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H. B. No. 444 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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Cosponsors:
Representatives Young, Blair, Schuring, Huffman, Uecker, Slaby, Grossman, Johnson, Newbold, Brenner
A BILL
To amend sections 149.43, 3313.33, 3313.811, and
5705.341 and to enact section 3313.174 of the
Revised Code to authorize a pilot program for
school districts in Montgomery County to operate
certain for-profit activities.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 3313.174 of the Revised Code be
enacted to read as follows:
Sec. 3313.174. As used in this section, "public school"
means a school district, a community school established under
Chapter 3314. of the Revised Code, a STEM school established under
Chapter 3326. of the Revised Code, a college-preparatory boarding
school established under Chapter 3328. of the Revised Code, an
educational service center, or a school operated by a county board
of developmental disabilities.
This section shall operate as a pilot program, limited to
school districts with any territory in Montgomery county, to
demonstrate the effect of profit-making activities by school
districts.
(A) The board of education of any school district with any of
its territory located in Montgomery county, by a majority vote of
all its members, may approve the operation of any of the following
activities for profit by the district, for a duration determined
by the board, if the activities are related to the ordinary
functions of the school district:
(1) Design, development, distribution, licensing, or sale of
technology to another public school, a nonpublic school, or any
other nonprofit entity, regardless of where the school or entity
is located;
(2) Provision of training, consulting, or educational
services to another public school, a nonpublic school, any person,
or any other public or private entity, regardless of where the
school, person, or entity is located;
(3) Sale of merchandise and other paraphernalia resembling
the school district's identified brand;
(4) Except as provided in sections 3313.76 and 3313.78, and
subject to the provisions of sections 3313.75 and 3313.77 of the
Revised Code, rental of the district's facilities.
(B) Notwithstanding any other provision of the Revised Code,
operating a for-profit activity under this section shall be
considered a proper school purpose.
(C) The board may allocate school district funds, property,
personnel, and other resources to a for-profit activity approved
under this section, so long as the allocation does not
substantially interfere with the education of pupils in the school
district. The board may acquire real or personal property by lease
or purchase for a for-profit activity operated under this section.
(D) Notwithstanding any other provision of the Revised Code,
the board may determine the price and terms for any licensing
agreement, consulting-services agreement, or any other products or
services provided by an activity approved under this section.
Section 3313.41 of the Revised Code does not apply to nor affect
the license or sale of any personal property under this section.
(E) All profits earned by the district through an activity
approved under this section shall be either placed in the school
district's general fund or reinvested into the operation of the
activity.
(F) The provisions of section 3313.17 of the Revised Code
apply to a for-profit activity approved under this section.
(G)(1) The board may appoint employees, including
administrative, teaching, and nonteaching employees, who are
completely, primarily, or in part employed to serve the needs of a
for-profit activity approved under this section.
(2) An employee employed under this division shall serve at
the pleasure of the board, subject to any contract entered into
between the board and the employee.
(3) No employee employed under this division is a "public
employee" for purposes of Chapter 4117. of the Revised Code.
(4) The provisions of this division prevail over any
conflicting provisions of a collective bargaining agreement
entered into by the district board on or after the effective date
of this section.
(H) No revenue earned by a school district under this section
shall affect the district's payments or adjustments under sections
321.24 and 323.156 or Chapter 3317. of the Revised Code or the
computation of the district's "state education aid" under either
section 5727.84 or 5751.20 of the Revised Code.
(I) Not later than three years after the effective date of
this section, the superintendent of public instruction, in
consultation with school districts undertaking a profit-making
activity under this section, shall evaluate the implementation and
operation of the pilot program and submit legislative
recommendations to the governor and the general assembly, in
accordance with section 101.68 of the Revised Code, as to the
benefits, burdens, and other issues of the pilot program and
whether or to what extent the pilot program should be continued,
expanded in scope, or reduced in scope.
