KBS Reference Desk: Parent Conservator Rights HB 3145

Q:        A father of one of our students wants to chaperone his child’s field trip. The divorce decree says that the mother has custody during the week of the field trip. I heard there is a new law that says we must allow the father to chaperone, even though it is the mother’s custody week. Is that correct? 

 A:       Yes, if the father is a conservator. House Bill 3145 amended the Texas Family Code to provide any parent appointed as a conservator “the right . . . to attend all school activities, including school lunches, performances, and field trips” at all times.  

A conservator is a person appointed with certain rights and duties in relation to a child, typically occurring in child custody and/or divorce suits. There are three types of conservators: sole managing conservators, joint managing conservators, and possessory conservators. In most situations, the court will assign one or both parents as managing or possessory conservators. When parents are appointed as conservators, the court will identify within the court decree the specific rights and duties assigned to each parent. Tex. Family Code § 153.071. Often, this will result in parents having designated custody weeks or particular times of possession. The Family Code provides a laundry list of rights that parents appointed as a conservator have at all times, regardless of who has physical custody. Previously, this list included the right to attend school activities, but was unclear as to what qualified as a “school activity.” The Legislature clarified in House Bill 3145 that school activity includes “school lunches, performances, and field trips.” Under this language, parents who are appointed as any type of conservator—sole managing conservator, joint managing conservator, or possessory conservator—have the right to attend any of these school activities at any time when such activities are open to other parents.  This is true regardless of who has physical custody of the child at the time of the activity. 

In the situation above, the district should look to the child custody order and determine whether the father is designated as a conservator for the child. If the father is a conservator, the father must be allowed to attend the class field trip, regardless of whether it is technically the mother’s custody period. If the father is not a conservator, then the district should look to the rights and duties assigned to the father in the child custody order. In cases where the order appears unclear, the district should contact its local school attorney.

KBS Reference Desk: Cybersecurity Training HB 3834

Q:       I noticed several provisions related to cybersecurity during the recent legislative session; is every district employee required to complete the referenced “cybersecurity training”? If not, how do we determine which employees must complete the training?

 

A:       No, not all employees must be trained. House Bill 3834 requires training only for employees who use a computer at least 25 percent of their day to complete required duties. 

House Bill 3834, effective June 14, 2019, was enacted to ensure that sensitive information maintained by the State and local governments remains protected from unauthorized users. The Bill requires that certain employees, as well as all of the State’s elected officials, annually complete a cybersecurity training program certified by the Texas Department of Information Resources (TDPI). The determining factor as to whether a particular employee is required to complete the cybersecurity training is the individual’s job duties.  Specifically, the Bill applies to employees “who use a computer to complete at least 25 percent of [their] required duties.” Gov’t. Code Sec. 2054.5191.  

HB 3834 also requires school district contractors and subcontractors to complete a certified cybersecurity training program if the contractor or subcontractor has access to a district computer system or database. The cybersecurity training program can be selected by the school district and must be completed by the contractor during the term of the given contract, including any renewal period (such as an automatic renewal). For contracts entered into or renewed after June 14, 2019, the required completion of a cybersecurity training program must be included in the terms of the contract. HB 3834 does not apply to contracts entered into or renewed before June 14, 2019. 

TDIR indicates it will release a list of certified training programs this October. Moreover, school districts that employ a dedicated information resource cybersecurity officer may offer the training internally so long as the program meets the statutory requirements. For specific questions pertaining to cybersecurity training, please contact your local school attorney.

KBS Reference Desk: Walking Quorums and SB 1640

Q:       Whenever I send an email to my board members as a group, I have a practice of reminding them not to “Reply All” in order to avoid a walking quorum. Sometimes, one or two board members will forget and still select Reply All when responding. Should we be concerned with this practice if it’s only one or two replies (less than a quorum)? 

A:        Yes. Senate Bill 1640 was enacted to clarify the prohibition again “walking quorums.” The new law applies to a “series of communications” even when less than a quorum actually engages in the communications. 

