KBS Reference Desk: Required Provisions for EOPs

Q:        I am in the process of reviewing our Emergency Operations Plan (EOP) in preparation for the upcoming school year. Are there any new provisions that we should include resulting from the recent legislative session?

 A:        Yes! Senate Bill 11 outlined new measures for school safety and mental health promotion in public schools, and included eight (8) new provisions that must be present in a district’s EOP.

 Senate Bill 11 was the major school safety bill to come out of the most recent legislative session. It set out to tackle new facilities standards for ensuring safe school buildings, as well as new health curriculum geared at increasing awareness of mental health matters. Among the more concrete aspects of Senate Bill 11, the law adds new required provisions that must be addressed in each District’s “Multi-Hazard Emergency Operations Plan” (or EOP). In addition to the required elements of EOPs already in existence, the following new required provisions were added:

  1.         Provisions establishing the chain of command for decision-making during emergency situations, including who will be in charge if the Superintendent is not available during an emergency;

2.         Provisions addressing physical/psychological safety of students and staff while responding to dangerous scenarios (e.g., natural disasters, active shooters, etc.);

3.         Provisions for ensuring the safety of students in portable buildings (even if you do not currently utilize portables on your campus);

4.         Provisions for ensuring safety of those with disabilities during a disaster or emergency situation;

5.         Provisions for providing immediate notification to parents or guardians in circumstances involving a significant threat to students, with identification of the individual in charge of disseminating and responding to those notifications; [Note: We advise that “immediate” be interpreted to mean notification to parents as soon as practicable and safe. Law enforcement should be involved in determining when it is safe to alert parents of an emergency on campus.]

6.         Provisions for supporting psychological safety during the response and recovery phase following a disaster or emergency situation that address mental health of students and staff, and align with “best practices” in trauma-informed and grief-informed care; [Note: We recommend having your counseling staff review the specific provisions of this new requirement in SB 11 to ensure that your practices align with the counseling standards identified.]

7.         Procedures for providing substitute teachers access to campus buildings and materials necessary to carry out the duties of a district employee during emergencies; and

8.         The name of each individual on the school safety and security committee and the date of each committee meeting during the preceding year.

Senate Bill 11 does not require use of any specific language to satisfy each of the provisions above, however a closer read of the actual text of the law will be helpful when determining what parts of your EOP may need updating. You can find the full text of the bill here:

 https://capitol.texas.gov/tlodocs/86R/billtext/pdf/SB00011F.pdf#navpanes=0

Look to page 14, subsection (f) for general information concerning EOPs. Direction pertaining to whether your district requires board approval of your revised EOP can be found at policy CKC. For specific questions regarding compliance, we recommend contacting your school’s attorney.

KBS Reference Desk: Student athlete legislative updates

Q:        We’re gearing up for fall athletics and the start of the new school year. Are there any legislative updates pertaining to student-athletes we need to know about before our kids return?

A:        Yes, there are two noteworthy pieces of legislation you should be aware of: (1) House Bill 961, which expands the authority of school nurses to address concussions; and (2) House Bill 76, which gives high school student-athletes the right to obtain an electrocardiogram (“EKG”) with their required UIL physical, and/or information related to sudden-cardiac arrest and the optional screening.

School safety was at the forefront of this legislative session, and the safety of student-athletes was no exception. As your district gears up for the start of the school year, you should be aware of two noteworthy pieces of legislation: (1) House Bill 961, which increases the role of school nurses in addressing concussions; and (2) House Bill 76, which sets forth new requirements aimed at preventing incidents of cardiac arrest among student-athletes. Both bills take effect at the beginning of the upcoming 2019-2020 school year. 

House Bill 961 promotes the safety of student-athletes by giving school nurses greater authority to address concussions sustained during interscholastic activities. In particular, a school nurse may now elect to serve on the district’s concussion oversight team, which is the entity responsible for developing return-to-play protocols. In light of this change, the district’s concussion oversight team will now consist of at least one licensed physician, one or more athletic trainers employed by the district, if any, and a school nurse upon his or her request. The team should also include one or more advanced practice nurse, neuropsychologist, and neuropsychologist “to the greatest extent practicable.” See Tex. Educ. Code. § 38.154. As is required of other concussion team members, if a school nurse wishes to serve on the concussion oversight team, he or she must receive training from an authorized provider at least once every two years in accordance with Section 38.158 of the Texas Education Code.

In addition to the ability to help develop the return-to-play protocols through membership on the concussion oversight team, House Bill 961 also tasks school nurses with the implementation of those protocols. A critical component will be adding ‘school nurse’ to the list of those whose professional opinion may trigger a student’s removal from play.  Section 38.156 of the Texas Education Code requires the immediate removal of a student from play in an athletic practice or competition if a coach, physician, licensed health care professional (meaning advanced practice nurse), parent, or chiropractor believes the student may be concussed. House Bill 961 now adds school nurses to that list of observers triggering removal. Thus, if a school nurse suspects a student may have sustained a concussion during practice or competition, the student must be removed from play immediately.

Another piece of legislation, House Bill 76, seeks to protect student-athletes from sudden-cardiac arrest through an emphasis on preventative screenings and increased awareness. To that end, Section 33.096 of the Education Code now provides high school students with the right to obtain an EKG as part of the annual physical examination required to participate in athletic activities sponsored or sanctioned by the UIL. Districts must also provide these student-athletes with information about cardiac arrest as well as their right to request the optional EKG screening from a licensed health care practitioner. It is expected that the UIL will provide additional guidance addressing the particulars of these requirements, as well as possible notice templates, along with procedures related to their implementation. In the meantime, contact your local school attorney with any questions that may arise pertaining to House Bills 961 and 76 and your athletic program.

