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INSIDE
Illinois Association of School Business Officials UPDATE Magazine / Spring 2018 / v.25 / i.03
LEGAL ISSUE
THE NEXT ISSUE: THE FUTURE ISSUE
Navigating the Ambiguity:
How can we plan now for what schools will look like in five to ten years?
How to Make Sense of New Laws and Mandates
In the legal field, words matter! Learn from how attorneys resolve ambiguities in education law to get insights on how school business officials can respond to new legislation. By Mary E. Deweese and Jamel A.R. Greer
22
LOOKING FOR PAST ISSUES? Visit ISSUU.com and search for Illinois ASBO.
Top 11 Public Bidding Questions & Solutions When applying the public bidding law to purchases and contracts, school business officials must be mindful of the nuances and complexity of the law. Take a look at some common questions SBOs have when addressing the School Code’s bidding requirements. By Kenneth M. Florey, Matthew J. Gardner and Amy K. McPartlin
14
www.iasbo.org
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Striking
a Balance
PERSPECTIVE
FROM-THE-PODIUM The Impact of New Mandates on Illinois School Districts. 07
Schools have different parameters as to when they call legal counsel and when to make their decision in-house. In order to determine whether to call your lawyer, there are important questions to be asked.
FROM-THE-OFFICE Keeping Your District Out of Trouble. 09
By Micheal A. DeBartolo and Barry Bolek
FROM-THE-FIELD Knowing What You Don’t Know. 11
18
Referendum Requirement
SCHOOL BUSINESS 101 Legal Issues Impacting Districts: Property sales, potential tax freeze, security breaches and more. 19
Mechanics of the 110% Adequacy Referendum For those school districts at or above the 110 percent adequacy target, this new law is one more topic to consider as school district budgets and levies are developed going forward.
By Ares G. Dalianis
Get in the Know Seven Facilities Laws Impacting Your Day-to-Day Operations School business officials, boards and administrators should be aware of a number of recent developments in the law which impact the day to day operations of their facilities.
By James D. Rock
32
28
Saving for a Rainy Day A Proactive Approach to Special Education Legal Issues Special education programs often account for significant portions of a school district budget, but it is the unbudgeted expenses that often end up hurting the financial forecast of a district the most.
By Kevin D. Rubenstein
RESOURCES
36
Staying OUT of The headlines Preventing School District Fr aud
Learn fundamental and common-sense practices that can help reduce the risk of fraud and prevent the next embarrassing headline in the local newspaper.
By James M. Sullivan, JD, CFE, CIG
38
ON MY LIST Radical Candor: A New Management Philosophy
41
The Final Word Dr. Angela M. Crotty
Assistant Superintendent, CSBO Midlothian SD 143 Angela’s primary duty as a CSBO is to protect the dollars of the district and the interest of taxpayers, while providing the maximum possible for our students. With that always at the forefront, she handles legal issues on a situational basis in the most efficient and cost-effective manner.
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THE
MAGA ZINE Illinois Association of School Business Officials
CALENDAR OF
Northern Illinois University, IA-103 108 Carroll Avenue DeKalb, IL 60115-2829 P: (815) 753-1276 / F: (815) 516-0184 / www.iasbo.org
EVENTS
UPDATE Editorial Advisory Board
Check out www.iasbo.org or the latest Calendar of Events included in the UPDATE mailing for full seminar listings including location and PDC sponsorship and register for professional development today. March 2018 June 2014
S 27 4 11 18 25 1
M 28 5 12 19 26 2
T 29 6 13 20 27 3
W T F S 30 1 2 3 7 8 9 10 14 15 16 17 21 22 23 24 28 29 30 31 4 5 6 7
April 2018
May 2018
June 2018
S M T W T F S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 1 2 3 4 5 6 7 8 9 10 11 12
S 29 6 13 20 27 3
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M T W T F S 30 1 2 3 4 5 7 8 9 10 11 12 14 15 16 17 18 19 21 22 23 24 25 26 28 29 30 31 1 2 4 5 6 7 8 9
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T F S 31 1 2 7 8 9 14 15 16 21 22 23 28 29 30 5 6 7
Date
Time
Event
Location
3/6/2018
8:30am
FIRO-B: Behavior to Improve Results - AAC #1816
Naperville
3/6/2018
9:00am
Online AAC #1231 - School Security: A Proactive & Holistic Approach
Online
3/7/2018
12:00pm
Lunch & Learn Webinar: ESSA Site-Level Reporting & Your FY18 Budget
Online
3/8/2018
8:30am
FIRO-B: Behavior to Improve Results - AAC #1816
3/8/2018
8:00am
Facilities Professionals Conference
Oak Brook
3/9/2018
8:00am
20th Annual Risk Management - AAC #1283
Naperville
3/13/2018
9:00am
Online AAC #1812 - What Connected Leaders do Differently
3/13/2018 3/14/2018 3/15/2018
9:00am
Assessing Financial Condition & Prep for Collective Bargaining - AAC #1896
Naperville East Peoria O'Fallon
3/13/2018 3/14/2018 3/15/2018
9:00am
ISDLAF+ School Finance Seminar
Naperville East Peoria O'Fallon
3/13 -15/2018
5:00pm
Leadership Institute Cohort 2018
3/16/2018
8:00am
Legal Standards for the Management of School Personnel - AAC #820
3/16/2018
8:30am
Bookkeepers Conference
3/19 - 22/2018
8:00am
CPMM Facilities Certification Training & Exam
3/28/2018
12:00pm Lunch & Learn Webinar: Maintenance of Effort
4/16/2018
9:00am
4/18/2018
12:00pm Lunch & Learn Webinar: Managing Change
4/25/2018
9:00am
Online AAC #1416 - The Legal Rights of Students and Parents
5/3 - 4/2018
7:00am
2018 Annual Conference
5/14/2018
9:00am
Five Dysfunctions of a Team
6/5/2018
8:00am
Optimizing Transportation Operations, the Claim Process & the Safe Transportation of Students
6/13/2018
8:30am
LIFO Assessment to Grow Leadership & Communications Skills - AAC #1500
Delegate Advisory Assembly Meeting
West Decatur
Online
Normal
Naperville Bloomingdale Online Naperville Online Online Schaumburg Naperville TBD Naperville
PDC MEMBERS Ryan Berry Legal Issues Patrick S. Browne Sustainability Catherine H. Chang Food Service Seth Chapman Budgeting & Financial Planning Yasmine Dada Principles of School Finance Eric DePorter Human Resource Management Jeff E. Feyerer Leadership Development Kathy Gavin Special Education Sean Gordon Maintenance & Operations Rich Hendricks Cash Management Anton Inglese Technology Stephen Johns Planning & Construction Tim Keeley Purchasing John Lavelle Risk Management Stacey Mallek Accounting, Auditing & Financial Reporting Patrick McDermott Public Policy Michael Schroeder Transportation BOARD & EXTERNAL RELATIONS MEMBERS David H. Hill, Ed.D. President Anne Noble SAAC Chair AT-LARGE MEMBERS Mike Johann Illinois Association of School Personnel Administrators STAFF MEMBERS Michael Jacoby Executive Director / CEO (815) 753-9366, mjacoby@iasbo.org Susan P. Bertrand Deputy Executive Director / COO (815) 753-9368, sbertrand@iasbo.org Craig Collins Statewide Professional Development Coordinator, (630) 442-9203, ccollins@iasbo.org Rebekah L. Weidner Senior Copywriter / Content Strategist, (815) 753-9270, rweidner@iasbo.org Tammy Curry Senior Graphic Designer (815) 753-9393, tcurry@iasbo.org John Curry Graphic Designer / Videographer (815) 753-7654, jcurry@iasbo.org Zack Hildebrand Membership & Marketing Coordinator (815) 753-9371, zhildebrand@iasbo.org
Illinois ASBO Board of Directors
David H. Hill, Ed.D President Cathy L. Johnson President-Elect Dean T. Romano, Ed.D. Treasurer Jennifer J. Hermes, SFO Immediate Past President 2015–18 Board of Directors Mark W. Altmayer, Julie-Ann C. Fuchs, Eric M. Miller 2016–19 Board of Directors Jan J. Bush, Julie A. Jilek, Bradley L. Shortridge 2017–20 Board of Directors Mark R. Bertolozzi, Kevin L. Dale, Eric DePorter
Illinois ASBO Board Liaisons
Anne E. Noble Service Associate Advisory Committee Chair Carrie L. Matlock, AIA, LEED AP, BD+C Service Associate Advisory Committee Vice Chair Deborah I. Vespa ISBE Board Liaison Perry Hill IASB Board Liaison Paul McMahon Regional Superintendent Liaison Calvin C. Jackson Legislative Liaison
Privacy Policy
All materials contained within this publication are protected by United States copyright law and may not be reproduced, distributed, displayed or published without the prior written permission of the Illinois Association of School Business Officials. You may not alter or remove any trademark, copyright or other notice from copies of the content. References, authorship or information provided by parties other than that which is owned by the Illinois Association of School Business Officials are offered as a service to readers. The editorial staff of the Illinois Association of School Business Officials was not involved in their production and is not responsible for their content.
