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.

KBS Reference Desk: Returning a Teacher to Probationary Status

Q:        An elementary teacher on a term contract has consistently underperformed this school year. The campus principal is coaching her and would like to give the teacher an additional year to improve. However, because of her demonstrated poor performance, we want additional flexibility to end the teacher’s employment in the future. Can a school district return a term contract teacher to probationary status?

 A:        Yes, provided that you give the teacher written notice of the decision to offer her a probationary contract in lieu of nonrenewal, an opportunity to consult with an attorney or teacher organization, and three business days to consider the offer.

 Texas Education Code section 21.106(c) provides that a teacher may agree to be returned to probationary status under certain conditions. This agreement may occur after the superintendent has communicated the intention to the employee to recommend the teacher’s proposed termination for good cause or nonrenewal to the board. To make the agreement valid, the statute requires the following notice be provided to the teacher in writing:

1.      Informs the teacher of the district’s offer to return him or her to probationary contract status;

2.      The period during which the teacher may consider the offer (must be at least three district business days); and

3.      The teacher’s right to seek counsel (or contact their teacher organization).

 Should the teacher consider the offer and agree, the Board of Trustees is free to renew employment under a probationary contract for the next year. However, if the teacher refuses, the school district must 1) offer the teacher a term contract for the following year or 2) begin proceedings to propose the teacher’s nonrenewal or termination.  

KBS Reference Desk: Open Meetings Act

Q:        I heard last week that the Court of Criminal Appeals found a provision of the Texas Open Meetings Act unconstitutional. Which part did they strike down and what does it mean?

A:        The Court found Section 551.143 of the Texas Open Meetings Act (TOMA) unconstitutional. This section made “walking quorums” or “daisy chains” a criminal offense.

The Texas Open Meetings Act was designed to make governmental decision-making transparent or open to the public. One provision of the TOMA, Section 551.143, criminalized actions of a member or group of members of a governmental body who “knowingly [conspire] to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.”

The case recently heard by the Court of Criminal Appeals involved the prosecution of a county judge for allegedly participating in a “walking quorum.” In his defense, the county judge argued that the statute was overbroad in violation of the First Amendment and was unconstitutionally vague. The Court of Criminal Appeals ultimately agreed.

In its ruling, the Court discussed multiple aspects of the statute, but ultimately relied on the fact that the TOMA provisions only apply when a governmental body meets as a “quorum.” They considered that the definitions of “deliberation” and “meeting” both require a quorum and reasoned that because an offense is committed under Section 551.143 when members meet in less than a quorum, the language of the statute presents an inherent conflict “designed to enlarge TOMA’s reach.”

As a result of the Court’s decision, it is highly probable that a legislative “fix” will be proposed this session. In the interim, compliance with the guidance of the Texas Governor, in a statement issued just one day following the ruling, is advisable: “All agencies and boards should continue to follow the spirit of the law . . . providing transparency in the work you perform for Texans.”

 

KBS Reference Desk: Worker's Compensation

Q:        Last week, one of our long time custodians slipped on a wet floor and cracked her hip. The doctor anticipates that she will be unable to work for six weeks. She’s receiving workers compensation benefits, but today she brought in a request for FMLA leave. Am I required to process this leave request while the employee is still on workers compensation?

A:        Yes.  An employee is never “on” workers compensation. Rather, the employee must be on an applicable form of leave while she is receiving worker’s compensation benefits.

Worker’s compensation is an insurance program managed by the State of Texas. It provides medical expenses and a portion of lost wages to employees who are injured while on the job. Not all Texas employers provide workers compensation insurance, but Texas public school districts do. Workers compensation is addressed in the Texas Labor Code, which is referenced in policies CRE and DEC.  Importantly, worker’s compensation does not dictate the leave applicable when an employee is unable to work due to a job-related injury; rather, it controls whether an employee receives financial benefits during that leave (and the amount of those benefits, if any). Look to policy DEC (LOCAL) for the following clarifying language:

“Note:  Worker’s compensation is not a form of leave… An absence due to a work-related injury or illness shall be designated as FMLA leave, temporary disability leave, and/or assault leave, as applicable.”