KBS Reference Desk: Terminating an Employee with Workers' Compensation Claim

Q:       We have an employee who suffered a work-related-injury but has yet to return to work. We need to fill this position. Are we able to rightfully terminate this employee?

A:       Yes, as long as the employee has exhausted all leave and the termination is a business decision and not in retaliation for the work-related injury.

Chapter 451 of the Texas Labor Code prohibits discrimination against or termination of an employee for filing or initiating a workers’ compensation claim in good faith. Generally speaking, you cannot discriminate or retaliate against, or terminate an employee, for filing a workers’ compensation claim or alleging he/she was injured on the job, so long as that claim was made in good faith. Accordingly, as long as the reason for the termination is a business decision (such as performance) and not an act prohibited by Chapter 451, the District may rightfully terminate the employee.

Some of the most common instances that may arise include:

1.      Employee is unable to return to work in any capacity – In this case, the District may terminate the employee if he or she is unable to meet the physical requirements of the job and the District needs the vacant position filled.

2.      Employee is physically able to return to work in a restricted or limited capacity – Here, the District can tender a bona fide offer of employment to the employee offering the person a job within his or her medical restrictions. If the District is unable to offer a limited or restricted position, or if the employee fails to return to work in the limited position offered, then the District may terminate the employee.

3.      Employee is physically able to return to work (as determined by the employee’s treating doctor), yet still fails to return to work – In this scenario, the District may terminate the employee if the employee fails to return to work following being released by the employee’s treating doctor. This normally happens when there is a dispute regarding the extent of the employee’s injuries or when the employee disagrees with their treating doctor’s medical opinion. Note – the only injuries taken into account for workers’ compensation purposes are the injuries determined to be caused by the work-related-injury.

It is also worth noting that workers’ compensation is a benefit (income and medical) rather than a form of leave. Instead, leave that they employee may use while taking workers’ compensation benefits might include state and local personal leave, Family Medical Leave, temporary disability and/or assault leave, as applicable. If more than one type of leave applies or is available, it should be taken concurrently. Accordingly, in the instances noted above, if the employee has yet to exhaust available leave, they may be entitled to additional time off work until that leave is exhausted. However, if their leave is exhausted and they fail to return to work, then the District may rightfully terminate their employment for business reasons. In all instances, an employee’s ability to return to work, as determined by their treating doctor or the designated doctor, will be a factor taken into consideration.

In circumstances that materially differ from the above instances, we recommend contacting your local school attorney. Further, any additional leave requested by a physician that is short in duration could be considered a reasonable accommodation under the Americans with Disabilities Act, worthy of discussion with counsel. Finally, termination of a contract employee will require compliance with the applicable Chapter 21 nonrenewal or termination procedures. 

KBS Reference Desk: Police Officer Meal Break Compensation

Q:       Our district schedules its police officers’ shifts to include an unpaid 30-minute lunch break. One of our officers heard that police are considered “on-duty” whenever they are in uniform and requested that we compensate her during her break. Do we have to pay our officers during their lunch breaks?

A:        Most likely no, provided that the officers’ lunch break is predominantly for their own benefit.

The longstanding rule of law is that a police officer is on-duty 24 hours a day. Moore v. State, 562 S.W.2d 484, 486 (Tex. Crim. App. 1978). This rule is advantageous for public security because officers’ work schedules do not limit their duty to discharge police authority in the presence of criminal activity. Id. The rule creates confusion, however, when determining an officer’s compensable work and overtime.

Under the Fair Labor Standards Act (FLSA) and Texas Local Government Code, compensable work hours generally include all time that: (1) an officer is scheduled to work at an employer’s establishment or prescribed workplace; and (2) an officer is otherwise required or permitted to work for the department (i.e., during emergencies, in the presence of criminal activity, etc.). 29 CFR 553.221(b)-(c); Tex. Local Gov’t § 142.0013(h). The FLSA, however, excludes time a person might consider worktime under these rules from its definition of compensable hours. Normal travel time to and from scheduled shifts, for example, does not amount to compensable hours even when a department requests that an officer report to locations other than the department’s premises. See 29 CFR 553.221(e). This is true regardless whether an officer is wearing his or her uniform and driving a patrol car. See 29 CFR 553.221(f).

 Given these rules, Texas judges hold that police officers do not accrue compensable time solely because they are in uniform during lunch breaks. Courts have prescribed the following two-factor test to decide whether officers earn compensable time: (1) whether the officers spend time predominantly for their own or their employer’s benefit; and (2) whether the break is of sufficient duration and taken under conditions that are available to the officers for their own use and purposes disassociated from worktime. Because police officers are not eating their meals while patrolling, their meal-time break is not predominately spent for the benefit of their employer and thus not compensable. University Park, 766 S.W.2d 531, 532 (Tex. Ct. App. 1989).

 In sum, no state or federal law supports the proposition that police officers accrue compensable time during meal breaks simply because they are in uniform. For additional information regarding compensable time under the FLSA, please contact your local school attorney.

