NASB's Back To Basics Show from 3-12-13

Back to the Basics School Law for Board Members Kelley Baker Bobby Truhe Harding & Shultz kbaker@hslegalfirm.com btruhe@hslegalfirm.com

Tonight’s Agenda  School board authority  School board operations  School board liability  Student rights  Employee rights  The board’s attorney  Question and answer period

A School Board’s Legal Authority Sources and Limitations

“Creatures of Statute”  School boards are "creatures of statute" and may do only those things which are permitted by statute. School boards' powers are limited and they can bind their districts only within the limits fixed by the Legislature; beyond that, their acts are void. Any action taken by a school board must be through either express or implied power conferred by legislative grant. School Dist. of Waterloo v. Hutchinson, 244 Neb. 665, 508 N.W.2d 832 (1993).

U.S. Constitution st 1

Amendment • Freedom of speech • Freedom of press • Freedom of religion  4th Amendment: search and seizure

U.S. Constitution th 8

Amendment: cruel and unusual punishment  14th Amendment: no person may be deprived of life, liberty or property without due process of law

Federal Statutes  ADA  ADEA  Affordable Care Act (Obamacare)  Civil Rights Act of 1964  FERPA  IDEA  OWBPA

State Statutes  Chapter 11: Bonds  Chapter 13: Tort Claims Act  Chapter 32: Elections  Chapter 73: Bidding and Contracts  Chapter 77: Budgets  Chapter 79: School Statutes  Chapter 84: Open Meetings Act

Administrative Rules  Department of Education  Department of Revenue  Department of Health  State Auditor  Accountability and Disclosure  Board of Engineers and Architects

School Board Operations

Recommendations  Treat the Open Meetings Act very seriously  Follow its requirements to the letter  Avoid the six deadliest words: WE’VE ALWAYS DONE IT THAT WAY

Open Meetings Act Sections 84-1408 to 84-1414

 The formation of public policy is public business and may not be conducted in secret.  Every meeting of a public body shall be open to the public in order that citizens may exercise their democratic privilege of attending and speaking . . .

What is a Meeting?  All regular, special or called meetings, formal or informal, of any public body for the purpose of: • Briefing (including retreats) • Discussion of public business • Formation of tentative policy • Taking any action

Notice of Meetings  Must publicize all meetings  Reasonable advance notice  To public and board members  By a method adopted by the board and recorded in it minutes • Publication in a newspaper • Posting in the district

Publication Requirement  DOES NOT APPLY TO • Chance meetings • Attendance at or travel to workshops or conventions of board members at which there is no intentionally convened board meeting

Recommendations  Do minutes show method the board adopted to publicize meetings?  Does your method always work?  Use a method the public can rely on:  Posting at specified sites  Post on district web site (optional)  Publication in newspaper (optional)

Board Agenda  Must publish: • Agenda of subjects known or • Statement that a copy of the agenda is available for public inspection at the office during regular hours  MAY NOT amend agenda less than 24 hours before the meeting

Agenda Items  Agenda items must be “sufficiently descriptive to give the public reasonable notice of the matters to be discussed” • Don’t be cryptic; err on the side of a full description

Agenda Recommendations  State that the order of the agenda items may be changed (so arrive at the beginning of the meeting)  State that the board may enter closed (executive) session to discuss any matter for which closed session is lawful and appropriate

Emergency Meetings  Limited to true emergencies such as: • Tornado • Boiler blowing up  May be held without advance notice  Meeting may be by telephone  Must contact news media  Minutes must be prepared next day

Board Minutes  Time, date and place of meeting  Members present and absent  Subject of all matters discussed  Documents received or disclosed  Minutes available within 10 days or by next meeting  Sentences, not cryptic statements

Opening the Meeting  Note the location where the Open Meetings Act is posted  Review the board meeting rules  No action except on agenda items  Addressing the board: • Identify self • Time limit • Follow policy (e.g. complaint policy)

Public Comment  Boards must let the public speak at some meetings, but not all meetings  May refuse comment at a meeting  May refuse topic at a meeting  Should set aside some time as some meetings for public to address any topic whatsoever (Attorney General feels that 4 meetings is a minimum)

Public Comment  Boards may make reasonable rules • Reasonable time limits • Can’t prohibit repetitive comments  Can’t require patrons to give their names to attend a meeting  May require names to speak

Closed Sessions  Board may hold a closed session if it is necessary to protect the public interest  Recommendations:  Use closed sessions very sparingly  Limit them to the topic in the motion  There is no legal requirement to keep closed sessions confidential – board members can be forced to tell what was said in closed session.

