Employment Law Seminar March 18, 2016 - TSBA Headquarters
To access the digital version of this notebook, please visit www. issuu.com/tsba. *This edition was edited February, 2016.
TSBA EMPLOYMENT LAW SEMINAR March 18, 2016 TSBA Headquarters Nashville, TN AGENDA 8:00 – 8:05 a.m.
Introduction and Overview
Randall Bennett TSBA General Counsel
8:05 – 8:55 a.m.
Legislative Update
Ben Torres TSBA Director of Government Relations & Policy/Staff Attorney
8:55 – 9:55 a.m.
Workplace Investigations: Legal and Practical Aspects
Steve Shields & Debra Owen Jackson, Shields, Yeiser & Holt
9:55 – 10:10 a.m.
BREAK
10:10 – 11:10 a.m.
From Warning to Walkout: Tenured Teacher Discipline/Dismissal
Chris McCarty Lewis, Thomason, King Krieg & Waldrop
11:10 – 12:10 p.m.
When the Eggs Are Scrambled: Dealing with Employment Related Liability in the Age of Social Media
D. Scott Bennett Leitner, Williams, Dooley & Napolitan
12:10 – 1:00 p.m.
LUNCH (provided)
1:00 – 2:00 p.m.
The ACA: Covered Services And What Employers Need to Know
2:00 – 2:15 p.m.
BREAK
2:15 – 3:00 p.m.
Collaborative Conferencing MOUs
Jennifer White TSBA Assistant Director of Policy & Staff Attorney
3:00 – 3:45 p.m.
Employment Law Case Update
Randall Bennett
3:45 – 4:00 p.m.
EVALUATION AND ADJOURN
Ashley Trotto Kennerly, Montgomery and Finley, P.C.
Legislative Update Ben Torres, TSBA Director of Government Relations & Policy/Staff Attorney
Legislative Update
March 18, 2016
Elected Superintendents HB 1968/SB 1606 by Powers/Niceley
• As introduced, enacts the "Local School District Empowerment Act." • Creates a pilot program for elected superintendents. • Requires the department of education to study the pilot program. • Adjusts duties of local boards of education in systems with elected superintendents.
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School Board Legal Counsel HB 1737/SB 1570 by Holt/Beavers
• Requires the local board of education to hire legal counsel, finance staff, and communications staff for the LEA; prohibits the director of schools from controlling or managing such staff. • Similar Bill: HB 1562/ SB 1569 by Sparks/Beavers – Prohibits a board’s legal counsel from holding any other position with the school district, county or city government.
Teacher Evaluation Waiver • HB 1453/SB 2242 by Byrd/Hensley – Institutes a two-year waiver of the use of student growth data from the TNReady assessment in teacher evaluations.
• HB 2522/SB 2162 by Armstrong/Tate – Holds teachers who do not have access to individual student growth data harmless on their evaluations and students harmless on their grades in the first year of administration of TNReady assessments from the results obtained from those assessments.
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Teacher Evaluation Methods HB 2127/SB 2271 by Terry/Beavers
• Requires the evaluation algorithms and methodologies used in teacher evaluations to be scientifically valid. • Valid: evidence and theory support the interpretation of evaluation scores as set forth in the Standards for Educational and Psychological Testing (2014) – Published by the American Educational Research Association, the American Psychological Association, and the National Council on Measurement in Education.
Reduction in Force HB 2533/SB 1898 by Brooks, K/Dickerson
• Creates preference for retaining tenured teachers over nontenured teachers during a reduction of force • Prohibits the dismissal of a tenured teacher in a reduction of force if another position is available in the system. • Prohibits the hiring of a nontenured teacher if a tenured teacher remains on the reemployment list.
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Suicide Prevention Training HB 2071/SB 1992 by Littleton/Roberts
• Requires ALL employees to attend the annual inservice in suicide prevention. • LEA’s must adopt a policy on student suicide prevention. – The DOE will create a model policy but LEAs may adopt their own policy.
• No cause of action for loss or damage caused by act or omission. • Shall not be construed to impose and specific duty of care.
Fire Drills HB 1630/SB 1685 by Pitts/Bowling
• Bill states that it “removes a teacher's duty to perform fire drills, intruder drills, or any other safety or emergency drills.” • This is a clean-up bill. • Requirements are in other portions of the code under the Fire Marshall responsibilities.
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Teacher’s Returning from Retirement HB 1744/SB 1664 by White, D/Tracy
• Addresses teachers who retired under TCRS or local retirement fund. • Teacher may return if: – Hold the needed license/certificate; – Appointment is for one-year term, but can be reappointed each year;
• Teacher does not receive tenure status, not eligible for additional retirement benefits, leave, or medical insurance. • Salary paid shall be equal to compensation for firstyear teachers w/ no experience in similar position.
Forfeiture of Retirement HB 1494/SB 1656 by Lamberth/Tracy
• Applies to teachers who become members of TCRS on or after July 1, 2016. • Forfeit retirement benefits if convicted of any misdemeanor sexual offense arising out of the teacher’s employment or official capacity.
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Payroll Deductions HB 2229/SB 1707 by Spivey/Gresham
• Prohibits school districts from allowing automatic payroll deductions for professional employee organizations. • Does not impact MOU’s currently in place.
Director of Schools Salary HB 1425/SB 2633 by Sparks/Green
• Prohibit the BOE from raising the director of schools’ compensation unless they include a raise for teachers. • Amendment to cap directors’ salaries to the governor’s pay. – $187,500 ($15,625 per month)
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Religion in Curriculum • HB 1418/SB 1439 by Butt/Hensley – Prohibits the state board from including religious doctrine in the curriculum standards prior to grades 10 through 12.