KBS Reference Desk: Appropriation of District Logo

Q:       We have recently learned that a disgruntled former employee has made a new social media page to disparage the District. His posts have included several calls to action for change in the District and a few nasty posts about particular board members. The profile picture he used is a picture of the district logo turned backwards. We have had a handful of people call the administration building and tell us they liked the page on accident thinking it was one of the District’s social media pages and were confused by the posts. Can we do anything to stop the former employee from using our logo on these social media cites?

 A:        Yes, the District may send the former employee a cease and desist letter requesting he stop using the District’s service mark and name in a manner that causes confusion.  

The District’s logo constitutes a service mark that associates the item with the school district. Service marks are used to distinguish goods, services and speech from competitors or other sources. The use of service marks is becoming more important as organizations increase their online presence through social media. The relative ease of copying or downloading a service mark for an individual’s own use makes regulation even more critical.  

Intellectual property laws protect organizations’ ability to prevent others from using the mark in a way that creates a likelihood of confusion. In some cases, however, an individual or outside organization may use an entity’s service mark if the use qualifies as “fair use.” Examples of fair use include criticism, parody, and comparison, among others. For example, if Organization B wishes to criticize Organization A, it may be able to use Organization A’s logo to identify which organization B is criticizing. However, fair use is not an absolute protection against an infringement claim. Even where criticism, parody, or another fair use is present, the ultimate test is whether the use of the service mark creates a probability or likelihood of confusion in the minds of the viewers as to the source of the message, good, or service. Where confusion exists, the use infringes upon the owner of the service mark and the use is impermissible. 

In the scenario above, the former employee is using the District’s logo turned backwards on its website to criticize board members and encourage change in the District. On the one hand, this may seem to suggest that the logo falls under the fair use exception for criticism and parody of the mark; however, when considering the probability or likelihood of confusion, the test fails. The phone calls from several viewers of the social media page provide evidence that the use of the mark is in fact causing substantial confusion as to the source of the posts.  

In situations such as these, the District’s first option is to send a cease and desist letter to the user of the service mark. A cease and desist letter shows that the District is aware of the use of its service mark and that the District objects. It also provides the individual with an opportunity to cease using the District’s logo prior to the initiation of litigation. If the individual does not stop the use, then the District may wish to seek legal redress through an infringement lawsuit. When in need, consult your school district’s attorney for drafting of cease and desist letters.

KBS Reference Desk: Senate Bill 1476 SBEC Reporting

Q:        I know there were a lot of bills passed this legislative session that will impact districts. Are there any changes relating to SBEC reporting requirements? 

A:        Yes! Senate Bill 1476 was signed into law on June 14, 2019 and went into effect immediately. SB 1476 amended Section 21.006 of the Texas Education Code relating to reporting requirements to the State Board of Educator Certification.  

            As written, the educator reporting statute requires a superintendent to notify the State Board for Educator Certification  (SBEC) when the superintendent receives notification of an employee’s reported criminal history, or when an employee resigns or is terminated and “there exists evidence that [the educator] committed one of the acts specified in paragraph (2) of this subsection.” The “acts” referred to include, specifically, sexual or physical abuse of a student or minor or having engaged in any other illegal conduct with a student or minor. The report to SBEC must be made by the superintendent “not later than the seventh business day” after the triggering event (e.g. criminal history, resignation, termination). Of particular importance here is the resignation scenario. As neither the employee’s resignation, nor the notice to SBEC eliminate a superintendent’s obligation to complete the investigation, a possibility exists that the investigation will result in a “no finding” despite the existence of at least some “evidence” early on, seemingly requiring a report. SB 1476 was intended, therefore, to clarify reporting obligations when “evidence exists” initially, but ultimately insufficient to support a finding of sexual or physical abuse of a student or minor, or other illegal conduct between an educator and a minor.               

The amendment to Section 21.006 clarifies that a superintendent is not required to notify SBEC or file a report if the superintendent: “(1) completes an investigation into an educator’s alleged incident of misconduct described by Subsection (b)(2)(A) or (A-1) before the educator’s termination of employment or resignation; and (2) determines the educator did not engage in the alleged incident of misconduct described by Subsection (b)(2)(A) or (A-1).” Tex. Educ. Code §21.006(c-2). Of course, the application of this new provision and determination that no report is required will necessitate completion of the superintendent’s investigation within the seven day deadline. Depending upon the allegations, this timeline may not be plausible. In such a circumstance, best practice would be for the superintendent to make the report within the 7 days and then send a follow-up to SBEC after conclusion of the investigation should the employee be exonerated. Prior to reporting, as in all instances, a superintendent must first notify both the employee and the school board of the superintendent’s intent to report. 

As the Commissioner promulgates regulations, we will provide updates. In the interim, contact your school district’s attorney with questions.

KBS Reference Desk: Cybersecurity Breach

Q:        The district received notification from a vendor of a potential cybersecurity breach involving confidential student information. Do we have a policy addressing next steps?

 A:        Yes, look to policy CQ (LEGAL) and (LOCAL) for your district’s internal response procedures, as well as any provisions set forth in the data protection agreement with the vendor.

 Note that your obligations concerning response to cybersecurity breaches will change, however, starting September 1, 2019 in light of the legislature’s recent passage of Senate Bill 820 (“SB 820”). SB 820 adds Section 11.175 to the Texas Education Code, which will require districts to: (1) adopt a cybersecurity policy; (2) designate a cybersecurity coordinator; and (3) report cybersecurity incidents to the Texas Education Agency (“TEA”) and to parents of impacted students beginning with the upcoming school year.