Reasons for Closed Sessions  Strategy sessions re collective bargaining, buying real estate, and pending or threatened litigation.  Deploying security devices  Investigative proceedings about allegations of criminal conduct  To prevent needless injury to the reputation of an individual who has not requested a public meeting

Two-Part Board Motion 1. The subject matter (e.g. to discuss negotiations or the performance of an individual); and 2. The reason necessitating a closed session (e.g. the public interest or preventing needless injury to person)  President restates the motion before entering closed session  Put entire motion in minutes

Circumventing the Act  Did informal discussions among board members become, under the circumstances, a substitute for a formal deliberative session of the body?  Were communications among board members sufficiently developed so as to evidence some intent to circumvent the Open Meetings Act?

Recommendations  Take care not to give the appearance the board is meeting outside the board room  Board members – do not discuss school business at the café or bar.  Tell patrons who want to talk about school business – “I deal with school business at board meetings. You are welcome to attend board meetings.”

OBAMACARE: What You Don’t Know CAN Hurt You

Our Guidance 1. SIT TIGHT. 2. DO NOT offer current EHA plan (unless you want to) 3. Take a deep breath, the ACA is a monthly process, and you can always make adjustments around yearly EHA enrollment periods 4. It’s a tax, not a penalty

Policy Behind the ACA  It is important to keep in mind that the ACA’s policy purpose is to insure more people  When you think about insuring as many people as possible, the shared responsibility tax payments and requirements make more sense

General Structure of ACA  Large Employers must either • Make affordable, qualifying coverage available to all full time employees • Pay a “shared responsibility tax” to supplement the cost of those employees obtaining insurance on the exchange

 Small employers are affected too

Shared Responsibility Tax  Shared Responsibility “TAX,” • Stigma if it’s called a “penalty”

 2 Types of Tax • Offering NO insurance • Offering UNAFFORDABLE or no MINIMUM ESSENTIAL COVERAGE (MEC) insurance

 Assume EHA plans meet MEC

Premium Credit  In play for BOTH Tax Assessments  Qualifications: • AGI less than 400% of poverty • No Medicaid or CHIP • Non-complying employer plan

Persons in family/HH

Poverty guideline

For families/households with more than 8 persons, add $4,020 for each additional person.

FOR 2013 1

$11,490

2

15,510

3

19,530

4

23,550

5

27,570

6

31,590

7

35,610

8

39,630

Premium Credit

Offering NO Insurance  What we know: • Takes one FT EE to obtain premium credit AND insurance on exchange • 95% safe haven: if you offer insurance to all but lesser of 5 or 5% of FT EEs • Tax is (FT – 30) x $2,000 • Ex.: 75 FT – 30 = 45 x $2,000 = $90,000

Unaffordable Insurance  What we know: • Must “offer” insurance to at least 95% of FT EEs • EE can’t pay more than 9.5% of AGI • W2 safe harbor • Tax is $3,000 x each EE who gets insurance on exchange plus a premium credit

If District Pays Tax  Employee doesn’t get this money!  Money is a “tax” because it goes back into the system to supplement premiums on the exchange.  Individualized penalty for not obtaining insurance

Unaffordable Ins. Ex.  Acme School District • 40 Certificated • 35 Classified • We “offer” insurance to all FT EEs • Insurance is “unaffordable”

 20 classified staff go to exchange and obtain the credit • 20 x $3000 = $60,000 (assessed monthly)

Effects of EHA  What we know: • EHA Board looking at cheaper options • Will be bronze level (60% of medical costs covered, minimum) • Can create 2+ subgroups • 5% premium savings assessed in each subgroup – saves teachers subgroup • Can offer different plans to different subgroups

13-14 EHA Rates

Counting to 30  Three Options for Salaried Staff • Track hours • Daily equivalent if one hour worked!

• Weekly equivalent if one hour worked!

 TRACK HOURS!!!

What does this mean?  Option #1: pay for insurance • EHA may have low-premium plan • Don’t have to use current EHA plan • If 95% of FT employees are provided insurance, no tax assessment • Affordability calculation and 50% EHA underwriting rule only apply to a single plan

What does this mean?  Option #2: “offer” unaffordable ins.

• Subject to tax assessment of $3,000 per employee who obtains insurance and a credit on the exchange • Have to be willing to pay ½ of the single premium if anyone takes ins.

• 5% surcharge determined separately for each EHA subgroup • Offer date for 9/1/14 enrollment

What does this mean?  Option #3: don’t offer insurance to classified staff at all for 14-15 • $2,000 x (all FT EEs minus 30) • Only pay this tax if one FT person obtains insurance and credit on the exchange • Possible staff survey: (1) Do you have insurance? (2) How do you get it?

What does this mean?  Option #4: cut hours / cut staff • Look back window can be as short as 4th quarter for 13-14 • Employment at will • Contracts for 13-14 • No RIF process for classified staff • Shared and part-time teachers: consider carefully . . .

