105584809

TV 18904006

105584809

IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO

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EAST CLEVELAND CITY SCHOOL
DISTRICT BOARD OF EDUCATION
1843 Stanwood Road
East Cleveland, OH 44112
Plaintiff,
vs.

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n A or
Judge: STEVEN E GAIT

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GV 18 904006

VERIFIED COMPLAINT AND
APPLICATION FOR TEMPORARY
RESTRAINING ORDER,

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STATE OF OHIO
c/o Ohio Secretary of State
180 East Broad Street, 16th Floor
Columbus, OH 43215
and
OHIO DEPARTMENT OF
EDUCATION
25 South Front Street
Columbus, OH 43215
and
PAOLO DeMARIA
Superintendent of Public Instruction
Ohio Department of Education
25 South Front Street
Columbus, OH 43215
SERVE ALSO:
state of Ohio
c/o Mike DeWine, Ohio Attorney General
30 East Board Street, 14th Floor
Columbus, OH 43215
Defendants.

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AND DECLARATORY JUDGMENT

Evidentiary Hearing Requested

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Plaintiff East Cleveland City School District (“District”) Board of Education (“Plaintiff’
or “Board”) hereby submits its Complaint against Defendants State of Ohio (“State”), Ohio
Department of Education (“ODE”), and Paolo DeMaria (“State Superintendent”) (collectively,
“Defendants”), and hereby avers and alleges as follows:

 SUMMARY OF THE CASE
1. This case centers on the ability of a school district’s local board of education to make
incremental, positive changes over time to address the needs of the “whole child” and help
its students succeed both academically and in life. Based oh an improper reading of Ohio
law, flawed report card, and unconstitutional legislation, Defendants seek to wrest control
away from the Board mid-school year and impose an unelected academic distress
commission (“ADC”) over it - i.e., impose takeover of the District by the State. The Board
seeks to enjoin Defendants from unlawfully placing the District under an ADC. The Board
also seeks declaratory judgment regarding (1) the interpretation of the Ohio law governing
ADCs, and (2) the constitutionality of the legislation which empowered Defendants to
establish an ADC in this manner.
PARTIES, JURISDICTION. AND VENUE
2. The Board is the duly constituted and acting board of education for the District, located in
Cuyahoga County. Pursuant to R.C. §3313.17, the Board is a body politic and corporate,
organized and existing pursuant to the laws of the State of Ohio, capable of suing and being
sued, and capable of contracting and being contracted with.
3. Defendant State is the statewide governmental body that passes legislation through its
General Assembly, which is then signed into law by its Governor. The State oversees,
employs, and directs the other co-Defendants and is ultimately responsible for the State’s
public education system.
4. ODE oversees the State’s public education system, which includes city, local, and
exempted village public school districts, joint vocational school districts, and charter
schools. The ODE is responsible for administering the school funding system, developing
academic standards and curricula, administering achievement tests and assessments, and

2

 issuing district and school report cards and overall letter grades, among other things. The
ODE is also responsible for the licensing and education of teachers, administrators,
treasurers, superintendents, and other education personnel.
5. The State Superintendent, in his official capacity as Superintendent of Public Instruction,
is responsible for establishing ADCs for any school district that meets the conditions
outlined in R.C. §3302.10 (the “ADC Statute”). The State Superintendent’s responsibility
under the ADC Statute includes appointing three of the five commission members and
designating a chairperson of the ADC. The ADC then appoints a chief executive officer
(“CEO”), who exercises “complete operational, managerial, and instructional control over
the district.” R.C. §3302.10(C)(1).
6. This Court has jurisdiction over this dispute pursuant to R.C. §§2727.02 and 2727.03.
7. Venue is proper in this Court pursuant to Ohio Civ. R. 3(C)(3) and (6).
FACTS COMMON TO ALL CLAIMS
8. The Board restates each and every allegation set forth in Paragraphs 1 through 7 of this
Complaint as if fully rewritten herein.
9. In or around the 2014-2015 school year,1 the State and the ODE were scheduled to begin
issuing State report cards to school districts in Ohio, evaluating them on various criteria.
Included in those criteria was student performance on State-required tests.
10. In or around the 2014-2015 school year, the ODE transitioned to a new test for students
known as PARCC assessments.