Section 2. That sections 149.43, 3313.33, 3313.811, and
5705.341 of the Revised Code be amended to read as follows:
Sec. 149.43. (A) As used in this section:
(1) "Public record" means records kept by any public office,
including, but not limited to, state, county, city, village,
township, and school district units, and records pertaining to the
delivery of educational services by an alternative school in this
state kept by the nonprofit or for-profit entity operating the
alternative school pursuant to section 3313.533 of the Revised
Code. "Public record" does not mean any of the following:
(b) Records pertaining to probation and parole proceedings or
to proceedings related to the imposition of community control
sanctions and post-release control sanctions;
(c) Records pertaining to actions under section 2151.85 and
division (C) of section 2919.121 of the Revised Code and to
appeals of actions arising under those sections;
(d) Records pertaining to adoption proceedings, including the
contents of an adoption file maintained by the department of
health under section 3705.12 of the Revised Code;
(e) Information in a record contained in the putative father
registry established by section 3107.062 of the Revised Code,
regardless of whether the information is held by the department of
job and family services or, pursuant to section 3111.69 of the
Revised Code, the office of child support in the department or a
child support enforcement agency;
(f) Records listed in division (A) of section 3107.42 of the
Revised Code or specified in division (A) of section 3107.52 of
the Revised Code;
(g) Trial preparation records;
(h) Confidential law enforcement investigatory records;
(i) Records containing information that is confidential under
section 2710.03 or 4112.05 of the Revised Code;
(j) DNA records stored in the DNA database pursuant to
section 109.573 of the Revised Code;
(k) Inmate records released by the department of
rehabilitation and correction to the department of youth services
or a court of record pursuant to division (E) of section 5120.21
of the Revised Code;
(l) Records maintained by the department of youth services
pertaining to children in its custody released by the department
of youth services to the department of rehabilitation and
correction pursuant to section 5139.05 of the Revised Code;
(m) Intellectual property records;
(n) Donor profile records;
(o) Records maintained by the department of job and family
services pursuant to section 3121.894 of the Revised Code;
(p) Peace officer, parole officer, probation officer,
bailiff, prosecuting attorney, assistant prosecuting attorney,
correctional employee, youth services employee, firefighter, EMT,
or investigator of the bureau of criminal identification and
investigation residential and familial information;
(q) In the case of a county hospital operated pursuant to
Chapter 339. of the Revised Code or a municipal hospital operated
pursuant to Chapter 749. of the Revised Code, information that
constitutes a trade secret, as defined in section 1333.61 of the
Revised Code;
(r) Information pertaining to the recreational activities of
a person under the age of eighteen;
(s) Records provided to, statements made by review board
members during meetings of, and all work products of a child
fatality review board acting under sections 307.621 to 307.629 of
the Revised Code, and child fatality review data submitted by the
child fatality review board to the department of health or a
national child death review database, other than the report
prepared pursuant to division (A) of section 307.626 of the
Revised Code;
(t) Records provided to and statements made by the executive
director of a public children services agency or a prosecuting
attorney acting pursuant to section 5153.171 of the Revised Code
other than the information released under that section;
(u) Test materials, examinations, or evaluation tools used in
an examination for licensure as a nursing home administrator that
the board of examiners of nursing home administrators administers
under section 4751.04 of the Revised Code or contracts under that
section with a private or government entity to administer;
(v) Records the release of which is prohibited by state or
federal law;
(w) Proprietary information of or relating to any person that
is submitted to or compiled by the Ohio venture capital authority
created under section 150.01 of the Revised Code;
(x) Information reported and evaluations conducted pursuant
to section 3701.072 of the Revised Code;
(y) Financial statements and data any person submits for any
purpose to the Ohio housing finance agency or the controlling
board in connection with applying for, receiving, or accounting
for financial assistance from the agency, and information that
identifies any individual who benefits directly or indirectly from
financial assistance from the agency;
(z) Records listed in section 5101.29 of the Revised Code;
(aa) Discharges recorded with a county recorder under section
317.24 of the Revised Code, as specified in division (B)(2) of
that section;
(bb) Usage information including names and addresses of
specific residential and commercial customers of a municipally
owned or operated public utility;
(cc) Any documents, electronic files, or other records
maintained by a school district pertaining to research and
development of technology or other trade secrets associated with a
for-profit activity operated by the district under section
3313.174 of the Revised Code or any such document maintained by
the department of education for purposes of division (I) of that
section.
(2) "Confidential law enforcement investigatory record" means
any record that pertains to a law enforcement matter of a
criminal, quasi-criminal, civil, or administrative nature, but
only to the extent that the release of the record would create a
high probability of disclosure of any of the following:
(a) The identity of a suspect who has not been charged with
the offense to which the record pertains, or of an information
source or witness to whom confidentiality has been reasonably
promised;
(b) Information provided by an information source or witness
to whom confidentiality has been reasonably promised, which
information would reasonably tend to disclose the source's or
witness's identity;
(c) Specific confidential investigatory techniques or
procedures or specific investigatory work product;
(d) Information that would endanger the life or physical
safety of law enforcement personnel, a crime victim, a witness, or
a confidential information source.
(3) "Medical record" means any document or combination of
documents, except births, deaths, and the fact of admission to or
discharge from a hospital, that pertains to the medical history,
diagnosis, prognosis, or medical condition of a patient and that
is generated and maintained in the process of medical treatment.
(4) "Trial preparation record" means any record that contains
information that is specifically compiled in reasonable
anticipation of, or in defense of, a civil or criminal action or
proceeding, including the independent thought processes and
personal trial preparation of an attorney.
(5) "Intellectual property record" means a record, other than
a financial or administrative record, that is produced or
collected by or for faculty or staff of a state institution of
higher learning in the conduct of or as a result of study or
research on an educational, commercial, scientific, artistic,
technical, or scholarly issue, regardless of whether the study or
research was sponsored by the institution alone or in conjunction
with a governmental body or private concern, and that has not been
publicly released, published, or patented.