PERSPECTIVE / Board President
FROM–THE–PODIUM The Impact of New Mandates on Illinois School Districts Public education is easily one of the most regulated activities of government and rightfully so. What could be more important than educating future doctors, scientists, computer programmers, electricians, teachers and politicians, just to name a few. Although we all agree on the importance of education, many new laws and mandates negatively impact school districts and therefore the education of students. David H. Hill, Ed.D. Many of these new rules could be viewed by some, outside of the education profession, ASSOCIATE SUPERINTENDENT COMM. CONS. SCH. DIST. 93 as sincere efforts to improve the quality of education, student achievement, safety, accountability, transparency and proper use of taxpayer money. However, to those in the education profession, new laws and mandates typically involve increased costs or responsibilities forced upon a school district. When increased costs are added to a school district's budget, it may diminish their ability to provide students with a world-class educational experience. SIMPLY SAYING
The number of mandates school districts are required to comply with continues to increase without any additional funding. Managing a school budget in the current financial times is difficult enough. All school districts have shown their ability to stretch thin budgets in response to the uncertainty of funding from Springfield. School districts are doing all they can to provide outstanding educational and enrichment experiences for students. They have shown continued resolve to do more with less — all the while state policymakers continue to make it seem as though the public education system is a pawn in their political game.
Under our current system, the number of mandates school districts are required to comply with continues to increase without any additional funding. As a result, resources are being pulled away from educating students and local taxpayers are bearing an increased share of that cost. Let us all continue to work together to challenge unnecessary legislation, continue purposeful communication with our policymakers and stakeholders and most importantly stand together for public education.
Mandates are, and always will be, a necessary component of the public education system. But when mandates become unnecessary obstacles to providing a high-quality educational program or put a financial strain on already limited district resources, local school boards, administrators and policymakers have an obligation to work collaboratively to provide relief. Relief could come in many forms, from repealing mandates to providing funding for any new mandate to giving mandate control to the local elected school board.
To quote Germany Kent, “To say nothing is saying something. You must denounce things you are against or one might believe that you support things you really do not.”
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ILLINOIS ASSOCIATION OF SCHOOL BUSINESS OFFICIALS
LEARN TO LEAD THROUGH INFLUENCE
As a school business or industry professional, your ability to communicate effectively is key to becoming an influential leader within your organization. The Illinois ASBO Leadership Center brings you professional development to address the relational skills your university program may not have taught you, but that are essential to your success.
FIND YEAR-ROUND LEADERSHIP CENTER TRAININGS AT:
WWW.IASBO.ORG/LEADERSHIP
PERSPECTIVE / Executive Director
FROM–THE–OFFICE Keeping Your District Out of Trouble “The good lawyer is not the man who has an eye to every side and angle of contingency, and qualifies all his qualifications, but who throws himself on your part so heartily, that he can get you out of a scrape.” - Ralph Waldo Emerson “Is it legal?” This is a question often asked by business officials, superintendents, board members and the community — one that must get the right answer. To that end, I am so grateful for the authors who have written for this issue of UPDATE. Often, the question of “Is it legal?” is not easy to answer without the input of seasoned experts who have studied and experienced various issues.
Michael A. Jacoby, Ed.D, CAE, SFO EXECUTIVE DIRECTOR/CEO ILLINOIS ASBO
SIMPLY SAYING
The question of “Is it legal?” is not easy to answer without the input of seasoned experts. We often joke about attorneys, but in the end we all know that they are our best advocates and always have the best interest of their clients at heart. I remember my years as a business official and superintendent when, time and time again, our council kept us out of trouble and made sure we took the right steps at the right time. A special thanks to our legal community for their work here and in school districts across Illinois! In this issue we explore some extremely current topics including new laws, mandates, fraud, special education and purchasing. In addition, Barry Bolek and Micheal Debartolo explore the question of when to seek counsel and how to be sure your relationship with a legal firm is used appropriately. Sometimes this is about effective resource allocation, while other times it is a risk management decision.
Dig deep into this issue. Archive it, revisit it and pass it around your central office. We intend for UPDATE issues to be highly relevant and evergreen, filled with meaningful information that you can depend on for years to come. Finally, even though the bill from your attorney may cause you to gulp every once in a while, remember that they are keeping you out of trouble. How much is that worth? Likely much more than you pay. Perhaps you will agree with Jerry Seinfeld: “To me, a lawyer is basically the person that knows the rules of the country. We’re all throwing the dice, playing the game, moving our pieces around the board, but if there is a problem the lawyer is the only person who has read the inside of the top of the box.”
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INOIS ILL
A
IFFO SSE IC N A L
LOOHC UB S IS
NILLI SIO S
S OFFICIA ES L N
S
IATION OC of SS
L HOO BUS I SC
NEXT SCHOOL YEAR NEXT POSITION NEXT LEVEL NEXTGEN
A
SS of OC IATION
Whether you are just getting started in your career or have a new position with added responsibilities,
the NextGen SBO Summit brings you baseline knowledge on key school business topics as well as a track of “next level” sessions for more seasoned SBOs.
New this year! NextGen will also include mentoring time — a chance to learn from experienced SBOs or volunteer your own experience to benefit others.
Take your learning to the next level on June 14, 2018!
Learn more and register at
www.iasbo.org/nextgen
PERSPECTIVE / SAAC Chair
FROM–THE–FIELD Knowing What You Don’t Know One of life’s greatest lessons is to know what you do not know and know when to admit it! Most of us struggle with that concept at one time or another, regardless of our age and years on the job. Sixteen years ago, after 12 years running a regional office for my firm working with school districts in Michigan, I relocated and began working with school districts in Illinois. I very naively thought working with school districts in two bordering states to sell bonds for all types of capital funding would not be that big of a shift in technical knowledge. I could not have been more wrong. The state laws behind issuing bonds in Illinois were completely different and more complex than what was true in Michigan. It was a very difficult step to go from being the expert to having to ask questions at every turn.
Anne Noble MANAGING DIRECTOR STIFEL, NICOLAUS & COMPANY
SIMPLY SAYING
One of life’s greatest lessons is to know what you do not know and know when to admit it. After I accepted what I did not know, I learned and became a better investment banker by taking the time to ask questions to make sure I understood all of the Illinois bond legal nuances. The legal side of any topic can easily trip us up. Especially when we think we know a subject thoroughly, only to discover there is some legal distinction of which we were not aware. In my experience, Illinois law is particularly complex, providing even more fertile ground for inadvertent errors. This issue of UPDATE gives us great insight into some of the more complicated legal topics for today’s school administrators:
• What the 110 percent adequacy requirement really means under SB1947. • How to read between the lines of some of the recent legislation to find guidance for implementation. • Some common legal pitfalls related to purchasing. • Special education and its unique legal issues. • Last, but certainly not least, two experienced CSBOs guide us on that never ending question of when you should actually pick up the phone and call the district attorney. Take the time to read this issue of UPDATE to learn about some complex legal topics that you may not know. Always remember that Illinois ASBO is your trusted resource for answering questions, or pointing you in the best direction, when you are not sure you know what you really need to know! Happy learning!
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CONTRIBUTORS
Barry A. Bolek
Ares G. Dalianis
Micheal A. DeBartolo
Retired School Business Official
Partner Franczek Radelet P.C.
Asst. Supt./Finance & Operations, CSBO Prospect Heights SD 23
Retired from Township High School District 113 after 14 years. Barry served in many roles during his 33 years as an educator including teacher, dean of students, director of technology and assistant principal as well as coaching five different athletic teams.
Serves as general and special counsel to Illinois school districts where he focuses his practice in the areas of education law, property taxation and assessment appeals, real estate, eminent domain, TIF counseling, school district revenue litigation and general counseling.
Prior to joining District 23 in 2015, Micheal practiced law as a school attorney for over 16 years. Micheal also teaches at Northern Illinois University in the Illinois ASBO School Business Management program.
bolekbarry@gmail.com
agd@franczek.com
mdebartolo@d23.org
Mary E. Deweese
Kenneth M. Florey
Matthew J. Gardner
Associate Franczek Radlet P.C.
Partner Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd.
Associate Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd.
kflorey@robbins-schwartz.com
mgardner@robbins-schwartz.com
Her practice includes special education, employment matters and general counseling. Previously, she served as a fellow with the National Education Association and as an intern at the U.S. Department of Education.
med@franczek.com
Concentrates his practice representing public and private clients, including municipalities, school districts, community colleges, private owners, contractors and design professionals regarding land use, municipal law, construction, tax, finance and litigation.
