Kettering’s school board meets this Tuesday at Fairmont High School, in executive session at 5 p.m. and open session at 6 p.m.
3315.07 (C)(1) Except as otherwise provided in division (C)(2) of this section, no board of education shall use public funds to support or oppose the passage of a school levy or bond issue or to compensate any school district employee for time spent on any activity intended to influence the outcome of a school levy or bond issue election.
(C)(2) A board of education may permit any of its employees to attend a public meeting during the employee's regular working hours for the purpose of presenting information about school finances and activities and board actions, even if the purpose of the meeting is to discuss or debate the passage of a school levy or bond issue.
A 2010 fundraising letter from pro-levy group Citizens for Kettering City Schools asks for donations to be mailed to the address of Kettering’s school board office, and says donors can call the levy group through “the school district’s Community Relations Department,” which is run with district tax dollars.
Yet, as the levy group reminds potential donors in that same letter, a school district “is not permitted to use any school funds to run a levy campaign.”
Running a school district and running a school levy campaign are sometimes intertwined, with the same people involved in both, even as Ohio law says the two functions should be separate in many ways.
That law appears to an issue in last week’s action by the Kettering school board to place on paid administrative leave superintendent Jim Schoenlein and treasurer Steve Clark. School district officials, some of whom have received subpoenas from the Ohio Auditor’s Office seeking e-mails about past levies, say irregularities in levy campaigns were one reason for relieving the two administrators from their duties.
Interviews with school officials in other districts revealed a lack of clarity about what the law allows and some confusion over what actions would violate the law.
Clark-Shawnee Local School District Superintendent Gregg Morris outlined the challenge school officials have keeping a levy issue from creeping into time on the job.
“Am I a superintendent eight hours a day or 24 hours a day?” Morris said. “What if someone calls me on the phone during the school day and wants to complain about the levy?”
The 2010 Kettering fundraising letter would appear to go beyond simply brushing up against the law. Ohio law says “no board of education shall use public funds to support or oppose the passage of a school levy or bond issue, or to compensate any school district employee for time spent on any activity intended to influence the outcome of a school levy or bond issue.”
The law also states that “no public employee shall solicit a contribution from any person while the public employee is performing the public employee’s official duties.”
But the fundraising letter, obtained by this newspaper, directs donors’ questions to public employees during work hours. Schoenlein and another school district administrator, Ken Lackey, signed the letter. The co-chair and treasurer of the pro-levy group, Citizens for Kettering City Schools, was Jim Trent, then a school board member. Potential donors were instructed to address checks to the levy committee but mail them to 3750 Far Hills Ave.
Not mentioned in the letter is that 3750 Far Hills Ave. is the district’s administrative office.
Kettering schools spokeswoman Kari Basson said the three 2010 levy chairs were at their businesses or not home during the day, so “the community relations office was a central place people could call and messages could then be relayed to the right person.”
The law
The Ohio Auditor of State’s office said working on any type of election campaign on government time can have serious consequences. Spokesman Blaine Kelly pointed to an ongoing case where the former Fairfield County clerk of courts has been charged with several felonies, including theft in office, because employees were working on her campaigns on county time.
But many school leaders say it’s not simple black-and-white law. Hollie Reedy, chief legal counsel for the Ohio School Boards Association, said school officials don’t argue with the spirit of the law, but they say the Ohio Revised Code language can be hard to apply.
"One-hundred-percent no, the law is not clear," Reedy said. "The only main sentence we have is from ORC 3315.07. It's not an unclear sentence, but districts are put in the position of applying that one sentence to every conceivable fact pattern. And when that sentence is followed by another sentence that says you can present information (on a levy), that makes it very difficult to determine where the line is."
OSBA tries to help school districts follow the law with a 16-point fact sheet, answering questions about whether levy committees can meet in school buildings (yes, with limitations), whether levy groups can use the schools’ bulk mail rate (no), and the key difference between simply providing information about a levy, and advocating for passage of the levy.
“It’s not a comprehensive document (because) we don’t really have a lot of case law,” Reedy said. “OSBA generally takes a conservative approach because then you’re less likely to end up on the wrong side of a situation where someone interprets something you did as inappropriate.”