• HB 1905/SB 2186 By Hill, M/Bell – Requires each local school board to adopt a policy on the use of religion in curriculum and instructional materials; requires each LEA to create a syllabus to be made public for grades six through 12 on social studies, science, math, and English language arts courses.
• HB 2184/SB 1894 by Hill, T/Niceley – Return to comparative world religion standards in place during 2013-14 school year.
Testing Transparency HB 1537/SB 2540 by McCormick/Norris
• Permits parents and teachers access to their students' questions and answers on state-required assessments; • Eliminates two state-required examinations, one in the eighth grade and one in the tenth grade; • Allows students to retake the ACT one additional time prior to graduation if funds are available. • Similar Bills: – HB 1089/SB 0439 by Dunlap/Haile – HB 1718/SB 2270 by Pody/Beavers
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BEP Improvements HB 2574/SB 2565 by McCormick/Norris
• BEP Instructional Salary Component increase to $44,430; • Twelve months of medical insurance; • Updates Special Education Funding formula; • Removes the early graduation penalty; • Increases technology component of BEP to $40 million.
School Vouchers HB 1049/SB 999 by Dunn/Gardenhire
• Creates a school voucher program in Tennessee. • Sponsor placed the bill on the clerk’s desk. • Requires a simple majority to remove it from the desk and place it on the next available calendar. • Once on the calendar it takes a majority to pass. • Twenty-three amendments filed.
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Resolutions on Education • SJR 461 by Kelsey – Proposes an amendment to Article XI, Section 12 of the Constitution of Tennessee to affirm the general assembly's full discretion to determine the funding and eligibility for public schools.
• HJR 493 by Dunn – Proposes an amendment to Article XI, Section 12 of the Constitution of Tennessee to affirm the general assembly's sole discretion in the establishment of a system of public schools.
Questions?
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Workplace Investigations: Legal and Practical Aspects Steve Shields & Debra Owen, Jackson Shields, Yeiser & Holt
Workplace Investigations Legal And Practical Aspects STEPHEN L. SHIELDS DEBRA D. OWEN TSBA EMPLOYMENT LAW SEMINAR MARCH 18, 2016
THE INCREASING IMPORTANCE OF WORKPLACE INVESTIGATIONS
• To stop improper conduct and prevent future harm to the school system, its employees, and students.
• To avoid liability. • To minimize the cost of litigation. • To resolve threatened or actual litigation.
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WHEN SHOULD EMPLOYERS CONDUCT WORKPLACE INVESTIGATIONS? Investigations required or “strongly suggested” by law
▪ ▪ ▪ ▪ ▪
Title VII and State counterparts Age Discrimination Employment Act Americans With Disabilities Act Fraud and Misuse of Funds Whistleblower Statutes
WHEN SHOULD EMPLOYERS CONDUCT WORKPLACE INVESTIGATIONS? Investigations required or “strongly suggested” by policy
• 1.802 • 1.804 • 5.500 • 6.305 • 6.316
Section 504 and ADA Grievance Procedures Drug-Free Workplace Discrimination/Harassment of Employees Student Grievances and Complaint Procedures Suspension/Expulsion/Remand
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WHAT IS A “WORKPLACE” INVESTIGATION
• The purpose of a workplace investigation is to make a “workplace” decision.
• A workplace investigation is not a “criminal” investigation.
• A workplace investigation does not have to establish with absolute certainty the employee engaged in the misconduct.
“COMMON LAW” REQUIREMENTS COTRAN VS. ROLLINS HUDIG HAUL INTERNATIONAL, INC.
The proper inquiry for the jury is not “did the employee in fact commit the act leading to dismissal?” It is “was the factual basis on which the employer concluded an offense had been committed reached honestly, after an appropriate investigation and for reasons that are not arbitrary or capricious.”
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EEOC STANDARD It is well settled in employment discrimination cases that for an employer to prevail the jury need not determine that the employer was correct in its assessment of the employee’s performance; it need only determine that the defendant in good faith believed plaintiff ’s performance to be unsatisfactory and that the asserted reason for the discharge is therefore not a mere pretext for discrimination.” Moore v. Sears, Roebuck and Company, 683 F.2d 1321, 1323 n.4 (11th Cir. 1982), citing Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981).
“REASONABLE BELIEF”
“When specific and articulable facts, combined with rational inferences from those facts, lead a reasonable person to believe that an event has more likely than not occurred.”
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STANDARDS
• LEGAL STANDARDS • Due Process • Privacy And Tort Laws
• CONTRACTUAL STANDARDS • Board Policies • Grievance Procedures
INVESTIGATION MISTAKES HOW DID WE GET IN THIS MESS!
1. 2. 3. 4. 5.
Failing to investigate Delay in investigation Failure to be thorough Retaliation Bias of investigator
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INVESTIGATION MISTAKES HOW DID WE GET IN THIS MESS!
6.
Promise to limit the disclosure of information obtained from witnesses during an investigation 7. Disclose information beyond those who have a “need to know” 8. Failure to take prompt action 9. Failure to take appropriate action
INVESTIGATION MISTAKES HOW DID WE GET IN THIS MESS!
10. Failure to provide the process “due” or promised by policy or contract 11. Arbitrary or capricious conclusions regarding witness credibility and/or the facts 12. Inconsistent treatment during the investigation or in its result 13. Overstepping legal bounds
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LEGAL LANDMINES • • • • • • •
Retaliation Assault and Battery Tort False Imprisonment Tort Defamation Tort Failure to Provide Due Process Failure to Follow Contractual Standards Failure to Cooperate with the Government
HOW TO PROPERLY CONDUCT, CONCLUDE AND DOCUMENT AN INVESTIGATION
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TRIGGERING EVENTS Actions Observed Or Discovered • Unprofessional Conduct • Misuse Of Funds • Dishonesty • Theft • Drugs • Misuse Of Property
TRIGGERING EVENTS Actions Reported • Complaints E.G. Sexual Harassment E.G. Retaliation
Information From Departing Employees/Students Third Party Reports *Including anonymous reports
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THE INVESTIGATIVE PROCESS Overview: • Planning
• Active investigation • Documentation
THE INVESTIGATIVE PROCESS 1.