1 A school year, pursuant to R.C. §3313.62, runs from July 1 to June 30 of the succeeding calendar
year.

3

 11. Due to testing errors and statewide outcry about the PARCC assessments, on or around
March 16, 2015, the General Assembly created and passed emergency legislation to
insulate students and school districts from the 2014-2015 State test results. 2015 H.B. 7.
The General Assembly declared in House Bill 7 that “immediate action is needed in order
to address in a timely manner issues related to the administration of state elementary and
secondary assessments for the 2014-2015 school year.” Id., at Section 6.
12. House Bill 7 expanded R.C. §3302.036, commonly known as “Safe Harbor,” Which
prevented the ODE from assigning overall letter grades to any school district or building
for the 2014-2015 school year due to the issues with the PARCC assessments.
13. On or around June 30, 2015, the General Assembly enacted its Fiscal Year 2016-2017
Budget Bill, House Bill 64.

2015 H.B. 64.

The Budget Bill defunded the State’s

assessment provider, required a new test provider for the 2015-2016 school year, and
demanded the State Superintendent overhaul the 2015-2016 assessments. Id., at Section
263.620.
14. With all the changes in testing, the Budget Bill also prevented the ODE from assigning an
overall letter grade to schools for the 2015-2016 and 2016-2017 State report cards. The
Budget Bill enacted R.C. §3302.03(B)(4), which declared “There shall not be an overall
letter grade for a school district or building for the 2013-2014, 2014-2015, 2015-2016, and
2016-2017 school years.” Id. (eff. Sept. 29, 2015).
15. In a similar vein, the Budget Bill further expanded the Safe Harbor statute to prohibit the
ODE from assigning overall letter grades to any school district or building for the 20142015, 2015-2016, and 2016-2017 school years. R.C. 3302.036 (eff. Sept. 29, 2015).
16. The ODE issued a public statement regarding Safe Harbor indicating that “To give schools,
teachers and students time to adj ust, new Ohio law suspends many of the consequences for

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 the 2014-2015, 2015-2016 and 2016-2017 school years.” ODE, Safe Harbor Guidance,
available at http://education.ohio.gov/Topics/Data/Report-Card-Resources/Safe-HarborGuidance (last accessed July 25, 2018).
17. The District is in the poorest city in Ohio and the fourth-poorest city in the United States.
According to the most recent census, 6T6% of children in East Cleveland live in poverty.
Comen, America’s Poorest Towns, 24/7 Wall Street (June 11, 2018) (citing U.S. Census
Bureau, American Community Survey (2016)).
18. Recognizing the realities that come with being the poorest city in Ohio and the fourthpoorest city in the United States, the District has initiated programs and partnerships that
are designed to meet every student’s academic, wellness, and emotional needs - i.e., to
meet the needs of the “whole child.”

Staff have been trained in trauma-informed

classrooms, and the District was the first in the State to create a wellness center. The
District provides medical, mental health, dental, and vision services at no charge to its
students. Similarly, breakfast, lunch, and dinner are available for free to all students. By
addressing the needs of the whole child, the District is overcoming initial obstacles and
positioning students to succeed.
19. During the same time that the General Assembly was grappling with how Ohio evaluates
students, teachers, administrators, and school districts through testing and report cards, the
Board and the District were making every effort possible and permitted by law to respond
to new State testing. The District also continued to address the needs of the whole child.
20. On or around June 24, 2015, the 131st General Assembly passed Amended House Bill 70
(“HB 70”). HB 70 was approved and signed into law on or around July 17, 2015 and went
into effect on October 15, 2015.

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 21. When HB 70 was originally introduced in the House of Representatives, it proposed only
to enact three new sections to the Revised Code which permitted local school governing
bodies to create community learning centers in their districts; it was only 10 pages long.
HB 70 was passed by the House and sent to the Senate, where the Senate referred it to
committee.
22. The Senate committee returned a substitute version'of HB 70 which vitally altered the
original bill. HB 70 was so heavily changed that it exploded in length to 77 pages, amended
numerous other provisions of the Revised Code which had not been considered by the
House, enacted additional new sections of the Revised Code, and repealed an existing
section of the Revised Code.
23. Specifically, substitute HB 70 enacted the current ADC Statute, which was never discussed
in the original bill.
24. The substitute version of HB 70 was not read and considered on three different days before
its passage. It was only read and considered on one day, and the legislature did not vote to
suspend the requirements of Article If Section 15(C) of the Ohio Constitution.
25. The ADC Statute in HB 70 permits the State Superintendent to create a new ADC over a
school district only if that district “has received an overall grade of ‘F’ under [R.C.
3302.03(C)(3)] for three consecutive years.” R.C. §3302.10(A)(1).
26. Also within HB 70 is an uncodified law (the “Uncodified Law”). H.B. 70, at Section 6.
The Uncodified Law states that “If the requirement to assign an overall letter grade for
school districts under [R.C. 3302.03(C)] is delayed beyond the report card issued for the
2015-2016 school year, [ODE] shall use the following equivalencies for [the ADC Statute]
until such time as [ODE] is authorized to assign an overall letter grade for districts[.]”

