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Cincinnati Public Schools v. Conners

Cincinnati Public Schools has a policy of prohibiting the use of vacant public school buildings by charter schools and private schools.

Historical Overview

Theodore Roosevelt School, in Cincinnati, had purchased an unused school building located in the Fairmount neighborhood, where all CPS schools are in academic emergency status and 80 percent of families are minorities and live in poverty. The school opened in August, 2010, serving 210 students and employing 45 staff members.

CPS sued Dr. Conners, the operator of Theodore Roosevelt, attempting to enforce a deed restriction and shut down the school. The 1851 Center asserted such a restriction is void by Ohio’s public policy in favor of school choice and cheats taxpayers of sales revenue from the buildings.

Both the Hamilton County Court of Common Pleas and Appellate Court ruled in favor of Dr. Conners, affirming the following: CPS’s deed restriction is void due to Ohio’s public policy in favor of transferring taxpayer-owned school buildings to community schools; statewide public policy favors effectuating parental choice and educational opportunity through community schools; and Theodore Roosevelt is entitled to retain possession of the school and continue its operation.

“Our expectation is that the Supreme Court will decide to uphold a landmark ruling in favor of school choice in Ohio, and against adversarial school districts who attempt to block alternative schools’ right to exist,” said 1851 Center Executive Director Maurice Thompson. “Deed restrictions like the one struck down in this case were devised simply to stop new charter schools from opening in Cincinnati, so that CPS could retain students and protect its state funds. In its brief, CPS compares itself to a ‘gas station’ or ‘hotel’ that has a right to use hardball tactics against its competition. It seems to have forgotten that it’s a public school that exists to educate children, rather than to amass revenue.”

Partners in Action

Joining the 1851 Center in defending school choice, as amicus parties, are the Ohio Alliance for Public Charter Schools, the Black Alliance for Educational Opportunities, School Choice Ohio, the Ohio Coalition for Quality Education, and the National Alliance for Public Charter Schools. Joining Cincinnati Public Schools is the controversial government-funded lobbying organization The Ohio School Boards Association.

Timeline

February 7, 2011: Ohio Supreme Court hears Oral Arguments in Conners

The Ohio Supreme Court heard oral arguments in Cincinnati Public Schools v. Conners at 9:30a.m. on February 7, 2011. 

September 24, 2011: Ohio Supreme Court Will Review CPS v. Conners

The Ohio Supreme Court has granted certorari and will review this case. This will likely be the final resolution of the case.

March 11, 2011: Court of Appeals: CPS Deed Restrictions Against Charter and Private Schools Illegal 

Cincinnati Public Schools’ (CPS) policy of prohibiting the sale of unused available public school buildings to charter schools and private schools is unlawful and must end, today ruled the Court of Appeals for the First District Court of Appeals, Hamilton County.  This decision further rebuffs CPS efforts to shut down Theodore Roosevelt Community School and others, and is a victory for charter and private school operators throughout the state.

CPS appealed after a victory by the 1851 Center for Constitutional Law on behalf of Theodore Roosevelt Community School, a Cincinnati charter school CPS had sued to shut down.  The Court of Appeals decision, authored by Judge Sundermann, states: “We conclude that the trial court properly determined that the facilitation of community schools having access to classroom space was clear Ohio public policy. And the deed restriction that sought to prevent the use of the property for educational purposes was void as against this clear policy.”

The Court further stated:  “[w]e are not persuaded by CPS’s argument that the property was not ‘suitable’ for classroom use.  This argument is belied by the deed restriction itself, which allows the possibility that the restriction would not apply should CPS itself decide to use the property for school purposes in the future.”

This additional ruling exposing CPS to the loss of millions of dollars in funding from the Ohio School Facilities Commission (OSFC), which requires that school districts follow all state rules related to charter schools, including heeding charter schools’ right of first refusal to purchase all property “suitable for use as classroom space,” in order to be eligible for OSFC funding.  The fate of this funding is still in dispute, in a second case brought by the 1851 Center and the Ohio Coalition for Quality Education, pending before Judge Ruehlman in Hamilton County.

