Back to the Basics

School Law for Board MembersKelley BakerBobby Truhe

Harding & Shultzkbaker@hslegalfirm.com btruhe@hslegalfirm.com

Tonight’s Agenda School board authority School board operations School board liability Student rights Employee rights The board’s attorneyQuestion and answer period

A School Board’sLegal Authority

Sources and Limitations

“Creatures of Statute” School boards are "creatures of statute" and

may do only those things which are permitted by statute. School boards' powers are limited and they can bind their districts only within the limits fixed by the Legislature; beyond that, their acts are void. Any action taken by a school board must be through either express or implied power conferred by legislative grant. School Dist. of Waterloo v. Hutchinson, 244 Neb. 665, 508 N.W.2d 832 (1993).

U.S. Constitution 1st Amendment

• Freedom of speech• Freedom of press• Freedom of religion 4th Amendment: search and seizure

U.S. Constitution 8th Amendment: cruel and unusual

punishment 14th Amendment: no person may be

deprived of life, liberty or property without due process of law

Federal StatutesADA ADEA Affordable Care Act (Obamacare) Civil Rights Act of 1964 FERPA IDEA OWBPA

State Statutes

Chapter 11: Bonds Chapter 13: Tort Claims Act Chapter 32: Elections Chapter 73: Bidding and Contracts Chapter 77: Budgets Chapter 79: School Statutes Chapter 84: Open Meetings Act

Administrative RulesDepartment of EducationDepartment of RevenueDepartment of Health State Auditor Accountability and DisclosureBoard of Engineers and Architects

School Board Operations

RecommendationsTreat the Open Meetings Act very

seriously Follow its requirements to the letterAvoid the six deadliest words:

WE’VE ALWAYS DONE IT THAT WAY

Open Meetings ActSections 84-1408 to 84-1414

The formation of public policy is public business and may not be conducted in secret. Every meeting of a public body shall

be open to the public in order that citizens may exercise their democratic privilege of attending and speaking . . .

What is a Meeting?All regular, special or called

meetings, formal or informal, of any public body for the purpose of:• Briefing (including retreats)• Discussion of public business• Formation of tentative policy• Taking any action

Notice of MeetingsMust publicize all meetingsReasonable advance noticeTo public and board membersBy a method adopted by the board

and recorded in it minutes• Publication in a newspaper• Posting in the district

Publication Requirement DOES NOT APPLY TO

• Chance meetings• Attendance at or travel to workshops

or conventions of board members at which there is no intentionally convened board meeting

RecommendationsDo minutes show method the board

adopted to publicize meetings?Does your method always work?Use a method the public can rely on: Posting at specified sites Post on district web site (optional) Publication in newspaper (optional)

Board AgendaMust publish:

• Agenda of subjects known or• Statement that a copy of the agenda

is available for public inspection at the office during regular hours

MAY NOT amend agenda less than 24 hours before the meeting

Agenda ItemsAgenda items must be “sufficiently

descriptive to give the public reasonable notice of the matters to be discussed”• Don’t be cryptic; err on the side

of a full description

Agenda Recommendations State that the order of the agenda

items may be changed (so arrive at the beginning of the meeting) State that the board may enter

closed (executive) session to discuss any matter for which closed session is lawful and appropriate

Emergency MeetingsLimited to true emergencies such as:

• Tornado• Boiler blowing upMay be held without advance noticeMeeting may be by telephoneMust contact news mediaMinutes must be prepared next day

Board MinutesTime, date and place of meetingMembers present and absentSubject of all matters discussedDocuments received or disclosedMinutes available within 10 days

or by next meetingSentences, not cryptic statements

Opening the MeetingNote the location where the Open

Meetings Act is postedReview the board meeting rulesNo action except on agenda itemsAddressing the board:

• Identify self • Time limit• Follow policy (e.g. complaint policy)

Public CommentBoards must let the public speak at

some meetings, but not all meetingsMay refuse comment at a meetingMay refuse topic at a meeting Should set aside some time as some

meetings for public to address any topic whatsoever (Attorney General feels that 4 meetings is a minimum)

Public CommentBoards may make reasonable rules

• Reasonable time limits• Can’t prohibit repetitive comments

Can’t require patrons to give their names to attend a meetingMay require names to speak

Closed Sessions Board may hold a closed session if it is

necessary to protect the public interest Recommendations: Use closed sessions very sparingly Limit them to the topic in the motion There is no legal requirement to keep

closed sessions confidential – board members can be forced to tell what was said in closed session.

Reasons for Closed Sessions Strategy sessions re collective

bargaining, buying real estate, and pending or threatened litigation. Deploying security devices Investigative proceedings about

allegations of criminal conduct To prevent needless injury to the

reputation of an individual who has not requested a public meeting

Two-Part Board Motion1. The subject matter (e.g. to discuss negotiations or the performance of an individual); and2. The reason necessitating a closed session (e.g. the public interest or preventing needless injury to person) President restates the motion before

entering closed session Put entire motion in minutes

Circumventing the Act Did informal discussions among board

members become, under the circum-stances, a substitute for a formal deliberative session of the body?Were communications among board

members sufficiently developed so as to evidence some intent to circumvent the Open Meetings Act?

