School board broaches levy restrictions
- Published: January 24, 2023
With a levy to address shoring up village school facilities expected from the school district this fall, the Yellow Springs Board of Education considered how it will present that levy to the community at its first meeting of the year on Jan. 12.
Education attorney Nicole Donovsky, of law firm Bricker & Eckler — the district’s primary legal counsel — gave a presentation at the meeting on the boundaries district employees and board members must observe when it comes to communicating with the public about upcoming levies.
“Superintendents are very passionate people, board members are very passionate people, about what’s going on in the district,” Donovsky said. “We can’t be passionate about levies anymore.”
Donovsky referred to November 2021 criminal charges that were brought against the superintendent and four school board members of Bellbrook-Sugarcreek School District after an operations levy was put on the ballot in 2019. Though the levy failed, the superintendent and board members were found to have used district funds to hire a public relations firm to aid in passing the levy. In addition, language in a survey and in print materials about the levy paid for by the district and distributed in the community used language that was determined to have advocated that voters support the levy.
According to Ohio Revised Code 9.03, governing bodies of political subdivisions cannot use public funds to distribute information that “supports or opposes … the passage of a levy or bond issue.”
The charges were brought against the Bellbrook-Sugarcreek district officials by Ohio Auditor Keith Faber; the first- and second-degree misdemeanor charges were for illegal transaction of public funds and dereliction of duty.
“It was the first time in history that school employees and officials were criminally charged,” Donovsky said. “So it’s a little bit earth-shattering in the world of education.”
With that in mind, Donovsky said, Auditor Faber was slated at the beginning of this month to have developed a guiding document on why the individuals were charged and how school districts can prevent similar situations in the future — a document that has yet to be released. However, Donovsky went on to give advice to the Yellow Springs district as it continues to engage in conversations leading up to a potential facilities levy.
She clarified that a school district may disseminate information about a school levy, for example, on social media, in public addresses or in the form of a district-funded newsletter — but any such communication must only give facts about the levy itself and must not be designed to influence the outcome of an elected levy.
At the same time, Donovsky said, district employees must not be compensated for any time they spend on any activity that might influence the outcome of an election. Any campaigning an employee might do must be done on their own time.
“This is where we get into the tricky piece,” she said. “When are you on your own time?”
Donovsky cautioned the school board and district officials to take care in considering when and how they might publicly express support for or opposition to a levy. Though all are entitled to First Amendment rights, the state auditor, she said, has stated that he believes a school district’s superintendent and treasurer are always representing their district in public spaces, no matter their intention.
“We can legally disagree with that,” Donovsky said, speaking to Superintendent Terri Holden. “But I don’t know, Terri, if you want to take that chance and have to challenge the auditor.”
“I don’t,” Holden replied.
Treasurer Jay McGrath raised concerns about how the district — and he himself — should go about discussing potential levies in board and committee meetings and work sessions moving forward.
“It’s my job to propose these levies,” McGrath said. “Is the work that we’re doing in meetings leading up to the adoption of the levy considered advocation?”
Donovsky agreed that the restrictions make such public conversations fraught, but advised the district to keep separate talks about facilities needs and the funds needed to address them. She said some discussions of finances related to levies, such as publicly stating that a failed levy would lead a district to make potentially unfavorable decisions, could be considered “scare tactics” meant to influence the outcome of a vote.
She also cautioned that Auditor Faber has made it clear that he mistrusts the usage of surveys in precampaign work from districts, but said community surveys can still be utilized if carefully scrutinized.
“So you can do a survey [asking], ‘Which do you support, Project A, B or C?’ But you cannot tread into territory of, ‘If it costs X to do project A, will you support that?’” Donovsky said.
To that end, Donovsky said a levy committee, formed by community members, is critical for a political subdivision. A levy committee can issue public communications that openly advocate for or against a ballot issue, and may collect data through surveys and other means and provide that information to the school board. The committee, she said, can obtain information used in a campaign by attending public meetings and through public records requests.
“But you cannot be responsible for that levy committee,” Donovsky added. “The superintendent, the treasurer and board members cannot be a part of that committee.”
Donovsky clarified that these restrictions only apply to employees of the district and to board members; community members serving on board-appointed committees like the Facilities Committee, she said, are exempt.
Donovsky reiterated that caution is the order of the day when leading up to a ballot issue.
“We have to be really, really careful,” she said.
Facilities Committee update
Board President TJ Turner said that, as was intimated at the last meeting of the Facilities Committee earlier this month, the committee is winding down its work. He suggested that the school board move forward with community listening sessions to be held once a month in January, February, March and April.
The purpose of the sessions will be to receive feedback from community members on potential renovation options, as well as the possibility of a new, K–12 campus on East Enon Road like the one that was presented to voters in 2021, as the board works to make a decision about what to put before voters in November.
The first listening session will be held during a board work session on Tuesday, Jan. 24, beginning at 6 p.m., in the media center at Yellow Springs High School.
Thus far, the Facilities Committee — formed nearly a year ago to explore the costs of a plan to repair and upgrade the district’s school buildings — has discussed two potential renovation options: a foundational plan, which includes addressing critical needs at an estimated cost of about $25 million; and an option to renovate both campuses to like-new conditions, estimated to cost about $50 million.
Facilities Committee Chair Judith Hempfling presented a third renovation option at the meeting of the school board, which she called the “plus plan.”
“[The foundational plan] is not quite enough for what we need for our schools, clearly,” she said.
The plus plan, Hempfling said, builds onto the foundational plan, adding storm shelters at each campus; new finishes, flooring and furniture in the 1952 and 1957 wings at Mills Lawn and the “tower” section of Yellow Springs High School; a new band room at the high school; and the demolition of the modular “shoebox” building that houses McKinney Middle School students, to be replaced by five newly built classrooms. The cost for this plan, she reported, would be around $29.5 million.
Turner thanked the committee for its work thus far, but noted his displeasure with a letter to the editor that appeared in the Jan. 12 issue of the News. The letter, which was co-signed by several members of the Facilities Committee’s building professionals subgroup, aimed to lay out the particulars of the foundational plan and urge the creation of several renovation options at varying price points.
Turner said that the letter, which was not signed by Hempfling, was similar to a document she had signed and included in committee materials the previous week, and cited a “tacit agreement” between school board members not to “communicate through the Yellow Springs News like this.”
“I think it detracts from [the committee’s] really good work in some respects,” Turner said.
Hempfling responded by saying the letter to which Turner referred was written by the group of committee members that signed it in response to requests from community members wanting more information on the foundational plan.
“It was really trying to stick to facts, so I would hope that would not be destructive, but would be constructive,” she said.
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