In the above scenario, since the employee is a non-certified auxiliary worker, she is likely not eligible for temporary disability leave (reserved for full-time educators). Thus, leave under the Family Medical Leave Act will likely be applicable to her situation, in addition to any ancillary type of leave offered by your district and running concurrent with FMLA (e.g., sick leave pools, catastrophic sick leave, etc.) Once readily apparent that the employee suffers from a serious health condition, we advise providing the employee with written notice that she is being placed on Family Medical Leave. This should occur shortly after her work-related injury and initial absence from work. The notice form offered by the Department of Labor contains information regarding FMLA generally, including how long it lasts (12 weeks) and the documentation required by your District to finalize her FMLA leave. You can find it on the DOL’s website at https://www.dol.gov/whd/forms/WH-381.pdf.

Should the employee’s injury require time away from work after all leave has been exhausted, we advise contacting your local school district attorney to discuss next steps. Disability discrimination laws and anti-retaliation statutes could drive decision-making from that point forward. For additional information concerning the workers compensation laws and their interplay with employee leaves, look to your district’s risk management officer or the Texas Department of Insurance’s worker’s compensation site at https://www.tdi.texas.gov/wc/index.html.

KB Reference Desk: Mid-Year Reassignments

Q:        We have a third grade teacher who is not meeting expectations for instruction and classroom management. We are interested in renewing her employment for next year; however, we think she would be better suited in a non-testing grade until she gets more experience in the classroom. Can we make this change now?

A:        Yes. As long as the new assignment is within the “same professional capacity” and there is no reduction in overall compensation between contract years, the reassignment can occur at any time.

If you intend to reassign a professional employee, Texas Education Code §21.206 requires that the new assignment be within the “same professional capacity.” This means that an employee who is currently employed as a “teacher” must remain in a teaching position. Modifications to campus or grade-level assignments or changes to the subject taught, as represented in the above scenario, has been held to be in the “same professional capacity.” See Gustafson v. Canutillo ISD, Dkt. No. 113-R10-0812 (Comm’r Educ. 2014). However, reassignments that accompany significant differences in duties or responsibilities have been held to be not within the same professional capacity and a breach of the employment contract. For example, the Commissioner has held that reassignment from Superintendent to Assistant Elementary Principal, while both administrative, was not within the same professional capacity because of “major distinctions in authority, duties, and salary.” Barich v. San Felipe-Del Rio CISD, Dkt. No. 117-R1a-484 (Comm’r Educ. 1985).

In contrast, the Commissioner upheld a reassignment from Principal to Assistant Principal noting that while there are differences between the two roles, principals and assistant principals “are both administrators” and “share the same certification.” McCoy v. Kermit ISD, Dkt. No. 004-R3-0908 (Comm’r Educ. 2012).  In reviewing the “authority, duties, and salary” of each position, the Commissioner found that the two roles were within the “same professional capacity.” Id. The Commissioner reiterated this finding in the 2014 Gustafson case (above) noting that the certification, training, and qualifications required of both principals and assistant principals support a finding of the “same professional capacity” for both roles. Another Commissioner decision upheld a reassignment from Attendance Coordinator to Middle School Assistant Principal, noting that while the positions are not “identical,” they are in the same professional capacity as certified administrator. Eliz v. Donna ISD, Dkt. No. 011-R3-999 (Comm’r Educ. 2000). The Commissioner held that both positions require the employee to “function as an administrator and require comparable professional skills and responsibilities.” Id.

Note that notice of any reduction in overall compensation between contract years, whether the result of a reassignment, removal of a stipend or reduction in number of days worked, must be issued to the employee in writing at least 45 days prior to the first day of instruction. This rule follows the 45 day “penalty-free” resignation date under Tex. Educ. Code §21.210, by requiring a school district to give notice of salary reductions while the educator still has time to resign and find another position.

KBS Reference Desk: Special Education Camera Regulations

Q:        We’re gearing up for our spring ARDs. How should we respond to parent requests for video surveillance made after annual ARD meetings?

A:        In accordance with Section 29.022 of the Texas Education Code and its newly adopted implementing regulations, the district should respond in accordance with  the specific timeframes related to: (1) a parent’s request for cameras; (2) the district’s response to the request; and (3) if applicable, the start of camera operations.

