Remarks improper, but judge can stay
Some of Judge Gary Tyack’s comments during a hearing “were out of line,” but they do not rise to a level requiring his removal from an appeal involving the Electronic Classroom of Tomorrow, Ohio’s chief justice ruled Monday.
Contending that the Franklin County Court of Appeals judge is biased and may have prejudged the case, ECOT’s lawyer had asked Ohio Supreme Court Chief Justice Maureen O’Connor to disqualify him from hearing the case.
ECOT, the state’s largest
charter online school, is suing to prevent the state from using student log-in durations as a basis to determine its state funding. It lost at the trial court level and filed an appeal.
ECOT attorney Marion Little had argued that some of Tyack’s comments during an April 13 hearing violated judicial canons mandating impartiality and fairness. The comments include Tyack’s remarks about ECOT founder Bill Lager’s political influence, with the Democratic judge likening him to a “Russian oligarch.”
O’Connor, a Republican, chastised Tyack, but declined to remove him from the case.
“Mr. Little has not established that the extraordinary remedy of disqualification is necessary in this case,” the chief justice wrote. “To be sure, Judge Tyack’s description of Mr. Lager as an ‘oligarch’ was unacceptable. ... Such unnecessary and demeaning comments have no place on the appellate bench.”
However, Tyack’s remarks alone did not reflect judicial bias or demonstrate he could not rule impartially, O’Connor wrote.
Lager is not an individual party in the lawsuit and Tyack “aggressively questioned both parties in this case. It simply cannot be said that he showed favoritism toward the (Ohio Department of Education),” she added.
ECOT lawyer Little declined to comment. ECOT spokesman Neil Clark, however, called O’Connor’s decision “scathing” and a “harsh rebuke” of Tyack, adding, “Today, Justice O’Connor confirmed what was clear to everyone who heard Judge Tyack’s statements.”
In a response filed after ECOT sought to remove him, Tyack said appellate judges should ask tough questions, and if doing so merits disqualification, “counsel in virtually every case could then believe that the chief justice will consider removing a judge who is perceived as not agreeing with counsel’s argument.”
Tyack said Monday: “I believe the chief justice reached the right conclusion and will make every effort to continue being fair and impartial in the case.”
The Ohio Department of Education says log-in data provided by ECOT shows that the school’s reported enrollment was heavily inflated, requiring the online school to return about $60 million of its $106 million in state funding for 2015-16. The department found that many ECOT students were not getting the required 920 minimum hours of educational opportunities required by the state.
ECOT argues that the department illegally and retroactively changed the way it would determine studentenrollment counts.
After originally mandating their attendance, ECOT instead invited its staff members to attend a Statehouse rally at in support of the school at noon today.