MRR Ohio Legislation Updates: December 2 – December 15, 2016

Notes from the House of Representatives

  • HB No. 598 was passed on third consideration to create the Ohio Consumer Installment Loan Act.
  • Sub SB No. 227 was passed on third consideration to make various changes to the laws governing the duties and functions of the Attorney General and to modify judgment dormancy law.
  • HB No. 627 was introduced to specify that certain products, services, and supplies, to be purchased by the state through competitive selection, are eligible to be set aside for competition by only minority business enterprises and to clarify that plans prepared by an architect or engineer are not required for such purchases.
  • Sub. SB No. 331 was passed on third consideration to, among other items, prohibit political subdivisions from establishing minimum wage rates different from the rate required by state law, and to generally grant private employers exclusive authority to establish policies concerning hours, and location of work, scheduling, and fringe benefits, unless an exception applies.
  • Sub. SB No. 27 was passed on third consideration to enact the “Michael Louis Palumbo, Jr. Act” to provide that a firefighter who is disabled as a result of cancer under certain circumstances is presumed for purposes of the laws governing workers’ compensation and the Ohio Police and Fire Pension Fund to have incurred the cancer while performing official duties as a firefighter.
  • SB No. 273 was passed on third consideration to enact the Corporate Governance Annual Disclosure Act.
  • Sub. SB No. 235 passed on third consideration to authorize political subdivisions to exempt from property taxation the increased value of property on which industrial or commercial development is planned for up to six years, to make changes to Ohio’s unemployment compensation law, and to modify laws governing other state and local government authority and operations.
  • Sub. SB No. 463 was passed on third consideration relative to the Ohio Uniform Commercial Code, real property foreclosure and escrow transactions, certain partial property tax exemptions, and local ballot initiatives; to require the coverage of autism services; to reimburse child abuse and child neglect regional prevention council members for expenses and prohibit conflicts of interest; and to amend the statutory procedure for recalling certain municipal officials to include a deadline for filing a petition for recall.
  • Sub. SB No. 505 was passed on third consideration to regulate biological products and the substitution of interchangeable biological products, to revise certain deadlines related to prior authorization requirements, to establish an exemption from the laws governing health insuring corporations, and to delay the expiration of certain supervision agreements between physicians and physician assistants.
  • HB No. 628 was introduced to replace locally levied school district property taxes with a statewide property tax and require recipients of certain tax exemptions to reimburse the state for such levy revenue lost due to those exemptions; to repeal school district income taxes; to require the Treasurer of State to issue general obligation bonds to refund certain school district debt obligations; to create a new system of funding schools where the state pays a specified amount per student that each student may use to attend the public or chartered nonpublic school of the student’s choice, without the requirement of a local contribution; to eliminate the School Facilities Commission; to eliminate the Educational Choice Scholarship Pilot Program, Pilot Project Scholarship Program, Autism Scholarship Program, and Jon Peterson Special Needs Scholarship Program; to eliminate interdistrict open enrollment; to require educational service centers to transport students on a countywide basis; and to permit school districts to enter into a memoranda of understanding for one district to manage another.

Notes from the Senate

  • Sub. HB No. 463 was passed upon third consideration relative to the Ohio Uniform Commercial Code, real property foreclosure and escrow transactions, certain partial property tax exemptions, and local ballot initiatives; to require the coverage of autism services; to reimburse child abuse and child neglect regional prevention council members for expenses and prohibit conflicts of interest; and to amend the statutory procedure for recalling certain municipal officials to include a deadline for filing a petition for recall.

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

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HR Departments and Records Retention Policies

Doug HolthusBy Doug Holthus / dholthus@mrrlaw.com / 614.324.1040

Various state and federal statutes, rules and regulations, as well as particular industry standards, govern the retention periods for certain types of employment records [e.g.: Employment Applications (3 years), Safety Records (6 years), Time Cards and Daily Reports (7 years), Training Manuals (permanently), Union Agreements (permanently), Insurance Records (permanently), Legal Correspondence (permanently) and Employee Payroll Records (permanently)].

Given the myriad records retention obligations, every prudent employer will have in place a solid Records Retention Policy (and Program) which will be (a) written, (b) disseminated to all department leads, (c) routinely revisited by members of an internal Records Retention Committee, and most importantly … (d) followed!

