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.

KBS Reference Desk: Educator Political Advertising

Q: Our high school government teacher wore a “Vote Beto” button to school on Monday. She says it is to encourage her students over the age of 18 to vote. Is this permissible?

A: Likely no. The Texas Ethics Commission has determined that campaign buttons are political advertising for purposes of the Election Code. As such, a teacher wearing a candidate-specific button while in the course and scope of her duties represents an expenditure of public funds “advocating the election of a candidate,” which is prohibited by statute.

Texas Election Code section 255.003 is the governing statute, which prohibits direct or indirect expenditure of public funds for purposes of political advertising. Examples of indirect expenditures include use of personnel, equipment, email and facilities. While the teacher may argue she is providing civil instruction or that she has a right to free speech under the First Amendment, the State of Texas’ interest in maintaining a politically neutral educational environment outweighs a district employee’s interest in expressing his or her political views to students while the employee performs her job duties. As such, The Texas Ethics Commission, which is the state agency that oversees violations of the Texas Election Code, interprets the prohibition against political advertising broadly. According to the Commission, even conducting a meeting on public property involves an indirect use of public funds. In general, school districts should not allow employees to wear any item that advocates the approval or election of any candidate or measure, nor should a school district host political events or political speeches. In addition, any “rental” of district property should be in compliance with the district’s facility use policy, GKD (Local). Finally, note that noncompliance with the prohibition against political advertising is a Class A Misdemeanor.

KBS Reference Desk: Fall Festival

Q: We have our annual Fall Festival coming up, with one of the most popular attractions being our hay ride. We plan to have our Ag Teacher driving his tractor and pulling a trailer with groups of 10-15 kids at a time. A new board member has started asking questions about liability. Is this activity legally advisable?

A: Probably not. The hay ride will most likely be considered “use or operation of a motor vehicle,” as that term is used in the Texas Tort Claims Act, thereby subjecting the school district to potential liability for any injuries or damages stemming from negligence of the driver. We would recommend seeking outside sponsorship of the event by another organization, such as a PTA group, who should provide the driver and the tractor.

Sovereign immunity insulates public school districts and their employees from liability for almost all personal injury and property damage claims. One important statutory exception, known commonly as the Texas Tort Claims Act (TTCA), waives immunity for accidents and injuries that occur as the result of a school district employee’s negligent “use or operation of a motor vehicle.” Monetary damages are capped at $100,000 per plaintiff for personal injury, capped at $300,000 per incident, and $100,000 per incident for property damage. Because the tractor in the above scenario is a motor vehicle being driven by a school district employee, at a school sponsored event, it is almost certain that the school would be named in any litigation that followed should an accident or injury occur while on the hay ride.

To avoid risk involved with District employees operating motor vehicles in connection with school activities, it is generally recommended that the school district seek sponsorship of the event by a PTA or other similar organization. Sponsorship by an outside group will shift the liability away from the District, and put the onus on the PTA group to address potential liability, which may include obtaining parent permission slips or waivers prior to letting minors participate in the hay ride. To document outside sponsorship and sufficiently distant the school district, it is critical that all publications advertising the event reflect the identity of the sponsoring organization and that the organization completes your district’s Facilities Use Agreement, acknowledging their awareness of policies and procedures concerning use of District property, and that they remit rental fees as applicable. The Facility Use Agreement could then be used as an exhibit in litigation on behalf of the school district when arguing against application of the TTCA waiver. As this issue can be extremely fact specific, any questions you have regarding your District’s event or liability in general, should be addressed with your school district’s attorney.

KBS Reference Desk: Parent Notice of Teacher Qualifications

Q: We have a few teachers at one of our high school campuses who are certified to teach middle school but are not certified to teach high school. Do we have any state or federal obligations to notify parents?

A: Yes. Both state and federal laws have notification requirements in the event an educator is uncertified or improperly certified.

The Every Student Succeeds Act (“ESSA”) is the federal law regarding district obligations to notify parents of teacher (or substitute teacher) qualifications. Districts receiving Title I funds must provide parents two types of notices. The first is that a district is required to notify parents that the parents may request information regarding the qualifications of their students’ teachers and substitute teachers. You’ll generally see a notation about this in the Student Handbook. If a parent submits a request, the district is required to disclose that information in a timely manner. While “timely manner” is not defined in the statute, a reasonable interpretation would be in not event later than 30 days from the assignment. The second federal notification requirement kicks in if a student has been assigned or taught for four consecutive weeks or more by a teacher or substitute teacher who does not meet state certification requirements for that grade level and subject matter. In such an instance, the district is required to notify the parent(s) of each student of the teacher’s qualifications, also in a timely manner (without definition). This second notification does not require any prompting or request by the parents.

The state law works very similar to the federal law. Section 21.057 of the Texas Education Code requires districts to notify parents in writing when it “assigns an inappropriately certified or uncertified teacher to a classroom for more than 30 consecutive instructional days.” To be clear, the notice must be sent no later than the 30th instructional day after the first date of the assignment. Additionally, this law requires the district to make a good-faith effort to provide the notice in a bilingual form for parents whose primary language is not English. One caveat to this state law is that if the district has already provided notice to parents as required under ESSA, (the federal law above), such notice will satisfy the district’s responsibility to send a state notice. However, the reverse is not true – meaning, state notification does not alleviate a district’s responsibility to also send the federal notice. Sample notification form letters can be located in the TASB HR Library.