Represents clients over the course of construction projects, from the contract negotiation and bidding, to protecting his client’s interest in litigation arising from any defaults, delays or other construction defects.
Jamel A.R. Greer
Amy K. McPartlin
James D. Rock
Associate Franczek Radlet P.C.
Purch., Trans. & Bus. Services Supervisor Twp. High Sch. Dist. 214
Attorney at Law Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C.
amy.mcpartlin@d214.org
jrock@ancelglink.com
His practice includes property tax litigation, collective bargaining, employment law, school business operations and general counseling. In the fall of 2014, Jamel was awarded the Norman Amaker Award for outstanding academic achievement and a commitment to change. jag@franczek.com
With over 15 years of experience in school district procurement, Amy recently completed her Master’s Degree/CSBO program. She is a past chair of Illinois ASBO’s Purchasing PDC and was a key contributor to the committee update of the Illinois ASBO Purchasing Manual.
Counsels school districts in issues that arise day-to-day, including matters related to board practices and procedures, finance, grant procurement, contracts, personnel, labor, employment, teacher remediation, student conduct and discipline, First Amendment issues and intergovernmental cooperation.
Dr. Kevin Rubenstein
James M. Sullivan, JD, CFE, CIG
Dir./Student Services, Tech., & Assessment Lake Bluff SD 65
Director Sikich
Currently serves as the President-Elect of the Illinois Alliance of Administrators of Special Education (IAASE). Rubenstein completed his doctorate in Administration and Supervision at Loyola University in Chicago and is pursuing the CSBO endorsement through Northern Illinois University.
Conducts investigations of alleged fraud, evaluates systems and procedures for control weaknesses and recommends controls to prevent fraud. James also served for 12 years as the Inspector General for the Chicago Board of Education, the third largest public education system in the country.
krubenstein@lb65.org
james.sullivan@sikich.com
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Top 11
Public Bidding Que Section 10-20.21 of the School Code requires school districts to publicly bid contracts for the purchase of supplies, materials and work and to award the contract to the lowest, responsible and responsive bidder. When applying the public bidding law to purchases and contracts, school business officials must be mindful of the nuances and complexity of the law. The following are common questions or problems that school business officials may face when addressing the School Code’s bidding requirements, as well as practical solutions.
Is public bidding required for cooperative purchases? No, for two reasons. First, Section 10-20.21(c) of the School Code contains a bidding exception for cooperative master contracts authorized by the Illinois State Board of Education, which currently only includes US Communities. Second, the Governmental Joint Purchasing Act, 30 ILCS 525/1, et seq., allows school districts to make cooperative purchases of equipment, supplies and services without public bidding as long as the cooperative is operated by a governmental entity and follows a competitive selection process. The State of Illinois has a cooperative purchasing program called the Joint Purchasing Program that is administered by the Illinois Department of Central Management Services. Under this program, the state’s procurement officers prepare specifications, evaluate bidders, select the highest-quality bid, check references and negotiate all pricing. School districts and other municipalities are able to take advantage of the state’s purchasing power by participating in the Joint Purchasing Program, procuring goods and services from the awarded vendors.
Do school districts have to publicly bid student transportation contracts?
Yes, student transportation contracts, regardless of the type of vehicle (bus or taxi) must be publicly bid. However, districts have much more discretion when awarding transportation contracts. Due to recent changes to the School Code, transportation contracts are awarded by first considering
By Kenneth M. Florey
ARTICLE
PARTNER ROBBINS, SCHWARTZ, NICHOLAS, LIFTON & TAYLOR, LTD.
Matthew J. Gardner
ASSOCIATE ROBBINS, SCHWARTZ, NICHOLAS, LIFTON & TAYLOR, LTD.
estions & Solutions the bidder or bidders most able to provide safety and comfort for the pupils, stability of service, any other factors set forth in the request for proposal regarding quality of service and then price.
Should you have a mandatory pre-bid meeting? Mandatory pre-bid meetings can be critical in certain public bidding situations to answer bidders’ questions, gauge bidders’ interest in your project and preemptively solve problems with your project plans and specifications. They ensure that all prospective bidders hear the same information with regard to the project parameters. Pre-bid meetings are especially helpful when the contract is for construction, custodial and maintenance or landscaping services. Bidders can be given the opportunity to visually examine the premises, ensuring more accurate bids and reducing the possibility of non-performance or change orders. After the meeting, the school district should prepare a written list of all questions and answers from the meeting and distribute the list to all potential bidders who attended.
What is the best practice on handling pre-opening bid questions? The primary concern of the bidding statute is maintaining fairness and transparency in the bidding process. Oral questions and answers concerning the bid requirements or scope of contract can jeopardize these goals if the questions and answers are not provided to all bidders. The school district should require all bidders to submit questions in writing by a certain date and then distribute written answers to all potential bidders. School districts should also require contact information from all potential bidders who pick up the bid packet so that the school district can distribute the list of questions and answers and school initiated pre-bid addendums or changes, to all potential bidders. If the school district posts bid packets on its website, it should similarly require bidders to submit their contact information before downloading the bid packet.
Amy K. McPartlin
PURCH., TRANS. & BUS. SERVICES SUPERVISOR TWP. HIGH SCH. DIST. 214
Should school districts require a bid bond? Although not legally required, school districts should require a bid bond, usually in the range of five to ten percent of the bid amount, rather than a cash deposit. The bid bond provides assurance that the successful bidder will agree to sign the contract at the price included in the bid. Bid bonds also can prevent frivolous bids because a bidder is unlikely to walk away from the contract if it feels that its bid is too low, or the contract terms are too harsh. Requiring bid bonds from sureties with a minimum bond rating can also help screen potential bidders as highly rated sureties are unlikely to issue bid bonds to companies without sufficient financial security or with negative project history.
What do you do if the district receives a bid after the time set for the bid opening? It is the duty of the bidder to submit the bid within the time frame and location established by the district. If a school district receives a late bid it can reject the bid as “non-responsive” due to the bidder’s failure to comply with the bid instructions. A school district can, however, accept a late bid if there is evidence that it was actually submitted before the bid opening and that no fraud, collusion or favoritism existed. This could occur if the delay was due to common carrier such as UPS or FedEx, or if a school district employee placed the bid in an incorrect location. If the school district receives a late bid and chooses to open it, the district should immediately notify all other bidders and schedule a time to publicly open and read aloud the late bid.
Can a bidder submit mandatory additional terms and conditions? No, if a bidder includes mandatory additional terms and conditions with a bid, the school district can reject the bid as “non-responsive.” “Responsive” means strict compliance with the bid documents and instructions. A bid with a www.iasbo.org
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material variance is one that gives the bidder a competitive advantage over other bidders and therefore must be rejected. Although school districts cannot waive material variances in the bid, they may decide to waive non-material variances. If a bidder simply proposes alternate terms and conditions of the contract or alternate materials or products, the district can disregard the proposed alternate terms and conditions and enforce the bid per the school district’s bidding instructions.
What happens if the low bidder has a bid mistake? If a bidder makes an error in its bid, school districts must decide whether to hold the bidder to its bid or allow the bidder to withdraw its bid due to the mistake. Illinois case law holds that a bidder is entitled to rescind its bid due to the bidder’s unilateral mistake only where: • The mistake relates to a material feature of the contract. • The mistake occurred notwithstanding the exercise of reasonable care. • The mistake is of such serious consequence that enforcement of the contract would be unconscionable. • The other party suffers no change in position because it can award the contract to the next lowest, responsive and responsible bidder. Courts have held that a mistake in the magnitude of ten percent of the total value of the bid can be viewed as a “material mistake.” The school district may seek to enforce the bid, as submitted, but should consider the risk that the bidder will not be able to perform the contract at the bid price and quality.
Do alternates count when determining the lowest bidder? Alternates can come into play and create a problem where there could be multiple, different low bidders. To keep the bidding process fair to all bidders, districts should indicate to bidders exactly how the lowest bid will be determined: based on the lowest, cumulative bid, including the base bid and all applicable alternates, or only the lowest base bid. If alternates will be included in the lowest bidder determination, school districts should create a confidential list prior to the bid opening that prioritizes alternates that will be included, depending on available funds.
How do you determine if the low bidder is “responsible?” Whether or not a bidder is “responsible” is determined based on the bidder’s past history with your district and/ or projects/contracts performed for other entities. A school business official, or his or her designee, should always review and investigate the low bidder’s bid documents, references and past projects. Conducting a thorough check of references as well as a check of the internet and the Illinois Department of Labor’s suspended contractors listing can often expose questionable bidders. Other potential disqualifying factors include unresolved defects, unpaid liens or significant missed project deadlines or other material project problems. “Responsible” is a pass/ fail determination. All that is required is that the bidder is deemed “responsible” and not “more responsible” than a different bidder or “very responsible.”
