Lawsuit filed against Ohio Governor and
the Ohio Board of Education

  We received the following e-mail on March 24, 2000:

On March 9, 2000 State Representative Charles Brading introduced HB 602 which will enact separate legislation to KEEP the eight members of the State Board of Education appointed by the Governor.

DEFEAT of this bill is CRITICAL. because there are a great many decisions expected by the State Board of Education over the next 12 months that will support some of the more radical reforms [e.g. adoption of State Health Model Curriculum; development of a new assessment system based on the work of the Joint Council; etc...] The current board does not have a conservative majority...not even close, due to the eight appointees who are directly accountable to the governor, not the electorate.

HB 602 has been assigned to the Ohio House Education Committee, chaired by Representative Brading [the primary sponsor of the bill]. Sponsor testimony was offered in committee this week [3/21/00]. The text of Mr. Brading's testimony will be provided in the very next post.

According to Representative Brading's staff, proponent testimony is anticipated to be held on APRIL 11, 2000, 6:30 P.M. Opponent testimony time has not yet been scheduled.

Please continue to call your State Representatives and express your opposition to this bill. Let them know we need to restore "representative government" to our State Board of Education. This is a violation of the "separation of powers" because it shifts too much authority to the executive branch of state government. The appointed members are directly accountable to the governor, not to the citizens of this state.

To find out the phone number of your own state representative or state senator, contact your county board of elections (or link to http://www.legislature.state.oh.us).

BACKGROUND sent on previous email:
Article VI, Section 4 of the Ohio Constitution specifies, "There shall be a state board of education which shall be selected in such manner and for such terms as shall be provided by law. There shall be a superintendent of public instruction, who shall be appointed by the state board of education. The respective powers and duties of the board and of the superintendent shall be prescribed by law."

UNTIL JULY 1, 1995 the Ohio General Assembly mandated that the membership of the Ohio State Board of Education would be determined by the electorate. We had a completely elected 11-member board which was totally accountable to the voters of Ohio.

An amendment was added to the state budget in 1995 to give Ohioans a hybrid board. The eleven elected members were retained. THE GOVERNOR WAS GIVEN AUTHORITY TO APPOINT 8 ADDITIONAL MEMBERS. THIS PROVISION WAS SIGNED INTO LAW WITH THE BUDGET ON JULY 1, 1995.

This shifted accountability AWAY FROM THE CITIZENS VIA THE LEGISLATIVE BRANCH to the executive branch of state government.

A lawsuit filed July 30, 1999 in the Franklin County Common Pleas Court asked the court to "declare that the present members of the State Board of Education appointed pursuant to the Appointed Member Provisions of the Budget Act are holding office contrary to law and may no longer exercise the authority of such office." Plaintiffs are challenged the constitutionality of using the state budget [HB 117] in 1995 to expand an 11-member elected board to include 8 members appointed by the governor. The plaintiffs correctly contend that this action granted new power to the Governor to affect education policies and decisions by the board. The State Board of Education had been a completely elected body since its formation in 1956.

The plaintiffs in the suit are:
Debra Carlier, an elected member of the Pickerington Local School District Board of Education [Fairfield County]
Sam Salem, an elected member of the Akron City School District Board of Education and a former teacher in that school district [Summit County]
Hugh Hoffman, a retired public school teacher and an elected member of the Washington County Educational Service Center Governing Board
William Price, a parent of two minor children currently attending school in the Oak Hills City School District [Hamilton County]

The defendants in the suit are:
Governor Bob Taft
State Board of Education

According to the language in the suit, "Plaintiffs contend that the challenged portion of the Budget Act is unconstitutional because it was enacted as part of a multi-subject Budget Act, in violation of the requirements of Art.II, Section 15(D), of the Ohio Constitution that ‘no bill shall contain more than one subject, which shall be clearly expressed in its title.’ "

BECAUSE THE LAWSUIT HAS A HIGH CHANCE OF RULING IN FAVOR OF THE PLAINTIFFS, MR. BRADING INTRODUCED HB602 -- A SINGLE SUBJECT BILL TO KEEP THE APPOINTED MEMBERS. THIS WILL CANCEL OUT THE LAWSUIT WHICH IS BASED ON THE FACT THAT THE CHANGE IN 1995 WAS AMENDED TO AN UNRELATED BILL -- THE STATE BUDGET.

**************************************************************
Since the structure of the State Board of Education impacts all families, your participation in contacting your state legislators is greatly appreciated.


House Bill 602 attempts an end-run around the lawsuit

We received this second e-mail also on March 24, 2000:

The following text is the exact copy of written sponsor testimony submitted by Representative Charles Brading to the Ohio House Education Committee on Tuesday, March 21, 2000.

"House Bill 602 re-enacts as a separate act, amendments made to House Bill 117 enacted by the 121st General Assembly. H.B. 117 amended sections 3301.02, 3301.03, 3301.04 and 3301.06 of the Ohio Revised Code, to permit the Governor to appoint eight individuals to the State Board of Education. As a result, the State Board of Education has eleven elected members and eight appointed members.

Last July, in the Franklin County Court of Common Pleas, a complaint was filed against the Governor and State Board challenging the constitutionality of that portion of the bill based on the single subject provision of the Ohio Constitution.

House Bill 602, re-enacts the sections of H.B. 117 that were challenged. The bill also dissolves the appointive positions on the current Board and requires that Governor to make new appointments to the Board within 30 days of the effective date of the bill. The bill does not effect the elected members of the Board in any manner.

House Bill 602, will save taxpayers from the cost of a lengthy court battle and serves as an answer to the question before the court.

Education is a very important issue and education policy is expected from political leaders, especially Governors. In 1995, Ohio was in the beginning of a huge education funding court case. The sitting Governor felt that if he was going to [be] held responsible for the condition of education in the state he should share in the responsibility and have some input on the Board.

Governor Taft has given his full support of House Bill 602."

*************************************
end of written testimony
*************************************

Please note:

1. Representative Brading indirectly acknowledges that the appointees shift authority to the executive branch. He does not, however, point out that the 8 appointees only need 2 elected votes to carry a majority vote on a 19-member board. This situation severely weakens even the accountability of the elected members to the citizens.

2. Representative Brading also did not mention that the original language in HB 117 [1995] placed in the budget by Gov. Voinovich, completely replaced the elected board with an entirely appointed board. Outcries from the public caused legislators to remove the language in the House actions on the budget. When HB117 went to the Senate side, Gov. Voinovich requested that a compromise of 8 appointees be added to the state budget. If Gov. Voinovich had his way, we would have NO ELECTED MEMBERS of the State Board of Education.3. NOWHERE IN THE OHIO CONSTITUTION is the state governor held responsible for the condition of education. This weak argument is Representative Brading's stated reason for introducing this bill.

4. Representative Brading mentions that HB602 will save the taxpayers from the cost of a lengthy, court battle. First of all, the court case will not be lengthy. It is a "slam dunk" based on recent decisions by Ohio's courts on the single-subject rule. Secondly, the COST OF ROBBING CITIZENS THE FREEDOMS AFFORDED BY TRUE REPRESENTATIVE GOVERNMENT IS MUCH, MUCH HIGHER THAN THE COST OF ONE SMALL SLAM DUNK LAWSUIT.

Back to Home page