2. 3. 4. 5.
Determine if an “investigation” is necessary Decide if preliminary action is necessary Select an investigator Plan the investigation Create an investigation binder
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THE INVESTIGATIVE PROCESS Review key documents 7. Conduct interviews/and obtain other evidence 8. Compare competing versions of the facts 9. Make “finding of facts” 10. Determine whether the “facts” violate your rules or understandings 6.
THE INVESTIGATIVE PROCESS 11. Determine what, if any disciplinary (or other correction action) is to be taken against the alleged perpetrator 12. Determine what, if any remedial action is to be afforded the victim 13. Document the investigation 14. Communicate the results of the investigation 15. Manage the aftermath of the investigation
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STEP ONE Determine The Scope Of The Investigation (And If One Is Needed)
• • • •
Seriousness of the accusation Number of people involved Extent facts are in dispute or admitted Prior comparable situations
STEP TWO Decide If Preliminary Action Is Necessary
• • • • •
Steps to preserve evidence Protection of the complainant Mandatory reports (licensing, fraud, child abuse) Avoid retaliation Contact police
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STEP THREE Select An Investigator or Investigation Team • Inside or outside? • Not involved in the allegations • No special relationship with either party
• Not in the “chain of command” • Objective and impartial
• Perceived as fair and competent • Adequate time and resources to investigate
• A “good witness” • Good communicator • Well-trained and experienced
ENFORCEMENT GUIDANCE: VICARIOUS EMPLOYER LIABILITY FOR UNLAWFUL HARASSMENT BY SUPERVISORS
“Whoever conducts the investigation should be well-trained in the skills that are required for inter viewing witnesses and evaluating credibility.”
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STEP FOUR Plan The Investigation • Identify clearly the allegations • Determine initial list of persons to interview • Determine the order of interviews • Prepare basic questions • Secure a location for interviews • Develop a flexible timeline for conclusion • Determine whether the investigator will recommend remedial or disciplinary consequences
STEP FIVE Create An Investigations Binder
• Notes • Documents • Other
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FACT SHEET Allegations
Admitted
Denied
No Recall
STEP SIX Review Key Documents And Information
• • • • •
Personnel files Applicable policies and procedures Employee or student handbooks Timesheets, leave affidavits, etc. Comparables
Note: Further review may be required later in investigation
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STEP SEVEN Conduct Interviews
• Interview process • Preliminary statement and introduction • Prepared questions with flexibility to follow up as needed
• Allow witness to talk without interruption
STEP SEVEN Conduct Interviews
• • • •
Honor representation rights if applicable Hide suspicion, sympathy or other feelings Written statements or signed summaries? May need to follow up with complainant after other interviews
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GUIDELINES FOR INTERVIEWING Who, What, When, Where, How
• • • • • •
Who committed the alleged inappropriate conduct? What exactly occurred or was said? When did it occur? Is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
Note: Usually not “Why” questions!
GUIDELINES FOR INTERVIEWING • Explain that the school system will investigate the complaint thoroughly, that the investigator is a neutral party ascertaining the facts, and that the individual will not be presumed guilty
• Emphasize that the truth is very important, regardless of how uncomfortable it may be to talk about some of the information. Untruthfulness will result in harsh consequences
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STEP EIGHT Compare Competing Versions Of The “Facts”
• Careful review is essential • Admitted, disputed, don’t recall
EEOC CREDIBILITY DETERMINATIONS FACTORS • Inherent Plausibility • Demeanor • Motive to falsify • Corroboration • Past Record • Note: None of the above factors are determinative as to credibility.
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STEP NINE Make “Finding of Facts”
• Admitted, in dispute, no recall • Side by side • Determine whether the facts show more likely than not that the alleged misconduct occurred
CONCLUSIONS
• Allegations substantiated • Allegations not substantiated • Inconclusive
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STEP TEN Determine Whether The “Facts” Reveal A Violation Of Rules, Policies And Laws
• Review relevant policies, handbooks, etc. • Consider comparables • Recommendations
STEP ELEVEN
Determine What, If Any, Disciplinary Action Or Remedial Action Should Be Taken
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STEP TWELVE
Determine What, If Any, Remedial Action Is To Be Afforded To The Victim
STEP THIRTEEN Document The Investigation
• Date of the alleged incident • The date of the “complaint” and name of the employee who complained or other reason the investigation was initiated
• Who conducted the investigation • When the investigation began • What, when and from where documents or other evidence were gathered
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STEP THIRTEEN Document The Investigation
• Policies, rules or laws that are relevant to the incident under investigation
• • • •
Name, date and summary of each witness interview A summary of any other relevant facts A statement of “finding of facts” A statement of conclusions
STEP THIRTEEN Document The Investigation
• Recommended actions (if required) • Include only documentation relevant to the issue • Ensure the report will be clear to people who may know nothing of the system or of the incident
• EEOC, OCR, Department of Labor, other agencies or departments
• A judge or jury • Future managers
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SOME GENERAL GUIDELINES
• The goal in an investigation is to identify the relevant facts of who, what, when, where, etc.
• Emphasize that reports should include facts, not opinions
• If there are multiple allegations, treat each separately and fully investigate each.