Can school districts negotiate a lower price with the low bidder? Yes, additional savings may be negotiated so long as the negotiations relate only to a reduction in price to the school district. Once the bidding process produces a lowest responsible bidder, the district may negotiate a post-bid, pre-award price concession from the low bidder in the absence of favoritism, improvidence, fraud or corruption. In fact, Illinois law explicitly states that it is not a criminal offense “to negotiate with the lowest responsible bidder a reduction in only the price term of the bid.” School business officials may not, however, negotiate the scope of the contract terms, as this may materially alter the bid process and create a potential claim by other bidders that he process was not fair.
Finding Clarity Public bidding is a complicated process and can be filled with many potential problems. Hopefully you now have some clarity on common bidding problems. However, it is recommended that you consult with your school attorneys with specific bidding problems.
PERSPECTIVE / On the Profession
SCHOOL BUSINESS 101 What legal issues are impacting your district and/or keeping you up at night? legal issue we are addressing is property and real estate sales — what you can “ Aandcurrent cannot do. We often refer to legal counsel to help, as there are processes that you have to abide by in School Code. We are selling a property now with the buyers on a time crunch. They are trying get the process going and we have to consciously slow down, step back and make sure we are doing it right. Having a great relationship with our attorneys is a big plus so we can get answers quickly when needed.” JOHN N. BENEDETTI Dir./Finance & Operations, North Chicago CUSD 187 item that keeps me up at night is the potential for a property tax freeze. A freeze “ Aonlegislative our property tax extension means our district would lose the increase in revenue allowed under PTELL. This loss of revenue, per law, would never be recovered. A two-year freeze would cause an operational deficit for our district. We would have to reduce staff and increase class sizes in order to balance our budget. To make matters worse, the sad thing about a freeze is that it does not stop property taxes from rising.” JORDI CAMPS, CPA Executive Dir./Business Services, East Maine SD 63 not a negotiations year, so we don't work with our attorneys much. However, this year “ It's we are working on an agreement between the district and a new architectural firm. There has been a lot of going back and forth between both attorneys on certain points of the agreement. We want to make sure that both parties are happy with the agreement in the unlikely possibility that something does not go well during a construction project. Both parties are doing what they can to protect themselves by ensuring all the right pieces are in place.” CINDY DYKAS Business Manager, CSBO, Worth SD 127 the legal issue that needs some focus from school districts is security breaches, “ Probably especially the employee phishing that goes on. We have seen districts where a phishing scam has asked for staff personal information, such as W2s, Social Security numbers, etc. If that information gets out it presents a legal concern for the district. Districts should ask themselves, ‘What are we doing about email phishing?’ and conduct quarterly ethical breaches to help reinforce user behavior.” BILL SPAKOWSKI Managed Services Account Mgr., Single Path www.iasbo.org
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Striking
a Balance DETERMINING WHEN TO
SEEK LEGAL COUNSEL
ARTICLE
By Micheal A. DeBartolo
ASST. SUPT./FINANCE & OPERATIONS, CSBO PROSPECT HEIGHTS SD 23
Barry A. Bolek RETIRED CSBO
Schools have different parameters as to when they call legal counsel and when to make their decision in-house. In order to determine when to call your lawyer, there are important questions to ask. Are you calling to secure a legal viewpoint as a sounding board or to obtain a defense? If your decision does go south, how will your district stay out of headlines and off social media?
The key to determining when to call for legal advice is to know when the situation merely needs review by someone in the school district with experience on the issue versus when the opinion of an outsider is needed. It is preferable that this outsider be a lawyer, with the credibility, experience and ability to provide triangulation and confidence in the decision making process as a third party that is removed from the situation.
To determine the best steps to take in an unsure situation, there are a few key questions that should be considered.
Question 1:
What resources do we already have at our disposal? The first step is to review what resources you have currently at your district. Here is a quick checklist to review:
1. Has the situation occurred before in this district and can you discuss it with someone who has institutional knowledge? If you solved the issue previously, follow those same steps. 2. In all situations, make sure to review any board policies and administrative procedures that could relate to the situation. 3. If the issue has to do with staff, review all district policies, handbooks and collective bargaining agreements that are applicable to the employee and have any related topics or items that correlate with the situation. 4. If the issue is student-based, make sure you review the student handbook and any written statements or referrals on the situation. Interview all staff involved and make sure that “due process” was followed. 5. Use common sense and logic. While this skill has now been overtaken by “Google an answer” or “YouTube a solution,” common sense is still is the most accurate and available problem-solving technique for a district to practice. 6. If the situation is directly tied to TRS, IMRF, IRS or other organizations like IHSA, make your first call to that organization. Most likely they have legal staff that may be able to answer the question directly. An answer from them is beneficial because they may hold the liability at that point. Make sure you get their recommendation or answer in writing!
Liability Cooperatives
as a Legal Resource If you have support systems from your liability cooperative where you purchase your workers’ compensation, school board legal coverage along with property and casualty insurance — many cooperative insurance groups, as well as some private insurers, now have a value-added service like Enquiron partners. This is a “help desk” for legal advice that comes as part of the policy. You can call Enquiron with the situation and they give you advice on what your options are and, if you are to call your legal firm, what questions to ask and information to collect. Many times, especially for employee or school board related legal questions, the service can answer your questions with no additional cost to a system. There is at least one cooperative in Illinois that has this service. Call your representative to see if this service is available already and, if not, if it can be added.
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Question 2:
What can cause us a lawsuit? For this answer, we will refer to some of the areas of settlement with local insurance cooperatives. Outside of property claims, the other more common areas of lawsuits come from workers’ compensation claims, school board legal, student accident or an actual accident by an employee on, or with, school property. Some examples could include, but are not limited to the following: • Workers’ Compensation — Employee falls off a ladder, tweaks their back by lifting something or slips on ice on the sidewalk in front of the school. • School Board Legal — Employee is not provided due process in their termination or the facts are not verified/ incorrect. • Student Accident — Student falls from a “high ropes course” and safety protocols are not updated/appropriate. • Accident on or With School Property — Student is hit by a district school bus when walking across the parking lot at school. The key to all of the above situations is to immediately call your insurance carrier to report the situation or potential claim. Many of these situations are covered by insurance. All situations have a deductible, but the deductible amount does NOT start until the insurance carrier is notified. When in doubt, call and file a potential claim. When it comes to document review, the best situation is that the renewal document contains all the same language and only dates, names or amounts change. Always review insurance amounts or changes as such information may have been altered in a policy or recent law that may play a factor in the renewed contract. A recent example of this is the raised limit on the amount of insurance that busses/cabs need to carry when servicing a school. 20 |
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When It’s Time to
Call a Lawyer
When you do exhaust your resources and call your legal team, make sure you do your homework ahead of time. Get all of your information in writing and as many questions as you can answer in advance. The more organized you are ahead of time, the faster the situation will have a resolution, decreasing the amount of time you will need to discuss the topic and the amount you get charged by the legal firm.
Question 3:
Is the decision one that the parents, students and community want to hear? If the answer to that question is no, the incident could become front page news or plastered all over social media. Nowadays it is extremely easy for anyone to post their side of the story online, which can cause hours of drama for a school district as well as many hours of non-productive work for employees. There are more schools looking to stay out of the media than get their name in the paper or their mascot on TV. Hopefully your district has a media or public relations person who can navigate the situation if it does not turn out the way you would hope. However, in case you do not have access to a PR person or one on staff, here are some key factors to consider when dealing with public relations:
ARTICLE / When to Seek Legal Counsel
• Relationships matter — Develop and maintain relationships with the reporters, columnists, internet or social media sites and editors covering education. • Become a resource — Offer information and insight to key PR contacts on a weekly basis with events or activities. • Manage risk — If something does go south, know what factors are key to make available. • Be responsive — Answer press inquiries but keep it brief and factual. • Be proactive — If possible, send out a press release prior to items going public or someone else making a statement. • Stay vigilant — Monitor the media and social media chatter to stay on top of any potential areas of concern.
Use Your Available Resources
Circling back to the key question of when to call for legal advice, always start by reviewing the issue internally. • The CSBO must first exhaust the internal and professional resources of the district — including procedures, policies, handbooks, etc. • Posting a question on Illinois ASBO’s peer2peer online community can lead you to a helpful response or resolution without a call to the lawyer. • Having your issue laid out and questions organized before calling your lawyer will help focus the issue and reduce costs. Always remember, when in doubt, spend the money — in some cases, the issue may even be included in your district’s retainer for your legal firm. To end up in a lawsuit or a media frenzy with bad press can cost you more time AND money in the long run, so do not err on the side of economic conservatism if you are not confident in the answer you have developed in-house.
