Atty. Gen. Mike DeWine issues letter debunking claim made by Ohio School Board Assoc. attorney re: legality of armed teachers

by Chad D. Baus

Although many have been calling for armed protection in schools for some time, in the immediate aftermath of the horrific events in Newtown, CT last month, the calls grew much, much louder, and began coming from more places.

In Buckeye Firearms Association's first statements about the attack at Sandy Hook Elementary, Chairman Jim Irvine wrote an article entitled "Our children are dying for our insanity; It's time to emulate Israel's successful efforts to prevent mass killings in schools" in which he reiterated our long-held belief that having an armed presence in schools will deter attackers and reduce the severity of these attacks when they do occur.

The following day, Attorney General Mike DeWine voiced his own support for arming school employees.

Despite the fact that the suggestion had now been echoed by the top law enforcement official in the state, questions over the legality of arming school employees were raised by the Ohio School Boards Association's Chief Legal Counsel, Hollie Reedy.

In media interviews, Reedy suggested that ORC 2923.122, which allows Boards of Education to give permission to persons they wish to be able to carry concealed in the school building, was "not the end of the story. We have to look at other parts of the code."

Reedy the referred to ORC 109.78, which says that no public or private educational institution is permitted to employ a person "who goes armed while on duty" unless the person has completed a basic peace-officer training program or has 20 years of active duty as a peace officer.

Although a member of DeWine's staff immediately discounted the suggestion that ORC 109.78 restricted Boards of Education from giving permission to licensed employees to carry in the school, as they do away from the school, Reedy and others continued to make the claim.

Buckeye Firearms Association can now report that Attorney Mike DeWine himself has weighed in on the matter again, in a letter expressly stating that school boards may give permission to licensed employees to carry in the school.

Following is the letter in its entirety:

January 29, 2013

James Irvine
Chairman
Buckeye Firearms Association

Via Email - [email protected]

Dear Jim,

In the aftermath of recent tragic school shootings, there is a growing national debate on whether local school boards should allow their employees to carry firearms. I've been asked whether Ohio law gives local school boards the authority to arm administrators, teachers, or other staff.

Ohio law does not prevent a local school board from arming an employee, unless that employee's duties rise to the level that he/she would be considered "security personnel."

In other words, a school may allow a teacher to go armed on school property. But if that teacher is required to, in essence, become a security guard as well, the teacher must either have a basic peace officer certification from the Ohio Peace Officer Training Academy or he or she must have 20 years of experience as a law enforcement officer. R.C. 109.78(D).

I do not believe that R.C. 109.78(D) applies to non-security personnel. Put simply, it is unlikely that the General Assembly intended this language to reach every school employee. Had they intended to do so, they would have simply said that no school may employ "any person who goes armed." Instead, the General Assembly's use of "special police officer, security guard, or other position" suggests that "other positions" applies to security personnel. Thus, a board of education or governing body of a school may give non-security personnel written authorization to carry a weapon onto the premises. R.C. 2923.122(D)(1)(a). That person, however, is still subject to the carry and conveyance restrictions under Ohio's Concealed Carry Laws. R.C. 2923.12.

Of course, how a school classifies a particular employee's duties is a question that can only be answered by the local school district's employment practices and policies. For example, in a time of crisis, every employee may be expected to help secure the children on the premises, but that does not necessarily mean that every employee is a security guard. Conversely, if the school were to require an assistant principal to perform specific, routine security sweeps of the facilities, it might be functionally converting the position into one that falls under R.C. 109.78.

These are all fact-specific factors that will vary from school district to school district. That is why I believe this subject requires legislative review and hope the General Assembly will address this issue. This is an important question that is part of a wider public debate across Ohio.

Very respectfully yours,

Mike DeWine
Ohio Attorney General

Robert Fiatal
Executive Director
Ohio Peace Officers Training Commission

The letter can be downloaded here.

Chad D. Baus is the Buckeye Firearms Association Vice Chairman.