(6) "Donor profile record" means all records about donors or
potential donors to a public institution of higher education
except the names and reported addresses of the actual donors and
the date, amount, and conditions of the actual donation.
(7) "Peace officer, parole officer, probation officer,
bailiff, prosecuting attorney, assistant prosecuting attorney,
correctional employee, youth services employee, firefighter, EMT,
or investigator of the bureau of criminal identification and
investigation residential and familial information" means any
information that discloses any of the following about a peace
officer, parole officer, probation officer, bailiff, prosecuting
attorney, assistant prosecuting attorney, correctional employee,
youth services employee, firefighter, EMT, or investigator of the
bureau of criminal identification and investigation:
(a) The address of the actual personal residence of a peace
officer, parole officer, probation officer, bailiff, assistant
prosecuting attorney, correctional employee, youth services
employee, firefighter, EMT, or an investigator of the bureau of
criminal identification and investigation, except for the state or
political subdivision in which the peace officer, parole officer,
probation officer, bailiff, assistant prosecuting attorney,
correctional employee, youth services employee, firefighter, EMT,
or investigator of the bureau of criminal identification and
investigation resides;
(b) Information compiled from referral to or participation in
an employee assistance program;
(c) The social security number, the residential telephone
number, any bank account, debit card, charge card, or credit card
number, or the emergency telephone number of, or any medical
information pertaining to, a peace officer, parole officer,
probation officer, bailiff, prosecuting attorney, assistant
prosecuting attorney, correctional employee, youth services
employee, firefighter, EMT, or investigator of the bureau of
criminal identification and investigation;
(d) The name of any beneficiary of employment benefits,
including, but not limited to, life insurance benefits, provided
to a peace officer, parole officer, probation officer, bailiff,
prosecuting attorney, assistant prosecuting attorney, correctional
employee, youth services employee, firefighter, EMT, or
investigator of the bureau of criminal identification and
investigation by the peace officer's, parole officer's, probation
officer's, bailiff's, prosecuting attorney's, assistant
prosecuting attorney's, correctional employee's, youth services
employee's, firefighter's, EMT's, or investigator of the bureau of
criminal identification and investigation's employer;
(e) The identity and amount of any charitable or employment
benefit deduction made by the peace officer's, parole officer's,
probation officer's, bailiff's, prosecuting attorney's, assistant
prosecuting attorney's, correctional employee's, youth services
employee's, firefighter's, EMT's, or investigator of the bureau of
criminal identification and investigation's employer from the
peace officer's, parole officer's, probation officer's, bailiff's,
prosecuting attorney's, assistant prosecuting attorney's,
correctional employee's, youth services employee's, firefighter's,
EMT's, or investigator of the bureau of criminal identification
and investigation's compensation unless the amount of the
deduction is required by state or federal law;
(f) The name, the residential address, the name of the
employer, the address of the employer, the social security number,
the residential telephone number, any bank account, debit card,
charge card, or credit card number, or the emergency telephone
number of the spouse, a former spouse, or any child of a peace
officer, parole officer, probation officer, bailiff, prosecuting
attorney, assistant prosecuting attorney, correctional employee,
youth services employee, firefighter, EMT, or investigator of the
bureau of criminal identification and investigation;
(g) A photograph of a peace officer who holds a position or
has an assignment that may include undercover or plain clothes
positions or assignments as determined by the peace officer's
appointing authority.
As used in divisions (A)(7) and (B)(9) of this section,
"peace officer" has the same meaning as in section 109.71 of the
Revised Code and also includes the superintendent and troopers of
the state highway patrol; it does not include the sheriff of a
county or a supervisory employee who, in the absence of the
sheriff, is authorized to stand in for, exercise the authority of,
and perform the duties of the sheriff.
As used in divisions (A)(7) and (B)(5) of this section,
"correctional employee" means any employee of the department of
rehabilitation and correction who in the course of performing the
employee's job duties has or has had contact with inmates and
persons under supervision.
As used in divisions (A)(7) and (B)(5) of this section,
"youth services employee" means any employee of the department of
youth services who in the course of performing the employee's job
duties has or has had contact with children committed to the
custody of the department of youth services.
As used in divisions (A)(7) and (B)(9) of this section,
"firefighter" means any regular, paid or volunteer, member of a
lawfully constituted fire department of a municipal corporation,
township, fire district, or village.
As used in divisions (A)(7) and (B)(9) of this section, "EMT"
means EMTs-basic, EMTs-I, and paramedics that provide emergency
medical services for a public emergency medical service
organization. "Emergency medical service organization,"
"EMT-basic," "EMT-I," and "paramedic" have the same meanings as in
section 4765.01 of the Revised Code.
As used in divisions (A)(7) and (B)(9) of this section,
"investigator of the bureau of criminal identification and
investigation" has the meaning defined in section 2903.11 of the
Revised Code.