Particularly in the event of litigation—or threatened litigation—it is very important that the employer be able to establish compliance with its own Documents Retention (and “litigation hold”) Policy. This, then, dictates the necessity of a corresponding “Purge Policy.” Like the Retention Policy, the Purge Policy will be written, disseminated, revisited (from time-to-time) … and followed. Confronted with the prospect or reality of suit, every employer should be able to demonstrate not only how and when records were purged, but also show that all purging of documents was consistent with the organization’s Purge Policy.

These considerations need to be balanced against another reality; sometimes, records are kept, even unintentionally, for excessive periods of time. This also needs to be avoided, as non-compliance with a Purge Policy can be possibly inferred if records are kept too long. Keeping excessive amounts of records—or keeping records for inordinate amounts of time—can create difficulties and raise the possibility of further error. Among other issues, these situations often confound the retrieval of correct information and increase the likelihood that employment (or other corporate) records may slip into some third-person’s (or unintended recipient’s) hands.

Why are these things important? Consider that in the context of litigation, the state and federal courts in Ohio have held as follows:

  • “An adverse inference may arise where a party who has control of a piece of evidence fails to provide the evidence without satisfactory explanation. Under those circumstances, the jury may draw an inference that would be unfavorable to the party who has failed to produce the evidence in question. Ohio courts normally would require a strong showing of malfeasance — or at least gross neglect — before approving such a charge.”

Schwaller v. Maguire, M.D., 2003-Ohio-6917 at ¶ 24. See also Brokamp v. Mercy Hosp. Anderson (1999), 132 Ohio App.3d 850, 870, 726 N.E.2d 594.

  • “To establish entitlement to an adverse inference, plaintiff must show that: (1) defendant had an obligation to preserve evidence at the time it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) the destroyed evidence was relevant to Plaintiff’s claims such that a reasonable trier of fact could find that it would support that claim. (Citation omitted.) Nevertheless, courts generally will not impose an adverse inference unless the party destroyed the evidence in bad faith. (Citation omitted.)

Henry v. Abbott Labs., No. 2:12-cv-841 (E.D. Ohio September 30, 2015).

The propriety of such Policies also applies to employers in Kentucky. The Kentucky Supreme Court has specifically rejected any enhanced requirement to show malfeasance where a party fails to produce a relevant document. See, e.g. University Medical Center v. Beglin, 375 S.W.3d 783, 789 (Ky. 2011) adopted Judge Breyer’s reasoning in a 1st Cir. case:

Under Kentucky law, the failure or refusal to produce a relevant document, or the destruction of it, is evidence from which alone its contents may be inferred to be unfavorable to the possessor, provided the opponent, when the identity of the document is disputed, first introduces some evidence tending to show that the document actually destroyed or withheld is the one as to whose contents it is desired to draw an inference.

Kentucky does require a showing that the party which/who fails to produce the document acted in bad faith, which means something more than mere negligence. The party seeking to impose the adverse inference must at least show that the party failing to produce was aware of the duty to preserve the evidence. But, the trial court my use inferences, suppositions, and circumstantial evidence in making the initial decision whether to give an adverse inference instruction.

One additional important document to retain is proof that the records retention policy was disseminated to all employees who have the potential for destroying documents.  Employees should sign an acknowledgment indicating that they received the policy and had an opportunity to have all questions regarding the policy addressed by management.  Ideally, employers should have employees sign new acknowledgments every year, regardless of whether the records retention policy is updated.  After all, a policy rarely exists unless those who are responsible for complying with it know about it, right?

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“Confidential Law Enforcement Investigatory Records” No Longer a Valid Exception to Public Records Requests for Police Dash-Cam Videos

On December 6, 2016, the Ohio Supreme Court held that police dash-cam video footage is a public record.  The “confidential law enforcement investigatory records” is not a valid blanket exception for dash-cam videos.

State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, Slip Opinion No. 2016-Ohio-7987, involved a 2015 high speed pursuit.  Following the pursuit and arrest of the suspect, The Cincinnati Enquirer made a public records request for footage from the chasing police cruisers’ dash-mounted cameras (“dash-cams”).  The State of Ohio denied the request, arguing that all of the footage was exempt from release under public record law because it was a “confidential law enforcement investigatory record” pursuant to R.C. 149.43(A)(1)(h) and 149.43(A)(2).