STEP FOURTEEN Communicate The Results Of The Investigation
• Report results to the complainant and accused • Report to management • Provide periodic summary reports
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STEP FIFTEEN And Finally. Manage The Aftermath
• Mandatory reports • Follow-up with the complainant and, if present, the accused
• • • •
Provide training or implement other preventive measures Revise policies and procedures if needed Enforce “no retaliation” Secure the file
PRESERVATION OF INFORMATION
• Public records • Litigation holds • Discovery
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262 German Oak Drive Cordova, TN 38018 901-754-8001 Phone 901-754-8524 Fax www. jsylawfirm.com
This presenta,on is for informa,onal purposes and should not be considered legal advice. This presenta,on does not create an a8orney-‐client rela,onship.
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From Warning to Walkout: Tenured Teacher Discipline /Dismissal Chris McCarty, Lewis, Thomason, King Krieg & Waldrop
From Warning to Walkout: Tenured Dismissal/Discipline
Chris W. McCarty Lewis, Thomason, King, Krieg & Waldrop 865-546-4646 / cmccarty@lewisthomason.com
Tenure Defined
According to the NEA: Tenure is simply a right to due process; it means that a college or university cannot fire a tenured professor without presenting evidence that the professor is incompetent or behaves unprofessionally or that an academic department needs to be closed or the school is in serious financial difficulty.
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Tennessee Tenure
Pre-2011
No teacher who acquired tenure status prior to July 1, 2011, shall be returned to probationary status. (Pre-2011 tenured teachers can only lose their tenure status voluntarily or through a dismissal proceeding.)
Post-2011
A teacher has no property right in the teacher's tenure status and must sustain a specified performance effectiveness level on evaluations, as provided in this part, to achieve and maintain tenure status.
Tenured Discipline
You can suspend/ dismiss for… • • • • •
Incompetence Inefficiency Insubordination Neglect of Duty Unprofessional Conduct
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Incompetence Examples Inadequate Capacity
Inadequate Power
Inadequate Ability
“Evident unfitness for service, a physical, mental or emotional condition making the teacher unfit to instruct or associate with children…” Tenn. Code Ann. 49-5-501(5). But don’t forget the Americans with Disabilities Act (ADA). If a tenured teacher has a mental or physical disability under the ADA, we may need to provide a reasonable accommodation rather than move said employee toward suspension or dismissal.
Inefficiency Examples
Habitually Tardy
Below Standard
Low Testing
Poor Evals
Bad Teacher
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Insubordination Examples Refusal or continued failure to obey the school laws of this state, to comply with the rules and regulations of the board or to carry out specific assignments made by the board, the director of schools or the principal.
Failure to participate in an in-service training program as set up by the local board of education and approved by the state board of education.
Treason, or any effort to sabotage or overthrow the government of the United States.
Refusal by the teacher to disclose to the board whether or not the teacher is, or has been, a member of the communist or any other party that advocates the overthrow of the government.
Neglect of Duty Examples Neglect of duty overlaps with inefficiency and incompetence.
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Unprofessional Conduct
Unprofessional Conduct
Immorality
Criminal Conviction
Dishonesty
??? Improper Use of Drugs
Disregard for Code of Ethics Refusal to Pay Debts
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Unprofessional Conduct
“Unprofessional conduct encompasses not only the types of conduct enumerated in Tenn. Code Ann. 49-5-501 (immorality, conviction of felony, dishonesty, failure to pay debts, use of intoxicants, disregard of code of ethics, etc.), but also conduct which is generally dishonorable, in violation of the ethical code, and has a negative effect on the school system, and indicates an unfitness to teach.� ~ Way v. Hall (Tenn. Ct. App. Mar. 27, 2001)
Unprofessional Conduct Q - Can a tenured teacher be dismissed for unprofessional conduct that occurs after school hours? A - YES
In Wilder v. Union County Bd. Of Educ. (Tenn. Ct. App. June 16, 2014), the Chancery Court and the Court of Appeals agreed that a teacher with an otherwise spotless record could be dismissed under the Tenure Act based on a misdemeanor conviction for allowing underage persons to drink alcohol on her premises.
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Why
to
How
Suspension Steps A Director of Schools may suspend a teacher at any time pending an investigation, but the investigation cannot exceed 90 days unless‌
• The teacher is subject to a criminal investigation, a DCS investigation or facing charges of dismissal.
A teacher facing a suspension of four days or more has the same due process rights, including the right to a hearing, as a teacher facing charges of dismissal.
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Short Suspensions Suspended Three Days or Less Must provide written notice and reasons for suspension.
Teacher can ask for a conference with the Director.
Teacher can bring an attorney to said conference.
Director must record the formal conference with teacher.
Dismissal Steps Suspend Pending Investigation Bring Charges to Board Conduct Independent Hearing
Appeal to Board
Appeal to Chancery Court
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QUESTIONS?
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When the Eggs are Scrambled: Dealing with Employment Related Liability in the Age of Social Media D. Scott Bennett, Leitner, Williams, Dooley & Napolitan
NOTES _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________
The ACA: Covered Services and What Employers Need to Know Ashley Trotto, Kennerly, Montgomery and Finley, P.C.
3/9/16
The ACA: What Employers Need to Know
BY: ASHLEY TROTTO KENNERLY, MONTGOMERY & FINLEY, P.C. KNOXVILLE, TN Copyright © 2016 Kennerly, Montgomery & Finley, P.C.
Politics v. Law
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The Affordable Care Act Enacted March 23, 2010 Goal of increasing the quality and affordability of
health insurance 3 major components ¡ Individual
Mandate ¡ Employer Mandate ¡ Health Care Reform Mountains of regulations
Employer Mandate Summary • Requires Large Employers, including schools, to offer
95% of full-time employees and their dependents employer-sponsored health insurance that is both affordable and provides minimum value • Sizable penalties for non-compliance • Large Employer only liable if one (1) full-time employee obtains coverage through the Exchange and receives a premium credit
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Employer Mandate Penalties 2 types of penalty ¡ §
4980H(a): Large employer does not offer insurance to any employees ¡ § 4980H(b): Large employer offers insurance but it is not affordable, does not provide minimum value, or the full-time employee receiving the premium credit was not offered coverage
Effective Dates
Original effective date January 1, 2014 Delayed until January 1, 2015, due to complexity of
reporting requirements Delayed until January 1, 2016, for employers with between 50 and 99 full-time employees As of today, all large employers are subject to the Employer Mandate!