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 27. The Uncodified Law addresses the possibility of future legislation - i.e., if future
legislation were to delay assigning overall letter grades, then ODE would have to use
equivalencies.
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28. Upon information and belief, no future legislation delaying assigning overall letter grades

was ever enacted. Rather, such legislation was enacted prior to HB 70 and prior to the
Uncodified Law.
29. The Uncodified Law, which is a contingent law, was never triggered.
30. Defendants nevertheless appear to have interpreted Ohio law to permit the use of
equivalency grades for the 2015-2016 and 2016-2017 State report cards to determine a
school districts’ ADC eligibility.
31. On or around September 1, 2018, ODE provided preliminary reports to school districts
containing the data on which their 2017-2018 report card grades will be based. A true and
accurate copy of the District’s 2017-2018 Preliminary Report is attached hereto as Exhibit
I (the “Preliminary Report”).
32. The Preliminary Report contains numerous mathematical errors on its face. For example,
the Gap Closing Component’s weighted points states “1 x 15.00% = 0.75,” which is
mathematically incorrect. Additionally, the Prepared for Success Component’s weighted
points states “.5 x 15.00% = .200,” which is also mathematically incorrect.
33. The Preliminary Report contains data inconsistencies on its face. For example, it indicates
three separate Gap Closing “component points” - .500 points, 0.750 points, and 1.00 point
- when the data can be expressed only one way. There are also several instances in which
the Component Points indicated in the top half of the Preliminary Report do not match the
Component Points laid out in the calculations on the bottom left side of the Preliminary
Report.

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 34. Upon information and belief, the data and information on the Preliminary Report, including
but not limited to that outlined above, are inaccurate, incomplete, and unreliable. Since the
Preliminary Report is the basis for the final report card, the inaccuracy of the Preliminary
Report calls into question the accuracy of the District’s final report card.
35. On or around September 13, 2018, the State Superintendent contacted the Superintendent
of the District and represented that the District would be taken over by an ADC this year.
The State Superintendent further represented that he would be contacting the city mayor
and the Board president to discuss appointing members to the ADC that same day.
36. On or around September 13, 2018, the ODE issued report cards to school districts for the
2017-2018 school year.
37. On or around September 13, 2018, Defendants sent written notice to the Board and the
District that the District is being taken over by an ADC pursuant to the ADC Statute (the
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“Notice”). A true and accurate copy of the Notice is attached hereto as Exhibit 2.
38. The Notice states, “Since the East Cleveland City School District (the ‘School District’)
has received an overall grade of ‘F’ on the Ohio School Report Card for three consecutive
years, this triggers the obligation to create an academic distress commission under ORC
§3302.10(A)(1).”
39. The Notice includes a timeline for the creation of the ADC. In the Notice, Defendants
represent that the members of the ADC must be appointed within 30 days of the date of the
Notice - in other words, appointments were to be made as soon as September 14,2018 and
no later than October 13, 2018. The Notice further states that the ADC will begin to meet
and take action by October of 2018.

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 40. Upon information and belief, ADCs have been ineffective, unreliable, and disruptive to
academics, finances, and growth, and they have not been successful in producing the
measurable positive results promised.
41. Upon information and belief, both the public and the Legislature have since questioned the
utility of ADCs. The 132nd General Assembly recently enacted Senate Bill 216, which
requires the State Superintendent to “review all policies and procedures regarding
academic distress commissions established under section 3302.10 of the Revised Code and
prepare a report of its findings” by “not later than May 1, 2019.” That report will be
required to include recommendations for improving the appointment of members to the
ADCs, the duties and powers of the CEOs, and the results of the ADCs.
42. In or around August of 2018, ODE and the State Superintendent announced a new
education plan for 2019-2024 called “Each Child Our Future.” ODE, Each Child Our
Future.

Ohio

Strategic

Plan

For

Education:

2019-2024.

available

at

http://education.ohio.gov/getattachment/About/Ohios-Strategic-Plan-for-Education/FinalStrategic-Plan-Board-Approved.pdf.aspx?lang=en-US (last accessed Sept. 11, 2018). The
new Plan seeks to measure student success beyond State testing and State report cards and
aims to develop the “whole child” - precisely as the Board and the District have been doing
over the past several years.
43. Upon information and belief, the Ohio Supreme Court is currently deciding whether to
accept jurisdiction over a constitutional challenge to HB 70 in Youngstown City School
Dist. Bd. of Edn. v. State. No. 2018-1131 (appealing the decision in Youngstown City
School Dist. Bd. of Edn. v. State. 10th Dist. No. 17AP-775, 2018-Ohio-2532). Among
other things, the case asks the Supreme Court to decide whether HB 70 violates the Ohio
Constitution’s Three-Reading Rule. Ohio Constitution, Art. II, § 15(C).