KBS Reference Desk: Cheerleader Religious Speech

Q: Our varsity cheerleaders decided to wear overalls to our homecoming pep rally and decorated them with school spirit and other personal messages in paint and patchwork. Some of the cheerleaders have decorated their overalls with small crosses and scripture messages. Are the cheerleaders’ decorated overalls considered protected speech under the First Amendment?

A: Yes. A school district’s ability to restrict religious speech is dependent upon both the content and the context of the message itself. In the above example, without evidence of disruption, and because the painting was entirely student initiated, the speech is likely to be considered permissible private student speech.

It is well-settled that students in public school maintain their constitutional rights to freedom of speech while attending school or school-sponsored events. However, the rights of students in a public school setting are not completely equal to the rights of individuals in other private arenas. Courts continue to analyze the extent of public school students’ free speech rights under the standard first adopted by the U.S. Supreme Court in the famous Vietnam protest armband case, Tinker v. Des Moines Indep. Comm. School. Since the time of Tinker, student-led school speech has typically fallen into one of three categories: (1) government speech (e.g., student delivering principal-written morning announcements over PA system); (2) school-sponsored speech (e.g., student expression in school-sponsored newspaper); or (3) private speech.

The cheerleader’s overall decorations will most likely be considered private speech because the markings are not a message made by or on behalf of the school district (overalls purchased by students and no direction given on content of decoration), nor do the decorations reflect a message that the school district affirmatively promotes. Instead, courts would view the markings as speech that the district merely tolerates. In such circumstances, a school may restrict the content of private speech only if the district reasonably forecasts that the speech: (1) will lead to substantial disruption of or material interference with school activities, (2) will impinge upon the rights of other students, or (3) is offensive to the school environment, such as vulgar language or speech that advocates illegal/criminal activity.

An example of disruption sufficient to allow the school district to restrict student speech might be an overtly offensive religious message, such as “Jesus Hates Gays.” In such a scenario, the district could prohibit the speech based on its desire to avoid disruption caused by opposing views and/or to prevent violence resulting from the hate speech. In contrast, here, the cheerleaders’ clothing decorations consisted of scripture and religious emblems only. Further, the messages/images were displayed by only a handful of cheerleaders, for presumably one school event and in small enough detail as not to be seen by the majority of the student population. Finally, the context of the decorations is clearly personal to each cheerleader – that is, each cheerleader’s overalls are different and personal to them (rather than a team-mandated theme). Taken together, the markings are clearly private speech that is non-offensive and not likely to impinge upon the rights of other students. This conclusion follows the well-known Kountze cheerleader case, in which a Texas appeals court (on remand from the Texas Supreme Court) upheld the Kountze High School cheerleaders’ right to create and decorate banners with religious messages and scripture for use during football games. The crux of the Court’s opinion focused on the fact that there was no “substantial disruption or material interference with school activities” sufficient to allow the school to restrict the speech. In August 2018, the Texas Supreme Court denied the school district’s request for review of the case, upholding the case in favor of the cheerleaders.

To conclude, most cases of student speech will be analyzed under the private speech factors, requiring a fact-intensive inquiry dependent upon both content and context and a significant fear of substantial disruption. Accordingly, for specific questions, administrators should contact their local school attorney.

KBS Reference Desk: Electioneering with Email Account

Q: I was just copied on an email from one of our board members sent to the local Chamber of Commerce listserv from the board member’s school email account advocating support for our upcoming bond election. Is use of the school’s email permitted for this purpose?

A: No. A school district employee or official may not use his or her school email account, nor any other public resource, to advocate, to any degree, for or against a particular political candidate or position.

Texas law prohibits school employees and officials from using public resources to distribute messages advocating support for or against a particular candidate, party, or ballot measure. Although not defined in any statute or judicial order, the Texas Ethics Commission has issued opinions rebuking government officials for the use of email to conduct political advertising and/or electioneering. The Texas Legislature has defined political advertising as any published communication supporting or opposing a political position. Similarly, electioneering means to work for the election of a candidate or party or distribute political literature designed to influence voters.

The Commission has held that when a school district employee or official distributes a message via his or her school email account, the act of clicking “send” is considered the equivalent of using school-funded postage stamps and envelopes to distribute physical letters via U.S. mail. If the content of these letters (or email) contains a message that constitutes political advertising or electioneering, then a knowing violator could be charged criminally with a Class A misdemeanor. The same would apply to a post made on a school social media account or a presentation given in one’s official capacity.

School district employees and officials are also prohibited from using school equipment to advocate for or against a specific political position. For example, a district employee is prohibited from using a school-issued laptop to create and send political fliers promoting a particular political candidate or position, regardless of whether the individual is creating and sending the fliers on his own time and at his own house. The inverse is true as well; that is, a school district employee may not use a private device or email account to send messages promoting a political position during that individual’s working hours. This ensures that public resources intended for education are not diverted to promoting political agendas.