The court’s ruling affirms:

  • CPS’s deed restriction is void due to Ohio’s public policy in favor of transferring taxpayer-owned school buildings to community schools;
  • CPS’s deed restriction is void because it is in derogation of a statewide public policy in favor of effectuating parental choice and educational opportunity through community schools;
  • Although the deed restriction is void, Theodore Roosevelt is entitled to retain possession of the school, and continue its operation; and
  • CPS school buildings with such prohibitive deed restrictions are suitable for use as classroom space.

October 14, 2010: Cincinnati Public Schools Continues Charter School Vendetta in Appellate Court 

On October 14, the 1851 Center filed its brief in response to Cincinnati Public Schools’ appeal of a trial court ruling invalidating its efforts to eliminate school choice options in Cincinnati’s poorest communities.

In May, Ohio’s school choice movement won a significant victory when Hamilton County Common Pleas Court Judge Robert P. Ruehlman ruled that Cincinnati Public Schools (CPS) violated state law through its policy of prohibiting the sale of unused available public school buildings to charter and private schools.

The Theodore Roosevelt School opened in August 2010. However, CPS has appealed the case, now before the First Appellate District in Hamilton County. The school building was previously unused, and is located in the Fairmount neighborhood, where all CPS schools are in academic emergency, and 80 percent of families are of minority status and live in poverty.

CPS is attempting to enforce a deed restriction prohibiting the use of school buildings previously owned by CPS for use by a charter or private school. The school district likens itself to a private hotel or gas station that can prohibit “competitors” from acquiring its old buildings. However, those buildings are taxpayer-owned, and being sold at a considerable loss due to the deed restriction.

The 1851 Center countered that such a restriction is void by Ohio’s public policy in favor of school choice, and cheats taxpayers of sales revenue from the buildings. The trial court agreed with the 1851 Center.

“CPS is not a private business or individual: it is a taxpayer supported entity that should not target the state’s program of education, i.e. community schools, as ‘competing,’” the 1851 Center wrote in its filing with the appeals court.

The 1851 Center is joined by the Ohio Alliance for Public Charter Schools (OAPCS), which has filed an amicus brief in the action.

“Securing adequate and affordable facilities remains one of the greatest challenges to Ohio’s charter schools,” OAPCS wrote in its amicus brief. “The Cincinnati Public School District’s attempt here to prevent a public school from operating where a different public school once existed unlawfully exacerbates these facilities challenges and, at the same time, needlessly prevents students from getting a public education at the school of their choice.

July 06, 2010: Cincinnati Public Schools Blocked from Discriminating Against Charter and Private Schools

On July 6, Judge Ruehlman denied CPS’s desperate last-ditch effort to derail Theodore Roosevelt School’s opening by denying CPS’ Motion to Stay. This clears the way for the school to open in August; area families have already enrolled over 200 children. The school will employ approximately 40 people.

A Public Records Request by the 1851 Center reveals that CPS has already paid its hand-picked law firm over $32,000 in Cincinnati taxpayers’ money for the case, at an average rate of approximately $200 per hour, and at times as much as $256 per hour.

This is quite a sum, considering that Dr. Conners only paid $30,000 for the school building and the 1851 Center offered CPS an opportunity to settle beforehand. In addition, the amount also does not include the fees yet to be paid for the pending appeal.

May 28, 2010: Common Pleas Court says Cincinnati Public Schools Violated State Law 

Cincinnati Public Schools’ (CPS) policy of prohibiting the sale of unused available public school buildings to charter schools and private schools violates state law, yesterday ruled Hamilton County Common Pleas Court Judge Robert P. Ruehlman. The judge issued the ruling immediately from the bench.

In his ruling, Judge Ruehlman called CPS’s deed restrictions anti-competitive and acknowledged that CPS was merely attempting to suppress competition from charter and other alternative schools, and thwart school choice for the parents and children of Cincinnati.

The ruling halts CPS’s restrictive practice and opens the district to the loss of hundreds of millions of dollars in funding from the Ohio School Facilities Commission (OSFC). Last week, OSFC member State Rep. Kris Jordan moved to stop state facilities funding to CPS because of its purported violations. Jordan, prompted by the 1851 Center’s legal action against CPS, informed the commission the school district forfeited its statutory right to project funding because of repeated violations of state charter schools provisions. The court’s ruling bolsters Jordan’s assertion.