School Board Liability  Statutory Duties • Discretionary duties • Nondiscretionary duties

School Penalties Personal Board Member Liability  Contracting with a teacher who is already under contract  Employing an uncertified teacher  The treasurer as “insurer”  Insufficient transportation fee  Failure to levy tax to pay judgment

Negligence  Negligence is:  Doing something an ordinary, prudent person would not have done under the same or similar circumstances  Failing to do something an ordinary, prudent person would have done under the same or similar circumstances

Elements of Negligence  Duty (standard of care)  Breach of the duty  Proximate cause  Actual injury (damages)

Tort Claims Political Subdivision Tort Claims Act  Claimant must file a claim with board  Board has 6 months to consider the claim and act or decline to act  Claimant must file suit within 2 years

Intentional Wrongs  Defamation  Assault and battery

Other Wrongs  Invalid contracts  Products liability  Federal civil rights  Constitutional violations  Statutory violations

Student Rights

Constitutional Rights  1st Amendment  Freedom of speech  Freedom of press  Freedom of religion

 4th Amendment – search and seizure  8th Amendment – cruel and unusual punishment  14th Amendment – due process

Constitutional Limits Tinker v. Des Moines Indep. School Dist.  “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  “applied in light of the special characteristics of the school environment”

Federal Rights  FERPA  Equal Access Act  IDEA  Section 504  Title IX  Equal Education Opportunities Act

State Rights  Compulsory education  Confidentiality of records  Special education services  Prohibition of sex discrimination  Enrollment option  Student discipline

Student Discipline  Compulsory education  Confidentiality of records  Special education services  Prohibition of sex discrimination  Enrollment option  Student discipline

Short Term Suspension (1-5 Days)  Principal investigates • Gives notice of charge • Explains the evidence • Gives student opportunity to explain • Makes decision on suspension • Notifies parents within 24 hours

Long-Term Suspension (6-19 Days) Expulsion (Rest of Semester)  Principal investigates and gives notice of: • • • • •

Charge Right to a hearing Right to be represented Right to examine records Right to know identity of witnesses and the substance of their testimony

Long-Term Suspension; Expulsion  The hearing  Conducted by independent hearing examiner  Hearing examiner makes recommendation to the superintendent  Superintendent makes final decision (not more severe than the recommendation  Decision is appealable to the board

Students with Disabilities  Students with disabilities are protected by extensive federal and state statutes and regulations  Great care must be taken in administering discipline to students with disabilities

Safe Environment  U.S. Supreme Court:  “[m]aintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms; drug use and violent crime in the schools have become major social problems.

Search and Seizure  U.S. Supreme Ct (New Jersey v. TLO) • Standard is reasonable suspicion • Principal’s suspicion was the sort of “common sense conclusion about human behavior” which “practical people,” including government officials, are entitled to rely upon.

Reasonable Suspicion  Less than probable cause  More than a hunch  Two pronged test: • Reasonable belief that the search will turn up evidence of a violation • The search is reasonably related to the need for the search

Employee Rights  Students with disabilities are protected by extensive federal and state statutes and regulations  Great care must be taken in administering discipline to students with disabilities

Statutory Definitions  Probationary – certificated employee with less than 3 FTE years  Tenured (permanent) certificated employee with more than 3 FTE years  Continuing contract – the contract of a certificated employee renews automatically unless notice is given in compliance with statute and policy

Discharge  Nonrenew: discharge of a probationary employee at the end of the year

 Terminate: discharge of a tenured employee at the end of the year  Cancel: discharge of any certificated employee mid-year

Probationary Teachers  Probationary employee has right to be:  Observed for a full instructional period and evaluated once every semester  Given a written list of deficiencies  Given “concrete” suggestions to improve  Given sufficient time to improve  Given follow-up assistance

Probationary Hearing  Conducted by the board  Supposedly informal  “Discuss and explain” position on continued employment  Board decision may be for any reason except an unconstitutional reason  Vote of majority of a quorum sufficient

Tenured Teachers: Just Cause  Insubordination  Incompetence  Neglect of duty  Unprofessional conduct  Immorality  Physical or mental incapacity  Other conduct – substantially interferes

Tenured Teacher Hearing  Notice of “possible” termination  7 days to request a hearing  Hearing within 30 days  Hearing notice 5 days before hearing • • • •

Charges – “employment-related reasons” Names of witnesses Substance of their testimony Documents

Tenured Teacher Hearing  Hearing is formal  Administration, board and teacher are represented by attorneys  Presentation of evidence  Testimony and cross examination  Board decision based solely on evidence  Majority of members of the board (4 of 6) must vote to terminate

Reduction in Force  RIF hearings very much like others  No wrongdoing  Must establish: • Change in circumstances • Necessity to reduce force • Correct teacher is identified  Teacher has right of recall for 24 months

Board Responsibility  Primary role is as policy makers  Remain impartial  Board members do not become involved in the evaluation process  Active board involvement can: • Change the focus of the hearing • Cause a decision to be overturned

Back to the Basics School Law for Board Members Kelley Baker Bobby Truhe Harding & Shultz kbaker@hslegalfirm.com btruhe@hslegalfirm.com