Pubdate: Mon, 21 Nov 2005
Source: Athens News, The (OH)
Copyright: 2005, Athens News
Contact:  http://www.athensnews.com/
Details: http://www.mapinc.org/media/1603
Author: Jim Phillips
Bookmark: http://www.mapinc.org/decrim.htm (Decrim/Legalization)
Bookmark: http://www.mapinc.org/testing.htm (Drug Test)
Bookmark: http://www.mapinc.org/youth.htm (Youth)

OPEN-MEETING DOUBTS PERSUADE SCHOOL BOARD TO SHELVE DRUG TESTING

After advising his board of education Thursday to put a controversial 
student drug-testing policy into cold storage, Alexander Local School 
Supt. Bob Bray acknowledged that being more open with the public 
about the policy's adoption from the outset might have saved the 
district a lot of grief.

"Sure," Bray admitted. "That's probably the biggest thing we've 
learned from this."

The school board voted to suspend the drug-testing policy for the 
rest of 2005, in hopes of avoiding a lawsuit over possible violation 
of the state's open-meetings law prior to its adoption.

The move was based on a recommendation by Athens County Prosecutor C. 
David Warren.

On Saturday, Warren said his advice was just common sense. If a 
school board is uncertain about whether deliberations by a committee 
should be open to the public, he said, the safest answer is yes.

"If it's a close question, you notify the public," Warren suggested. 
"To me, the mere fact that you have to ask the question answers the question."

Until a group of district parents threatened litigation over how the 
policy was adopted, the school board had relied on a legal opinion by 
its hired law firm, Bricker & Eckler. When some parents questioned 
the legality of discussions that led to adoption of the policy, 
however, Bray sought the advice of Warren's office.

The prosecutor did not provide a written opinion, but told the 
superintendent "that our research seemed to indicate that their 
committee needed to be made public, and in order to avoid paying 
large legal fees, they'd be a whole lot better off just caving in 
now," Warren recalled.

The board took Warren's advice Thursday, voting 4-1 to suspend the 
drug-testing policy until the new school board is seated in January.

Apparently inspired at least in part by controversy over the policy, 
district voters on Nov. 8 replaced two board members who had voted to 
adopt it -- Synthia Clary and Stephen Thomas -- and retained a third 
incumbent, Fred Davis, who had voted against it. Gordon Brooks and 
Mike Chapman replaced Clary and Thomas on the board.

The policy, effective earlier this year, required students who engage 
in athletics or cheerleading, or seek a permit to park in the school 
parking lot, to undergo urine testing for drug and alcohol use.

Bray told the board he got a letter from Athens attorney John 
Lavelle, on behalf of a group of district parents. In the letter, he 
said, Lavelle suggested the adoption of the drug policy was open to 
legal challenge.

The legal issue, as Bray explained it, is the nature of the committee 
that discussed the policy before it went to the school board for a vote.

Had the committee been an ad hoc body appointed by Bray, the 
superintendent said, it probably would have been exempt from having 
to make its deliberations public. However, he said, the committee was 
a creation of the board itself, and included one board member, 
President Dave Kasler. (Others were community members and district staffers.)

Therefore, Bray said, in Lavelle's view -- which Warren apparently 
concurs in -- the committee qualifies as a board committee, subject 
to open-meetings law.

"We've had two conflicting legal opinions," Bray admitted, with 
Bricker & Eckler advising the district that it could probably get 
away with closing the committee's meetings.

Lame-duck board member Thomas, who cast the sole "no" vote on 
suspending the drug policy, expressed anger at what he called the law 
firm's misleading advice, and floated a motion to dump Bricker & 
Eckler, and rely solely on the prosecutor's office for legal advice 
for the rest of the year.

"We've already spent money with a law firm that we put our trust in," 
Thomas complained. "They've misled this school board and this 
community... This board has been put in a position nobody should ever 
be put in."

Bray stressed that he made the recommendation to suspend the drug 
policy "because I don't want us to spend a whole bunch of money 
litigating this." (Warren noted that if a public body loses a 
public-meetings lawsuit, it has to pay the plaintiff's legal fees.)

Thomas responded, "We ought to be more concerned about the attorney 
fees and what we used (Bricker & Eckler) for. The county prosecutor 
is fine (as legal counsel). Let the man that we elected supply the 
legal terms here."

Warren said he wouldn't object to serving as the district's legal counsel.

"We're their statutory lawyer, and we're free," he noted, adding that 
if his office, rather than Bricker & Eckler, had been advising the 
district from the beginning, the adoption of the drug policy would 
have been conducted in the sunshine.

"Had they come to us to start with, that's what I would have told 
them," he said.

Robert Wiley of Albany, one of five parents who signed the letter to 
the district, said the board's decision comes "close to" defusing the 
threat of a lawsuit, but doesn't do so entirely.

He said the strategy of the group of parents who opposed the 
drug-testing policy was to first vote two policy supporters off the 
board, then to inform the district of the possibility of a lawsuit.

That way, he said, they hoped to persuade the board to suspend the 
policy during the last days of the old board. He added that the 
parents felt there was no guarantee that the new members would move 
quickly to get rid of the policy. (Brooks and Chapman have both told 
The Athens NEWS that they will be in no hurry to eliminate the drug testing.)

"We didn't want to take any chances with the new members coming on 
the board and dilly-dallying," Wiley explained. "(The policy) was 
still costing us money, and it was still an invasion of privacy."

Thomas' motion to release Bricker & Eckler from their contract got a 
second from Dale Sinclair, an incumbent who supported the drug policy 
and was not up for election Nov. 8. He and Thomas voted in favor, but 
the rest of the board voted against the motion, killing it.

Voting both to suspend the policy and to keep Bricker & Eckler were 
Clary and Kasler, who voted for the original policy.

Asked if this episode raises questions about whether the district 
should be relying on Bricker & Eckler for advice, Bray replied, "I 
think it's a very complex legal issue."

After adopting the drug-testing policy for students, the board sought 
Bricker & Eckler's advice on whether it could legally expand the 
policy to students engaged in non-athletic extracurricular activities 
and people applying for jobs with the district.

The law firm raised a number of legal red flags in connection with 
this plan. It advised that if the board tried to expand drug testing 
to students in extracurricular activities, it should first invite the 
public to take part in a discussion of the issue. It also warned that 
an employees union might demand that the testing of new hires be a 
subject for contract negotiations.

The board shelved the plan to expand the testing after both Davis and 
Clary expressed opposition.

If the new board wants to have a drug-testing policy in place, Bray 
suggested Thursday, it will probably have to start from square one 
with public discussions, to adopt a new one.
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