SB 820 tasks the superintendent with responsibility for appointing a cybersecurity coordinator to serve as the liaison between the district and TEA and to fulfill certain reporting obligations. In particular, SB 820 requires the cybersecurity coordinator to report to TEA “any cyber attack or other cybersecurity incident against the district cyber infrastructure that constitutes a breach of system security as soon as practicable after the discovery of the attack or incident.” Tex. Educ. Code § 11.175(e). Additionally, for any incident requiring a report to TEA, the coordinator must also “provide notice to a parent of or person standing in parental relation to a student enrolled in the district of an attack or incident…involving the student’s information.” Tex. Educ. Code § 11.175(f).

Be on the lookout for upcoming TASB policy updates and seek assistance from your school district’s attorney regarding required TEA and parent notification should a cybersecurity breach occur compromising personal information.  

KBS Reference Desk: Engaging Architects for Construction

Q:        After some severe weather, our facilities are in need of significant repairs, including roof patching, flooring replacement, etc. We have discussed the work with a local contractor, and he estimated the cost will be around $60,000. We are starting the competitive bidding process to select a contractor to perform all of the work. We’ve already had an engineer prepare the engineering plans for the mechanical/electric issues. However, since this is not new construction with no new design elements, do we still have to hire an architect to complete drawings or specifications prior to bidding?

A:        Possibly. An architect will be required if the work will impact the structural integrity of a facility, including removing or relocating walls or altering any building exits.

            For repairs or alterations to existing structures, as in this case, the Texas Occupations Code (regulating the practice of architecture) requires that a plan or specification be prepared by an architect (rather than just the contractor) when the work meets the following conditions: (1) it is owned by a political subdivision (including a public school); (2) the building will be used for education, assembly or office occupancy; (3) the work will include “removal, relocation, or addition of a wall or partition or the alteration or addition of an exit;” and (4) the repair/construction costs will exceed $50,000.

 In some instances, general contractors may feel that the repairs can be completed without the need for an architect; however, a school district should always ask detailed questions about the scope of the projects in order to determine compliance with the Occupations Code. Failure to use an architect in violation of the Occupations Code may result in an investigation by the Texas Board of Architectural Examiners.  If an architect is used, the district must select one in accordance with the Professional Services Procurement Act, Government Code Chapter 2254 (as with Professional Engineers). The Act provides that a professional services provider may not be selected on the basis of competitive bids, but rather (1) on the basis of demonstrated competence and qualifications to perform the services; and (2) for a fair and reasonable price. Tex. Gov’t Code 2254.003.

This flowchart developed by the Texas Board of Architectural Examiners provides an easy step-by-step process for determining the need for an architect for your project.

https://www.tbae.texas.gov/Content/documents/LawsEnforcement/ArchRequiredFlowChart.pdf

 Lastly, whether utilizing an architect and/or a general contractor, always consult your school district’s attorney, as your counsel will likely recommend significant revisions to the standard AIA contract or other written agreement proposed by the professional selected.

 

KBS Reference Desk: Nepotism in Small County

Q:       We interviewed a candidate for a teaching position and it turns out she is the sister of a current school board member. May we hire the candidate if the school board has delegated all final hiring authority to the Superintendent?

 A:        No, unless the school district is located wholly within a county with a population of less than 35,000 people.

             Texas nepotism laws generally prohibit public officials from appointing, confirming the appoint of, or voting for the appointment or conformation of the appointment of an individual to a position that is to be directly or indirectly compensated from public funds if the individual is related to the public official or another member of the school board by blood or marriage. See Tex. Gov’t Code § 573.041. What degree of relation is permissible depends on whether the identified individuals are related by blood (consanguinity) or marriage (affinity).  For relationships based on marriage (“in-laws”), relatives within the first and second degree fall under the prohibition, including parents and children (first degree), as well as grandparents, grandchildren, sisters, and brothers (second degree). For relationships based on blood, the prohibition is even broader—reaching the third degree, which includes great-grandparents, great-grandchildren, aunts, uncles, nieces, and nephews.

For nepotism purposes, school board members are generally always considered public officials, with limited exceptions. A superintendent is considered a public official under the nepotism statute if he or she has final hiring authority (via DC (LOCAL)) for the employment position at issue. In the above scenario, the individual applying for employment with the district is the sister of a sitting school board member, which places her in the second degree of consanguinity with the board member – a public official.  Therefore, it would be a violation of the nepotism statute for the District to hire the sister to the identified teaching position. If, however, as indicated above, the superintendent has been delegated final hiring authority for certified employees AND the district is located in a “small county,” which is defined as having a population of less than 35,000 people, the Attorney General has found that the school board member relative is not considered a public official and, thus, the hire is permissible. See Tex. Educ. Code § 11.1513(a), (f)-(g). Atty. Gen. Op. GA-123 (2003). For specific questions regarding nepotism laws, please contact your local school attorney.

KBS Reference Desk: Employment of Students

Q:       This summer, my District would like to hire students to perform grounds work. Are there any restrictions to employing students in this capacity?  

A:        Yes, there are restrictions depending upon the age of the student and the duties assigned.

            Children 16 and 17 years old may perform any non-hazardous job responsibilities without special restrictions on their hours of work. See 29 C.F.R. § 570.50-68. However, children 14 and 15 years old may work in non-hazardous jobs for no more than eight hours per day and forty hours per week and only between 7 a.m. and 9 p.m. See 29 C.F.R. § 570.35.