In January, TEA formally adopted new and revised regulations implementing Section 29.022 of the Texas Education Code, which pertains to video surveillance in special education settings. See 19 Tex. Admin. Code §§ 103.1301, .1303. Among other changes, Section 103.1301 was updated to reflect existing statutory requirements pertaining to parent requests for cameras after annual ARD meetings. In particular, when an ARD Committee determines that a student’s placement for the following school year will be a classroom or other special education setting eligible for installation of cameras, there are specific deadlines for: (1) a parent’s installation request; (2) the district’s response; and (3) if applicable, the start of camera operations.        

The first timing consideration pertains to a parent’s installation request. When an ARD Committee determines that a student’s placement for the following school year will be in a classroom or other special education setting eligible for installation of cameras, a parent may request cameras by the later of the last day of the current school year or the 10th school business day following the ARD Committee meeting. A district may properly deny a request made outside of this timeframe.

The second timing consideration involves the district’s response, which must occur within seven (7) school business days of the request. When determining whether to grant or deny a request, a school district must verify not only that the request is timely, but also that the ARD Committee’s placement decision involves a self-contained classroom or other special education setting, as those terms are defined by the implementing regulations (e.g., a classroom or setting where the majority of students receive special education for more than 50% of the day, such as full-time PPCD, self-contained mild/moderate/severe, a residential care and treatment facility, etc.).

Finally, if the request is granted, the cameras must begin operating by the later of: (1) the 10th class day in the fall semester; or (2) the 45th school business day, or the first day of classes after the 45th school business day, after the request is made. If a district does not believe it can meet these deadlines, it may request an extension of time from the Commissioner of Education pursuant to 19 Texas Administrative Code § 103.1303. While the statutory right to request an extension already existed, there was previously no guidance or defined process for a school district to do so prior to the newly adopted regulation.

According to Section 103.1303, a district must request an extension of time as soon as possible and no later than 45th school business day following the camera request. The district’s request must specify why the extension should be granted and should include any supporting documentation and applicable legal authority. The district must also identify all interested parties such as parents and staff impacted by the cameras. Interested parties will have 10 calendar days to file a response. The Commissioner may make the decision based on the filings alone or in conjunction with an evidentiary hearing. Relevant considerations include contracting statutes, architectural and structural issues, and the difference in costs to the district if a moderate extension is allowed. In general, a district can expect to receive a final decision from the Commissioner within 45 calendar days.

KBS Reference Desk: Firearms in Parked Vehicles

Q:       While walking through the parking lot, one of our high school teachers spotted a hunting rifle resting on the back seat of a locked truck. The vehicle belongs to a junior honors student who has no prior disciplinary record and will likely graduate at the top of her class. The student explained that she accidentally forgot to remove the unloaded weapon from her truck after a weekend hunting trip with her family. We would prefer not to discipline her in this instance because we do not want the incident to impact her college admissions next year. Can we do this?

A:        Most likely no. Federal and state laws presume that schools are gun-free zones and generally prohibit firearms on school property. Students who violate these laws face mandatory expulsion unless statutory exceptions apply. The only applicable exception here would be if the unloaded firearm was stored in a locked container or a locked firearms rack. The Superintendent will, however, have discretion with regard to discipline.

The Gun-Free School Zones Act (GFSZA) is a federal law enacted under the Commerce Clause that prohibits individuals from knowingly possessing a firearm that “has moved in or otherwise affects interstate commerce” within a school zone. 18 U.S.C. § 922(q)(2)(A). The Act broadly restricts firearms on school property because most have moved through interstate commerce. The term firearm is defined to include, among other things, any weapon that is designed to expel a projectile via an explosive, such as a hunting rifle. 18 U.S.C. § 921(a)(3). The term school zone is defined to mean in, on the grounds of, or within 1,000 feet from the grounds of a public school. 18 U.S.C. § 921(a)(25). Notably, the Act does not apply to unloaded firearms in a locked container. 18 U.S.C. § 922(q)(2)(B).

Four years later, Congress enacted the federal Gun-Free Schools Act (GFSA), which is unrelated to commerce and requires states receiving federal educational funding to limit firearms in schools by enacting prohibitive legislation to restrict firearms on school property. 20 U.S.C. § 7961(b)(1). The term firearm is defined under the GFSA to include hunting rifles. 20 U.S.C. § 7961 (b)(3); 18 U.S.C. § 921(a)(3). Importantly, the GFSA does not require mandatory expulsion when a firearm is lawfully stored inside locked vehicles on school property. 20 U.S.C. § 7961(g).