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 44. Upon information and belief, none of the school districts in Ohio which have become
subject to an ADC has ever been able to remove itself from the yoke of an ADC once
imposed.
COUNT I - DECLARATORY JUDGMENT (INTERPRETATION OF STATE LAW)
45. The Board restates each and every allegation set forth in Paragraphs 1 through 44 of this
Complaint as if fully rewritten herein.
46. Pursuant to the ADC Statute, Defendants have no legal authority to establish an ADC for
a school district unless that district meets the conditions specified under R.C. §3302.10(A).
47. Defendants have wrongfully and illegally classified the Board and the District as falling
within the ADC Statute as a school district receiving an “overall grade of ‘F’ . .. for three
consecutive years[,]” and have notified the Board of their intent to establish an ADC in
clear violation of Ohio law. Defendants’ classification of the Board under this statute is
premised on the District’s 2015-2016, 2016-2017, and 2017-2018 State report cards.
48. The “overall grade” referred to in R.C. §3302.10 is defined by reference to R.C.
§3302.03(C)(3) (“Grading Statute”). R.C. §3302.10(A)(1). The Grading Statute requires
the State Board of Education to “establish a method to assign an overall letter grade for a
school district or school building for the 2017-2018 school year and each school year
thereafter.”
49. Since the Grading Statute only addresses the 2017-2018 report card grade, the 2017-2018
report card is the first year to be considered for purposes of the ADC Statute.
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1 50. The Uncodified Law was not triggered, so ODE was not permitted to use equivalency
grades for purposes of the ADC Statute.
51. Even if the Uncodified Law had been triggered, the Uncodified Law only permits ODE to
use equivalencies for overall letter grades for the ADC Statute “beyond the report card

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 issued for the 2015-2016 school year.” In contravention to the plain language of the
Grading Statute and Uncodified Law, Defendants have classified the District as requiring
an ADC using an overall grade equivalency for the 2015-2016 report card, which is not
permitted.
52. The Uncodified Law cannot supersede existing language in a codified statute, such as R.C.
§§3302.03(B)(4) and 3302.036.
53. Defendants’ improper interpretations of the relevant statutes places school districts,
including the District, under control of an ADC prematurely and without legal authority.
54. In order to resolve this controversy, it is necessary for this Court to determine and declare
the Board’s rights and Defendants’ obligations under the relevant statutes, and to determine
which school year starts the count of “three consecutive years” for a school district’s
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eligibility for an ADC.
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COUNT II - DECLARATORY JUDGMENT (CONSTITUTIONALITY OF H.B. 70)
55. The Board restates each and every allegation set forth in Paragraphs 1 through 54 of this
Complaint as if fully rewritten herein.
56. Art. II, § 15(C) of the Ohio Constitution requires that “every bill shall be considered by
each house on three different days, unless two-thirds of the members elected to the house
in which it is pending suspend this requirement and every individual consideration of a bill
or action suspending the requirement shall be recorded in the journal of the respective
house.” See also Hoover v. Bd. of Ctv. Commrs.. 19 Ohio St.3d 1 (1985).
57. The three-reading rule is a mandatory rule. See Hoover, supra.
58. The absence of entries in the legislative journals reflecting that a particular step in the
enactment process have been taken renders the enactment invalid. See Id.

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 59. Amended HB 70 was vitally altered from the original HB 70 such that it no longer
contained a common purpose or theme. Upon information and belief, this vital alteration
resulted in 24 of the original sponsors of the bill revoking their sponsorship and voting
against it, and one House member who introduced the original bill also voting against it.
60. This vital alteration of HB 70 triggered a requirement for three new readings of the
amended bill on three different days before the General Assembly could lawfully pass it.
61. The legislative journals establish that the amended version of HB 70 was considered on
only one day: June 24, 2015.
62. Upon information and belief, the General Assembly did not vote to suspend the
requirements of the three-reading rule relative to the consideration of HB 70.
63. By passing the bill without adhering to the three-reading rule, the Board, the District, the
legislators, and citizens of the State were deprived of the opportunity to discuss and
consider the merits and impact of the bill, including its impact on the evaluation of school
districts.
64. Because HB 70 violates the three-reading rule of the Ohio Constitution, HB 70 is
unconstitutional and invalid.
65. Because HB 70 is unconstitutional and invalid, the ADC Statute and the Uncodified Law
within HB 70 are also unconstitutional and invalid, and they cannot serve as the basis for
Defendants to establish an ADC over the Board.
COUNT III - TEMPORARY RESTRAINING ORDER
66. The Board restates each and every allegation set forth in Paragraphs 1 through 65 of this
Complaint as if fully rewritten herein.
67. Defendants, as indicated in the Notice, are taking immediate action to create an ADC, and
they intend to establish the full ADC by no later than October 13, 2018.