            Regardless of hours, the Texas Workforce Commission (TWC) prohibits all children 14-17 years of age from working in potentially hazardous occupations. Any job that requires a child to participate in roofing, operating or assist in operating a power-driven circular or band saw, chain saw, woodchipper, and any other potentially dangerous tool is considered a “hazardous job.” Currently, operating a lawn mower or weed eater is not included in the definition of hazardous job.  Finally, the District must continue to comply with nepotism policies when employing summer help. See DBE (Legal).

 If you have additional questions regarding the hiring of students, we recommend contacting your local school attorney.

KBS Reference Desk: CTE Teaching Permit

Q:        A distinguished community member is interested in teaching a CTE course in our Career Readiness Program. He would be a great addition to our team and asset for our high school students. Upon reviewing his credentials, however, we discovered that he does not have a bachelor’s degree. Are we able to hire him?

 A:        Yes, provided that the school board issues a teaching permit based on qualifications certified by the superintendent and the community member only teaches a career and technical education course.

             The Texas Education Code generally requires state educators to obtain a bachelor’s degree from an accredited college or university in order to become a certified teacher. An exception to this general rule exists, however, which allows school districts to issue teaching permits and employ individuals who have not yet obtained a teaching certificate under certain circumstances. See Tex. Educ. Code § 21.055(a). One such circumstance occurs when a school district seeks to employ a person who has not earned a bachelor’s degree to teach only career and technical education (CTE) classes. See Tex. Educ. Code § 21.055(d-1).

 The Texas Education Code expressly provides that: “A school district board of trustees may issue a school district teaching permit to a person who will teach courses only in career and technical education based on qualifications certified by the superintendent of the school district.” Tex. Educ. Code § 21.055(d-1). The Code defines “qualifications” to include “demonstrated subject matter expertise.” A candidate’s formal training, education, and professional work experience may demonstrate whether he or she has subject matter expertise. “Holding an active professional relevant industry license, certification, or registration” might likewise illustrate expertise. The superintendent must also certify that the individual “has undergone a criminal background check and is capable of proper classroom management.”   

 A CTE instructor may teach career and educational courses immediately after the board issues the teaching permit. Tex. Educ. Code § 21.055(d-1). The board must, however, promptly notify the Commissioner of Education identifying the hire by name and including the employee’s qualifications and the course that the employee will teach. A sample School District Teaching Permit form is located online at: https://tea.texas.gov/Texas_Educators/Certification/School_District_Teaching_Permits/.

KBS Reference Desk: FMLA Leave Over Summer

Q:        A teacher is going on maternity leave with two weeks left in the school year. She will be starting FMLA leave when she goes out. She wants to take the rest of her FMLA leave (the remaining 10 weeks) at the beginning of the next school year. Can she?

 A:        Yes. The Family Medical Leave Act (FMLA) permits eligible employees to take up to 12 workweeks of leave in a single 12-month period. The birth of a child is a qualifying reason for FMLA leave and federal law provides that leave taken for a period that ends with the school year and begins the next semester is leave taken consecutively; meaning that the period during the summer when the employee is not required to work is not counted against her FMLA entitlement.

 Whether a particular holiday or break may be counted against an employee’s FMLA leave depends on a few factors. However, in the above example—where the district is closed for one, multi-week break during the summer—federal regulations provide that the district is prohibited from counting any of the days it is closed for business against an employee’s FMLA leave, unless the employee was otherwise scheduled to work during the closure, such as a security guard or maintenance staff. 29 C.F.R. §825.200 (h), §825.601(a).

 Keep in mind that federal law also requires that “[a]n instructional employee who is on FMLA leave at the end of the school year must be provided with any benefits over the summer that employee would normally receive if they had been working at the end of the school year.” 29 C.F.R. §825.601(a). It is also important to note that spouses who are employed by the same district may be limited to a combined total of 12 weeks of FMLA leave during the 12-month period. Check your local policy at DECA to determine the election made by your board of trustees concerning this issue.

 Finally, understand that the above analysis may change if the FMLA year for your district is defined as school year or fiscal year, rather than calendar year. Each district sets its own policy determining the 12-month FMLA period. For example, some districts measure the 12-month period from the employee’s anniversary date, some use the calendar year, and others use the first day of the school year. Accordingly, if the District sets their 12-month FMLA year to begin on the first duty day of the school year, the District would need to reevaluate the teacher’s FMLA leave status including eligibility, the qualifying event, and the amount of leave available, at the first of the year. For specific questions about calculating FMLA leave, please contact your local school attorney. 

KBS Reference Desk: Summer Use of Sports Facilities

Q:       Some non-school sports organizations have approached the district about using the high school sports facilities for summer recreational leagues, including the outdoor football field and track, outdoor tennis courts, and the indoor basketball courts. May we allow these organizations to use our sports facilities, and may we charge them a fee for their use?

 A:        Yes, the District may allow the non-school sports organizations to use the District’s facilities, and may also charge the organizations, if it is provided for the District’s board policy.

 School districts, like other private property owners, are not required to allow the use of their property outside of school hours, but may choose to do so by intentionally creating a public forum or limited public forum, either by policy or by practice. The use of district sports facilities for non-school related sports organizations during the summer is governed by Board Policies GKD (Legal) and GKD (Local). Most districts allow at least some use of district facilities for non-school purposes when the activities do not conflict with school use; however, many districts vary in the procedures to secure such uses.