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Reporting Requirements The ACA requires employers to report health coverage under two (2)
provisions: ¡ § 6055: ÷ reporting for insurers and self-insured employers ¡ § 6056: ÷ reporting for all Large Employers
Reporting Forms Employers will report using IRS Form 1095-C and will
transmit the information to the IRS using Form 1094-C
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Information Reported Generally, an employer will be responsible for reporting: ¡ name,
address, and EIN of the employer; ¡ name, address, and Social Security number of employees and each covered individual; ¡ for each full-time employee, whether an offer of coverage was made (or not); ¡ for each covered individual, the months for which, for at least one day, the individual was enrolled in coverage and entitled to receive benefits; ¡ Affordability safe harbors or special reporting methods used
Reporting Timeline
Deadlines have been delayed! Employers must file returns and transmittals by May
31, 2016, (June 30 if filed electronically) and annually thereafter Employers must also furnish to each full-time employee a copy of the 1095-C by March 31, 2016, and annually thereafter
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2015 Reporting Penalty Relief For 2105, the IRS will not impose penalties on a filer
for reporting incorrect or incomplete information if the filer can show that it made a good faith effort to comply with the reporting requirements After 2015, penalties are as follows: Failure to file: $250 per return up to $3,000,000 ¡ Failure to provide employee statement: $250 per statement up to $3,000,000 ¡ Special, increased penalties if intentional disregard of reporting requirements ¡
Filing Extension
Does not apply for 2015! Automatic 30-day extension of time to file with IRS
(Form 8809) Extension of time to furnish employee statements by written request to the IRS Not automatic, must be approved ¡ Generally maximum of 30-day extension ¡
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Premium Tax Credit Notices
Exchange notifies employer when any employee
receives a premium tax credit Employer needs to have a procedure in place for handling these notices Employers have 90 days to appeal the Exchange’s determination of eligibility for a tax credit
Anti-Retaliation The ACA prohibits an employer from discharging or in any
manner discriminating against any employee with respect to compensation or other terms, conditions or privileges of employment because the employee has: ¡ Received a premium credit or subsidy ¡ Provided information to appropriate authorities relating to an employer’s actual or perceived violation of the ACA ¡ Testified or is about to testify in a proceeding about such violation or otherwise assists in such a proceeding ¡ Objected to or refused to participate in any activity, policy, practice or task that the employee reasonably believed to be in violation of the ACA
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Health Care Reform Summary The health care reform arm of the ACA requires
health plans to provide certain mandated benefits, employee communications and reporting, and expands coverage available for most Americans
Mandated Benefits Each plan must cover “Essential Health Benefits”
including: ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡
ambulatory patient services (outpatient care); emergency services; hospitalization; maternity and newborn care; mental health and substance use disorder services, including behavioral health treatment; prescription drugs; rehabilitative and habilitative services and devices; laboratory services; preventive and wellness services and chronic disease management; and pediatric services, including oral and vision care
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Mandated Benefits Continued Preventative Care -- Plans may not impose cost-
sharing requirements (such as deductibles or copays) on certain preventive care services. For adults: Screenings for blood pressure, cholesterol, certain cancers, depression, alcohol misuse, diabetes, HIV, syphilis, obesity, diabetes, tobacco use, etc. ¡ Diet counselling for adults at higher risk for chronic disease ¡ Immunizations ¡ Counseling for alcohol misuse and obesity ¡
Preventative Services Continued For women: ¡ ¡ ¡
¡
¡ ¡ ¡ ¡
Counseling about genetic testing for women at higher risk Mammograms (every 1-2 years for women over 40) Breastfeeding: support and counselling from trained providers and access to supplies for pregnant and nursing women Screenings for chlamydia, gestational diabetes, urinary tract or other infections for pregnant women, anemia for pregnant women, gonorrhea, osteoporosis, etc. Domestic violence screening and counselling Folic acid supplements for women who may become pregnant Contraception Well-women visits to obtain recommended preventative services
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Preventative Services Continued For children: ¡ Alcohol and drug use assessment for adolescents ¡ Screenings for autism at 18 and 24 months, blood pressure, cervical dysplasia, congenital hypothyroidism for newborns, depression for adolescents, developmental, hearing, hemoglobin, hematocrit, HIV, lead, obesity, PKU, vision, etc. ¡ Height, weight and body mass index measurements ¡ Immunization ¡ Iron supplements for children 6-12 months at risk for anemia ¡ Behavioral assessments
Employee Communication and Reporting Summary of Benefits and Coverage (SBC) ¡ Short, easy-to-understand summary of what the plan covers and costs ¡ The fine for failing to comply is $1,000 per enrollee who isn't given an SBC W-2 Reporting ¡ Employers must now report the cost of medical coverage on the form W-2 ¡ The fine for failing to comply is $200 per W-2, up to a maximum of $3 million ¡ Requirement currently in effect for employers issuing more than 250 W-2’s
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Expansion of Coverage Children up to age 26 regardless of marital or
student status are eligible for any medical plan that offers insurance to dependents No more pre-existing condition exclusions (guaranteed issue) Lifetime limits on most benefits are banned You can seek emergency care at a hospital outside of your health plan’s network More freedom of choice with respect to doctors
Grandfathered Health Plans Health plans that have been in existence since March 23,
2010, and haven't been changed in ways that substantially cut benefits or increase costs for participants. Grandfathered plans MUST: ¡ ¡ ¡ ¡
End lifetime limits on coverage End arbitrary cancellations of coverage Cover adult children up to age 26 Provide an SBC
Grandfathered plans are NOT required to: ¡ ¡ ¡
Cover preventative care for free Guarantee your right to appeal a coverage decision Protect your choice of doctors and access to emergency care
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UPDATE: Automatic Enrollment
In late October 2015, the ACA provision that would
have required employers with 200 or more full-time employees to automatically enroll new full-time employees in its health plan has been REPEALED.