In accordance with the GFSA, the Texas Education Code (TEC) requires expulsion for at least one year when a student brings a firearm – again defined under 18 U.S.C. § 921(a)(3) to include hunting rifles – onto school property. Tex. Educ. Code § 37.007(e). Importantly, however, the TEC provides an exception to its mandatory one-year expulsion. Namely, a superintendent or other chief administrative officer may modify the length of an expulsion on a case-by-case basis and may provide educational services to an expelled student who is over 10-years-old in a disciplinary alternative education program (DAEP). Tex. Educ. Code § 37.007(e)(1)-(3).  

In the above example, the student brought a firearm onto school property. As such, federal and state laws mandating expulsion for possession of firearms on school property apply. While the hunting rifle was unloaded and the vehicle locked, the firearm was not “lawfully stored” in a locked storage container or secured in a locked firearms rack. Given these facts, the District must expel the student pursuant to TEC § 37.007(e). The Superintendent, however, has discretion to modify the length of expulsion and may also determine that the expulsion can be served in the DAEP. For more specific or additional questions regarding gun safety and discipline issues, please contact your local school attorney.  

KBS Reference Desk: Updated TASB Model Contracts

Q:        I received notification that TASB revised their contract forms for 2019. Are the edits significant enough that we need to update our contract forms for next year?

A:       Yes! The revised model contracts incorporate clarification of key contract and addenda provisions recommended as a result of Commissioner of Education and court decisions. The revisions should place districts in a better position to defend challenges.

TASB offers model contracts for probationary and term teachers to all member districts who subscribe to HR services in addition to their general TASB membership. TASB’s 2019 updates to the model contracts are summarized below.

·        Representations: Beginning of Contract and During Contract: The revised language now includes specific reference to Policy DH (LOCAL) and 19 Texas Administrative Code section 249.16(c), both of which provide offenses required to be disclosed to the District.

·        Duties: Assignment/Reassignment: This provision’s language has been rephrased to clarify the authority of the District to reassign or transfer the employee during the contract term or to provide changes in duties or responsibilities at any time.

·        Duties: Supplemental Duty: This provision has been revised to include a definition of supplemental duty, as duty other than the “position” for which the individual is employed and that is identified earlier in the contract (para 1). Additionally, the definition is incorporated throughout the Notice of Assignment of Supplemental Duties form.

·        Duties: Dual Assignment: The revisions of this provision provide clarification distinguishing supplemental duty assignment (not a “position” listed in the contract) from dual assignment, which includes both “positions” for which the individual is employed and that are identified earlier in the contract (para 1). This provision is only included in Dual Assignment Term and Probationary Contracts.

·        Compensation: Salary: This section has been updated to specify that salary for contracted duties does not include consideration for supplemental duties.

·        Other Provisions: Addenda: The “circle one” option to indicate if the contract included addenda has been removed and replaced by blanks to fill in the title of any included addenda.

·        Expiration of Offer: This section has been rephrased to state that if the contract is not returned before the specified date, the existing contract expires on its own terms and employment ends with the conclusion of that contract without requiring additional action to terminate or nonrenew by the Board.

·        Retire/Rehire Addendum: This addendum no longer references the state minimum salary as the minimum bar for which expenses can be offset. Instead, the text confirms the employee’s understanding that the District may reduce pay to offset expenses resulting from employing a TRS retiree “as appropriate.”

Issuing an employee contract with incorrect or obsolete provisions could bind the District and/or employee to outdated legal obligations and could cause undue confusion. As such, it is critical to update your contract forms and addenda as recommended.

If your District subscribes to the HR Library, you can find a copy of the new model contracts and addenda at www.tasb.org/Services/HR-Services/myTASB.aspx.

KBS Reference Desk: Superintendent Evaluations

Q:       I’m new to my district and will be evaluated for the first time at next week’s board meeting. The superintendent appraisal document includes my goals and is only two pages long. Is this sufficient?