 Like all property owners, school districts may limit which facilities it opens to the public as well as the content that occurs during use. This is called a limited public forum. In such situations, districts may impose reasonable “time, place, and manner” restrictions on when, where, and how content is distributed based on the purpose of the forum so long as the restrictions are “viewpoint neutral.” See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985). For example, a district may choose to open its gymnasium during limited times throughout the summer for the purpose of recreational leagues to host basketball games and tournaments. The district may restrict a league’s access to certain district facilities on certain days and between certain hours as reasonable time and place restrictions. Further, during the time proscribed for the games or tournaments, the district may prohibit other organizations from attempting to use the gymnasium for purposes that are not related to basketball games or tournaments because such reasons are unrelated to the purpose for the creation of the limited forum. The district may not, however, prohibit use by a league based solely on the viewpoint of the organization (e.g. grant access to AAU but deny access to an LGBT association).

 Districts will generally require that those wishing to make use of district facilities gain approval from the Superintendent or designee with authority to approve such uses. For continuous uses over a protracted period of time, some districts require the requesting party to enter into a contract or other rental agreement as a lessee and/or provide evidence of liability insurance coverage for any damages that occur during the use. On the other hand, districts may allow the public use of certain facilities without any prior approval required. These facilities often include unlocked, outdoor recreation facilities, including playgrounds, tracks, soccer fields, and tennis courts.

 Texas Education Code Section 45.033 allows school boards to set and collect rentals, rates, and charges for use of a district’s facilities. Because the school boards set the rates, the charges vary by district so it is important that each district makes their prices available to the public. Common charges include the fees for the operation, supervision, or clean-up costs at the facilities used. Additionally, Districts may grant fee exceptions for certain groups, such as use by employee professional organizations or public meetings sponsored by state or local governmental agencies. While discretionary exceptions are permitted, it is important that the district not “gift” public funds and that it not discriminate, or appear to discriminate, against certain viewpoints.

 Because Board Policy GKD (Local) may vary greatly by district, when approached by a non-school organization regarding the use of certain district facilities during the summer, district personnel should consult Board Policy GKD (Local). When in doubt about whether and when certain facilities may be used by the public or whether the district may charge a fee for the use, district personnel should consult legal counsel.

KBS Reference Desk: Subpoenas and FERPA

Q:       We received a subpoena for records from an attorney representing a former teacher who was fired for insubordination; some of the responsive documents, such as emails, include personally identifiable student information. Do we release the student information since it is contained within the responsive documentation?

 A:        No, not right away. Before releasing personally identifiable student information, the District must first provide reasonable notice to the student or student’s parents (if a minor), so that the parent or eligible student may seek protective action through the judicial system.    

 The Family Educational Rights & Privacy Act of 1974 (“FERPA”) provides that a school district is authorized to release a student’s education records pursuant to any court order or lawfully issued subpoena, upon condition that it first provide adequate notice to the student or the student’s parent (if the child is a minor). See 20 U.S.C. § 1232g(b)(2)(B). Specifically, the federal regulations provide that, before complying with the subpoena, a school district must make a “reasonable effort to notify” the student or parent of the subpoena, so that the parent or eligible student has time to seek protective action through the judicial system. See 34 CFR § 99.31(a)(9). The regulations do not specify what “reasonable” notice includes, but generally the more time the district has to comply with the subpoena, the more time it should provide the parent to consider judicial intervention. The district should provide the parent with a copy of the subpoena, along with written notice of the parent’s right to intervene and a date certain where the district will release the records in compliance with the subpoena, absent judicial intervention.

 It is important to note, though, that confidentiality rules or special exceptions may apply when a subpoena (1) is issued by a federal grand jury, (2) pertains to a parent who is a party to a court proceeding involving child abuse, neglect, or dependency matters, (3) is issued for a law enforcement purpose and the issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed, or (4) is issued by the United States Attorney General. In these circumstances or any others that materially differ from the above hypothetical, we recommend contacting your local school attorney.

KBS Reference Desk: Probationary Termination While on FMLA

Q:        I have a teacher on a probationary contract (new to the District) who has struggled with classroom management this year. After Spring Break, I put her on notice that I was holding her contract and would not be recommending renewal to the Board. She has since gone on maternity leave under the Family Medical Leave Act, and will be out through the last day of instruction. Can the Board still terminate her probationary contract even though she is out on leave?

 A:        Yes. Even though the employee is currently on medical leave, the Board can act to terminate the probationary contract at the end of the year, assuming documented performance reasons exist for termination, separate from her use of leave.

Chapter 21 of the Texas Education Code provides that a teacher’s probationary contract may be terminated at the end of the school year if it is in the “best interest of the District.” The decision of the board is final and may not be appealed.  Tex. Educ. Code §21.103. Districts often make the mistake of not properly documenting performance concerns of their probationary teachers due to the relatively low “best interest” standard and in reliance on the Education Code’s prohibition to appeal. However, this statutory bar pertains to the Commissioner’s jurisdiction under Chapter 21 only and does not prohibit a terminated teacher from claiming violation of anti-discrimination laws in federal or state district court. The scenario above is a good example of why performance documentation is critical for all employees – term, probationary and at-will.