Levy campaigns
Clark-Shawnee schools saw voters reject three levies in 2013 before a 6.95-mill measure was passed on Tuesday.
Morris, the superintendent, said school officials have to separate the informative duties of the district — which can be paid for with the schools’ public tax money — from the campaign’s job of earning votes, which must be funded via private donations to a registered political action committee.
“It’s my job to inform the community of the financial needs of the district,” he said. “It’s not my job to tell someone to vote yes.”
Centerville Schools Superintendent Tom Henderson said his district’s levy committee has usually hired a consultant to make sure the campaign is run properly.
“We’ve had the good fortune of those people being able to advise us, counsel us and keep us on the straight and narrow,” Henderson said.
Henderson said school employees were presented with a 48-slide PowerPoint presentation in 2012 explaining what actions could violate the law.
“It takes you through scenarios of what’s allowed and what’s not, because it can be kind of confusing,” he said.
The presentation clearly advises not to use district e-mails, phones or office space for levy activity. Factual information about the levy is OK for a school newsletter, but suggestions or hints to vote a certain way are not.
Schoenlein, who became Kettering’s superintendent in 2009, said it shouldn’t matter whether he did levy work during school hours because he worked more than the required number of hours running the district as well.
Several superintendents said that is a tough issue, because calls about levy-related matters can come at any time. Tecumseh Superintendent Brad Martin said he answers those calls and questions, but confines levy committee meetings to evening hours.
Henderson said if he knew a call was levy-related, he’d try to return it after hours on his personal cell phone, or with an e-mail from his non-school e-mail account.
Vandalia-Butler Superintendent Brad Neavin said he tells staffers who have levy involvement to keep a detailed calendar tracking their work hours and levy-related hours, and he tries to confine daytime levy work to lunch meetings.
“If I did any type of levy work, even a quick meeting with the levy chair, you’re going to find it was a 10-hour day,” Neavin said. “Maybe I had to meet with him at the time that I did, but I made up the time otherwise. That’s the advice we get from our counsel.”
Residents in the Clark-Shawnee district complained to the Clark County Board of Elections last week that Reid School Assistant Principal Bob Willman drove elderly voters to the polls Tuesday during school hours.
Morris, the superintendent, confirmed that levy committee members offered rides to Brentwood Square residents who didn’t have transportation, but he pointed out that Willman’s position is part-time and he worked a half-day on Tuesday.
Enforcement
A wide range of state and local agencies have oversight of separate pieces of the levy campaign process.
“Ohio law prohibits school districts from using their funds for a campaign, but that is not within our jurisdiction or the Ethics Commission’s jurisdiction,” said Philip Richter, executive director of the Ohio Elections Commission, which handles problems with campaign literature. “Where that would be enforced, I would have a hard time saying.”
Several agencies said they regularly receive calls about possible wrongdoing, but it’s more rare for a call to lead to an investigation.
Ohio Department of Education spokesman John Charlton said in 15 years, ODE’s Department of Professional Conduct has not seen a case where an individual was investigated for spending public funds on a levy campaign. Charlton said the question of whether a school district has crossed the line comes up often during election season, but most of those issues are referred to a county prosecutor or handled during the state auditor’s annual review of a district.
The Montgomery County Prosecutor’s Office is not involved in any current investigation of Kettering City Schools, according to spokesman Greg Flannagan, who added that he could not recall any recent cases where the prosecutor probed a school district for misusing public funds.
The Ohio Elections Commission did hear a complaint about Kettering City Schools’ levy practices in 2010, but found that most of the complaint was outside the purview of the office, and there was no violation in the limited area where the OEC could rule.
Kelly said the Ohio auditor’s office does handle some cases of this type, but doesn’t track how many. The auditor’s office has refused to comment on Kettering’s case, although school district officials have confirmed that the auditor is investigating.
Reedy, the OSBA attorney, said it would help school districts to have more specific guidance from the state, as long as it is based on established law. But she said problems are rare.
“Districts are running levy campaigns a lot, and there are actually very few questions, given those numbers,” Reedy said. “When it happens, it’s a big thing, but overall, districts are doing fairly well.”
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