A:        No. Your superintendent appraisal document should include, at a minimum, the district’s annual performance report. Your local policy at BJCD will likely include other criteria for evaluation, such as superintendent goals and statutory duties.

Board Policy BJCD (LEGAL) articulates the Texas Education Code’s requirements concerning the Superintendent evaluation process. The policy provides that a board may use one of two methods in appraising superintendents: (1) the commissioner’s recommended appraisal process and criteria; or (2) an appraisal process and performance criteria developed by the district in consultation with the district- and campus-level committees and adopted by the board. Tex. Educ. Code § 21.354. Regardless of method selected, the Education Code specifies that the annual report describing the educational performance of a district serve as a primary consideration of the board in evaluating the superintendent.  TEC 39.307(3)(C).  Because the commissioner’s recommended appraisal process requires only an annual evaluation and inclusion of a student performance domain, it is the commissioner’s system that is most commonly utilized by boards state-wide. This minimalistic approach allows boards to “add to” or otherwise tailor the instrument to address additional, board-specific expectations.

Look to policy BJCD (LOCAL) to determine whether your board has additional responsibilities and/or criteria to consider when evaluating the superintendent.  Most commonly included is an obligation that the instrument be board approved and that the evaluation contain a category for assessment of the superintendent’s job duties, as well as performance goals.  Log onto your myTASB account for valuable resources, including a recommended evaluation instrument and a performance indicator worksheet for completion by the superintendent. Specific questions your trustees regarding the process should be directed to the school district’s attorney.

KBS Reference Desk: Gifts to Board Members

Q:       January is board member appreciation month and each of our trustees received a new Apple® watch as a gift from parents in the football booster club. May the trustees keep the watches?

 A:        No. If a gift exceeds $50 in value, it is unlawful under Texas Penal Code Section 36.08 for a trustee to accept the gift.

            It is quite common for board members to receive gifts based on their position as trustees of a public school district, particularly in the month of January. Most often, the gift is simply given as a token of appreciation for the trustees’ public service. Board members should tread carefully, however, prior to accepting a gift and consider both the value, as well as the giver’s motive. The consequences for failing to do so could result in criminal penalties, including jail time.

             Texas law prohibits school district trustees from accepting any gift of $50 or more from people within the school district’s jurisdiction. See Tex. Pen. Code §§ 36.08-36.10.  This means vendors, employees, parents and generally anyone who is subject to oversight by or who could potentially benefit from a decision made by the trustee.  Of course, when a gift is given as a bribe, it should never be accepted, regardless of value. Moreover, cash, gift cards and other negotiable instruments are prohibited regardless of face value. In the above example, it is safe to assume that the referenced item—the Apple® watch, exceeds the fifty-dollar threshold. Therefore, even if the giver’s intent is well-regarded, the trustees must still decline the watches.

             Districts should be aware of other rules pertaining to gifts, such as rules prohibiting the use of public funds and gifts received in exchange for a service. For specific or additional questions, please contact your local school attorney. 

KBS Reference Desk: Pregnancy Athletic Medical Release

Q:   The girls basketball coach believes a member of the team is pregnant, but the student has not disclosed her pregnancy. The coach is concerned about the safety of the student and unborn child. The student has a UIL pre-participation physical examination form on file, but as with most students, it pre-dates the initiation of the school year.  Can the athletic department require the student submit current medical certification verifying that she can participate in athletics? 

A:   Yes, the athletic department can require a medical release at any time continued participation raises a concern for the safety of the student; however, this practice must be applied consistently with all students having a physical condition requiring medical attention. Inconsistent application could result in a claim of discrimination and investigation by OCR.

Title IX prevents discrimination on the basis of sex, including treating students differently because of pregnancy or family status. The U.S. Department of Education Office of Civil Rights has issued guidance to school districts nation-wide that, “any special services provided to students who have temporary medical conditions must also be provided to pregnant students. Likewise, a student who is pregnant or has given birth may not be required to submit medical certification for school participation unless such certification is also required for all other students with physical or emotional conditions requiring the attention of a physician.” As such, a school district must treat pregnant students the same as it would treat any student with a temporary disability (e.g. broken leg, prolonged illness, etc.). This includes specifically, medical certification and re-certification, as well as expectations and privileges during the temporary absence, such as team travel, sitting on the bench, dressing out, etc.