(8) "Information pertaining to the recreational activities of
a person under the age of eighteen" means information that is kept
in the ordinary course of business by a public office, that
pertains to the recreational activities of a person under the age
of eighteen years, and that discloses any of the following:
(a) The address or telephone number of a person under the age
of eighteen or the address or telephone number of that person's
parent, guardian, custodian, or emergency contact person;
(b) The social security number, birth date, or photographic
image of a person under the age of eighteen;
(c) Any medical record, history, or information pertaining to
a person under the age of eighteen;
(d) Any additional information sought or required about a
person under the age of eighteen for the purpose of allowing that
person to participate in any recreational activity conducted or
sponsored by a public office or to use or obtain admission
privileges to any recreational facility owned or operated by a
public office.
(9) "Community control sanction" has the same meaning as in
section 2929.01 of the Revised Code.
(10) "Post-release control sanction" has the same meaning as
in section 2967.01 of the Revised Code.
(11) "Redaction" means obscuring or deleting any information
that is exempt from the duty to permit public inspection or
copying from an item that otherwise meets the definition of a
"record" in section 149.011 of the Revised Code.
(12) "Designee" and "elected official" have the same meanings
as in section 109.43 of the Revised Code.
(B)(1) Upon request and subject to division (B)(8) of this
section, all public records responsive to the request shall be
promptly prepared and made available for inspection to any person
at all reasonable times during regular business hours. Subject to
division (B)(8) of this section, upon request, a public office or
person responsible for public records shall make copies of the
requested public record available at cost and within a reasonable
period of time. If a public record contains information that is
exempt from the duty to permit public inspection or to copy the
public record, the public office or the person responsible for the
public record shall make available all of the information within
the public record that is not exempt. When making that public
record available for public inspection or copying that public
record, the public office or the person responsible for the public
record shall notify the requester of any redaction or make the
redaction plainly visible. A redaction shall be deemed a denial of
a request to inspect or copy the redacted information, except if
federal or state law authorizes or requires a public office to
make the redaction.
(2) To facilitate broader access to public records, a public
office or the person responsible for public records shall organize
and maintain public records in a manner that they can be made
available for inspection or copying in accordance with division
(B) of this section. A public office also shall have available a
copy of its current records retention schedule at a location
readily available to the public. If a requester makes an ambiguous
or overly broad request or has difficulty in making a request for
copies or inspection of public records under this section such
that the public office or the person responsible for the requested
public record cannot reasonably identify what public records are
being requested, the public office or the person responsible for
the requested public record may deny the request but shall provide
the requester with an opportunity to revise the request by
informing the requester of the manner in which records are
maintained by the public office and accessed in the ordinary
course of the public office's or person's duties.
(3) If a request is ultimately denied, in part or in whole,
the public office or the person responsible for the requested
public record shall provide the requester with an explanation,
including legal authority, setting forth why the request was
denied. If the initial request was provided in writing, the
explanation also shall be provided to the requester in writing.
The explanation shall not preclude the public office or the person
responsible for the requested public record from relying upon
additional reasons or legal authority in defending an action
commenced under division (C) of this section.
(4) Unless specifically required or authorized by state or
federal law or in accordance with division (B) of this section, no
public office or person responsible for public records may limit
or condition the availability of public records by requiring
disclosure of the requester's identity or the intended use of the
requested public record. Any requirement that the requester
disclose the requestor's identity or the intended use of the
requested public record constitutes a denial of the request.
(5) A public office or person responsible for public records
may ask a requester to make the request in writing, may ask for
the requester's identity, and may inquire about the intended use
of the information requested, but may do so only after disclosing
to the requester that a written request is not mandatory and that
the requester may decline to reveal the requester's identity or
the intended use and when a written request or disclosure of the
identity or intended use would benefit the requester by enhancing
the ability of the public office or person responsible for public
records to identify, locate, or deliver the public records sought
by the requester.
(6) If any person chooses to obtain a copy of a public record
in accordance with division (B) of this section, the public office
or person responsible for the public record may require that
person to pay in advance the cost involved in providing the copy
of the public record in accordance with the choice made by the
person seeking the copy under this division. The public office or
the person responsible for the public record shall permit that
person to choose to have the public record duplicated upon paper,
upon the same medium upon which the public office or person
responsible for the public record keeps it, or upon any other
medium upon which the public office or person responsible for the
public record determines that it reasonably can be duplicated as
an integral part of the normal operations of the public office or
person responsible for the public record. When the person seeking
the copy makes a choice under this division, the public office or
person responsible for the public record shall provide a copy of
it in accordance with the choice made by the person seeking the
copy. Nothing in this section requires a public office or person
responsible for the public record to allow the person seeking a
copy of the public record to make the copies of the public record.
(7) Upon a request made in accordance with division (B) of
this section and subject to division (B)(6) of this section, a
public office or person responsible for public records shall
transmit a copy of a public record to any person by United States
mail or by any other means of delivery or transmission within a
reasonable period of time after receiving the request for the
copy. The public office or person responsible for the public
record may require the person making the request to pay in advance
the cost of postage if the copy is transmitted by United States
mail or the cost of delivery if the copy is transmitted other than
by United States mail, and to pay in advance the costs incurred
for other supplies used in the mailing, delivery, or transmission.