A Texas court first addressed the concept of a walking quorum in 1985 when it held that members of a school board of trustees violated the Open Meetings Act by holding a series of informal telephone conferences to conduct district business that, in total, encompassed a quorum of trustees, even though a quorum was never physically present at one location.  Since 1985, the Attorney General has analyzed dozens of similar cases, and has recognized a general definition of a  “walking quorum” to include “a series of overlapping meetings, or telephone conferences when a quorum of members are not present and together in the same room at the same time but, when taken as a whole, such communications would amount to deliberations outside of the requirements of the Open Meetings Act.” 

This typically occurs when one member of a governmental body has several conversations with other members regarding a particular matter of government business. When enough members have conferred on the matter to constitute a quorum (even if done individually), the Act is violated. Violating the prohibition against “walking quorums” has historically carried criminal liability for public official who knowingly engages in the practice. 

Senate Bill 1640 clarifies the prohibition against these serial or overlapping communications by adding “written communications” to the definition of deliberation under TOMA. Additionally, the Bill strengthens the law to now include civil liability for public officials who participate in group communications from varied locations, such as telephone, email, text messages or even social media strings. The new law provides that a public official commits a misdemeanor offense if he/she:

(1)    knowingly engages in at least one communication among a series of communications that each occur outside of a meeting authorized by this chapter and that concern an issue within the jurisdiction of the governmental body in which the members engaging in the individual communications constitute fewer than a quorum of members;

(2)    and knew at the time the member engaged in the communication that the series of communications:

a.      involved or would involve a quorum;

b.      and would constitute a deliberation once a quorum of members engaged in the series of communications.”  

Tex. Gov’t Code § 551.143(a). 

Applying SB 1640 to the fact pattern presented in the question above would implicate any trustee who “Replies All” to a group communication with a substantive/deliberative message because the board member is “engaging” in the communication.  The key distinction made in the law lies in engaging in the communications versus simply being part of the recipient group. 

As a reminder, walking quorums can also be created through individual communications, where one board member talks separately with three or more other trustees about the same school business topic. This is the type of “traditional” walking quorum that has been prohibited for some time; however, written communications are now explicitly included in the law. 

To ensure compliance with Senate Bill 1640, we recommend that your Board-Superintendent team utilize an application such as Remind 101, or similar software, that allows the author of a communication to send a group message while turning the “Reply” feature off. This effectively eliminates the ability (even if done accidentally) for a trustee to reply to the entire group. Additionally, check with your district’s technology staff to determine whether the “Reply” feature can be toggled on/off from your regular district email server (such as Gmail or Outlook). Any specific concerns regarding a pattern of communications should be forwarded to your school district’s attorney to ensure compliance with the law.

KBS Reference Desk: House Bill 963

Q:       I heard that the Legislature added to the list of mitigating circumstances that a school administrator must consider before expelling a student or placing a student in a DAEP. Is that true? 

A:        Yes. House Bill 811 now requires that consideration must be given to the status of a student in foster care or experiencing homelessness when making decisions involving suspension, removal to a disciplinary alternative education program (DAEP), placement in a juvenile justice alternative education program (JJAEP), or expulsion.  

            As you know, Section 37.001 of the Texas Education Code requires that a school district’s student code of conduct specify the mitigating circumstances that must be considered when making disciplinary decisions concerning suspension, removal to DAEP, placement in JJAEP, or expulsion. Importantly, these mitigating circumstances must be considered regardless of whether the decision involves mandatory or discretionary disciplinary action under Texas law. The mitigating factors are: (1) self-defense; (2) intent or lack thereof; (3) disciplinary history; and (4) whether the student has a disability that substantially impairs the capacity to appreciate the wrongfulness of his or her conduct. Tex. Educ. Code § 37.001(A)(4).  

            House Bill 811 seeks to protect certain vulnerable student populations by requiring consideration of two additional mitigating circumstances: (1) a student’s status in the conservatorship of the Department of Family and Protective Services; and (2) a student’s status as homeless, as defined by the McKinney-Vento Act.  Id. A student is considered homeless when he or she lacks “a fixed, regular, and adequate nighttime residence.” Tex. Educ. Code § 37.001(b)(4); 42 U.S.C. § 11434a. Notably, House Bill 811 does not prohibit the district from taking the disciplinary action that it deems appropriate, but it does require consideration of these unique circumstances before making that decision. As such, you will need to update all hearing scripts and discipline orders to include consideration of these additional factors. Those using TASB’s Model Student Code of Conduct can find the text on pages 27, 28, 46 and 53. 