A Little About Your Presenter Ashley Trotto joined Kennerly Montgomery as a law clerk in
2012 and as an associate attorney in the Firm’s employee benefits practice in 2013. Ashley concentrates on the Affordable Care Act and has been a frequent speaker on Affordable Care Act issues. She graduated cum laude from the University of Tennessee College of Law in 2013, and she also earned a Bachelor of Science in Psychology, summa cum laude, from the University of Tennessee in 2009. She’s the energy behind the Firm’s on-going kindergarten book project at Christenberry Elementary.
Email: atrotto@kmfpc.com KENNERLY, MONTGOMERY & FINLEY, P.C. 550 MAIN STREET, FOURTH FLOOR | KNOXVILLE, TN 37902 P.O. BOX 442 | KNOXVILLE, TN 37901 PH (865) 546-7311 | FX (865) 524-1773 | WWW.KMFPC.COM ©2016 Kennerly, Montgomery & Finley, P.C. This publication is intended for general information purposes only and does not constitute legal advice or a legal opinion and is not an adequate substitute for the advice of legal counsel. Please consult with a Kennerly Montgomery attorney to determine how laws, suggestions, and illustrations apply to specific situations.
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Collaborative Conferencing MOUs Jennifer White, TSBA Assistant Director of Policy & Staff Attorney
Collaborative Conferencing: Successfully Navigating from the First Vote to the MOU -Jennifer White-
The Switch from Collective to Collaborative
In 2011, the Education Professional Negotiations Act (Public Acts 1978, Chapter 570) was repealed. This act allowed teachers to join and be exclusively represented by an employees’ organization in contract negotiations with school boards. It was replaced by the Professional Educators Collaborative Conferencing Act (Public Acts 2011, Chapter 378).
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Key Differences
Percentage of employees needed to begin the process; Definition of “professional employee”; Number of organizations involved; and How disputes are resolved.
Collective v. Collaborative Collective Bargaining
Collaborative Conferencing
30% of professional employees 15% of professional employees must agree in order to begin the must agree in order to begin the process. process. Broader definition of “professional employee”
“Professional employee” is now defined more narrowly and excludes principals, assistant principals, and supervisors.
Only one organization could represent professional employees.
Multiple organizations can now take part in the process.
Disputes were had to be resolved through mediation or arbitration.
If there are disputes, school boards have the authority to address issues through board policy.
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Collaborative Conferencing: Step by Step Step One: 15% of teachers submit a written request to engage in collaborative conferencing. This request must be submitted between Oct. 1st – Nov. 1st.
Step Two: The school board appoints equal numbers of teachers and board members to a special question committee. This committee conducts an anonymous poll of teachers on the questions of: Whether they want to engage in collaborative conferencing with the board; and If the answer is yes, which organization they prefer to represent their interests.
Collaborative Conferencing: Step by Step Step Three: If a majority of teachers indicate they want to enter collaborative conferencing, the board has an obligation to undergo this process. Step Four: Representatives will be selected. Organizations will represent teachers according to the proportion of votes they receive.
Each employees’ organization receiving 15% or more of the votes shall select and appoint the person(s) to serve as a representative of the group.
If at least 15% of teachers polled indicate a preference for an “unaffiliated” representative (one not with a recognized employees’ organization), then the special question committee shall select the person(s) to represent that group, in numbers proportional to the unaffiliated votes.
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Topics that can be discussed in collaborative conferencing:
Salaries or wages, excluding differentiated pay plans or incentive compensation Insurance Fringe benefits other than pension plans Leave time Payroll deductions, excluding those for political activities Working conditions (narrowly defined)
Subjects that specifically cannot be discussed: Differentiated pay plans and incentive compensation programs Expenditure of grants that are expressly designated for specific purposes Teacher evaluations Staffing decisions and state BOE or local BOE policies related to innovative educational programs Personnel decisions related to assignment to schools, transfers within the system, layoffs, reductions in force, or recall.
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Resolving Disagreements Under collaborative conferencing, there is no requirement that a deal be reached. If an agreement is reached, the parties may prepare a memorandum of understanding on areas of agreement. Additionally, the board is still limited to a three year period of agreement. If there are subjects the parties cannot agree on, school boards have the authority to address such issues through board policy.
Unlawful Acts Under the collaborative conferencing framework, it is still unlawful for school boards, professional employees, or their designated representatives to threaten, coerce, or interfere with the other parties’ ability to exercise their rights. Additionally, it is still unlawful for teachers to strike. Any complaint of unlawful conduct must be filed with the school board. If no resolution is reached, the complaint may then be filed in chancery court. This complaint must be filed within three months.
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Comparing what can be discussed… Collective Bargaining
Collaborative Conferencing
Salaries or wages
Salaries or wages, excluding differentiated pay plays or incentive compensation
Grievances procedures
Grievance procedures
Insurance
Insurance
Fringe benefits other than pension plans
Fringe benefits other than pension plans
Leave time
Leave time
Payroll deductions
Payroll deductions, excluding those for political activities
Student discipline procedures
[Not addressed]
Working conditions
Working conditions*
Should the following provision appear in a MOU?
“All employees shall be given written notice of their assignments for the forthcoming year no later than five days of the last instructional school day… In the event changes in such assignments are proposed, the employee affected shall be notified promptly and consulted on the matter.”
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Should the following provision appear in a MOU?