Hot Legal Topics
For Schools To unpack the issue, it is important to first understand the top topics that legal firms get calls on from schools. To shed light on the issue, Tony Loizzi from HLERK provided a collection of the most frequent topics. Most of the calls to legal firms include the following:
Labor/Personnel
• Medical leave/accommodation issues • Collective bargaining/grievance/arbitration • Employee performance evaluations, misconduct and investigations • Discrimination and harassment complaints • Staffing/RIF issues
Students
• Special Education and 504 issues • Student misconduct/discipline/investigations • Discrimination, bullying and harassment complaints • Abuse/neglect, DCFS • Athletic issues (playing time, athletic suspensions or injuries)
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ARTICLE
By Mary E. Deweese ASSOCIATE FRANCZEK RADELET P.C.
Jamel A.R. Greer
ASSOCIATE FRANCZEK RADELET P.C.
the Ambiguity: How to Make Sense of New Laws and Mandates
I
n the legal field, words matter! Attorneys use words in statutes, regulations and court opinions as weapons to advocate on behalf of their clients. Despite the legislature’s best efforts, our federal and state laws often contain ambiguous terms or phrases. A term may not be clearly defined, or may have a technical definition different than its common meaning. Some legislation fails to account for all possible permeations of the new law when it is implemented. Irrespective of the source of the ambiguity, attorneys are tasked with finding the true meaning of ambiguous terms or phrases to achieve practical solutions for clients, where possible. Looking at recent case studies of ambiguities in education law, let us take a look at how attorneys seek to resolve these matters and how school business officials can respond to new legislation.
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How Courts Resolve Ambiguous Legislation In Gurba v. Community High Sch. Dist. No. 155, the Illinois Supreme Court endeavored to resolve whether a school district‘s construction on school property was subject to the local municipality’s zoning authority. The ambiguity at issue revolved around Section 22.13a of the School Code that authorizes school boards “to seek zoning changes, variations, or special uses for property held or controlled by the school district.” 105 ILCS 5/1022.13a. Reasoning that this language was permissive and not mandatory, the school district sought and obtained a permit from the Regional Superintendent of Schools (but not the City of Crystal Lake) to build a new set of bleachers at Crystal Lake South High School, designed to be taller, larger and closer to the property line than the existing bleachers. After construction on the new bleachers began, however the City of Crystal Lake notified the school district that it was required to comply with local zoning and land use laws.
Fearing this decision would be too onerous for school districts, the General Assembly passed new legislation the following year requiring counties, townships and municipalities to act in a reasonable manner when processing zoning applications from public school districts that neither regulates educational activities or frustrates a school district’s statutory duties. Further, the new law streamlined the zoning application process to minimize administrative burden on school districts.
The Illinois Supreme Court, undertaking what it believed to be a reasonable reading of the statute, concluded that Section 22.13a required school districts to comply with local zoning laws of home rule municipalities, reasoning that it would be unnecessary for the General Assembly to authorize school districts to seek zoning changes if it did not intend for school property to be subject to local zoning ordinances in the first place.
There are a variety of statutory interpretation tools lawyers have at their disposal when a word or phrase may be ambiguous. In this situation, a lawyer will generally first look at the plain meaning of a term in a statute. If the term is highly technical, its meaning in the relevant industry will be used.
How Attorneys Address Ambiguities Practically speaking, many laws that appear ambiguous at face value will never face a court challenge. Lawyers are often called on to interpret ambiguous statutes for their clients and need to do so in a way that mirrors what a court would do.
INTERPRETIVE TOOL #1: Linguistic Canons
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Linguistic canons that help lawyers interpret new laws include: • Expressio unius est exclusio alterius — meaning that when one or more things in a class are explicitly mentioned, it can be inferred that the things in the same class not mentioned were intentionally excluded. • Noscitur a sociis — meaning that a word in a list should be interpreted in the context of the other words in the list. • Last antecedent doctrine — the Illinois courts have defined this as a rule that qualifying words in a statute only modify the immediately preceding words or phrases, and do not modify those words or phrases which are more remote.
UPDATE Magazine / Spring 2018
ARTICLE / Making Sense of New Laws and Mandates
Under the Illinois Tax Increment Allocation Redevelopment Act, a local government may establish TIF districts in “blighted areas” in order to spur economic development. The plain meaning of the term “blight,” as defined by Merriam-Webster, is a deteriorated condition. The TIF Act includes a complex definition of the term “blighted area” (65 ILCS 5/11-74.4-3) and despite popular opinion to the contrary, the term “blighted area” has been interpreted to include vibrant downtown areas. This is an example of where the plain meaning of a term did not translate into the practical interpretation and application. Because such terms can be interpreted in multiple ways (thus creating ambiguity), there are a multitude of “canons of construction” that may be used to interpret terms and statutes. A prime example is a provision of the School Code (105 ILCS 5/10-20.47) that requires school districts to post teacher and administrator salaries and benefits on the school district’s website. The statute defines the term “benefits” to include without limitation: vacation days, sick days, bonuses, annuities and retirement enhancements. The statute does not specify whether this list is exhaustive and an ambiguity remains as to what else constitutes a benefit within the context of this statutory provision.
School business officials may understand the term “benefits” to include health insurance or stipends. However, under the principal of expressio unius est exclusio alterius, the statute could be read to exclude any benefits not explicitly listed. In line with this canon, school districts and the lawyers advising districts, may interpret the statute as only requiring the listed benefits — but allowing the permissive disclosure of other benefits. Because the legislature explicitly listed certain benefits that must be disclosed on district websites, a commonsense interpretation is that the benefits not listed were purposefully excluded. There is also a practical bent to this interpretation: do what the legislature requires and no more. The Local Government Travel Expense Control Act (50 ILCS 150/1 et seq.) requires school districts to regulate reimbursement for travel, meal and lodging expenses of officers and employees in accordance with the Act. The text of the Act, however, is silent as to whether it applies to expenditures paid in advance by school districts. Because the purpose of the law is to increase government transparency, a fair and conservative interpretation of the statute is that the Act applies to both pre-authorized expenditures as well as reimbursements.
INTERPRATIVE TOOL #2: Canons of Construction
2
When interpreting a statute with ambiguous text, lawyers also look at the purpose of the statute, the context of the statute and the legislative history. Lawyers also use substantive canons of construction including: • The Scrivener’s Error Doctrine — holding that drafting errors should be corrected as to effectuate what the legislature intended or what makes sense. • The Absurd Results Doctrine — favors commonsense interpretations over literal interpretations that would produce an illogical result. • The Doctrine of Constitutional Avoidance — calls for statutes to be interpreted, if possible, in a way that avoids the statute being considered unconstitutional.
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How School Business Officials Can Make sense of New Laws First and foremost, school district administrators and personnel should consult with their attorneys when a new statute or regulation arises. Statutory interpretation, as detailed previously, can be a highly complex endeavor. However, there are steps school business officials can take in addition to consulting counsel in order to interpret and implement new mandates: Utilize promotional materials from school law attorneys. Keep an eye out for proactive communication from counsel about new legislation. When a new law is passed, a school law firm may send out a client alert providing analysis and recommendations regarding its impact and legal obligations, if any. For many laws, the most prudent choice may be to wait for such an alert and then to contact counsel with any followup questions. For example, when Public Act 100-0532 became effective on September 22, 2017, school districts across Illinois were advised by counsel that instead of 15 school days, they now had ten business days to respond to a student records request. Look for subsequent legislation and guidance. In addition to client alerts, subsequent laws or guidance from the legislature or state agencies may assist with an ambiguity. There are some laws that are so large and complex that subsequent “trailer” legislation is necessary to resolve an ambiguity. In the Gurba case, the subsequent legislation was passed not to clear up an ambiguity, but rather to provide instruction as to the practical application of the law in light of the Illinois Supreme Court’s decision. State agencies like the Illinois State Board of Education (ISBE) may also publish clarifying guidance. The Illinois Association of School Board’s PRESS service is another resource that can be used for assistance in interpreting and applying ambiguous text in a new law. Look to rules and regulations. Sometimes, an agency is tasked with promulgating a rule to accompany new legislation. Rules and regulations are useful tools that provide direction and specifics regarding the implementation of a statute. However, there are times where a rule or regulation is not available at the time the law goes into effect. For example, 105 ILCS 5/27-8.1 was recently amended to require that students undergo a developmental and a social-emotional screening. The Illinois Department of Public Health (IDPH) was charged with creating rules to enforce this new law. While the law was set to go into effect prior to the start of the 2017-2018 school year, the IDPH and ISBE do not anticipate having the revised Child Health Examination Form published until next school year. Here, it may be more prudent for a school district to wait for the pertinent rules or regulations before implementing a new mandate, to the extent that this is feasible and if so advised by counsel.