Recommendations Take care not to give the appearance the

board is meeting outside the board room Board members – do not discuss school

business at the café or bar. Tell patrons who want to talk about

school business – “I deal with school business at board meetings. You are welcome to attend board meetings.”

OBAMACARE: What You Don’t Know CAN Hurt You

Our Guidance1. SIT TIGHT. 2. DO NOT offer current EHA plan

(unless you want to)3. Take a deep breath, the ACA is a

monthly process, and you can always make adjustments around yearly EHA enrollment periods

4. It’s a tax, not a penalty

Policy Behind the ACA

It is important to keep in mind that the ACA’s policy purpose is to insure more peopleWhen you think about insuring as

many people as possible, the shared responsibility tax payments and requirements make more sense

General Structure of ACA Large Employers must either

• Make affordable, qualifying coverage available to all full time employees

• Pay a “shared responsibility tax” to supplement the cost of those employees obtaining insurance on the exchange

Small employers are affected too

Shared Responsibility Tax Shared Responsibility “TAX,”

• Stigma if it’s called a “penalty” 2 Types of Tax

• Offering NO insurance• Offering UNAFFORDABLE or no

MINIMUM ESSENTIAL COVERAGE (MEC) insurance

Assume EHA plans meet MEC

Premium Credit In play for BOTH Tax

AssessmentsQualifications:

• AGI less than 400% of poverty

• No Medicaid or CHIP• Non-complying

employer plan

Persons in family/HH

Poverty guideline

For families/households with more than 8 persons, add $4,020 for each additional

person.

FOR 2013

1 $11,490

2 15,510

3 19,530

4 23,550

5 27,570

6 31,590

7 35,610

8 39,630

Premium Credit

Offering NO InsuranceWhat we know:

• Takes one FT EE to obtain premium credit AND insurance on exchange

• 95% safe haven: if you offer insurance to all but lesser of 5 or 5% of FT EEs

• Tax is (FT – 30) x $2,000• Ex.: 75 FT – 30 = 45 x $2,000 = $90,000

Unaffordable InsuranceWhat we know:

• Must “offer” insurance to at least 95% of FT EEs

• EE can’t pay more than 9.5% of AGI• W2 safe harbor• Tax is $3,000 x each EE who gets

insurance on exchange plus a premium credit

If District Pays Tax Employee doesn’t get this money!Money is a “tax” because it goes back

into the system to supplement premiums on the exchange. Individualized penalty for not

obtaining insurance

Unaffordable Ins. Ex. Acme School District

• 40 Certificated• 35 Classified • We “offer” insurance to all FT EEs• Insurance is “unaffordable”

20 classified staff go to exchange and obtain the credit• 20 x $3000 = $60,000 (assessed monthly)

Effects of EHAWhat we know:

• EHA Board looking at cheaper options• Will be bronze level (60% of medical

costs covered, minimum)• Can create 2+ subgroups• 5% premium savings assessed in each

subgroup – saves teachers subgroup• Can offer different plans to different

subgroups

13-14 EHA Rates

Counting to 30 Three Options for Salaried Staff

• Track hours• Daily equivalent if one hour worked!• Weekly equivalent if one hour worked!

TRACK HOURS!!!

What does this mean? Option #1: pay for insurance

• EHA may have low-premium plan• Don’t have to use current EHA plan• If 95% of FT employees are provided

insurance, no tax assessment• Affordability calculation and 50%

EHA underwriting rule only apply to a single plan

What does this mean? Option #2: “offer” unaffordable ins.

• Subject to tax assessment of $3,000 per employee who obtains insurance and a credit on the exchange

• Have to be willing to pay ½ of the single premium if anyone takes ins.

• 5% surcharge determined separately for each EHA subgroup

• Offer date for 9/1/14 enrollment

What does this mean? Option #3: don’t offer insurance to

classified staff at all for 14-15• $2,000 x (all FT EEs minus 30)• Only pay this tax if one FT person

obtains insurance and credit on the exchange

• Possible staff survey: (1) Do you have insurance? (2) How do you get it?

What does this mean? Option #4: cut hours / cut staff

• Look back window can be as short as 4th quarter for 13-14

• Employment at will• Contracts for 13-14• No RIF process for classified staff• Shared and part-time teachers:

consider carefully . . .