            For additional or specific questions regarding student discipline, please contact your local school attorney.

KBS Reference Desk: ISD Website Requirements

Q:        I heard that there were some new rules that came out of the 86th Legislature concerning website posting. Is that true? 

A:        Yes! The 2019 legislative session added new statutory language providing requirements for posting data to district websites, including importantly, trustee information. 

House Bill 963 added Texas Education Code section 11.1518 to require school districts that maintain websites to post certain information regarding its board of trustees, including: 

·                     All trustee names;

·                     All trustee email addresses; and

·                     The term dates for all trustees (including the date the trustees term began and the date the trustees term expires; note: “term” means the current term the trustee is serving, regardless of when they first took office as a trustee). 

If a school district does not maintain a website, the school district is still required to submit the information noted above to the TEA for posting on the TEA website. School districts are required to update this information on the applicable website each time there is a change in the membership of the school district’s board of trustees.

Regarding trustee email addresses, as a practical matter, we suggest all trustees operate with a district email address as opposed to the trustee’s personal email address. Senate Bill 944 adds a new definition of what it means to be a temporary custodian as well as requirements regarding record preservation, retention, and disposition of public information – including trustee emails. To ensure emails are properly maintained by the district and its public information officer, and to limit the creation of temporary custodians, trustees should be provided with district email accounts, with those addresses posted on the website. While these district emails will still have to comply with the new code language provided by Senate Bill 944, district emails saved to the district server and monitored by the public information officer are easier to manage and maintain than each individual trustee’s personal email account.  

For more information regarding all required internet website postings for all districts, visit TASB at: https://www.tasb.org/services/legal-services/tasb-school-law-esource/business/ documents/sch-dist-and-campus-website-charts.pdf 

If you have any questions regarding your district’s website or trustee’s emails, we recommend contacting your local school attorney.

 

KBS Reference Desk: Work Status Report Completed and Signed by APRN

Q:        One of our teachers recently suffered a work-related injury, which required her to take family medical leave and entitled her to workers’ compensation benefits. We received a work status report from the teacher’s doctor’s office indicating that our teacher may return to work without restrictions. The report was completed and signed by a Registered Nurse with the doctor’s permission. May we accept the work status report and return the teacher to the classroom?

 A:        Yes. New legislation now allows a treating doctor to delegate authority to Advanced Practice Registered Nurses, or APRNs, to complete and sign work status reports, provided that the treating doctor delegated the authority to complete and sign the work status report to the Advanced Practice Registered Nurse.

The Texas Workers’ Compensation Act (“TWCA”) is codified in Chapter 408 of the Texas Labor Code and generally provides employees who experience a work-related illness or injury eligibility to receive temporary income benefits during a sustained absence if certain conditions are met. See Tex. Lab. Code § 408 et seq. One such condition, for example, is that health care providers must create, maintain, and produce upon request by qualified individuals (i.e., the employee, the employee’s attorney, the employer’s insurance carrier, etc.) records and reports related to the injured employee seeking worker’s compensation benefits. See Tex. Lab. Code § 408.025. The Texas Workers’ Compensation Work Status Report, commonly referred to as a work status report or DWC Form-073, is documentation health care providers may provide to an employer. The work status report is particularly important because it allows the injured employee’s health care provider to notify the employer regarding an injured employee’s ability to return to work.

The TWCA expressly provides: “A treating doctor may delegate to a physician assistant who is licensed to practice in this state under Chapter 204, Occupations Code, the authority to complete and sign a work status report regarding an injured employee’s ability to return to work. The delegating treating doctor is responsible for the acts of the physician assistant under this subsection.”  See Tex. Lab. Code § 408.025(a-1). In short, therefore, the TWCA provides that a treating doctor or a licensed physician assistant acting under the authority of the treating doctor may complete and sign a work status report. Id. On April 16, 2019, however, the Texas Legislature voted and passed House Bill 387. The Bill, which became effective on September 1, 2019, amended Section 408.025(a-1) to allow a treating doctor to also delegate authority to Advanced Practice Registered Nurses, or APRNs, to complete and sign work status reports. This revised legislation is expected to be advantageous because it will allow nurse practitioners to increase their practice and provide more care to patients and reduce medical paperwork burdens for patients and physicians.