When analyzing the Family Medical Leave Act, courts are clear that adverse action (such as termination) is permissible so long as the basis for the termination is unrelated to the leave.  As such, while common concerns, such as poor classroom management skills or weak instruction, easily meet the “best interests” standard for termination of a probationary contract at the end of the term, documentation of those “legitimate performance concerns” will be required to overcome an FMLA discrimination/retaliation claim. Ultimately, the District needs to be able to show that it would have taken the same action to terminate the teacher’s contract even if she had never taken Family Medical Leave. Here, the documentation of poor performance, coupled with the verbal notification of termination in March, should provide the District a strong defense to any challenge that might arise.

Since these types of cases are fact intensive, we advise calling your school district’s attorney prior to taking any adverse action against an employee out on leave, as the analysis could differ for an employee out on a different type of leave or under different circumstances.

KBS Reference Desk: Legal Rights for Special Education Students Transfer at Age 18 from Parent to Student

Q:        A high school student’s annual ARD is approaching. The student has turned 18 years old since his last ARD and has not been declared incompetent through a guardianship proceeding. Is the district required to invite the parent to attend the upcoming ARD? 

A:        No. Under Texas law, all parental rights under the Individuals with Disabilities Education Act (“IDEA”) transfer to the student at eighteen years old unless a court finds the student is incompetent pursuant to a guardianship proceeding. Following the transfer of rights, the district must still provide the parent with notice of an ARD, but there is no requirement that the parent be invited to attend, although both the district and the adult student have the ability to extend such an invitation at their discretion.

The transfer of parental rights under the IDEA is a matter of state law. 34 C.F.R. § 300.520(a); 20 U.S.C. § 1415(m)(1). In Texas, unless declared incompetent pursuant to a guardianship proceeding, all rights under the IDEA transfer from the parent to the student at the age of majority, which is eighteen years old. Therefore, as of the student’s eighteenth birthday, he or she has the right

·                     Attend ARDs and participate as a mandatory committee member;

·                     Receive prior written notice of ARD committee decisions;

·                     Consent to a reevaluation or to a change of placement;

·                     Seek an independent educational evaluation;

·                     Obtain his or her own education records; and

·                     Request mediation or a due process hearing.

The adult student may delegate some or all of these rights back to the parent through a validly executed power of attorney. Absent a power of attorney, however, the only right the parent retains after the student’s eighteenth birthday is the right to receive notice required under the IDEA. Notably, while the district must still provide the parent with notice of an ARD, the right to receive notice does not amount to an invitation to, or create a right for, the parent to attend. Both the district and the adult student may, at their discretion, extend such an invitation to the parent, but doing so is no longer required following the transfer of rights. If invited, the parent may provide input during the ARD, but it is the adult student who has the ultimate decision-making authority unless an educational power of attorney provides otherwise. See Tex. Educ. Code § 29.017; 19 Tex. Admin. Code § 89.1049; 34 C.F.R. § 300.520.

In the situation described above, because the student has reached the age of majority and has not been declared incompetent pursuant to a guardianship proceeding, all parental rights under the IDEA have transferred to the student. Absent a power of attorney by the student, the district is no longer obligated to invite the parent to the annual ARD, although it may do so at its discretion. While not required, it is generally advisable for the district to extend such an invitation because more often than not, the parent has knowledge and special expertise regarding the student that may be helpful to the ARD committee. In the event the student objects, consult with your school district’s attorney.

KBS Reference Desk: Military Leave

Q:       We have an employee who has informed us that he wishes to join the military reserves and will need to leave for training for 20 weeks during this school year. Since he was not in the military when he was hired, do we have to continue his employment when he is gone?

A:        Yes. The District is not permitted to terminate the individual’s employment because of his required military reservist training.

There are both federal and state laws at play in this situation. The United States Code notes an employer must not deny employment, reemployment, or retention in employment based on service. See 38 U.S.C. §4311(a). The law also requires the employer to reinstate service members upon their return to work from an unpaid leave status and afford them the right to continue in the employer’s benefits program. Note that only the first 15 days of military leave is paid, with the remainder being unpaid until the employee returns to work. The Texas Government Code provides that employees are to be granted paid leave not to exceed 15 working days, without loss of time, efficiency rating, vacation time, personal time, sick leave, or salary on all days absent due to military training. See Tex. Gov’t. Code § 437.202. Should the employee so elect, the Texas Education Code also allows an employee to use his available paid leave during the period of military service. See Tex. Educ. Code § 22.003(d).

In short, the district is obligated to maintain the employee’s position with the district during his time away for military training. Look to your Employee Handbook and policies DEC and DECB (LEGAL) and (LOCAL) for the number of days of paid leave authorized by your district. The employee will be on unpaid status thereafter for his remaining time off dedicated to military service. The employee may elect to have banked personal leave run concurrent with the unpaid military leave.

Check out the link below to find additional information concerning employee rights during military service, which is available on TASB’s website at: 

https://www.tasb.org/services/legal-services/tasb-school-law-esource/personnel/documents/userra_nov14.pdf.

If you have any further questions or need assistance updating your district’s board policy regarding military leave, you should seek the assistance of your school district’s attorney.

KBS Reference Desk: Training and Travel Compensation

Q:       We recently encouraged hourly employees in our Facilities Department to attend trade-related training programs. An HVAC Foreman drove out-of-town and attended an approved two-day HVAC training course in order to perform his job duties better. The employee now seeks compensation for all time he spent attending the program, including his travel. We believe we need to pay him for his time spent attending the training program. Do we have to pay him for his travel time as well?

 A:        Most likely yes.