Any public office may adopt a policy and procedures that it
will follow in transmitting, within a reasonable period of time
after receiving a request, copies of public records by United
States mail or by any other means of delivery or transmission
pursuant to this division. A public office that adopts a policy
and procedures under this division shall comply with them in
performing its duties under this division.
In any policy and procedures adopted under this division, a
public office may limit the number of records requested by a
person that the office will transmit by United States mail to ten
per month, unless the person certifies to the office in writing
that the person does not intend to use or forward the requested
records, or the information contained in them, for commercial
purposes. For purposes of this division, "commercial" shall be
narrowly construed and does not include reporting or gathering
news, reporting or gathering information to assist citizen
oversight or understanding of the operation or activities of
government, or nonprofit educational research.
(8) A public office or person responsible for public records
is not required to permit a person who is incarcerated pursuant to
a criminal conviction or a juvenile adjudication to inspect or to
obtain a copy of any public record concerning a criminal
investigation or prosecution or concerning what would be a
criminal investigation or prosecution if the subject of the
investigation or prosecution were an adult, unless the request to
inspect or to obtain a copy of the record is for the purpose of
acquiring information that is subject to release as a public
record under this section and the judge who imposed the sentence
or made the adjudication with respect to the person, or the
judge's successor in office, finds that the information sought in
the public record is necessary to support what appears to be a
justiciable claim of the person.
(9)(a) Upon written request made and signed by a journalist
on or after December 16, 1999, a public office, or person
responsible for public records, having custody of the records of
the agency employing a specified peace officer, parole officer,
probation officer, bailiff, prosecuting attorney, assistant
prosecuting attorney, correctional employee, youth services
employee, firefighter, EMT, or investigator of the bureau of
criminal identification and investigation shall disclose to the
journalist the address of the actual personal residence of the
peace officer, parole officer, probation officer, bailiff,
prosecuting attorney, assistant prosecuting attorney, correctional
employee, youth services employee, firefighter, EMT, or
investigator of the bureau of criminal identification and
investigation and, if the peace officer's, parole officer's,
probation officer's, bailiff's, prosecuting attorney's, assistant
prosecuting attorney's, correctional employee's, youth services
employee's, firefighter's, EMT's, or investigator of the bureau of
criminal identification and investigation's spouse, former spouse,
or child is employed by a public office, the name and address of
the employer of the peace officer's, parole officer's, probation
officer's, bailiff's, prosecuting attorney's, assistant
prosecuting attorney's, correctional employee's, youth services
employee's, firefighter's, EMT's, or investigator of the bureau of
criminal identification and investigation's spouse, former spouse,
or child. The request shall include the journalist's name and
title and the name and address of the journalist's employer and
shall state that disclosure of the information sought would be in
the public interest.
(b) Division (B)(9)(a) of this section also applies to
journalist requests for customer information maintained by a
municipally owned or operated public utility, other than social
security numbers and any private financial information such as
credit reports, payment methods, credit card numbers, and bank
account information.
(c) As used in division (B)(9) of this section, "journalist"
means a person engaged in, connected with, or employed by any news
medium, including a newspaper, magazine, press association, news
agency, or wire service, a radio or television station, or a
similar medium, for the purpose of gathering, processing,
transmitting, compiling, editing, or disseminating information for
the general public.
(C)(1) If a person allegedly is aggrieved by the failure of a
public office or the person responsible for public records to
promptly prepare a public record and to make it available to the
person for inspection in accordance with division (B) of this
section or by any other failure of a public office or the person
responsible for public records to comply with an obligation in
accordance with division (B) of this section, the person allegedly
aggrieved may commence a mandamus action to obtain a judgment that
orders the public office or the person responsible for the public
record to comply with division (B) of this section, that awards
court costs and reasonable attorney's fees to the person that
instituted the mandamus action, and, if applicable, that includes
an order fixing statutory damages under division (C)(1) of this
section. The mandamus action may be commenced in the court of
common pleas of the county in which division (B) of this section
allegedly was not complied with, in the supreme court pursuant to
its original jurisdiction under Section 2 of Article IV, Ohio
Constitution, or in the court of appeals for the appellate
district in which division (B) of this section allegedly was not
complied with pursuant to its original jurisdiction under Section
3 of Article IV, Ohio Constitution.
If a requestor transmits a written request by hand delivery
or certified mail to inspect or receive copies of any public
record in a manner that fairly describes the public record or
class of public records to the public office or person responsible
for the requested public records, except as otherwise provided in
this section, the requestor shall be entitled to recover the
amount of statutory damages set forth in this division if a court
determines that the public office or the person responsible for
public records failed to comply with an obligation in accordance
with division (B) of this section.