In the scenario above, therefore, the work status report completed and executed by an Advanced Practice Registered Nurse with the treating doctor’s permission is sufficient to return the employee to duty. Under current law, the district is able to accept the work status report and return the teacher to the classroom if the report was completed and signed by the treating doctor or a licensed Physician’s Assistant or APRN acting under the authority of the treating doctor. For additional information regarding workers’ compensation procedures, please contact your local school attorney.

KBS Reference Desk: Open Government During Catastrophes

Q.        With hurricane season in full swing, are there any updates to open government laws that the district needs to be aware of?

A.        Yes! SB 494, effective September 1, 2019, amended various Texas Government Code sections regarding emergency meeting notices, emergency meeting deliberations or actions, and suspension of the Public Information Act during times of catastrophe.

Currently, the Texas Open Meetings Act allows for a governmental body to meet with less than 72 hours’ notice in times of “emergency or urgent public necessity.” Such emergency or urgent public necessity exists only if immediate action is required of a governmental body because of (1) an imminent threat to public health and safety; or (2) a reasonably unforeseeable situation. SB 494 further clarifies this provision by adding examples of conditions when an emergency meeting or emergency agenda item may be added during times of catastrophe. The examples include: fire, flood, earthquake, hurricane, tornado, wind, rain, or snow storm; power failure, transportation failure, or interruption of communication facilities; epidemic; or riot, civil disturbance, enemy attack, or other actual or threatened act of lawlessness or violence.

SB 494 also reduces the time required to post notice of an emergency meeting or supplemental notice of an emergency addition to the agenda from two hours to one hour. Additionally, the bill limits the actions that can be taken at an emergency meeting in which one-hour notice was posted. A one-hour emergency posting will permit action only on: “(1) a matter directly related to responding to the emergency or urgent public necessity identified in the notice or supplemental notice of the meeting…or (2) an agenda item listed on a notice of the meeting before the supplemental notice was posted.” Tex. Gov. Code §551.045(a-1).

Finally, and possibly most impactful, is the suspension of the Public Information Act during times of catastrophe.  SB 494 allows a governmental body that is currently impacted by a catastrophe to suspend the applicability of the requirements of the Public Information Act (“PIA”), including and especially, the obligation to respond “promptly.” Notably, the governmental body must provide notice to the Attorney General in order to benefit from the tolling. Detailed instructions for the catastrophe notice and the form for submission can be found on the Attorney General’s website at https://www.texasattorneygeneral.gov/es/node/232786. Notice of extension must also be submitted to the Attorney General.

TASB anticipates release of Update 114 in October, which should contain all necessary edits to the open government laws found within policies BE and GBAA. As this is a general overview of SB 494, consult with your district’s legal counsel with any questions regarding suspension of the PIA requirements, its implications on timelines, and how to proceed in the event of a catastrophe.

KBS Reference Desk: Public Information on Private Devices

Q:       Some of our Board members communicate with the superintendent and administrative staff via text messaging from their personal device. Most of the communications are not related to District business, but recently the superintendent and one Board member had a lengthy texting exchange regarding an upcoming agenda item. Do the Board members and superintendent need to save or copy these communications?

 A:       Yes. Communications between school board members and school officials created in the course of government business are public information and subject to the Public Information Act. Senate Bill 944, effective September 1, 2019, clarifies the obligation of current or former officers or employees of governmental bodies who maintain public information on a privately-owned device to either forward the information to the governmental body or its server, or preserve the information in its original form in a back-up or archive and produce such information upon request by the district’s public information officer.

The Texas Public Information Act (“TPIA”) defines public information as “information that is written, produced, collected, assembled, or maintained in connection with the transaction of official government business.” Tex. Gov’t Code § 552.002. Most importantly, public information includes all electronic communications concerning district business, regardless of whether it is communicated from a personal device or account. The Texas Attorney General has confirmed this interpretation in multiple decisions; however, until now, the text of the TPIA has not been altered or amended to clarify storage obligations.