School Board Liability Statutory Duties

• Discretionary duties• Nondiscretionary duties

School PenaltiesPersonal Board Member Liability

Contracting with a teacher who is already under contract Employing an uncertified teacher The treasurer as “insurer” Insufficient transportation fee Failure to levy tax to pay judgment

Negligence Negligence is: Doing something an ordinary, prudent

person would not have done under the same or similar circumstances Failing to do something an ordinary,

prudent person would have done under the same or similar circumstances

Elements of Negligence Duty (standard of care) Breach of the duty Proximate cause Actual injury (damages)

Tort ClaimsPolitical Subdivision Tort Claims Act

Claimant must file a claim with board Board has 6 months to consider the

claim and act or decline to act Claimant must file suit within 2 years

Intentional Wrongs

Defamation Assault and battery

Other Wrongs

Invalid contracts Products liability Federal civil rights Constitutional violations Statutory violations

Student Rights

Constitutional Rights

1st Amendment Freedom of speech Freedom of press Freedom of religion

4th Amendment – search and seizure 8th Amendment – cruel and unusual

punishment 14th Amendment – due process

Constitutional LimitsTinker v. Des Moines Indep. School Dist.

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” “applied in light of the special

characteristics of the school environment”

Federal Rights

FERPA Equal Access Act IDEA Section 504 Title IX Equal Education Opportunities Act

State Rights

Compulsory education Confidentiality of records Special education services Prohibition of sex discrimination Enrollment option Student discipline

Student Discipline

Compulsory education Confidentiality of records Special education services Prohibition of sex discrimination Enrollment option Student discipline

Short Term Suspension (1-5 Days)

Principal investigates• Gives notice of charge• Explains the evidence• Gives student opportunity to

explain• Makes decision on suspension• Notifies parents within 24 hours

Long-Term Suspension (6-19 Days)Expulsion (Rest of Semester)

Principal investigates and gives notice of:• Charge• Right to a hearing • Right to be represented• Right to examine records • Right to know identity of witnesses and

the substance of their testimony

Long-Term Suspension; Expulsion

The hearing Conducted by independent hearing

examiner Hearing examiner makes

recommendation to the superintendent Superintendent makes final decision (not

more severe than the recommendation Decision is appealable to the board

Students with Disabilities Students with disabilities are

protected by extensive federal and state statutes and regulationsGreat care must be taken in

administering discipline to students with disabilities

Safe Environment

U.S. Supreme Court: “[m]aintaining order in the classroom

has never been easy, but in recent years, school disorder has often taken particularly ugly forms; drug use and violent crime in the schools have become major social problems.

Search and Seizure

U.S. Supreme Ct (New Jersey v. TLO)• Standard is reasonable suspicion• Principal’s suspicion was the sort of

“common sense conclusion about human behavior” which “practical people,” including government officials, are entitled to rely upon.

Reasonable Suspicion Less than probable causeMore than a hunch Two pronged test:

• Reasonable belief that the search will turn up evidence of a violation

• The search is reasonably related to the need for the search

Employee Rights

Students with disabilities are protected by extensive federal and state statutes and regulationsGreat care must be taken in

administering discipline to students with disabilities

Statutory Definitions Probationary – certificated employee

with less than 3 FTE years Tenured (permanent) certificated

employee with more than 3 FTE years Continuing contract – the contract of

a certificated employee renews automatically unless notice is given in compliance with statute and policy

Discharge

Nonrenew: discharge of a probationary employee at the end of the year Terminate: discharge of a tenured

employee at the end of the year Cancel: discharge of any certificated

employee mid-year

Probationary Teachers Probationary employee has right to be: Observed for a full instructional period

and evaluated once every semester Given a written list of deficiencies Given “concrete” suggestions to improve Given sufficient time to improve Given follow-up assistance

Probationary Hearing

Conducted by the board Supposedly informal “Discuss and explain” position on

continued employment Board decision may be for any reason

except an unconstitutional reason Vote of majority of a quorum sufficient

Tenured Teachers: Just Cause Insubordination Incompetence Neglect of duty Unprofessional conduct Immorality Physical or mental incapacity Other conduct – substantially interferes

Tenured Teacher Hearing Notice of “possible” termination 7 days to request a hearing Hearing within 30 days Hearing notice 5 days before hearing

• Charges – “employment-related reasons”• Names of witnesses• Substance of their testimony• Documents

Tenured Teacher Hearing

Hearing is formal Administration, board and teacher are

represented by attorneys Presentation of evidence Testimony and cross examination Board decision based solely on evidenceMajority of members of the board (4 of

6) must vote to terminate

Reduction in Force

RIF hearings very much like others No wrongdoingMust establish:

• Change in circumstances• Necessity to reduce force• Correct teacher is identified

Teacher has right of recall for 24 months

Board Responsibility

Primary role is as policy makers Remain impartial Board members do not become involved

in the evaluation process Active board involvement can:

• Change the focus of the hearing• Cause a decision to be overturned

Back to the Basics

School Law for Board MembersKelley BakerBobby Truhe

Harding & Shultzkbaker@hslegalfirm.com btruhe@hslegalfirm.com