The Ohio Supreme Court rejected the State’s arguments, holding that while some of the footage could be shielded as a confidential law enforcement investigatory record, the State may not assert that privilege over all dash-cam footage.  To that end, the Court held that dash-cam footage is not a confidential law-enforcement investigatory record unless the release of the footage would create a high probability of disclosure of “specific investigatory work product.”

A decision about what constitutes “specific investigatory work product” requires a case-by-case review.  However, it generally includes any notes, working papers, memoranda or similar materials, prepared by law enforcement officials in anticipation of actually pending or highly probable criminal prosecution.  In this case, the protected video only included the police officer reading the suspect his Miranda rights and subsequent questioning (a total of about 90 seconds) because the officer did so with the intention of securing admissible statements for the prosecution’s later use at trial.  The remainder of the footage, which included audio/video that was of little investigative value and/or contained information that was disclosed in incident reports that were disclosed to the Enquirer, was required to be disclosed.

Ultimately, the Court’s decision is an important ruling for police departments because it prohibits police departments from making blanket denials of dash-cam footage requests.  Whenever a request is made for footage, counsel should be contacted immediately to help determine what portions are exempt from disclosure and what portions must be disclosed. MRR has attorneys who work specifically for public entities in addressing public records requests and can assist in implementing the Supreme Court’s new decision.

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MRR Ohio Legislation Updates: November 18 – December 1, 2016

Notes from the House of Representatives

  • SUB HB No. 520 passed upon third consideration to revise the law governing the state’s public retirement systems.
  • HB No. 620 was introduced to increase the taxable wage base under the Unemployment Compensation Law, to temporarily freeze the maximum amount of weekly unemployment benefits a claimant may receive, to revise the amount of dependent unemployment benefits a claimant may receive, and to make other changes to Ohio’s Unemployment Compensation Law.
  • HB No. 476 was passed on third consideration to prohibit a state agency from contracting with a company that is boycotting Israel or disinvesting from Israel.

Notes from the Senate

  • SB No. 367 was introduced to revise the laws governing the state’s workforce development system, programs that may be offered by primary and secondary schools, and certificates of qualification for employment.
  • SB No. 371 was introduced to prohibit prosecuting attorneys of counties with a population of 400,001 or more from engaging in the private practice of law.
  • SB No. 322 was passed upon third consideration to require the Ohio peace officer training commission to develop and conduct a chief of police training course for newly appointed chiefs of police appointed on or after January 1, 2017, and to require newly appointed chiefs of police of villages, cities, and townships to attend the training course within six months of appointment as a chief of police.

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

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Mazanec, Raskin & Ryder Announces 2017 Ohio Super Lawyers and Rising Stars

Mazanec, Raskin & Ryder Co., L.P.A., today announced that seven of its Ohio-based attorneys have been selected to the 2017 Ohio Super Lawyers and Rising Stars lists. In the firm’s Cleveland office, Todd Raskin, John McLandrich, and Frank Scialdone were named to the Super Lawyers list, while Tami Hannon and Cara Wright were included in the ranks of Rising Stars. In the Columbus office, Doug Holthus earned Super Lawyers honors and Stacy Pollock was named a Rising Star. Each year, no more than five percent of lawyers in the state are named to the Super Lawyers list, and no more 2.5 percent are selected to the Rising Stars list.

Todd M. Todd RaskinRaskin is a founding partner of Mazanec, Raskin & Ryder, Co., L.P.A., and is based in the firm’s Cleveland office. He has a diverse legal practice with an emphasis on civil rights and government liability defense, as well as the defense of employers, both public and private. He has tried more than 100 cases to conclusion in 35 years of private practice in many courts throughout Ohio and the Midwest and is a member of a number of professional organizations, including the American Board of Trial Advocates, the Association of Defense Trial Attorneys, the Federation of Defense and Corporate Counsel, and the Litigation Counsel of America. Todd earned his Super Lawyer rating for his work in State, Local & Municipal Law, Employment Litigation: Defense, and Professional Liability: Defense.

