2014 CASPA CONFERENCE Legal Update
David Olson General Counsel Colorado School Districts Self Insurance Pool (CSDSIP)
What’s Trending? • All things 420 • Social media … ever heard of the Crunk Bear? • Sexting • Masters litigation • Cases in the employment arena and other notable areas
Marijuana State of Mind • Intersection of Federal and Colorado Law • Amendment 20 • Amendment 64 • Personal Use • Regulation • School District Policies
Federal Law • Drug-Free Workplace Act of 1988 • Omnibus Transportation Employee Testing Act of 1991 • Various U.S. Department of Justice (DOJ) Memorandums ** DOJ memo of August 29, 2013 – Guidance Regarding Marijuana Enforcement – no state or local law is a legal defense against a violation of federal law, including any civil or criminal violations of the Controlled Substances Act.
Colorado Law • Amendment 20 (Colorado Constitution, Article XVIII, Sec. 14 – effective December 28, 2000) – Medical Marijuana • Amendment 64 (Colorado Constitution, Article XVIII, Sec. 16 – effective December 10, 2012) – Personal Use • Coats v. Dish Network
Amendment 20 • Medical use • Debilitating medical condition • Advised by a physician • Sec. 14 (10)(b), “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.”
Amendment 64 • Personal use • Persons 21 years of age or older • Excise tax to schools?
Marijuana Revenue and Schools • Where does the revenue go? • First $40 million raised annually from the excise tax (applied to personal use product, not medical) shall be credited to the Public School Capital Construction Assistance Fund
Coats v. Dish Network • Issue #1: whether the Lawful Activities Statute protects employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect job performance. • Issue #2: whether the Medical Marijuana Amendment makes the use of medical marijuana “lawful” and confers a right to use medical marijuana to persons lawfully registered with the state.
School District Policies • Revisit GBEC – Alcohol and Drug-Free Workplace The Board recognizes the importance of maintaining a workplace that is free from alcohol and drugs to enhance the safety and welfare of employees and students and ensure compliance with applicable law. Accordingly, it shall be a violation of Board policy for any district employee to possess, use or be under the influence of alcohol or illicit drugs on district property, in or on district vehicles, at any school-sponsored or district-sponsored activity or event, or off district property when the employee is on duty. For purposes of this policy, “illicit drugs” means narcotics, drugs and controlled substances as defined in law. Although some actions involving marijuana are no longer prohibited by state law, federal law still prohibits the manufacture, sale, distribution, possession and use of marijuana. As a recipient of federal funds, the district has an obligation to maintain a drug-free workplace. Thus, marijuana is an illicit drug for purposes of this policy. “Illicit drugs” also includes any prescription or over-the-counter drug that does not meet the following four criteria: (1) the employee has a current and valid prescription for the drug or the drug is sold over- the-counter; (2) the drug is used or possessed for the purpose for which it was prescribed or sold over-the-counter; (3) the drug is used or possessed at the dosage prescribed or recommended; and (4) the drug is used or possessed consistent with the safe and efficient performance of the employee’s job duties.
School District Policies – cont. • Revisit KFA – Public Conduct on District Property Persons using or upon school district property, including all district buildings, parking lots, and any district vehicle used to transport students, shall not engage in the conduct described below.
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Use, possession, distribution or sale of drugs and other controlled substances, alcohol and other illegal contraband on district property, at district or school- sponsored functions or in any district vehicle transporting students. For purposes of this policy, “controlled substances” means drugs identified and regulated under federal law, including but not limited to marijuana, cocaine, opiates, phencyclidine (PCP) and amphetamines (including methamphetamine).
Crunk Bear?
#FreeCrunkBear
Crunk Bear – Dangers of Social Media • Facebook • Twitter • YouTube • What does your policy say? • How enforced?
First Amendment Right? • Pickering Balance – Is the person speaking in his or her capacity as a private citizen or an employee? – Does the subject-matter involve a matter of public concern or private concern related to his or her employment?
• If the person is speaking in his or her capacity as a private citizen on a matter of public concern, the speech is entitled to constitutional protection, subject to a balancing test that takes into consideration the government’s interest in efficiently carrying out the public’s business against the person’s interest in speaking out.
School District Liability? • Title IX prohibits schools from discriminating on the basis of gender • Sexual harassment is a form of discrimination • School districts can be liable if: (1) school officials have the authority to remedy the harassment; (2) have actual knowledge, or at least, a substantial risk of harassment; and, (3) remain deliberately indifferent
Sexting • Defined by one state’s Supreme Court as “the practice of sending nude photographs via text message” • Studies have shown that approximately 20% of Americans ages 13-19 have engaged in sexting (my guess … the percentage is higher)
Sexting – cont. • In schools, the initial message is usually consensual • School officials often learn of the issue following distribution to others • Often occurs in a break-up situation
Sexting – cont. • Criminal implications – Child pornography; registration as a sex offender – Colorado HB 09-1132 amended the following to include sexting: – § 13-21-1002 (computer dissemination of indecent material to a child) – § 18-3-306 (internet luring of a child) – § 18-3-405.4 (internet sexual exploitation of a child) – § 18-9-111 (harassment – stalking)
• Hypotheticals …
Sexting – What Districts Should Do If an administrator becomes aware of sexting: • Notify parents • Notify law enforcement • Possibly report child abuse/neglect to DHS • Turn over evidence to law enforcement • Discipline all students involved • Prevent bullying and harassment
Masters Litigation
Overview • Teacher “Tenure” in Colorado • Arrival of Senate Bill 10-191 • Colorado Education Association Challenge • Current Disposition • What Next?
Senate Bill 10-191 •
Blame Sen. Michael Johnston?
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S.B. 191 amended TECDA (C.R.S. §§ 22-63-101 to -403)
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TECDA
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With passage, Colorado Legislature altered teacher evaluation methods and placed a new emphasis on measuring effectiveness
Mutual Consent Provision • S.B. 191 also contained the dreaded (and, contested) mutual consent provisions • Mutual consent allows school districts to remove non-probationary teachers when a determination is made that the nonprobationary teacher’s services are no longer required as a result of a drop in enrollment
Mutual Consent Provision – cont. • Prior to S.B. 191, a school district was required to find a new position for a non-probationary teachers, without the new school’s consent • Now, the law requires that each employment contract … shall contain a provision regarding assignment … only with the consent of the hiring principal and with input from at least two teachers at the school
Teachers’ Union Cries Foul •
Allege mutual consent violates the Contract Clause (Article II, § 11) of the Colorado Constitution and the Due Process Clause (Article II, § 25) (arguing that “displacement” = “dismissal”)
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Also assert that Denver Public School’s implementation of the mutual consent provision violates the Due Process Clause – as applied
Status? • On June 6, 2014 Chief Judge Martinez granted the Defendants’ Motion to Dismiss (in its entirety) • CEA filed a Notice of Appeal on July 15, 2014
The Next Wave • EEOC Systemic Investigations • EEOC/CCRD Charges • Class-Actions/CBAs • Restraint Litigation • Attacks on the CGIA: Recreation Area Waiver in Loveland v. St. Vrain
Questions? David Olson General Counsel CSDSIP Cell: 720.251.1310 Web: www.csdsip.net E-mail: david@csdsip.net Twitter: @DavidOlson_ Issuu: issuu.com/davidolson5