 

SB 944 places a burden on school officials and employees to ensure that any communications regarding district business are properly preserved. Under SB 944, a school Board member, superintendent, or other officer or employee of the district is considered a “temporary custodian” of public information if the person creates or receives public information in the transaction of official district business but does not provide such information to the district’s public information officer. The bill allows a temporary custodian two options: (1) forward or transfer the information immediately to a governmental body or a governmental body server to be preserved, or (2) preserve the information in its original form in a back-up or archive and on the privately owned device. Additionally, if the district public information officer requests the information, the temporary custodian must surrender it to the public information officer within 10 days after the request is made. Failure to surrender the information is grounds for disciplinary action and could result in other penalties under the Public Information Act.

In the scenario above, both the superintendent and the school board member are temporary custodians of the public information contained within their text exchange. Both individuals have a responsibility to either forward the parts of the exchange containing district business to the district or district server, or to preserve the exchange. If the public information officer requests the information (for instance, in response to a TPIA request), the temporary custodian must surrender the public information within 10 days or be subject to disciplinary action and penalties under the Act.

While the law does not prohibit district officials and employees from using personal devices to conduct district business, the ramifications for failing to properly preserve public information can be serious. In order to minimize the burden on individuals, school board members, administrators, and other district officials and employees are strongly encouraged to avoid using personal communication tools, and especially texting, when conducting official district business. Rather, school officials and employees should consider using school district email accounts and/or communication apps such as Remind 101, which can be directly linked to the district or district’s server, or easily accessed and forwarded to the district’s public information officer. If you have a question as to whether a communication is considered public information, contact your school attorney for clarification.

  

 

               

KBS Reference Desk: Firearms on Campus

Q:        An employee with a concealed handgun license informed the campus principal that he will be carrying his handgun in his car and in the school building “as provided for in the new laws.” Does recent legislation allow him to do so?

A:        Yes and No. House Bill 1143 and 1791 outlined new measures related to firearms. HB 1143 permits the employee to carry and store his firearm in his vehicle, but the employee cannot remove the weapon from his vehicle and bring it inside the building.  

House Bill 1143 and 1791 address new rules related to firearms and notices prohibiting firearms. First, HB 1143 provides that, effective September 1, 2019, a school district may not prohibit a person (including an employee) who holds a license to carry a handgun (“CHL”) from parking on school grounds while transporting or storing a firearm, handgun, or ammunition, so long as the vehicle is locked and the item is not in plain view.  The new law dictates specifically that a school district may not regulate the manner in which the handgun, firearm, or ammunition is stored in the locked vehicle; only that the item is not visible. Thus, the employee in the above hypothetical, who has a CHL, would be permitted to keep his handgun in his vehicle so long as the car is locked and the gun cannot be seen through the windows. Moreover, a school district cannot attempt to regulate such storage, such as by mandating that the item be placed in the trunk or another locked compartment inside the locked vehicle.

Second, House Bill 1791, effective September 1, 2019, modifies the notice of prohibited firearm provisions to align with the above CHL change. HB 1791 prevents school districts from posting notices of trespass in the parking lot or driveway entrances of school grounds. Instead, districts may only post a no firearms/ trespass notice at the building entrances. This measure ensures that CHL holders are allowed to bring and store their firearm as provided for by HB 1143. Thus, the employee in the above hypothetical would be prohibited from bringing the firearm from his vehicle into the building since it is unlawful under Texas Penal Code Section 46.03.

For specific questions pertaining to firearms and related notices, please contact your local school attorney.

KBS Reference Desk: Required Provisions for EOPs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

KBS Reference Desk: Student athlete legislative updates

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

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

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

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

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

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

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

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

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

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

Some of the most common instances that may arise include:

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

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

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

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

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

KBS Reference Desk: Police Officer Meal Break Compensation

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

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

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

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

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

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

KBS Reference Desk: Appropriation of District Logo

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

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

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

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

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

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

KBS Reference Desk: Senate Bill 1476 SBEC Reporting

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

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

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

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

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

KBS Reference Desk: Cybersecurity Breach

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

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

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

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

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

KBS Reference Desk: Engaging Architects for Construction

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

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

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

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

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

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

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

 

KBS Reference Desk: Nepotism in Small County

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

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

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

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

KBS Reference Desk: Employment of Students

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

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

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

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

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

KBS Reference Desk: CTE Teaching Permit

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

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

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

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

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