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ARTICLE / Making Sense of New Laws and Mandates
Pay attention to how other districts are interpreting and implementing the law. While it may often be advisable for school districts to adopt a “wait and see” approach so that further guidance is available before carrying out an ambiguous law, other times, of course, districts will have to take an “implement and see” stance. That is, some laws require near-immediate action and districts will have to consult with their legal team to interpret and implement the law. Under the practice of “implement and see,” quite often districts “get it right” and, eventually, an ambiguous law is interpreted in a clear, consistent and implicitly agreed upon manner by the affected parties. For example, under the new residency law, parties must exchange evidence and witnesses prior to the hearing. However, whether this requirement includes just the identity of witnesses or also information as to the substance of their testimony is still up for debate. Because residency hearings are occurring despite the ambiguity, school districts do not have the luxury of waiting for further interpretation. A school law attorney’s counsel here is vital. Over time as the law is implemented, there should emerge a consensus — from the practices of school districts, any relevant PRESS policies and/or ISBE guidance — as to the meaning of this provision.
As school business officials, you are often tasked with implementing and complying with seemingly everchanging laws and mandates. While there is no one foolproof technique to resolving a legislative ambiguity, school business officials, with some assistance from their attorneys, can utilize the various statutory interpretation methods used by lawyers and judges to interpret ambiguous laws.
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REFERENDUM
REQUIREMENT Mechanicss of th the he 110 110% 0% Adequacy Ad dequacy Referendum
ARTICLE
By Ares G. Dalianis PARTNER FRANCZEK RADELET P.C.
Included within the 550-page education funding bill
approved by the General Assembly and signed by Governor Rauner on August 31, 2017, Public Act 100-0465, is a three-page provision granting voters the ability to seek a reduction of the educational fund levy of a school district by up to ten percent if a school district has more than 110 percent of the funds necessary to meet its adequacy funding target. To seek such a reduction, ten percent of the registered voters in the school district must sign a petition to place the question on the ballot and the resulting reduction cannot allow funds to dip below the 110 percent of adequacy target. This article will examine how this provision, the “adequacy referendum,” is likely to work in practice, the application of relevant election law principles to the adequacy referendum, what a school district can and cannot do if faced with such a referendum question and the tax extension consequences of a successful referendum.
The Mechanics of the Law
The adequacy referendum is embedded within the Illinois Property Tax Code at the new Section 18-206 of the Property Tax Extension Limitation Law (PTELL), entitled “Decrease in extension for educational purposes.” While the adequacy referendum is part of the PTELL it applies to all school districts whether or not the district is subject to PTELL. The adequacy referendum is initiated by a voter petition containing signatures of not less than ten percent of the registered voters in the school district. The adequacy referendum can only be held at a consolidated election (meaning during an odd-numbered year when school board members stand for election). Once submitted to the voters of a school district, an adequacy referendum cannot be submitted again for the next two consolidated elections. So, if an adequacy referendum is on the ballot at the March 2019 consolidated election, whether it passes or not, the question cannot reappear until the 2025 consolidated election.
Gathering Signatures
The signature gathering time frame for the new adequacy referendum departs from what most school districts are familiar with via the backdoor referendum process. With a backdoor referendum, voters have 30 days to gather signatures from ten percent of the registered voters to force an issue on to the ballot. This is most often used when a school board expresses its intent by resolution
to issue working cash fund bonds. Within 30 days of the publication of the school district’s intent to issue the bonds, voters must gather and file at the district office a petition with the requisite number of signatures. Gathering that number of signatures within the 30-day window is a major undertaking and infrequently accomplished. With the adequacy referendum, voters have a four-month window during which they can file a petition seeking to place the question on the ballot. The new provision permits the filing of a petition not more than ten months and not less than six months before the consolidated election is to occur. This four-month window does not include the time prior to the filing window opening, so as a practical matter, voters have more than four months to circulate petitions gathering the requisite signatures. Unlike a backdoor referendum, this expanded signature gathering and filing period gives a motivated group of voters a significant opportunity to meet the statutory requirement to place the question on the ballot. Once gathered, voters must file the petition with the local election authority. In most cases, this will be the County Clerk except for those counties that have established a board of election commissioners, such as DuPage County. If a school district has territory in more than one county, the petition is to be filed with the Illinois State Board of Elections.
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Submitting the Petition
Once filed, the petition is subject to the same scrutiny regarding its validity as any other petition filed by a candidate for public office or in support of a public question.
The most common objections raised seek to invalidate a signature and include whether: The petition signer is registered to vote. The person lives at the address provided on the petition. The signer lives in the district. The signature is genuine and actually made by that person. The person has signed more than once. The address is complete. Other objections focus on the entire petition and include the actions of the petition circulator, proper notarization and the binding of the petition.
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Any objections to the petition must be made within five business days after the last date for filing the petition. With the adequacy referendum’s four month filing window, the objection period will vary depending on when the petition is filed. A savvy petition filer will wait until the day prior to six months before the consolidated election so as to limit any objectors to five business days to identify, research and file an objection. If the petition is filed at the beginning of the fourmonth filing window, the objector would have four months and five business days to make any objection to the petition.
Objecting to a Petition
Neither the board of education as an entity nor the administration may be an objector nor may district funds be spent in objecting to a petition. An individual board member can, acting in their private capacity, participate in the objection process. There are three key laws that will govern the board and administration in the event of a petition and/or objection. 1. The Election Interference Law provides that no public funds can be spent to urge voters for or against a public question. However, public funds can be spent to disseminate factual information regarding the impact of a referendum passing or failing to pass. 2. The Local Government Employees Political Rights Act protects district employees in exercising their political rights but prohibits them from engaging in political activities while at work or on duty. 3. Finally, the State Officials and Employees Ethics Act prohibits: • Conducting political activities while a public employee is at work. • Exerting pressure on others as a condition of employment to conduct political activities. • Bestowing or receiving additional employment rewards for conducting political activities.
ARTICLE / Adequacy Referendums
In short, any objection to an adequacy referendum petition must be led and funded by members of the community or board members acting in their private capacity. With that caveat, however, the board and the administration can play an important role in educating the community on the impact of a reduction in the district’s educational fund levy. The administration can prepare and distribute FAQs and other materials with factual information as to how the question came to be on the ballot and the effects of its passage, such as increases in class size, program cutbacks, deferral of maintenance items and other consequences. Individual board members can express support for or against the referendum, wear a button, place a sign in their yard, make phone calls, send out leaflets & brochures, contribute money to citizens group, participate in a citizens group for/against the referendum and speak at meetings in local homes and organizations. The key for any of these activities is to make it clear that the board member is acting personally and not for the entire board.
If the Referendum is Successful
After the votes are counted and if the adequacy referendum is successful, the district’s next tax extension will reflect a reduction in the educational fund tax levy not to exceed ten percent less than the district’s previous educational fund tax levy and not to cause the district’s adequacy target to fall below 110 percent for the levy the reduction is sought. In PTELL counties, tax extension officials will have to calculate two limiting rates — one for the educational fund subject to the adequacy referendum results and the other for the other district funds. In non-PTELL counties, there will be a special limiting rate calculated for the educational fund only. It is likely that the Illinois Department of Revenue will be revising its PTELL Technical Manual and guidance to tax extension officials considering Section 18-206. For PTELL districts, it does not appear that a successful adequacy referendum will have any effect on a school district’s ability to access equalized assessed values from new construction, TIF districts coming to an end, expired incentives and formerly exempt properties, as these items fall outside the limiting rate calculation. However, it remains unclear how the tax extension officials will know if the reduction will cause a school district’s adequacy target to fall below 110 percent.
An Opportunity to Educate The new adequacy referendum provides voters with another option to express themselves on school district levying decisions, as well as an opportunity for boards and administrations to communicate and educate the community on how and why revenue is raised and spent. For those school districts at or above the 110 percent adequacy target and thus subject to Section 18-206, this new law is one more topic to consider as school district budgets and levies are developed going forward.
GET IN THE KNOW Seven Facilities Laws Impacting Your Day-To-Day Operations
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By James D. Rock
ARTICLE
ATTORNEY AT LAW ANCEL, GLINK, DIAMOND, BUSH, DICIANNI & KRAFTHEFER, P.C.
School business officials, boards and administrators should be aware of a number of recent developments in the law which impact the day to day operations and use of their facilities — from bathrooms to busses to CO detectors. The following are seven new laws that could affect the day-to-day operations of school districts. Make sure your district is aware of the implications of these laws and is prepared to comply.
FEDERAL ISSUE Transgender Restroom Use 1.