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 68. Defendants’ action in creating the ADC is premature and unlawful. Specifically, for the
reasons outlined above and herein, the District has not received three overall “F” grades
which would trigger the ADC Statute, and HB 70 is unconstitutional.
69. The Board has already suffered and will continue to suffer immediate irreparable harm
because of its wrongful classification under the ADC Statute, the unlawful conduct of
Defendants in notifying the Board that the District is subject to the provisions of the ADC
Statute, and Defendants’ taking action to establish the ADC.
70. Unless Defendants are enjoined from establishing an ADC over the District, the Board and
the District will suffer and continue to suffer irreparable harm, including the imposition of
an ADC (from which no school district has ever been released), disruption in services
offered to and academic progress being achieved by the students and administration in the
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middle of an academic year, and other harm.
71. The Board has no adequate remedy in the ordinary course of law. There is no appeals or
reconsideration process in the ADC statute.
72. Contemporaneously with the filing of this Complaint, the Board is filing a Motion for a
Temporary Restraining Order and Memorandum in Support of the Motion pursuant to this
Count.
73. As outlined above and herein and in the contemporaneous filings of Paragraph 72, a
temporary restraining order is necessary to prevent further harm and maintain the status
quo until this Court can hold a hearing on the Board’s request for a preliminary injunction
(outlined in Count IV below).

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 COUNT IV - PRELIMINARY AND PERMANENT INJUNCTION
74. The Board restates each and every allegation set forth in Paragraphs 1 through 73 of this
Complaint as if fully rewritten herein.
75. The Board has suffered and will continue to suffer irreparable harm because of its wrongful
classification under the ADC Statute and the unlawful conduct of Defendants in declaring
that the Board and the District are subject to the ADC Statute.
76. Unless Defendants are enjoined from creating an ADC and proceeding under the ADC
Statute, the Board and the District will suffer and continue to suffer irreparable harm. That
harm includes, but is hot limited to:
a. Reconstituting schools during the 2018-2019 school year;
b. Replacing school administrators, teachers, and staff during the 2018-2019 school
year;
c. Re-opening collective bargaining agreements;
d. Encouraging students to enroll in other schools, including private Or charter
schools, which will destabilize and decrease the Board’s funding, and which will
force the Board and the District to cut programming offered to students;
e. Other harm to be established at further hearings on this matter.
77. This harm is particularly irreparable in a community like East Cleveland, where the District
and the Board are a hub of safety, reliability, and stability for children and families residing
within the District’s boundaries.
78. None of the irreparable injury outlined above is recoverable from the State at law, so the
Board has no adequate remedy in the ordinary course of law.
79. The granting of injunctive relief will impose no burden upon Defendants, and no third
parties will be harmed by the granting of the injunctive relief.

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 80. The public interest will be served by granting the Board injunctive relief.
81. Plaintiff is not required to post a bond or other security in relation to this claim.
WHEREFORE, Plaintiff respectfully requests relief as follows:
1. For Count I, that this Court declare the rights and obligations of the parties, and further
declare that:
A.

Pursuant to R.C. §3302.03(B)(4) and R.C. §3302.036, the 2017-2018 school year

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is the first year which Defendants are legally permitted to assign an overall letter
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grade for a school or school district;

B.

Pursuant to R.C. §3302.10, an ADC cannot be appointed until a school district has
been assigned “three consecutive years” of overall “F” grades;

C.

Pursuant to R.C. §3302.10, the earliest possible date an ADC could be appointed
for a school district is after the release of the 2019-2020 Report Card;

D.

Defendants lack the legal authority under R.C. §3302.10 and related statutes to
assign an overall grade of “F” for Plaintiff for school years 2015-2016, 2016-2017
and 2017-2018; and,

V

E.

The State Superintendent lacks the legal authority to appoint an ADC for the
District.

2. For Count II, that this Court declare HB 70 unconstitutional and invalid for violation of the
Ohio Constitution’s Three-Reading Rule;
3. For Count III, that the Court issue a temporary restraining order against Defendants
enjoining them from taking any steps toward creating an ADC over Plaintiff and its school
district until this Court can hold an evidentiary hearing on Plaintiffs request for a
preliminary injunction.