The amount of statutory damages shall be fixed at one hundred
dollars for each business day during which the public office or
person responsible for the requested public records failed to
comply with an obligation in accordance with division (B) of this
section, beginning with the day on which the requester files a
mandamus action to recover statutory damages, up to a maximum of
one thousand dollars. The award of statutory damages shall not be
construed as a penalty, but as compensation for injury arising
from lost use of the requested information. The existence of this
injury shall be conclusively presumed. The award of statutory
damages shall be in addition to all other remedies authorized by
this section.
The court may reduce an award of statutory damages or not
award statutory damages if the court determines both of the
following:
(a) That, based on the ordinary application of statutory law
and case law as it existed at the time of the conduct or
threatened conduct of the public office or person responsible for
the requested public records that allegedly constitutes a failure
to comply with an obligation in accordance with division (B) of
this section and that was the basis of the mandamus action, a
well-informed public office or person responsible for the
requested public records reasonably would believe that the conduct
or threatened conduct of the public office or person responsible
for the requested public records did not constitute a failure to
comply with an obligation in accordance with division (B) of this
section;
(b) That a well-informed public office or person responsible
for the requested public records reasonably would believe that the
conduct or threatened conduct of the public office or person
responsible for the requested public records would serve the
public policy that underlies the authority that is asserted as
permitting that conduct or threatened conduct.
(2)(a) If the court issues a writ of mandamus that orders the
public office or the person responsible for the public record to
comply with division (B) of this section and determines that the
circumstances described in division (C)(1) of this section exist,
the court shall determine and award to the relator all court
costs.
(b) If the court renders a judgment that orders the public
office or the person responsible for the public record to comply
with division (B) of this section, the court may award reasonable
attorney's fees subject to reduction as described in division
(C)(2)(c) of this section. The court shall award reasonable
attorney's fees, subject to reduction as described in division
(C)(2)(c) of this section when either of the following applies:
(i) The public office or the person responsible for the
public records failed to respond affirmatively or negatively to
the public records request in accordance with the time allowed
under division (B) of this section.
(ii) The public office or the person responsible for the
public records promised to permit the relator to inspect or
receive copies of the public records requested within a specified
period of time but failed to fulfill that promise within that
specified period of time.
(c) Court costs and reasonable attorney's fees awarded under
this section shall be construed as remedial and not punitive.
Reasonable attorney's fees shall include reasonable fees incurred
to produce proof of the reasonableness and amount of the fees and
to otherwise litigate entitlement to the fees. The court may
reduce an award of attorney's fees to the relator or not award
attorney's fees to the relator if the court determines both of the
following:
(i) That, based on the ordinary application of statutory law
and case law as it existed at the time of the conduct or
threatened conduct of the public office or person responsible for
the requested public records that allegedly constitutes a failure
to comply with an obligation in accordance with division (B) of
this section and that was the basis of the mandamus action, a
well-informed public office or person responsible for the
requested public records reasonably would believe that the conduct
or threatened conduct of the public office or person responsible
for the requested public records did not constitute a failure to
comply with an obligation in accordance with division (B) of this
section;
(ii) That a well-informed public office or person responsible
for the requested public records reasonably would believe that the
conduct or threatened conduct of the public office or person
responsible for the requested public records as described in
division (C)(2)(c)(i) of this section would serve the public
policy that underlies the authority that is asserted as permitting
that conduct or threatened conduct.
(D) Chapter 1347. of the Revised Code does not limit the
provisions of this section.
(E)(1) To ensure that all employees of public offices are
appropriately educated about a public office's obligations under
division (B) of this section, all elected officials or their
appropriate designees shall attend training approved by the
attorney general as provided in section 109.43 of the Revised
Code. In addition, all public offices shall adopt a public records
policy in compliance with this section for responding to public
records requests. In adopting a public records policy under this
division, a public office may obtain guidance from the model
public records policy developed and provided to the public office
by the attorney general under section 109.43 of the Revised Code.
Except as otherwise provided in this section, the policy may not
limit the number of public records that the public office will
make available to a single person, may not limit the number of
public records that it will make available during a fixed period
of time, and may not establish a fixed period of time before it
will respond to a request for inspection or copying of public
records, unless that period is less than eight hours.
(2) The public office shall distribute the public records
policy adopted by the public office under division (E)(1) of this
section to the employee of the public office who is the records
custodian or records manager or otherwise has custody of the
records of that office. The public office shall require that
employee to acknowledge receipt of the copy of the public records
policy. The public office shall create a poster that describes its
public records policy and shall post the poster in a conspicuous
place in the public office and in all locations where the public
office has branch offices. The public office may post its public
records policy on the internet web site of the public office if
the public office maintains an internet web site. A public office
that has established a manual or handbook of its general policies
and procedures for all employees of the public office shall
include the public records policy of the public office in the
manual or handbook.
(F)(1) The bureau of motor vehicles may adopt rules pursuant
to Chapter 119. of the Revised Code to reasonably limit the number
of bulk commercial special extraction requests made by a person
for the same records or for updated records during a calendar
year. The rules may include provisions for charges to be made for
bulk commercial special extraction requests for the actual cost of
the bureau, plus special extraction costs, plus ten per cent. The
bureau may charge for expenses for redacting information, the
release of which is prohibited by law.