 

John McLandrichJohn T. McLandrich is a partner and Chairman of the Board. John’s practice focuses on the representation of municipalities, including defending cases on behalf of police and public entities accused of violations of civil rights and in employment matters. For over 28 years he has handled matters including claims of jail suicide, police pursuit, false arrest, excessive force by police officers, and failure to properly train police officers. He has represented civil defendants in federal and state courts throughout Ohio, serving as lead trial counsel. He has represented clients in class action matters, including municipalities relating to class action sewer cases. His appellate experience consists of handling and arguing matters before the Sixth Circuit Court of Appeals, where he has argued over 100 cases, as well as hundreds of cases before many of Ohio’s Courts of Appeal, including the Ohio Supreme Court, where he has won eight favorable decisions. John earned his Super Lawyer rating for his work in Appellate Law, State, Local & Municipal Law, and Civil Rights Law.

 

Doug HolthusDoug Holthus is listed as a Super Lawyer for his work in Civil Litigation: Defense, Employment Litigation: Defense, Construction Litigation, and Civil Rights Law. His primary areas of focus are professional negligence defense, civil rights and government liability, corporate law, employment, and general liability matters. He has tried, advocated and or arbitrated nearly one hundred cases before civil juries, administrative licensing (and other) boards and arbitration panels throughout Ohio (and California), in both state and federal court. Among other professional and civic activities, Doug is immediate past-Chair of the Columbus Bar Association’s Professionalism Committee (by appointment) and is a Member of the Board of Directors of the Professional Liability Defense Federation.

 

Frank SciadoneFrank H. Scialdone is a partner in the firm’s Cleveland office and focuses his practice on appellate advocacy in state and federal courts with an emphasis on employment law, constitutional torts (Section 1983), public entity defense, and insurance defense. He has handled more than 200 appellate cases in the Ohio Supreme Court, Ohio’s intermediate appellate district courts, and the Sixth Circuit Court of Appeals. He routinely consults with trial attorneys on error preservation and pre-appeal strategy. Frank has prosecuted and defended original actions (e.g., mandamus, prohibition, etc.) and has submitted amicus curiae (friend of the court) briefs on behalf of clients and organizations. Frank is also one of the first attorneys to be certified as a specialist in appellate law by the Ohio State Bar Association. He is listed as Super Lawyer in the categories of Appellate Law, State, Local & Municipal Law, and Civil Rights Law.

 

Tami HannnonTami Zupkow Hannon is a partner in the firm’s Cleveland office and is a listed Rising Star in State, Local & Municipal Law, Employment Litigation: Defense, and Civil Litigation: Defense. She focuses her practice on defending governmental entities, their employees and elected and appointed officials, particularly those in law enforcement and corrections. Tami also practices extensively in the field of employment law, providing personalized and comprehensive guidance to address not only the direct employment issue at hand but also the larger civil liability context. In addition to providing guidance during the critical decision making process, Ms. Hannon assists in later defending decisions should they be challenged before the courts or an administrative agency. She also provides timely and personalized training in various employment matters, and has experience under the ADA, ADEA, FMLA, FLSA, Title VII, and their state-law counterparts.

 

Stacy V. Pollock, an associate in the firm’s Columbus office, focuses her practice on employment and labor law and has been a certified Professional in Human Resources since 2013. She advises public and private employers in matters involving leave and discipline issues, personnel policy matters, and labor negotiations and arbitrations. She has experience representing clients before various governmental administrative agencies including the Equal Employment Opportunity Commission, the Ohio Civil Rights Commission, the State Personnel Board of Review, the State Employment Relations Board, and the Ohio Department of Education. Stacy also has considerable experience in education law, representing schools and school administrators in matters involving employee and student discipline. Stacy is listed as a Rising Star for her work in Employment & Labor Law and Workers’ Compensation Law.

 

Cara WrightCara M. Wright, a Cleveland associate, represents counties, municipalities, and their employees in a variety of cases, including claims related to alleged violations of the United States Constitution, violations of Ohio’s public record laws, and state law tort claims. She has successfully defended clients in cases involving the use of deadly force, jail suicides, and claims that inmates were provided inadequate medical care while incarcerated in county jails. Cara also represents public and private employers in cases alleging employment discrimination. Additionally, her experience includes representing professionals, including physicians, nurse practitioners, nurses, behavioral health specialists, accountants and attorneys, in claims of professional negligence. In addition to her representation of clients in state and federal court, she has also appeared in cases before the Ohio Civil Rights Commission and the U.S. Equal Employment Opportunity Commission. Cara earned the designation of Rising Star for State, Local & Municipal Law.

Super Lawyers and Rising Stars have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations. For more information about Super Lawyers, visit SuperLawyers.com.