 The Fair Labor Standards Act – or FLSA for short – provides that whether travel to and from training programs constitutes compensable working time depends on a number of factors, such as the type and timing of travel. Under the FLSA and related regulations, travel that keeps an employee away from his or her home overnight constitutes “travel away from the home community.” 29 CFR 785.39-40. Such time generally constitutes compensable working time if travel occurs during an employee’s normal workday. Id. Yet this time also constitutes compensable working time if it occurs outside an employee’s normal working hours. Id. The regulations explain: “[I]f an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday, the travel time during these hours is worktime on Saturday and Sunday as well as on the other days.” Id. An exception to this rule exists, however, if the employee travels away from the home community as a passenger in an automobile, bus, train, boat, or airplane. Id.  Travel time is also compensable if an employer requires an employee to travel to another site to work after his or her scheduled workday. 29 CFR 785.38.

 While no facts exists in the above example demonstrating when the HVAC Foreman traveled, the district admits that it encouraged and approved its employee to drive himself and attend the two-day HVAC course in another city. Under the applicable laws, the HVAC Foreman’s required travel time constitutes travel away from the home community and is compensable because no exception applies. For more specific or additional questions regarding compensable time under the FLSA, please contact your local school attorney.

KBS Reference Desk: Evaluation Confidential

Q:       We proposed a teacher for nonrenewal last night. Today, I received a request from the local newspaper for the notice of proposed nonrenewal letter “and all documentation supporting the superintendent’s recommendation, including the most recent evaluation instrument.” Do I really have to produce all of this stuff?

A:        Yes and no. While the notice letter is likely public information, the evaluation of the teacher and any other document, including a reprimand that “evaluates, as that term is commonly understood, a teacher” or “reflects the principal’s judgment regarding [a teacher’s] actions, gives corrective direction, and provides for further review” is confidential pursuant to section 552.101 of the Texas Government Code, encompassing section 21.355 of the Texas Education Code.  Tex. Att’y Gen. OR2018-05036.

The Texas Education Code provides that “a document evaluating the performance of a teacher or administrator is confidential and is not subject to disclosure under Chapter 552, Government Code.”  TEC §21.355.  The Attorney General has determined a ‘teacher’ for purposes of section 21.355 means a person who (1) is required to and does in fact hold a teaching certificate under subchapter B of chapter 21 of the Education Code or a school district teaching permit under section 21.055 and (2) is engaged in the process of teaching, as that term is commonly defined, at the time of the evaluation. As such, the evaluation instrument requested in the hypothetical above would be confidential and not subject to disclosure. All other documents within the employee’s personnel file must be assessed independently for a determination of whether it “reflects the principal’s judgment . . . gives corrective direction . . . and provides for further review.” If the answer is yes, then the document, even though not titled an evaluation, would likely be deemed confidential. Most reprimands, as well as T-TESS Goal Setting and Professional Development Plans and/or traditional growth plans would likely fall within this category.

Keep in mind, however, that a determination regarding confidentiality must be made by the Texas Attorney General. A school district cannot simply refuse to produce what it believes to be excepted from disclosure under the Act. Rather, the district must seek an opinion from the Attorney General within 10 business days of its receipt of the request. The 10-day letter must identify the exceptions to disclosure from the Act that the district believes apply (here, Tex.Gov’t Code §551.101 and TEC §21.355). Within 15 business days of the receipt of the request, the district must submit to the Attorney General argument and authority supporting the district’s rationale for why the stated exceptions apply, and representative samples of the documents requested.

As timelines and assertion of appropriate authority are critical to preserving confidentiality, our best advice is to seek the assistance of your school district’s attorney, who can aide in drafting the necessary letters and legal arguments to the Attorney General’s office.

KBS Reference Desk: Notice of Proposed Nonrenewal

Q:       The Board proposed nonrenewal of a teacher for excessive absence last night. She has not reported to work since the beginning of January and is not at work today. How should the District provide the employee notice of proposed nonrenewal?

A:        Notice should be provided by prepaid certified mail or delivered by express delivery service to the teacher’s address of record with the District, but only after the District confirms that it attempted hand delivery at the teacher’s campus and the teacher was not present. 

 Texas Education Code section 21.206 outlines the procedure to provide an educator notice of proposed nonrenewal and states “[t]he notice must be delivered personally by hand delivery to the teacher on the campus at which the teacher is employed, except that if the teacher is not present on the campus on the date that hand delivery is attempted, the notice must be mailed by prepaid certified mail or delivered by express delivery service to the teacher's address of record with the district.”

 In the present situation, because the teacher is not reporting to work, the campus principal should certify that hand delivery was attempted, and the employee was absent. We recommend the certification include the employee name, contract action, date delivery was attempted, and if delivery was successful or not. When hand delivery is not successful, the notice must then be mailed prepaid certified mail or delivered by express delivery service. In an abundance of caution, we also recommend emailing the notice with a read receipt to both the employee’s work and personal email on file in the event the employee does not pick up his or her certified mail.

 Also note, the 15-day timeline for the educator to request a hearing on the proposed nonrenewal starts on the date “the teacher receives hand delivery of the notice of the proposed action, or if the notice is mailed by prepaid certified mail or delivered by express delivery service . . . the date the notice is delivered to the teacher's address of record with the district.” TEC 21.207. As such, accurate recording of the date of actual notice/delivery is essential to tracking the deadline for the employee to request a hearing.