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 4. For Count IV, that the Court issue a preliminary injunction for the duration of this lawsuit and ultimately a permanent injunction - enjoining Defendants from taking any steps toward
enacting an ADC over Plaintiff and the District until this Court determines the rights and
obligations of the parties as outlined above and herein.
5. That this Court award Plaintiff its reasonable attorney fees and costs incurred in this matter
pursuant to R.C. §2335.39.
6. That this Court award such other and additional relief, in law or equity, as it may deem just
and proper.

Respectfully submitted,

- - - Donna M. Andrew, Esq. (0066910)
Christian M. Williams, Esq. (0063960)
Brian J. DeSantis, Esq. (0089739)
Samantha A. Vajskop, Esq. (0087837)
Pepple & Waggoner, Ltd.
Crown Centre Building
5005 Rockside Road, Suite 260
Cleveland, OH 44131-6808
Tel.: 216-520-0088
Fax: 216-520-0044
E-mail:dandrew@pepple-waggoner.com
cwilliams@pepple-waggoner.com
bdesanti s@peppl e-waggoner. com
svajskop@pepple-waggoner.com

Attorneys for Plaintiff East Cleveland
City School District Board of Education

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 VERIFICATION
I, Dr. Myma Loy Corley, being duly sworn, hereby verify the following:
1.

I am the Superintendent of the East Cleveland City School District.

2.

I have read the allegations contained in the foregoing Verified Complaint and

Application for Temporary Restraining Order, Preliminary Injunction, and Declaratory Judgment,
and all of the facts alleged therein are true and accurate to the best of my knowledge.

STATE OF OHIO

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COUNTY OF CUYAHOGA

SS:

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Sworn to and subscribed before me this

19 day of September, 2018.

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 __'I11U I w Education
2018 All Grades for
East Cleveland City School District
043901
1943 Starwood Rd

K-3 Literacy Points:
Prepared for Success Points:

2

0.50

15.00% =

0.2S3
15.00% = . 0200

Count/:

17C:

Cuyahoga
NCC

Points: 0.913

C =t
D =*

Fa

4.125 • 5.000
3.125-4.124
2.125-3.124
1.125-2.124
0.000-1.124

Click hereto see the Secure Data Center - Status of Reports report

EXHIBIT
1

Data Refreshed: 9/1/2018 8:30 PM

page 1 of 1

 Ohio

Department
of Education
John R. Kasich, Governor
Paolo DeMaria, Superintendent of Public Instruction

September 13, 2018

Via Certified Mail and Electronic Delivery
Dr. Myrna Loy Corley, Superintendent
East Cleveland City School District
1843 Stanwood Road
East Cleveland, OH 44112

RE:

Academic Distress Commission

Dear Dr. Corley:
Ohio Revised Code (“ORC”) Section 3302.10 provides that the State Superintendent of Public
Instruction shall establish an academic distress commission for any school district that has received
an overall grade of “F” on the Ohio School Report Card for three consecutive years.
Since the East Cleveland City School District (the “School District”) has received an overall grade of
“F” on the Ohio School Report Card for three consecutive years, this triggers the obligation to create
an academic distress commission under ORC Section 3302.10(A)(1).
This letter serves as notice of the establishment of an academic distress commission (the
“Commission”) for the School District. The Commission will be comprised of five voting members;
three of whom are appointed by me, one appointed by the Mayor of East Cleveland, and one
appointed by the President of the District Board of Education.
The law requires all appointments to the Commission to be made within 30 days from the date of
this letter. Once I designate the chairperson, that person will be responsible for calling meetings,
setting meeting agendas, and serving as a liaison between the Commission and the chief executive
officer (the “CEO”). Enclosed is a timeline that explains the process for the creation of the
Commission, the appointment of Commission members, the hiring of the CEO, and the creation of a
plan to improve the School District’s academic performance.
The primary statutory purpose of the Commission is to appoint a CEO for the School District. The
CEO must be appointed within 60 days after the commission chairperson is designated. The CEO
has complete operational, managerial, and instructional control of the district, and serves at the
pleasure of the Commission. The CEO will convene a group of community stakeholders for the
district, and for each school. Using this group as a resource, the CEO will create a plan to improve
the district’s academic performance. The plan must be submitted to the Commission within 90 days
after the appointment of the CEO. Within 30 days after the submission of the plan, the Commission
shall approve the plan, or submit modifications to the plan.

25 South Front Street
Columbus, Ohio 43215
education.ohio.gov

(877) 644-6338
For people who are deaf or hard of hearing,
please call Relay Ohio first at 71.1.

 
 

EXHIBIT

 September 13, 2018
RE: Academic Distress Commission
Page 2
I look forward to continuing to work with you toward the success of the East Cleveland City
Schools. If you have questions or concerns throughout this process, please do not hesitate to
contact Deputy Superintendent John Richard. He can be reached at (614) 466-0010 or
John.Richard@education.ohio.gov.