Assuming the school district in this instance meets the consistency test and has a documented practice of requiring medical certification from students upon re-entry into a sport subsequent to accident or injury, the district is equally within its right to seek medical certification from the pregnant student. Should the student obtain physician consent to continue participation for all or any portion of the season without risk of harm to herself or the unborn child, the District's general athletic waiver and release forms should be sufficient to protect the school district from tort liability if the student or unborn child is injured during participation.

Finally, if your school district's extracurricular handbook does not address fitness for participation, we would recommend including a provision requiring that all students under a doctor's care obtain a medical release prior to initiation or continued participation in extracurricular activities.

KBS Reference Desk: On Call Employees Over Holidays

We are getting out for the holidays this week, but are requiring our Director of Maintenance, who is a non-exempt employee, to remain "on call" in case of a facilities emergency (e.g., frozen/burst pipes, break in, etc.) The employee may spend his time freely during the break; however, he must be available to go to the District (if needed) within three (3) hours. Do we have to pay him for his time spent "on call?" 

A:        No. You are not required to pay the employee for his time "on call" since he will be substantially unrestricted in his activities, and therefore only "waiting to be engaged." 

The Fair Labor Standards Act (“FLSA”) governs payments to non-exempt employees while the employee is considered to be “on call.” The key distinction, by FLSA standards, is whether the employee is “waiting to be engaged” or “engaged to wait.” When an employee is “waiting to be engaged,” he is free to go about his own personal activities, so long as those activities do not take him outside of the geographic region. In contrast, employees who are “engaged to wait” are typically required to stay on the employer’s premises, or so close to the premises that the employee “cannot use the time effectively for his own purposes while working on call.” In the scenario above, because the Director of Maintenance was given a three hour window in which to respond to an emergency call, he can travel regionally and otherwise go about personal activities. He is, therefore, “waiting to be engaged” and ineligible for compensation for any time spent “on call.” The employers’ obligation to compensate the maintenance director exists only for the time he is actually called into work, and at the Director’s regular rate of pay. That is, the FLSA does not require a higher rate of pay for employees who work during holiday breaks simply because the employer’s business is not in operation. Rather, the FLSA only requires a higher rate of pay (time and one-half) when the employee’s time worked in a week-long period exceeds 40 hours. Therefore, in this case, since the Director of Maintenance will not be working at all during the holiday unless called in on an emergency, he will receive his regular rate of pay for any work performed. Should the Director’s time spent addressing that emergency exceed 40 hours in a week-long period over the break, he would be eligible for overtime pay, as usual.

KBS Reference Desk: Counting Days for FMLA

Q: Several employees in my District are currently on FMLA leave. Is it permissible to count the two (2) weeks the District is closed for Winter Break against the employees’ FMLA leave?

A:  No. When a school district closes for Winter Break, it may not count the days it is closed for business against an employee’s FMLA leave, unless the employee is scheduled to work during the closure.

The Family Medical Leave Act (FMLA) permits eligible employees to take up to 12 workweeks of leave in a single 12-month period. Whether a particular holiday 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 holiday period during the winter—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.

For other holidays, the answer will depend on a few factors, such as the incremental frequency of an employee’s FMLA leave or the length of time the district is closed for a given holiday. For example, if an employee is using FMLA leave in increments of a week or longer, the fact that the district is closed for one day during a week will have no effect—the entire week is counted against the employee’s FMLA leave. On the other hand, “if an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday.” For specific questions about calculating FMLA leave, please contact your local school attorney.  

KBS Reference Desk: Nepotism & Reassignment

Q:        Our Superintendent’s wife is currently employed as a teacher. She worked at the District for several years before the Superintendent was hired. The Superintendent’s wife has now obtained principal certification and the Superintendent would like to reassign her from the position of teacher to assistant principal. Would this reassignment violate nepotism laws?

A:        No, a Superintendent is not considered a “public official” for purposes of             nepotism statutes when making decisions concerning employee assignments.