As the line between permitted advocacy and prohibited electioneering and/or advertising can be murky, particularly for superintendents in school districts with bond elections pending, we recommend consultation with counsel and careful review of Texas Ethics Commission guidance.

KBS Reference Desk: Trustee Training Deficiency Reporting

Q: My Board has already participated in a training session on evaluating and improving student outcomes (SB 1566) through our local service center; however, two of our board members were not able to attend. I understand that the deadline for completion of this training was September 1, 2018. Are there any consequences for failing to obtain the training by the deadline that the board members should be aware of?

A: Yes, sort of. The consequence identified in the law is that a deficient board member must be specifically named in the board meeting minutes for the last meeting before a trustee election. This pertains not just to 1566 training, but for all continuing education hours. For schools with upcoming November elections, this designation must be made in your October minutes; for May 2019 elections, this will be on your April minutes.

Texas Education Code §11.159(c) was added during the 2017 legislative session and requires that trustees complete three hours of training every two years on “evaluating student academic performance.” TEA developed a curriculum for this training so that “authorized providers” would be able to offer the required training to school boards across the state. This training has come to be known as the “Evaluating & Improving Student Outcomes” training (EISO), or simply the Senate Bill 1566 training. The law requires that any new trustee must complete the training within 120 days after election or appointment, while current trustees were required to complete the training by September 1, 2018.

The consequence for failing to participate in the training is found within TEA’s regulations, at 19 TAC §61.1, and applies equally to all aspects of continuing education requirements. The regulations state that “at the last regular meeting of the board of trustees before an election of trustees,” the current Board President must announce the name of each board member who has completed their required training, has exceeded the requirements, or is deficient in meeting their required continuing education as of the anniversary of each board member’s election/appointment to the board. The Board President’s announcement must align with particular wording identified in the statute; specifically, the Board President must state that “completing the required continuing education is a basic obligation and expectation of any sitting board member under State Board of Education rule.”

After this meeting and announcement, the minutes must reflect whether each trustee has met or is deficient in meeting the training required. If the minutes reflect that a trustee is deficient, the district is required to post the meeting minutes on the District’s website within 10 school business days of the meeting and must maintain that posting until the trustee meets the requirements. Practically, this means that your minutes will need to be posted more quickly than usual and will likely not allow time for board approval of the minutes prior to posting.

Bottom Line: If you have November 2018 trustee elections, we would advise urging your board members who have not yet completed the SB 1566 training, to do so before your October regular board meeting so as to avoid any public posting regarding deficiencies. Trainings can be completed on line, through your local service center, by your school district’s attorney (if an authorized provider), or at the upcoming TASA/TASB Convention in Austin on September 28-29.

KBS Reference Desk: School Uniforms

Q: Our district is considering adopting a school uniform policy, but want to start with only our elementary campuses. Can we require uniforms on some campuses but not all?

A: Yes. State law allows a board of trustees to adopt a uniform or dress code policy on any one or more of its District campuses. Note, however, that the board must first determine that the uniforms would improve the learning environment on those campuses selected for uniforms.

Texas Education Code §11.162 provides that a board of trustees may adopt rules requiring students at a school in the district to wear school uniforms if the board determines that such rules would improve the learning environment at that school. While there is legal authority for adopting a uniform policy, such rules can be difficult to apply equitably. The following are several commonly asked questions that each district and board should understand when considering whether a school uniform policy is appropriate for their district:

1. What is a “school uniform?” – The Education Code does not define this term. The Commissioner of Education, however, has provided guidance when, in a particular case, he was called to distinguish school uniforms from dress codes, finding that the former (true uniforms) are “ensembles by which an observer could conclude that the student belonged to a particular group or attended a particular school – based solely on his/her dress.” Even with this definition, the term is still broad and may need further regulations to address the specific uniform requirements and any accessory prohibitions to be observed.

2. What if a student can’t afford the uniforms? – The Education Code specifically requires that the board designate a specific source fund for providing uniforms to economically disadvantaged students. (TEC 11.162(b)). Specific regulations must be put in place to determine eligibility for the uniform stipend, and teachers/administrators should take care to publicize the funding and identify students in need without causing unnecessary embarrassment.

3. What if a parent refuses? – The law explicitly allows a parent to request an exemption from a uniform policy in writing, or request that their child be transferred to a different school in the district that does not have a uniform policy. Such request must specifically site a “bona fide religious or philosophical objection” to the policy. The board has the ultimate discretion whether or not to grant the exemption request. Any decision of the board is final and may not be appealed.

4. What about gender-specific clothing? – A District wanting to impose a gender-specific uniform (e.g., girls must wear skirts/dresses) must be aware of certain legal implications that could arise from a student complaint. So far, Texas courts have generally allowed school districts to adopt dress codes and uniforms which apply differently on a gender basis. However, courts in other jurisdictions applying federal law have found that disciplining a student for dressing as their preferred gender constituted an improper restriction on student expression; other courts have found it gender discrimination. One way to avoid these claims is by allowing gender-neutral options for both boys and girls (i.e., girls may wear skirts, dresses, or pants).