Paolo DeMaria
Superintendent of Public Instruction

>

Enclosure
cc:

Dr. John Richard, Deputy State Superintendent
Marva Kay Jones, Senior Executive Director, Center for Continuous Improvement
Chris Woolard, Senior Executive Director, Center of Performance
Diane Lease, Chief Legal Counsel

Certified Mail: 7018 0680 0000 6295 8002

25-South Front Street
Columbus, Ohio 43215
education.ohio.gov

(87.7) 644-6338
For people who are deaf or hard of hearing,
please call Relay Ohio first at 711.

 2018 Academic Distress Commission

Tentative Timeline Overview
September 13, 2018

Within 30 days of ADC
establishment
(Anticipated date: September 14 October 13, 2018)

No time period specified
(October/November 2018)
Within 60 days of chair’s
appointment
(October/November 2018 through
Dec. 2018/Jan. 2019)
Within 60 days of chair’s
appointment

State superintendent creates Academic
Distress Commission (ADC).
Appointments are made to the ADC by the
state superintendent (three appointments,
with one being a resident in the county in
which a majority of the district’s territory is
located); the mayor of the city in which a
majority of the district’s territory is located
(one appointment); and, the president of the
School District Board of Education (one
district teacher appointment).
State superintendent appoints the chair of the
ADC. Typically, this coincides with the first
meeting of the ADC.

ADC meets and starts the process for
appointing the chief executive officer (CEO).

ADC appoints the CEO.

(December 2018/January 2019)
Within 30 days of CEO’s
appointment
(January/February 2019)
Within 90 days of CEO’s
appointment
(March/April 2019)

CEO convenes a diverse group of community
stakeholders to develop expectations for
academic improvement in the district.

CEO convenes a small group of community
stakeholders for each school:

 Within 90 days of CEO’s
appointment
(Dec. 2018/Jan. 2019 through
March/April 2019)
Within 90 days of CEO’s
appointment
(March/April 2019)

Within 30 days of plan submission
(April/May 2019)

Within 15 days of commission’s
suggesting of modifications
(April/May 2019 through May/June
2019)
Within 15 days of commission’s
suggestion of modifications

CEO, in consultation with the groups of
community stakeholders, develops a plan to
improve the district’s academic performance.

CEO submits the plan to the academic
distress commission for approval.

"

Commission approves the plan or suggests
modifications that will render it acceptable.
If modifications are suggested, CEO may
revise plan before resubmitting to the
commission.

CEO considers the commission’s suggested
modifications and makes any revisions the
CEO finds appropriate.

CEO resubmits the plan to the commission.

(May/June 2019)
Within 30 days of resubmission
(June/July 2019)

Commission approves the plan. Upon
approval by the commission, the CEO
implements the plan.

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(1) The district has received an overall grade of "F" under division (C)(3) of section 3302.03 of
the Revised Code for three consecutive years.
(2) An academic distress commission established for the district under former section 3302.10 of
the Revised Code was still in existence on the effective date of this section and has been in existence
for at least four years.
(B)(1) The academic distress commission shall consist of five members as follows:
(a) Three members appointed by the state superintendent, one of whom is a resident in the county in
which a majority of the district's territory is located;
(b) One member appointed by the president of the district board of education, who shall be a
teacher employed by the district;

 (c) One member appointed by the mayor of the municipality in which a majority of the district’s
territory is located or, if no such municipality exists, by the mayor of a municipality selected by the
state superintendent in which the district has territor
Members of the commission shall serve at the pleasure of their appointing
authority. The state superintendent shall designate a chairperson for the commission from among the
members appointed by the state superintendent. The chairperson shall call and conduct meetings, set
meeting agendas, and serve as a liaison between the commission and the chief executive officer
appointed under division (C)(1) of this section.
(2) In the case of a school district that meets the condition in division (A)(2) of this section, the
academic distress commission established for the district under former section 3302.10 of the Revised
Code shall be abolished and a new academic distress commission shall be appointed for the district
pursuant to division (B)(1) of this section.

