KBS Reference Desk: Engaging Architects for Construction

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

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

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

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

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

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

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

 

KBS Reference Desk: Nepotism in Small County

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

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

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

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

KBS Reference Desk: Employment of Students

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

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

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

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

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

KBS Reference Desk: CTE Teaching Permit

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

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

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

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

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

KBS Reference Desk: FMLA Leave Over Summer

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

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

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

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

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

KBS Reference Desk: Summer Use of Sports Facilities

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

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

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

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

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

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

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

KBS Reference Desk: Subpoenas and FERPA

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

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

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

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

KBS Reference Desk: Probationary Termination While on FMLA

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

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

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

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

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

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

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

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

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

·                     Attend ARDs and participate as a mandatory committee member;

·                     Receive prior written notice of ARD committee decisions;

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

·                     Seek an independent educational evaluation;

·                     Obtain his or her own education records; and

·                     Request mediation or a due process hearing.

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

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

KBS Reference Desk: Military Leave

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

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

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

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

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

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

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

KBS Reference Desk: Training and Travel Compensation

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

 A:        Most likely yes.

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

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

KBS Reference Desk: Evaluation Confidential

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

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

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

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

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

KBS Reference Desk: Notice of Proposed Nonrenewal

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

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

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

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

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

KBS Reference Desk: Returning a Teacher to Probationary Status

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

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

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

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

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

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

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

KBS Reference Desk: Open Meetings Act

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

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

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

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

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

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

 

KBS Reference Desk: Worker's Compensation

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

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

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

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

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

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

KB Reference Desk: Mid-Year Reassignments

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

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

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

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

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

KBS Reference Desk: Special Education Camera Regulations

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

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

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

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

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

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

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

KBS Reference Desk: Firearms in Parked Vehicles

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

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

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

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

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

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

KBS Reference Desk: Updated TASB Model Contracts

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

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

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

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

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

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

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

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

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

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

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

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

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