The use of restrooms by transgender students has been the subject of litigation, legislation and executive action over the course of the past several years. Over the past year, transgender rights have taken center stage on a national level:
• The President of the United States signed a directive 2. prohibiting the recruitment of transgender individuals by the military. • The United States Department of Education issued a “Dear Colleague” letter withdrawing guidance issued in 2016 related to the rights of transgender students. • The Attorney General of the United States issued a memo stating that federal civil rights laws do not provide employment protection for transgender individuals. • The Seventh Circuit Court of Appeals weighed in on the 3. issue of transgender students’ rights to use restrooms in public schools. In Whitaker v. Kenosha Unified School District No. 1, 858 F.3d 1034 (2017), the Seventh Circuit ruled in favor of a transgender teen who challenged a school district’s bathroom policy. The teen was born female and began to identify as a male as a high school freshman. While at school, he used male restroom facilities for most of his 4. junior year. A teacher observed him washing his hands in a male restroom and reported him to school administrators.
School administrators informed the teen that school records showed that he was a female and that unless he could produce unspecified “legal or medical documentation” showing that he was a male, he must use only the female restroom or a gender-neutral restroom in the school’s main office. If he was caught using a male restroom, he would be subject to disciplinary action. In denying the teen’s right to use the male restroom, the district also cited the privacy rights of the teen’s male classmates. The trial court had issued a temporary injunction requiring the district to allow the teen to use the restroom of the gender with which he identified. The Seventh Circuit affirmed the trial court’s ruling and found that (1) the teen would likely suffer irreparable harm if the district were allowed to prohibit his use of the boys’ restroom, (2) the teen was likely to succeed on a Title IX sex discrimination claim because he would be subjected to “different rules, sanctions and treatment than nontransgender students” and (3) the district failed to demonstrate that it would suffer any harm if it complied with the trial court’s order. While 1. this issue and other issues related to the rights of transgender individuals, will likely be decided by the United States Supreme Court, for now, the law in the Seventh Circuit is that transgender students may use the restroom of the gender with which they identify.
NEW STATE LAWS TO WATCH 2.
Sanitary Products
Public Act 100-0163, which became effective on January 1, 2018, requires public schools to make tampons and sanitary napkins available at no cost in the bathrooms of all public schools serving students in grades 6-12.
3.
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1. 1.
3.
2. 2.
4.
1. 3.
Transportation for Athletics
Booking Stations
3.
5.
Public Act 100-0241, which became effective on January 1, 2018 amends the Illinois Vehicle Code to require that any school bus transporting students to athletics or other school approved extracurricular activities must be registered as a governmental vehicle:
2.
• Must comply with school bus driver permit requirements. • 4. Must comply with applicable minimum liability insurance requirements. • Must comply with all other special requirements for school buses prescribed in the Vehicle Code.
3.
Additionally, the Act requires that, if a school bus is used to transport passengers other than students for activities that do not involve a public or private school, the SCHOOL BUS sign must be removed or obscured so that it is not visible to 5. motorists. other
CO Detectors
Public Act 099-0470, which became effective on January 1, 2016, requires the installation of carbon monoxide detectors and alarms in all public schools. For schools designed before January 6. 1, 2016, battery operated alarms are acceptable. For schools designed after that date, the alarms must be permanently powered by the building’s electrical system. The alarms 5. be installed within 20 feet of any carbon monoxide must emitting device. School districts must prepare plans, protocols and procedures to be used in response to a carbon monoxide alarm. Additionally, the alarms must be inspected annually. A school is exempt if it does not 7. or is not near any sources of carbon monoxide. contain
4.
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Public Act 100-0204, which became effective on August 1, 2017, prohibits public school districts from establishing or maintaining a student booking station on the grounds of any school. For purposes of that Act, 4. a student booking station is defined as a building, office, room or any indefinitely established space or site, mobile or fixed, which operates 6. concurrently as: 1. Predominantly or regularly a place of operation for a municipal police department, county sheriff department, or other law enforcement agency, or under the primary control of such a department; and
5.
2. A site at which students are detained in connection with criminal charges or allegations, taken into custody, or 7. engaged with law enforcement personnel in any process that creates a law enforcement record of that contact with law enforcement personnel or processes.
School Gardens
Public Act 100-0505, which becomes effective on June 1, 2018, allows schools to serve students produce that has been grown by students in a school-owned community garden or in school-owned facilities using hydroponics or aeroponics. The soil and/or compost used in growing such produce must meet standards established 7. in the Illinois Administrative Code and the produce must be served in accordance with regulations established in that Code.
6.
5.
ARTICLE / New Facilities Laws
6.
Zoning Ordinances
Public Act 099-0890, which became effective on August 25, 2016 clarified that a school district is subject to and its school board must comply with any valid local government zoning ordinance or resolution that applies where the pertinent part of a building, structure or site owned by the school district is located. The local zoning authority (county, municipality or township) is required to act in a reasonable manner that does not regulate educational activities, such as school curricula, administration and staffing and does not frustrate a school district’s statutory duties.
7.
Additionally, the zoning authority is required to make reasonable efforts to streamline the zoning application and review process for the school board and minimize the administrative burdens involved in the zoning review process, including, but not limited to: • Reducing application fees and other costs associated with the project of a school board to the greatest extent practicable and reflective of actual cost but in no event more than the lowest fees customarily imposed by the municipality for similar applications. • Limiting the number of times the school district must amend its site plans. • Reducing the number of copies of site plans and any other documents required to be submitted by the municipality. • Expediting the zoning review process for the purpose of rendering a decision on any application from a school district within 90 days after a completed application is submitted to the municipality.
Ensuring Safety and Compliance
Your attention to the requirements of these laws will help ensure your facilities and vehicles provide a safe, secure, compliant environment to students, staff, parents and other members of your community.
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Saving For a Rainy Day
A Proactive Approach to Special Education Legal Issues Special education programs often account for significant portions of a school district budget, but it is the unbudgeted expenses that often end up hurting the financial forecast of a district the most. Consider a few scenarios: • The family of a special education student is unhappy with the services and supports that have been put into place by the district. As a result, the family files a due process claim with the Illinois State Board of Education. After discussions with the school district attorney, the district decides to settle the case by making a payment to the family so that they can take their child to another school. The total cost for the new private placement is $26,000. • Suddenly, the relationship that your special education team has with a family goes bad. The parents are now bringing an attorney to every meeting and they have filed a complaint with the Office for Civil Rights (OCR). OCR investigates, finds that mistakes have been made and orders corrective action. The costs of the corrective actions by the district (professional development, retraining, hiring of new staff, etc.) total well over $100,000. • A community group approaches the school district and informs you that your website might not be fully accessible to all people in compliance with the Americans with Disabilities Act. While you had not budgeted for the expense, your school district attorney advises that you overhaul your website in the near future. The cost of a new website is $20,000. In each of these scenarios, the school district was required to take action and respond in short order. On top of the unbudgeted attorney fees, these other expenses (settlement agreements, professional development, hiring of new staff, website overhauls, etc.) can add up quickly. If school business officials are not able to respond appropriately to these mounting expenses, then the financial picture of the district could end up being shifted dramatically.
There are hidden costs in many areas of schools. Do not let the costs associated with special education litigation doom your district’s financial picture. Be prepared by working together and planning ahead.
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By Dr. Kevin Rubenstein
ARTICLE
DIR./STUDENT SERVICES, TECH., & ASSESSMENT LAKE BLUFF SD 65
Three Steps to Minimize Your Risk While these issues are not common in every portion of the state, they are likely to occur at some point in the career of a school business official. There are several proactive approaches that a district can take to prepare for these situations so that they occur less frequently and so that the district’s overall risk is minimized. A few practical tips for school business officials are:
1.
Understand what expenses can be covered by the district’s liability insurance. It is important to know the amount of your deductible and what expenses will qualify for coverage. Consult with your district’s insurance carrier proactively with some of these scenarios to understand how they might be able to assist you and what expenses are not covered. It is also important to work with your administrative team to know your risk threshold and to analyze the costs and benefits associated with tackling the issues. While the district might have a great case and might have done everything right in a situation, the costs associated with a due process case and potential appeal to the federal courts might be too much for your district to handle. If that is the situation, then settling the issue will be far less costly than the litigation that might be covered by the district’s insurance carrier.
2.
Keep apprised of current issues in school law. For example, the recent wave of litigation and complaints around website compliance should spark a conversation about what your district offers on its website and whether or not it is fully accessible. If it is not fully accessible (and most web providers provide tools for helping you to understand this), then look to budget for that in the near future. It is better to understand that these rules exist and plan for them rather than be caught off guard by the sudden complaint that requires a website overhaul.
3.
Work with your special education colleagues to see what plans they have in place for addressing issues like those raised in this article. While providing special education services is costly, special education administrators and school business officials should be working together to make sure that there is ongoing staff development about writing good individualized educational plans (IEPs), collaborating with parents and families and making sure that staff members are compliant with current special education rules. It might seem costly to bring in an attorney for a full day of staff development, but it will be even more costly to pay for the teacher substitutes, legal fees, settlement costs and untold other bills that arise from litigation.