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individual appointed as chief executive officer shall have high-level management experience in the
public or private sector. The chief executive officer shall exercise complete operational, managerial,
and instructional control of the district, which shall include, but shall not be limited to, the following
powers and duties, but the chief executive officer may delegate, in writing, specific powers or duties to
the district board or district superintendent:
(a) Replacing school administrators and central office staff;
(b) Assigning employees to schools and approving transfers;
(c) Hiring new employees;
(d) Defining employee responsibilities and job descriptions;
(e) Establishing employee compensation;
(f) Allocating teacher class loads;
(g) Conducting employee evaluations;
(h) Making reductions in staff under section 3319.17,3319.171, or 3319.172 of the Revised Code;
(i) Setting the school calendar;
(j) Creating a budget for the district;
(k) Contracting for services for the district;
(l) Modifying policies and procedures established by the district board;
(m) Establishing grade configurations of schools;
(n) Determining the school curriculum;
(o) Selecting instructional materials and assessments;
(p) Setting class sizes;
(q) Providing for staff professional development.
(2) If an improvement coordinator was previously appointed for the district pursuant to division
(A) of section 3302.04 of the Revised Code, that position shall be terminated. However, nothing.
in this section shall prohibit the chief executive officer from employing the same individual or other
staff to perform duties or functions previously performed by the improvement coordinator.
(D) The academic distress commission, in consultation with the state superintendent and the chief
executive officer, shall be responsible for expanding high-quality school choice options in the district.
The commission, in consultation with the state superintendent, may create an entity to act as a highquality school accelerator for schools not operated by the district. The accelerator shall promote highquality schools in the district, lead improvement efforts for underperforming schools, recruit highquality sponsors for community schools, attract new high- quality schools to the district, and increase
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 the overall capacity of schools to deliver a high-quality education for students. Any accelerator shall be
an independent entity and the chief executive officer shall have no authority over the accelerator.

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The purpose ofthe group shall be to develop expectations
for academic improvement in the district and to assist the district in building relationships with
organizations in the community that can provide needed services to students. Members of the group
shall include, but shall not be limited to, educators, civic and business Jeaders, and representatives of
institutions of higher education and government service

 . The group convened for each school shall have teachers employed in the
school and parents of students enrolled in the school among its members.
(2) The chief executive officer shall create a plan to improve the district’s academic performance.
In creating the plan, the chief executive officer shall consult with the groups convened under division
(E)(l) of this section. The chief executive officer also shall consider the availability of funding to ensure
sustainability of the plan. The plan shall establish clear, measurable performance goals for the district
and for each school operated by the district. The performance goals shall include, but not be limited to,
the performance measures prescribed for report cards issued under section 3302.03 of the Revised Code.

 Common Pleas ..Court.,af Cuyahoga County, Ohio
if

II

DESIGNATION FORM TO BE USED TO INDICATE THE CLASSIFICATION OF THE CAUSE

1118 SEP 19 P 2: 10

East Cleveland City School District Bd. of Ed.

Judge: STEVEN E GALL

Plaintiff
Vs.

CLERK OF COURTS
CUYAHOGA COUNTY

State of Ohio, et al.

CV 18 904006

Defendant
fas this case been previously filed and dismissed? Yes d No H
_ase #:_ _ _ _
.
Judge: , /. .
....
Is this case related to any new cases now pending Or previously filed? Yes CH No C1
Case #:
CIVIL CLASSIFICATIONS:

_

Judge:

■.

_ _ _ _ _

Place ah (X) In ONE Classification Only.
Foreclosures:
QUtilize Separate Foreclosure Designation Form

Professional Torts:
D 1311 Medical Malpractice
P 1315 Dental Malpractice

P
P
P

Commercial Docket:
D 1386 Commercial Docket
Cl 1387 Commercial pocket with Foreclosure

1316 Optometric Malpractice
I3i7 Chiropractic Malpractice
1312 Legal Malpractice
P 1313 Other Malpractice

Administrative Appeals:
Cl 1540 Employment Services
□ 1551 Other

Product liability:
P 1330 Product Liability

Other Civil:

Other Torts:
1310 Motor Vehicle Accident
1314 Consumer Action
1350 Misc. Tort

P 1500 Repleviri/Attachment
Cl 1382 Business Contract
Cl 1384 Real Estate Contract
Cl 1388 Consumer Debt
Cl 1390 Cognovit
Cl 1391 other Contacts

P
P
P

Workers Compensation:
1550 Workers Compensation
1531 Workers Comp. Asbestos

P
Cl

Cl 1490 Foreign Judgment
Cl 1491 Stalking Civil Protection Order
■ 1501 Misc. Other

Cl 1502 Petition to Contest Adam Walsh Act
CJ 1503 Certificate of Qualification for Employment

/ certify that to the best of my knowledge the within case is not related to any now pending or previously filed, expect as noted above.
Pepple & Waggoner, Ltd.
Donna M. Andrew, Esq.

Firm Name (Print or typej

Attorney of Record (Print or Type)

5005 ROckside Road, Suite 260

0066910

Address

Supreme Court d

Cleveland, OH 44131-6808

dahdrew@pepple-vvaggoner.cbm

Address
216-520-0088

Phone

Signature