(2) As used in division (F)(1) of this section:
(a) "Actual cost" means the cost of depleted supplies,
records storage media costs, actual mailing and alternative
delivery costs, or other transmitting costs, and any direct
equipment operating and maintenance costs, including actual costs
paid to private contractors for copying services.
(b) "Bulk commercial special extraction request" means a
request for copies of a record for information in a format other
than the format already available, or information that cannot be
extracted without examination of all items in a records series,
class of records, or data base by a person who intends to use or
forward the copies for surveys, marketing, solicitation, or resale
for commercial purposes. "Bulk commercial special extraction
request" does not include a request by a person who gives
assurance to the bureau that the person making the request does
not intend to use or forward the requested copies for surveys,
marketing, solicitation, or resale for commercial purposes.
(c) "Commercial" means profit-seeking production, buying, or
selling of any good, service, or other product.
(d) "Special extraction costs" means the cost of the time
spent by the lowest paid employee competent to perform the task,
the actual amount paid to outside private contractors employed by
the bureau, or the actual cost incurred to create computer
programs to make the special extraction. "Special extraction
costs" include any charges paid to a public agency for computer or
records services.
(3) For purposes of divisions (F)(1) and (2) of this section,
"surveys, marketing, solicitation, or resale for commercial
purposes" shall be narrowly construed and does not include
reporting or gathering news, reporting or gathering information to
assist citizen oversight or understanding of the operation or
activities of government, or nonprofit educational research.
Sec. 3313.33. (A) Conveyances made by a board of education,
including conveyances and contracts necessary for the operation of
a for-profit activity under section 3313.174 of the Revised Code,
shall be executed by the president and treasurer thereof.
(B) Except as provided in division (C) of this section, no
member of the board shall have, directly or indirectly, any
pecuniary interest in any contract of the board or be employed in
any manner for compensation by the board of which the person is a
member. No contract shall be binding upon any board unless it is
made or authorized at a regular or special meeting of such board.
(C) A member of the board may have a pecuniary interest in a
contract of the board if all of the following apply:
(1) The member's pecuniary interest in that contract is that
the member is employed by a political subdivision,
instrumentality, or agency of the state that is contracting with
the board;
(2) The member does not participate in any discussion or
debate regarding the contract or vote on the contract;
(3) The member files with the school district treasurer an
affidavit stating the member's exact employment status with the
political subdivision, instrumentality, or agency contracting with
the board.
(D) This section does not apply where a member of the board,
being a shareholder of a corporation but not being an officer or
director thereof, owns not in excess of five per cent of the stock
of such corporation. If a stockholder desires to avail self of the
exception, before entering upon such contract such person shall
first file with the treasurer an affidavit stating the
stockholder's exact status and connection with said corporation.
This section does not apply where a member of the board
elects to be covered by a health care plan under section 3313.202
of the Revised Code.
Sec. 3313.811. No board, the principal or teacher of any
schoolroom, or class organization of any school district shall
sell or offer for sale, or supervise the sale of uniform school
supplies, foods, candies, or like supplies for profit on the
school premises except when the profit derived from such sale is
to be used for school purposes or for any activity in connection
with the school on whose premises such uniform school supplies,
food, candies, or supplies are sold or offered for sale. No
individual student or class of students, acting as an agent for
any person or group of persons directly connected with the school
shall sell or offer for sale for profit outside the school
building, any such articles, except when the profit derived from
such sale is to be used for school purposes or for any activity in
connection with the school.
Uniform school supplies are those adopted by the board for
use in the schools of the district.
The enforcement of this section shall be under the
jurisdiction of the state board of education.
The school district board of education shall provide
revolving accounts for the purchase and sale of uniform school
supplies either by appropriations from the general fund or
accumulation from sales or receipts. Such accounts shall be kept
separate from other transactions of the board.
This section does not apply to a for-profit activity approved
by a district board under section 3313.174 of the Revised Code.
Sec. 5705.341. Any person required to pay taxes on real,
public utility, or tangible personal property in any taxing
district or other political subdivision of this state may appeal
to the board of tax appeals from the action of the county budget
commission of any county which relates to the fixing of uniform
rates of taxation and the rate necessary to be levied by each
taxing authority within its subdivision or taxing unit and which
action has been certified by the county budget commission to the
taxing authority of any political subdivision or other taxing
district within the county.