The court’s ruling affirms:

  • A contract term that violates public policy is void;
  • A contract term that hinders the purpose of a statute is void;
  • CPS’s deed restriction is void due to Ohio’s public policy in favor of transferring taxpayer-owned school buildings to community schools;
  • CPS’s deed restriction is void because it is in derogation of a statewide public policy in favor of effectuating parental choice and educational opportunity through community schools; and
  • Although the deed restriction is void, the conveyance must remain valid.

 

June 1, 2010: Cincinnati Enquirer: Judge Sets Charter School Precedent

March 11, 2011: Appellate Court’s ruling

October 14, 2010: OAPCS’s amicus brief

October 14, 2010: Appellate merit brief

March, 2010: Motion for judgment

March, 2010: Response to original complaint

New Publication on Public Employee Union Payroll Deductions for Campaign Contributions

On February 22, the 1851 Center released The Path Remains Clear for Ohio’s New Legislators to Separate Government Employment from Public Employee Union Politics, a Constitutional Viewpoint on automated payroll deductions for political contributions, a service provided to public employee union members and paid for by taxpayers.

From the Overview:

As the debate on the role of government employee unions in Ohio intensifies, citizens and lawmakers shouldn’t lose sight of the prominent role that these organizations play in Ohio politics and policymaking. Nor should they overlook an immediate solution to leveling the playing field in the state: simply stop subsidizing government workers’ political contributions to their employers.

  • Ohio’s top donors to Ohio legislative and statewide candidate campaigns are public employee unions.
  • The taxpayers of Ohio facilitate political donations to public employee unions by providing, at no cost to those unions, automated payroll deduction benefits.
  • Ending automated payroll deductions for union politics causes sharp decline in contributions to public employee unions, and puts these unions on equal footing with the private sector.
  • Ohio once banned automated political payroll deductions from all public employee paychecks, but through historical accident, that ban was stricken and never re-enacted.
  • Due to recent U.S. Supreme Court precedent, banning these political contributions is unquestionably constitutional.
  • 46 percent of Ohio’s government employees are unionized.
  • Public employee unions contribute to causes and candidates that increase the size and scope of government.
  • It is estimated that Ohio residents could pay 20.73% less in state income taxes if they weren’t paying for inflated government employee union wages.

Read the full publication

Oleksa v. Murray

In October of 2010, Mansfield-area taxpayers filed an Ohio Corrupt Activities Act complaint against Gov. Ted Strickland, Ohio School Facilities Commission (OSFC) Executive Director Richard Murray, the Laborers’ International Union of North America (LIUNA) and others. The taxpayers complained that members of the Strickland administration, organized labor, and Murray used the OSFC and school building construction contracts to engage in pattern of corrupt activities expressly prohibited under Ohio’s RICO laws.

The taxpayers charged that labor unions and Murray used bribery, intimidation, and obstruction of justice to further union financial interests, through projects funded by the OSFC, while the Strickland administration aided and abetted the conduct for its own political gain. The lawsuit sought to prohibit future distribution of state tax dollars by the OSFC to fund union-friendly “Project Labor Agreements” (PLAs) and prevailing wage-only projects.

“Project Labor Agreements” require non-union contractors to enroll their own employees as dues-paying members of a local union hall and abide by union work rules for the duration of the project.  It is typically infeasible for non-union contractors to bid on projects with PLAs, which results in the elimination of competitive bidding, and drives up the costs of projects.

“Prevailing Wage” is a wage rate that is set based upon the average wage paid to union workers in a particular locality.  It is typically well above the market wage rate, and its use reduces competitive bidding and drives up costs on projects.

According to the complaint, OSFC Executive Director Murray was at the center of the corrupt activity. Specifically, Murray attempted to pressure school districts, when building school buildings, into using PLAs, unduly rewarding those who do and retaliating against those who do not.

Additional allegations of bribery and intimidation by the union are corroborated in the complaint by former OSFC executive director Michael Shoemaker. The complaint alleges LIUNA was displeased with Shoemaker’s unwillingness to strong-arm school districts into using PLAs. According to Shoemaker, organized labor interests threatened Gov. Strickland that they would withhold nearly $400,000 in political contributions to the governor’s re-election campaign if Shoemaker remained OSFC executive director. Gov. Strickland then removed Shoemaker and appointed the union-friendly Murray upon the recommendation an Ohio union leader.

