In This Issue

• Civil Claims by Tenants
  • Tenant Injuries
  • Criminal Acts
• FMLA Applicability to PHAs
• E-Mail as a "Public Record" Subject to Disclosure

Civil Claims by Tenants

Tenant Injuries

Lawrence F.
Feheley

An Ohio appellate court recently dismissed a lawsuit brought against a landlord by a tenant. Although the case did not involve a PHA, the ruling could prove helpful in analogous situations. In this case, the tenant's son was injured when he fell out of a window. The tenant claimed that the fall was caused by a loose window screen. Five days before the accident occurred the tenant had notified the landlord of the loose-fitting screen. There was also evidence that other tenants had complained of the same problem.

The court construed the parties' obligations under Ohio's landlord-tenant law. In ruling in favor of the landlord, the court held that the purpose of a screen is to provide ventilation and to keep birds and insects out of the unit; the purpose of a screen is not child restraint. Since the screen in question adequately served the purpose for which it was installed, the landlord did not breach any duty that was owed to the tenant:

". . . Based upon this, we find [the landlord] did keep the apartment 'fit and habitable' with regard to the window screen since the purpose of window screens is not to prevent tenants from exiting through the windows." The case is McGuire v. K&G Management Co., 1998 WL 666756 (Licking Co. 1998).

Back to top

Criminal Acts

Can a PHA in Ohio be held liable when a tenant's unit is burglarized, after the tenant reported a lost key and requested that the locks be changed? According to the appeals court in Lucas County, the answer is "yes." Jones v. Lucas Metropolitan Housing Authority, 1997 WL 543049 (Lucas Co. 1997).

The specific issue in the case was the extent of the state statute that grants immunity to the state and its political subdivisions for "governmental" functions. There is an exception in the statute that provides that no immunity exists with regard to "buildings" that are used in connection with a governmental function. Section 2744.02, Ohio Revised Code.

In reaching its conclusion that the PHA might be liable for the value of the property that was stolen, the court first concluded that a metropolitan housing authority is a "political subdivision" of the state under the immunity law, and that the ownership and operation of public housing units is a "governmental function." However, the court ruled that the exception to governmental immunity for buildings used in connection with the performance of a governmental function applies to a housing complex. In that situation, the PHA can be held liable if the tenant can prove that the loss resulted from the negligence of the PHA's employees.

 The same result was reached, but for a different reason, in a prior Ohio case. In Parker v. Dayton Metropolitan Housing Authority, 1996 WL 339935 (Mont. Co. 1996), the court ruled that a PHA's activities as a landlord constitute a "proprietary" function, not a "governmental" function. Civil liability of a governmental agency for a proprietary function is the same as that of any private landlord because proprietary functions are not entitled to any statutory immunity.

Back to top

FMLA Applicability to PHAs

The federal Family and Medical Leave Act (FMLA) law provides that employees of covered employers can take protected leaves of absence for certain parental and medical reasons. Employers of fifty or more employees must comply with the law.

A federal district court in Florida recently considered the issue of whether the FMLA applies to employees of the state. In 1996 the United States Supreme Court issued a decision which construed the Eleventh Amendment to the Constitution and which limited claims against the states. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). Since that decision, a number of cases have questioned whether the Eleventh Amendment bars FMLA claims against a "state."

The Florida case, Driesse v. Florida Board of Regents, 4 W.H. Cas. 2d 1742 (M.D. Fla. 1998), involved an FMLA claim by an employee of a state university who was disciplined for absences from work for cancer treatments. The court ruled that requiring states to comply with the FMLA exceeds the scope of Congress' authority. A number of other federal courts have confronted this same issue. Notably, a district court in Ohio reached the same conclusion. In Thompson v. Ohio State Univ. Hospital, 5 F. Supp. 2d 574 (S.D. Ohio 1998), the district court in Columbus ruled that the FMLA does not properly apply to the state and its agencies because the constitutional immunity of states from suits was not abrogated by the FMLA. (District courts in Maryland, Texas, and Virginia have ruled to the contrary, holding that states and their agencies can be sued for FMLA violations.)

Undoubtedly, this question is far from resolved. Further rulings can be expected from the federal appellate courts. The issue is worth watching, however. The accepted view in Ohio is that a metropolitan housing authority is a "political subdivision of the state." If the ultimate resolution is that the FMLA does not apply to states or their agencies, and that a housing authority is a "state agency" for these purposes, then PHAs would not have to comply with this administratively burdensome law.

Back to top

E-mail as a "Public Record" Subject to Disclosure

Public records in Ohio must be made available for inspection and disclosure. Section 149.43, Ohio Revised Code. The statute defines a "public record" as "any record that is kept by any public office." A "record," under Section 149.011(G), is "any document, device, or item, regardless of physical form or characteristic, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office." In the case of Wilson-Simmons v. Lake County Sheriff's Dept., 82 Ohio St. 3d 37 (1998), an employee of the Sheriff's Department complained that other corrections officers used the department's e-mail system to make racial slurs against her. The employee made a public records request to view the e-mail messages generated by all of the officers in the facility where she worked. The sheriff's department informed her that she could inspect the e-mails, but that they had to be reconstructed in order to be printed out, and that the employee would have to pay the cost of over $2,500 to reconstruct the e-mail. The employee sued to force the department to provide access to the e-mail at no reconstruction cost.

The Ohio Supreme Court held that the e-mail requested by the employee was not a "public record" and, therefore, did not have to be made available to the employee. However, the Court's ruling was not based on the fact that the record was an e-mail, or that it would have to be reconstructed. To the contrary, the Court ruled that in the appropriate circumstances, public office e-mail can be a public record.

Despite the fact that the e-mail in this case was created by public employees through the public office's e-mail system, it did not constitute a public "record" because it was not used to conduct the business of the public office. If an item is not a "public record," as defined by the statute, it does not have to be produced or disclosed. In this case, e-mail allegedly containing racial slurs against an individual "does not serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the Sheriff's department." Since the suspect e-mail was allegedly circulated to only a few co-workers, and because it was not used to conduct the business of the Sheriff's department, the Court ruled that it was not a public "record."

In addition, the Court ruled that the data would not have to be produced to the employee even if it did constitute a public record. The reason was because the records were no longer available because the department routinely wrote over the records in the operation of its computer system. Writing over the records did not violate any records retention requirements. The records would therefore not have to be produced because, absent a showing that the office improperly destroyed records, "the Pubic Records Act does not require that a public office create new documents to meet a requester's demand."

Back to Top