Such appeal shall be in writing and shall set forth the tax
rate complained of and the reason that such a tax rate is not
necessary to produce the revenue needed by the taxing district or
political subdivision for the ensuing fiscal year as those needs
are set out in the tax budget of said taxing unit or, if adoption
of a tax budget was waived under section 5705.281 of the Revised
Code, as set out in such other information the district or
subdivision was required to provide under that section, or that
the action of the budget commission appealed from does not
otherwise comply with sections 5705.01 to 5705.47 of the Revised
Code. The notice of appeal shall be filed with the board of tax
appeals, and a true copy thereof shall be filed with the tax
commissioner, the county auditor, and with the fiscal officer of
each taxing district or political subdivision authorized to levy
the tax complained of, and such notice of appeal and copies
thereof must be filed within thirty days after the budget
commission has certified its action as provided by section 5705.34
of the Revised Code. Such notice of appeal and the copies thereof
may be filed either in person or by certified mail. If filed by
certified mail, the date of the United States postmark placed on
the sender's receipt by the postal employee to whom the notice of
appeal is presented shall be treated as the date of filing.
Prior to filing the appeal provided by this section, the
appellant shall deposit with the county auditor of the county or,
in the event the appeal concerns joint taxing districts in two or
more counties, with the county auditor of the county with the
greatest valuation of taxable property the sum of five hundred
dollars to cover the costs of the proceeding. The county auditor
shall forthwith issue a pay-in order and pay such money into the
county treasury to the credit of the general fund. The appellant
shall produce the receipt of the county treasurer for such deposit
and shall file such receipt with the notice of appeal.
The board of tax appeals shall forthwith consider the matter
presented on appeal from the action of the county budget
commission and may modify any action of the commission with
reference to the fixing of tax rates, to the end that no tax rate
shall be levied above that necessary to produce the revenue needed
by the taxing district or political subdivision for the ensuing
fiscal year and to the end that the action of the budget
commission appealed from shall otherwise be in conformity with
sections 5705.01 to 5705.47 of the Revised Code. The findings of
the board of tax appeals shall be substituted for the findings of
the budget commission and shall be sent to the county auditor and
the taxing authority of the taxing district or political
subdivision affected as the action of such budget commission under
sections 5705.01 to 5705.47 of the Revised Code and to the tax
commissioner. At the request of an appellant, the findings of the
board of tax appeals shall be sent by certified mail at the
appellant's expense.
The board of tax appeals shall promptly prepare a cost bill
listing the expenses incurred by the board in conducting any
hearing on the appeal and certify the cost bill to the county
auditor of the county receiving the deposit for costs, who shall
forthwith draw a warrant on the general fund of the county in
favor of the person or persons named in the bill of costs
certified by the board of tax appeals.
In the event the appellant prevails, the board of tax appeals
promptly shall direct the county auditor to refund the deposit to
the appellant and the costs shall be taxed to the taxing district
or political subdivision involved in the appeal. The county
auditor shall withhold from any funds then or thereafter in the
auditor's possession belonging to the taxing district or political
subdivision named in the order of the board of tax appeals and
shall reimburse the general fund of the county.
If the appellant fails, the costs shall be deducted from the
deposit provided for in this section and any balance which remains
shall be refunded promptly to the appellant by warrant of the
county auditor drawn on the general fund of the county.
Nothing in this section or any section of the Revised Code
shall permit or require the levying of any rate of taxation,
whether within the ten-mill limitation or whether the levy has
been approved by the electors of the taxing district, the
political subdivision, or the charter of a municipal corporation
in excess of such ten-mill limitation, unless such rate of
taxation for the ensuing fiscal year is clearly required by a
budget of the taxing district or political subdivision properly
and lawfully adopted under this chapter, or by other information
that must be provided under section 5705.281 of the Revised Code
if a tax budget was waived. Notwithstanding the foregoing, the
profits or benefits derived from a for-profit activity approved by
a school district board of education and operated by the district
under section 3313.174 of the Revised Code may not be used to
reduce the district's levying of any rate of taxation or its tax
revenue as determined by the county budget commission. However,
the school district board may reduce the rate of taxation of a
levy approved by the electors, at its discretion, due to revenue
the district receives from that activity.
In the event more than one appeal is filed involving the same
taxing district or political subdivision, all such appeals may be
consolidated by the board of tax appeals and heard at the same
time.
Nothing herein contained shall be construed to bar or
prohibit the tax commissioner from initiating an investigation or
hearing on the commissioner's own motion.
The tax commissioner shall adopt and issue such orders,
rules, and instructions, not inconsistent with law, as the
commissioner deems necessary, as to the exercise of the powers and
the discharge of the duties of any particular county budget
commission, county auditor, or other officer which relate to the
budget, the assessment of property, or the levy and collection of
taxes. The commissioner shall cause the orders and instructions
issued by the commissioner to be obeyed.
Section 3. That existing sections 149.43, 3313.33, 3313.811,
and 5705.341 of the Revised Code are hereby repealed.
Section 4. Section 149.43 of the Revised Code is presented
in this act as a composite of the section as amended by both Sub.
H.B. 64 and Am. Sub. H.B. 153 of the 129th General Assembly. The
General Assembly, applying the principle stated in division (B) of
section 1.52 of the Revised Code that amendments are to be
harmonized if reasonably capable of simultaneous operation, finds
that the composite is the resulting version of the section in
effect prior to the effective date of the section as presented in
this act.
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