“The Board shall provide incentive pay in the following amounts, for each year a professional employee has been employed by the system. This incentive pay is not to be included on the salary schedule.”
Should the following provision appear in a MOU?
“All professional employees shall be evaluated using the state evaluation model (TEAM)… When it is necessary to recommend that a non-tenured employee not be rehired, this action can only be taken after full compliance with the evaluation procedure.”
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Should the following provision appear in a MOU?
“The Board will pay insurance benefits for certified personnel participating in the Association-approved group plan in an amount equal to 100% of an individual health plan.”
Should the following provision appear in a MOU?
“No vacancies shall be filled for at least ten (10) days after the vacancy is first published; this only applies to positions that become vacant by the end of the school year.”
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Should the following provision appear in a MOU?
“If a position is to be eliminated, the Director of Schools shall give notification of lay-off to the least senior employee in that position. Such notification shall be at least thirty (30) days prior to the implementation date.
Should the following provision appear in a MOU?
“A faculty advisory committee may be established in each school through the mutual cooperation of the faculty and the principal. The committee shall meet on a regular basis to discuss problems and to make suggestions as to possible solutions.”
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Review: The Four Major Differences
Percentage of employees needed to begin the process; Definition of “professional employee”; Number of organizations involved; and How disputes are resolved.
Review: Subjects that specifically cannot be discussed Differentiated pay plans and incentive compensation programs Expenditure of grants that are expressly designated for specific purposes Teacher evaluations Staffing decisions and state BOE or local BOE policies related to innovative educational programs Personnel decisions related to assignment to schools, transfers within the system, layoffs, reductions in force, or recall.
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Questions?
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Employment Law Case Update Randall Bennett, TSBA Deputy Executive Director and General Counsel
Case Update TSBA Employment Law Conference March 18, 2016 Randall Benne. TSBA Deputy Execu:ve Director & General Counsel
Geller v. Henry County BOE • Geller began working for HCBOE in 1990 • Following the 2011-‐12 school year, he was removed from the assistant principal posi:on and transferred to a teaching posi:on • Geller was 64 years of age and claimed that his removal was based on age discrimina:on • In 2009, the State required that personnel who spent more than fiUy percent (50%) of their :me in instruc:onal leadership were required to be licensed administrators or enrolled in the appropriate licensing program
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Geller v. Henry County BOE • Geller was aware of the requirement but never applied • In Spring of 2012 Geller submi.ed an applica:on for an upgraded license despite never having a license and was denied • The Director chose to not waive the requirement but a.empted to find Geller a suitable posi:on for the coming year • It was undisputed that Geller could have obtained the needed license prior to the start of the school year
Geller v. Henry County BOE • The newly vacant posi:on went to a 39 year old person • Geller was offered a teaching contract which he signed but noted at the bo.om “I believe I was wrongfully removed…” • Prior to the contract the Board was unaware that Geller believed his reassignment to be wrongful and during two subsequent mee:ngs he never suggested his removal was based on age • Geller filed a complaint which was dismissed because reviewers found no discrimina:on because of failure to maintain a license
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Geller v. Henry County BOE • Geller sued in Federal District Court and the board moved for summary judgment • The facts were undisputed and the district could show that a number of administrators in that age bracket were currently employed in the district • The District Court granted the Board’s mo:on and Geller appealed
Geller v. Henry County BOE • The 6th Circuit carefully analyzed the elements and stated that nearly all of it supported the conclusion that Geller was removed from his post based solely on his failure to apply for and maintain an administrator’s license • Addi:onally the Court opined that Geller himself was responsible for keeping apprised of the licensing requirements and for maintaining the appropriate license • Even so, the Director engaged Geller regarding the license and made reasonable efforts to accommodate him • No reason to conclude that Geller was discriminated against because of his age
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HCEA v. HCBOE (Hamilton County) Asst. Superintendent for Human Resources wrote a le.er to HCEA President Sandra Hughes sta:ng the following: • that the Associa:on could not represent principals or count them among membership totals for the purposes of PECCA • that she was concerned regarding other statements made by Associa:on representa:ves at their September 17 mee:ng that she worried “could be construed as in:mida:ng” specifically referring to Associa:on claims that, without the Associa:on, teachers could be subjected to ten hour workdays and 100+ page code of conduct documents and could lose medical and re:rement benefits • she referenced pejora:ve comments made regarding a compe:ng professional organiza:on; and • she closed the le.er by ci:ng to the PECCA prohibi:on on professional organiza:ons a.emp:ng to coerce employees. Stewart stated that con:nuing this conduct would “either result in an official request for a retrac:on of such statements or in clarifica:on/ correc:on of these statements by the district”
HCEA v. HCBOE (Hamilton County) • HCEA filed complaining alleging unlawful acts under both EPNA and PECCA as well as viola:on of 1st Amendment rights • HCBOE responded by denying allega:ons and pointed to its own right to “express any views or opinions on the subject of employer-‐employee rela:ons; provided that such expression shall contain no threat of reprimand, discharge or promise of benefits.” • Court found for the Board on all claims
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Emory v. Memphis/Shelby County • Emory was terminated for low levels of teaching and inability to control her classroom • Plain:ff requested a hearing but hearing was not held within the 30-‐day statutory period • Trial court held that the delay did not affect the outcome and found for the district • Court of Appeals reversed and awarded back pay for addi:onal days the plain:ff was suspended without pay beyond the 30 days…original termina:on was NOT voided
Rowe v. Hamilton County • Rowe began teaching in Cha.anooga in 1967 but was denied tenure • AUer serving in the military he returned and was granted tenure in either 1972 or 1973 but ul:mately discharged for “insubordina:on and inefficiency” • He appealed his dismissal to the Board and to Chancery Court but the decision was upheld
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Rowe v. Hamilton County • In the mid 1980’s he again a.empted to get a job teaching in Cha.anooga and was placed on a subs:tute list • Board members asked the Superintendent why he was on the list aUer having been discharged and upon verifica:on his name was removed from the list • Rowe con:nued to seek employment and ul:mately filed an unsuccessful complaint with the City of Cha.anooga Human Rights and Human Rela:ons Commission in 1990 alleging discrimina:on…the Commission recommended board adopt a policy to addressed dismissed teachers
Rowe v. Hamilton County Policy Language: Any employee of the Board of Educa:on terminated for cause inefficiency or immorality shall not be eligible for reemployment, whether at the same or different level. Neither shall such individuals be eligible for employment on a contract basis including serving as a subs:tute teacher.