In 2006, LIUNA contributed over $326,000 to Gov. Strickland’s election campaign – making it his single largest political contributor. In 2010, LIUNA reportedly contributed over $500,000 to the Democratic Governors Association, which in turn spent over $1.75 million supporting Gov. Strickland’s re-election campaign.

In addition to Madison and Shelby schools, the complaint cites instances of corrupt activity by the parties in the Clay, New Boston, and Washington-Nile Local School Districts in Scioto County, and the Fremont City School District in Sandusky County.

Construction union contributions to help pass local school building levies are public records, and are available at your county board of elections.

February 24, 2011 – 1851 Victory: OSFC agrees to eliminate Prevailing Wage and Project Labor Agreements

The Ohio School Facilities Commission (OSFC) agreed to adopt Resolution 11-16, marking the conclusion of a lawsuit brought by the 1851 Center. Under the Resolution, the agency will no longer fund Ohio public school construction projects that implement Project Labor Agreements (PLAs) or Prevailing Wage (PW).  The move is expected to save Ohio taxpayers tens of millions of dollars, and level the playing field between union and non-union contractors.

“The adoption of this resolution is a monumental victory for the taxpayers of Ohio, who can expect to save tens of millions of dollars now that they won’t be subsidizing inflated union wages on multi-million-dollar school construction projects, and for non-union workers, who can now compete for these contracts on a level playing field,” said 1851 Center Director Maurice Thompson.  “Ohioans and non-union workers across the state should be very pleased with this outcome, and the Kasich Administration and Attorney General DeWine are commended for their cooperative approach in resolving this matter.”

The Resolution will:

  • Prohibit the use of Prevailing Wage on state-funded school projects;
  • Prohibit the use of PLAs on state-funded school projects;
  • Repeal all of OSFC Resolution 07-98, the Resolution implemented under the Strickland Administration that favored use of PW and PLAs;
  • Review existing contracts with PW and PLAs, including contracts in Madison, Shelby, Washington-Nile, Clay Local, and Euclid school districts, where 1851 has alleged rampant corruption;
  • Allow OSFC to rescind PLAs and PW terms on existing school construction projects that OSFC is funding;
  • Commit OSFC to the belief that “open contracting for publicly funded construction projects aids in lowering costs of such projects.”

The Resolution halts a practice outlined in the 1851 Center’s Complaint, whereby local construction unions would ensure the victory of a school district’s tax levy campaign to build new schools in exchange for the school district’s promise to implement union-friendly PW and PLAs.

“Higher quality schools can now be built for less, and tax levy elections in Ohio will now more accurately reflect taxpayers’ wishes, rather than construction union clout,” said Thompson.

As a result of the Resolution, the 1851 Center earlier today voluntarily dismissed its lawsuit, Oleksa v. Murray, which was pending in the Richland County Court of Common Pleas.

April 23, 2011 – Columbus Dispatch Editorial: Outline Limits

October 15, 2011 – Associated Press: Suit Against Ohio Governor Alleges Favoritism

October 15, 2011 – Gannett News Central Ohio: Lawsuit claims Strickland, Ohio School Facilities Commission engaged in corrupt activity

October 21, 2011 – Columbus Dispatch: Suit Alleges Strickland Favored Unions

WSPD AM 1370 Fred LeFebvre Show MAT on Fred Lefebvre

WTVN AM 610 Bob Conners Morning Show here.

WSPD AM 1370 Brian Wilson Show here

WKRC AM 550 Brian Thomas Show here

WLW AM 700 Scott Sloan Show here

 

 

 

October 14, 2010 – 1851 Center’s Complaint

February 24, 2011 – New OSFC Resolution

Legal Center Asks High Court to Accept Smoking Ban Challenge

1851 Center Files Jurisdictional Motion with Ohio Supreme Court

COLUMBUS – The 1851 Center for Constitutional Law, a public interest law firm, yesterday asked the Ohio Supreme Court to make a final determination on the legality of Ohio’s state smoking ban, and its enforcement. The legal center argues that state health officials’ misguided enforcement of the law violates Ohio constitutional protections, and unduly punishes innocent business owners. Also, the center argues the law itself is unconstitutional, when applied to certain types of bars. A copy of the court filing is available here. Read more