold a Special Board Meeting, Monday, Aug. 10, 2020 at 5:30 p.m. in the Cafetorium.’ Through no fault of the Board, the Tribune failed to publish the notice. Further, although testimony established that the agenda for special meetings is typically posted on the school district’s website, the agenda for the Aug. 10 special meeting included no mention of the amendment to the original reopening plan. As a consequence, the trial court concluded that the Board’s rule and the notice regarding the Aug. 10, 2020 special meeting violated the OMA.”
The meeting began at 5:32 p.m. The Board immediately went into an executive session, which lasted until 8:06 p.m. The stated purpose of the meeting was the potential employment of a cafeteria worker.
When the Board returned from the roughly two-and-a-half-hour executive session, four resolutions were enacted in the three minutes remaining in the meeting, including a unanimous resolution to approve remote learning as the exclusive modality for the first nine weeks of the 2020-2021 school year, and to delay the start of online classes to Aug. 31, 2020.
The superintendent issued a press release immediately following adjournment of the August meeting to announce the amendment of the original reopening plan.
Appellate judges Gene Donofrio and Cheryl Waite concurred. The case is cited State ex rel. Crilley v. Lowellville Bd. of Edn., 2021-Ohio-3333.


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