Board Policy DBE (LEGAL) provides that a public official may not appoint a person to a position that is compensated by public funds if the person is related to the public official within the third degree or by marriage within the second degree. A school superintendent is a “public official” subject to nepotism provisions only when making a decision pursuant to authority delegated by the Board to select district personnel, not for purposes of evaluation or assignment. Texas Education Code section 11.201 provides the Superintendent “administrative authority and responsibility for the assignment . . . of all personnel of the District.” Therefore, the Superintendent possesses reassignment authority in his own right, rather than by delegation from the board, rendering nepotism laws inapplicable to decisions concerning assignment. See Tex. Att’y Gen. Op. GA-0910. Also note, a similar analysis applies to relatives of board members. Because a school board has no authority to assign personnel, board members are not public officials for purposes of nepotism laws with regard to reassignment. See Tex. Att’y Gen. Op. GA-0123. Thus, unless prohibited by local policy, the Superintendent can assign all school employees without fear of violating nepotism provisions.   This is true even when the reassignment results in a promotion.

KBS Reference Desk: CPS Interviews on Campus

Q: Recently, a CPS investigator came to our elementary campus unannounced and requested to interview a student in a private room. The investigator would not give campus administrators any details. The principal knows that the family has had domestic troubles and was concerned with letting CPS talk to the child without parental notification. In the future, can my principals call parents to notify them that CPS is interviewing their child?

A: Yes, but only if the CPS investigator consents to such notification.

Texas Family Code §261.302 provides that CPS may interview/examine children who are the subject of a report of abuse or neglect “at a reasonable time and place, including the child’s home or the child’s school.” Investigators can make unannounced visits to school campuses for purposes of conducting these interviews and must make their identity and credentials available to campus administrators when they arrive. While investigators are expected to identify themselves and work with campus staff to obtain the interview with minimal disruption, CPS is still given wide access to children at school under the law. To that end, the Family Code provides for legal consequences (and in some cases criminal penalties) for anyone who interferes with a CPS investigation. Should a campus not allow a CPS investigator access to a child for an interview, the investigator can obtain a court order requiring the school to present the child for examination. When an investigation into suspected abuse/neglect is underway, courts often work fast to ensure that the investigation can move forward; thus, a court order (and possible sanctions) is likely to follow should a school refuse access to the child.

Often, CPS investigators are on campus because of suspected abuse/neglect by a parent. Thus, TASB recommended local policy at GRA (LOCAL) leaves the discretion with CPS to determine whether or not the parent is notified in advance of the interview, and campus administrators must comply with their request. The policy provides that the principal “ordinarily shall make reasonable efforts to notify the student’s parent or other person having lawful control of the student. If the interviewer raises what the principal considers to be a valid objection to the notification, the parent shall not be notified." This policy provision anticipates that the principal discuss with the investigator the possibility for parent notification before actually contacting the parent. Typically, the investigator’s reason for denying a request to notify the parent will be due to the parent’s alleged involvement in (or knowledge of) the suspected abuse or neglect. We advise complying with the investigator’s request and documenting that consent to notify the parent was denied, along with an explanation of the investigator’s reason. Acting under a lawful request by CPS will insulate the district and its employees from any challenge later by a parent concerning lack of notification. On the other hand, refusing to comply with the investigator’s request (and notifying the parent anyway) could subject the district and/or individual employee involved to legal consequences, including criminal penalties, for interference with the investigation and potentially subject the child to continued abuse by the perpetrator.

Documentation of the investigator’s visit to campus will be key to ensuring that the district has cooperated with CPS. We advise making copies of the investigator’s driver’s license (or other ID), as well as the investigator’s CPS credentials. Should the investigator raise an objection to notifying the parent, document the investigator’s reply and proffered reason. Take comfort in the fact that CPS is required by law to notify the parent within 24 hours after speaking with their child. Anticipate subsequent questions; however, explain to parents that all concerns they have regarding CPS, including the Agency’s presence on campus and communication with the parent’s child, are to be directed to the Department of Family and Protective Services.

KBS Reference Desk: Post-Election Procedures

Q: We held an election for school board members in the November 2018 elections. We had one incumbent win and one newly elected trustee. What are the proper steps moving forward to swear in the new and re-elected board members?

A: Good news! The procedures are the same regardless of whether the board members are re-elected incumbent trustees or newly elected trustees. There are four main steps that must occur after the election before the board members may assume the duties of office: (1) canvass the election results, (2) issue a certificate of election, (3) file a statement of officer, and (4) administer the oath of office.