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Staying Out
of The he adline s Preven ting Sc hool Di strict Fr aud
ARTICLE
By James M. Sullivan, JD, CFE, CIG DIRECTOR SIKICH
School districts are frequent targets of fraud schemes. Too often, we see news stories detailing transgressions by a superintendent, principal, coach or food service worker. Misconduct often results in criminal charges, which does severe damage to districts’ reputations.
On the other hand, when the tone at the top of the district suggests a disregard for processes and procedures designed to protect the district, some staff may end up on a destructive path.
Small government agencies are susceptible to fraud for several reasons:
When the tone at the top demands integrity, then policies and procedures can be implemented to minimize the district’s exposure to fraud. Employee handbooks or an employee code of conduct should clearly define roles and responsibilities. Districts should consult with legal counsel to effectively and properly waive an employee’s right to privacy in email and internet use and codify an employee’s duty to cooperate with any investigations conducted by the employer. This will allow the district to readily obtain critical information to evaluate and investigate allegations. Discipline for misconduct should be fair and consistent since disparate treatment of employees exposes the district to litigation.
• Limited budgets commonly force a small number of employees to perform key functions. • Duties are often not properly segregated and staff are usually not capable of filling in on all essential tasks when co-workers are absent. • Many people naturally trust that their coworkers are doing their jobs properly. Additionally, school district administrators are focused on the core mission of educating children. But they also must deal with various external pressures. Faced with frequent meetings, new program implementations, mounting financial challenges and the need to respond to parent and community concerns, many administrations may overlook fundamental and common-sense practices that reduce the risk of fraud and can prevent the next embarrassing headline in the local newspaper.
Leaders Set the Tone The board, administrators and senior management set the moral and ethical tone of the district. For the business functions of a district, leaders must ensure that roles and responsibilities of staff are clearly defined. They should analyze procedures to minimize process gaps that expose the district to fraud risks. Staff must be able to say “no” and receive the support of the board when administrators try to exceed their authority. Stakeholders must understand the district’s commitment to integrity. For example, by strengthening its code of ethics and strictly prohibiting an economic interest in the business of the district — even extending to family members and other relatives — district leadership can set the tone that they are not seeking to benefit from their decisions.
Implement Policies & Procedures
The district should also consider imposing a code of conduct on its vendors. When vendors acknowledge and understand that the district frowns on them providing gifts and entertainment to employees, improper vendor-employee relationships are less likely. Contractual provisions can also require a vendor’s cooperation in investigations and give the district the right to audit vendors.
Turn to an Internal Watchdog Giving stakeholders an outlet to present issues is perhaps the most effective way to minimize the risk of fraud. But whistleblowers must be assured that the district will respond to their complaints. A fraud hotline that routes to district administration may not ease concerns that complaints will be handled appropriately. Plus, administrators may not be equipped to respond to allegations of financial improprieties or other complaints. Establishing an internal audit function or other internal watchdog, like an inspector general, that reports directly to the board is an effective tool in preventing and detecting fraud.
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The board, administrators and senior management set the moral and ethical tone of the district.
Having systems in place to respond to complaints of misconduct against employees or vendors helps send the message that misconduct will not be tolerated and will be swiftly detected and punished. Fraudsters will have to do their own risk assessment before attempting to steal or misappropriate funds. If an inspector general or sufficiently empowered internal auditor is on the scene, fraudsters are more likely to conclude that attempting to commit fraud is too much of a risk.
Train and Educate Staff To further prevent being victimized by fraud, a district must regularly educate and train staff on the fraud prevention controls that it has implemented. Staff should also be trained on their individual control responsibilities, including the duty to report the misconduct of other employees. When employees fully understand their roles, as well as the means the district uses to monitor and validate their work, the risk of fraud is reduced. A potentially devious employee is less likely to perceive an opportunity to commit and get away with theft if fraud prevention controls are in place and the district has an effective system of responding to complaints or detecting fraudulent acts.
Enforce Transparency An additional remedy for the unscrupulous administrator is transparency. Making accounts payable records, vacation payouts, credit card charges, reimbursements and other records publicly available, especially on a monthly basis, quickly exposes wayward decisions. An administrator fearing an immediate outcry from concerned parents or other stakeholders will think twice before making a seemingly innocuous charge on a districtissued credit card. A question about the superintendent’s charge for lunch at a local restaurant with a co-worker could quickly derail a board meeting. Total transparency is becoming the norm at many districts.
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Adopt Best
Practices You can reduce the chance that your district will suffer reputational consequences from dishonest board members, administrators and employees by following these key principles: Set the appropriate tone that the district operates with integrity and that misconduct will be dealt with swiftly and consistently.
Provide an outlet for whistleblowers and a mechanism, like an inspector general or internal watchdog, to respond to complaints of misconduct. Reduce the opportunity employees and vendors have to commit fraud by training and educating staff on their roles and responsibilities when it comes to fraud prevention. Shine the light on district finances and records on a regular basis. The school districts that do all of this will not only be efficient and well-run, but also ideal stewards of public finances and trust.
RESOURCES A New Management Philosophy Care Personally The key to building workplace relationships beyond “just professional” is to share more than just your work self, and encouraging everyone who reports to you to do the same. It is not enough to care only about people’s ability to perform a job. To have a good relationship, you must be your whole self and care about each of the people who work for you as a human being.
Very few managers focus on the central difficulty of management: establishing a trusting relationship with each person who reports directly to you. These relationships are central to your job and determine whether or not you can fulfill your responsibilities as a leader. In Radical Candor, Kim Scott identifies two dimensions to building trust with those you lead: 1) Care Personally 2) Challenge Directly Leaders who possess these two communicative dimensions in tandem will be able to build trust with their direct reports and develop relationships that allow them to be radically candid.
Scott points out that to build a trusting relationship at work, it cannot be “just business.” Your relationships must be deeply personal. Only then will you be able to build a culture of trust in the workplace. Challenge Directly The second dimension involves telling people when their work is not good enough and other potentially unpleasant feedback. Delivering difficult feedback and making challenging decisions about who does what for the team is something that many leaders struggle with. Challenging people and telling them what they do not want to hear will usually make them upset. Yet challenging people is often the best way to show them that you care as the boss. When this dimension is combined with caring personally, your direct reports can trust that your feedback is coming from a place of interest in their self-improvement.
On My List Radical Candor: Be A Kick-Ass Boss Without Losing Your Humanity By Kim Scott
Overview: We have all been told, at some point in our lives, that if we don’t have anything nice to say, don’t say anything at all. This advice, while potentially useful in everyday life, can be disastrous when utilized by leaders. In Radical Candor, author Kim Scott explores the development of radically candid relationships, the sweet spot between being obnoxiously honest and ruinously empathic, and their overwhelmingly positive impact on the workplace environment.
“Relationships, not power, drive you forward.” www.iasbo.org
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THE FINAL WORD SPEAKING UP ABOUT SCHOOL LEGAL ISSUES DR. ANGELA M. CROTTY Assistant Superintendent, CSBO Midlothian SD 143
The CSBO Role in Legal Issues I am usually responsible for contacting the attorney when we have an unresolved issue or question which requires legal attention. Over many years, I have learned which situations necessitate contact with an attorney. Often times I consult school code or email colleagues to determine if another district has had a similar experience and how the situation was handled. If an issue requires a legal document, such as a resolution, I also depend on colleagues in the field. However, when necessary, I do not hesitate to make a call. I realize that it will not benefit the district to save a few dollars, only to spend an absorbent amount later due to the delay of client-attorney communication and the significance of the issue at-hand.
Providing the Maximum Dollars for Students My primary duty as a CSBO is to protect the dollars of the district and the interest of taxpayers, while providing the maximum dollars for our students. With that always at the forefront, I handle legal issues on a situational basis. First, I attempt to investigate a legal matter myself, if possible. Next, I enlist the experience of my CSBO colleagues and Service Associates. If I am still unsuccessful or the issue requires immediate attention and legal expertise, I contact the district attorney. I handle all legal situations in the most efficient and cost-effective manner. Thus, the financial health of the district is stable and our legal issues do not explode, causing instability.
Legal Issues to Watch Even though the state has changed the funding formula, the state is still in financial crisis. Unless conditions improve drastically, the state will be forced to make difficult decisions, which always serves as fertile ground for legal issues. School funding inequity is always at the forefront and has caused much controversy over the last several years, as well as the district absorbing state TRS costs and the possibility of a property tax freeze.
When a Situation Arises When a legal situation will have long-lasting, serious consequences, call the attorney immediately. Also, reach out to your insurance carrier/third-party administrator to report an issue immediately and get the case on the books.
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