Satisfaction of these steps is called “qualifying for office.” First, the election must be canvassed at a properly-posted open meeting. The canvass is the final step of the election which finalizes the results. For the November 2018 election, the canvass for school board elections must occur between the third and fourteenth day after the election—in other words, November 9 through November 20. Tex. Elec. Code § 67.003. If a recount is requested, the canvass continues, but the canvassing authority must make note of the request, and the recount petition will delay the next step and thus the qualification for office. Second, after the results are canvassed, the presiding officer will issue a Certificate of Election to each of the newly-elected (and/or re-elected) officers. The certificate will contain the name of the candidate and the position to which s/he is elected, the date of the election, a statement that the term is unexpired, and the signature of the officer preparing the certificate along with any District seal. Tex. Elec. Code § 67.016. The certificate may be issued at the same meeting in which the votes are canvassed. This certificate shows that the candidate has in fact been elected to the position. Third, the newly elected (and/or re-elected) officers must file a Statement of Officer declaring that s/he did not pay, offer, or promise to pay money or other consideration for votes, as required by the Texas Constitution. Tex. Const. art. XVI, § 1(b). Once these three steps have been completed, the newly elected (and/or re-elected) members may take the Oath of Office. The Oath of Office may be administered by anyone with the authority to administer an oath in Texas. The full list of those authorized to administer oaths can be found at Chapter 602 of the Texas Government Code, and includes notary publics, a judge, retired judge, or senior judge, a justice of the peace, a clerk of a court record, and a legislator or retired legislator, among others. Additionally, although many candidates often wait until a board meeting or special ceremony to be sworn in, they are not required to wait and can be sworn in at any time after the other three requirements have been met, so long as it is by someone authorized to administer an oath in Texas.

As a final note, once all candidates have been qualified for office and sworn in, the members must organize at the next meeting by selecting a board president, secretary, and other officers and/or committees the board deems necessary. Tex. Educ. Code § 11.061. Once these events have occurred, the school board is ready to move forward with the newly elected trustees.

KBS Reference Desk: Social Media Post by Principal

Q: One of our campus principals recently made a post on his private Facebook account regarding the migrant group traveling from Central America to the United States that has been interpreted by some to be derogatory. The post received several comments from parents, mostly negative, and was eventually taken down. Before the post was removed, however, a screenshot was circled among members of the community and ultimately sent to the superintendent’s office. Is the principal’s social media post protected as free speech under the First Amendment?

A: Likely, no. The comment will probably not be considered protected speech given its context and the fact that it was published by the highest ranking campus official—the school principal—and was received negatively by the community, thereby impacting his effectiveness.

Whether an employee may be disciplined for a social media post or comment depends on the context of the publication, the role of the employee within the school district and the impact the speech has on the employee’s ability to be effective in his or her position. In the current example, the speech would generally be considered speech by a private citizen (personal FB account, off duty post) on a matter of public concern (immigration). However, because in this instance the private citizen is also a government employee, the school district, as employer, may intervene to the extent the district’s interests outweigh the interests of the employee. In short, this requires application of the balancing text articulated by the U.S. Supreme Court in Pickering v. Bd. of Ed., to determine whether the speech is protected. 391 U.S. 563, 568 (1968). The district must strike a balance between the interests of the principal, as a citizen, in commenting upon matter of public concern and the interests of the school district, as an employer, in promoting the efficiency of the public services it performs through its employees (i.e., maintaining order and respect among staff, parents and students). The position the employee holds for the district, the amount of publicity the post received and the depth of negative feedback all play a critical role in the analysis. In the present hypothetical, a court would likely consider the balance to weigh in favor of the school district since the post was disruptive to the school environment as gleaned from the negative reaction of the community, as well as the fact that it was published by the leader of a school campus, as opposed to, for instance, a school janitor.

For more information on your district’s ability to discipline employees for off campus speech, look to policy DH (LOCAL) and your Employee Handbook. Both should contain language pertaining to an employee’s personal use of technology and the potential for discipline. See also policy DFBB (LOCAL) for reasons supporting the nonrenewal of a term contract pertaining to off-campus conduct and loss of effectiveness. Employees should be reminded of these provisions on a frequent basis.