Rowe filed a complaint under 42 U.S.C. § 1983 alleging a viola:on of his due process rights and that the policy was uncons:tu:onal. Court agreed that the policy was uncons:tu:onal but awarded no relief to Rowe. (Tried federal courts but courts ruled res judicata) 6
Rowe v. Hamilton County • Rowe con:nued to try and li:gate the same claim in 2006 and 2008 • In 2008 the federal district court dismissed with prejudice and enjoined Rowe from filing in its court further lawsuits against the same defendants and “any person or persons who either currently or in the future occupy and hold the posi:on of Superintendent of Hamilton County Department of Educa:on…” without first obtaining the court’s wri.en approval
Jones v. Knox County BOE • Teacher challenged her transfer from Instruc:onal Coach to classroom teacher which she considered a demo:on • She challenged based on TCA § 49-‐5-‐510 which provides: The director of schools, when necessary to the efficient opera:on of the school system, may transfer a teacher from one loca:on to another within the school system, or from one type of work to another for which the teacher is qualified and licensed; provided that the transfer shall be acted upon in accordance with board policy.
• She also alleged that her grievance process was unduly cut short in mid-‐process
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Jones v. Knox County BOE • The heart of her complaint was the allega:on that her performance evalua:ons were cot considered by Superintendent James McIntyre as required • On por:ons of her evalua:on she received highest marks but in classroom coaching she received a 2 • KCBOE filed a mo:on to dismiss asser:ng a lack of a redressable grievance because she did not contest the accuracy of the data • Addi:onally that there was a ra:onal basis for the transfer because of the low evalua:on score
Jones v. Knox County BOE • Trial Court granted the mo:on and Jones appealed • Jones alleged that both state law and State Board of Educa:on policy require that evalua:ons be considered to decide assignments • Court stated that “if Jones’ complaint is construed liberally and her factual allega:ons are taken as true, as they must be at the mo:on to dismiss stage, then McIntyre improperly failed to consider her evalua:on results in making the decision to transfer her”
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Jones v. Knox County BOE • Court addi:onally found that the Trial Court applied the wrong standard in deciding Defendants’ mo:on to dismiss • Trial Court should have taken Jones’ factual allega:ons as true for purposes of the mo:on, made findings, and ruled on the merits of the case • Jones has alleged facts sufficient to state a claim for relief and the Trial Court erred in gran:ng the mo:on to dismiss • Decision was remanded to the trial court
SEIU v. Metro Nashville BOE • In July 2000 the Board adopted the Labor Nego:a:ons Policy (LNP) which gave non-‐licensed employees the right to join an employee organiza:on and meet/confer with the Director on working condi:ons as well as enter into nonbinding MOU’s with the Director • Board duly cer:fied SEIU which entered into a series of MOU’s with the director from July 1 2008 un:l June 30, 2011 • AUer that date the Director did not meet with SEIU to nego:ate a new MOU and permi.ed employees to stop automa:c withdrawal of dues from their paychecks
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SEIU v. Metro Nashville BOE • In December 2011 the Director sent a le.er to representa:ves of SEIU advising that recent changes in state law had caused the Director and execu:ve staff to “rescind” the LNP • On the same day the Director no:fied the members of the Board by email of his decision and a.ached a copy of the le.er • SEUI sent a le.er of complaint to the Board Chairperson who stated the complaint was “without merit and should proceed no further”
SEIU v. Metro Nashville BOE • SEIU filed a two-‐count complaint in Davidson County Chancery Court 1. Alleged the LNP had been enacted by the board and the board had never rescinded it or delegated that authority to the Director who refused to recognize SEIU, meet and confer and abide by the payroll deduc:on agreement 2. Alleged the mee:ng at which the Director/Staff rescinded the LNP did not comply with the Open Mee:ngs Act
• Board answered asser:ng the Director had the authority to rescind and due to changes in state law and Board policy the district is no long required to maintain the LNP
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SEIU v. Metro Nashville BOE • Trial court granted SEIU’s mo:on declaring that the LNP was a policy of the Board and can only be revoked by the Board • The Board appealed asser:ng Trial Court error • The Court of Appeals ruled that amendments to Title 49 taken together, the General Assembly granted the right to engage in collabora:ve conferencing ONLY to licensed teachers while making the employment of non-‐licensed personnel to be at the will of the Director. • The Legislature negated any Board policy which has the effect of removing that discre:on
SEIU v. Metro Nashville BOE • The requirements that the Director recognize a single exclusive representa:ve of the employees, meet with that organiza:on’s representa:ve to discuss the terms and condi:ons of service workers’ employment, and permit payroll deduc:on for only that organiza:on’s dues are not consistent with the employment at will status… AUer the 2011 amendments became effec:ve, • The LNP was no longer operable • The Director was not obligated to follow it, and • No board ac:on was required to rescind it
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Attorney General Opinion No. 15-‐18 QUESTION: Presuming that a public employer has adequately reserved the right to amend the re:rement benefit plan that it maintains for its non-‐cer:ficated employees, and the amendment does not impair vested rights or otherwise reduce vested benefits that have accrued at the :me of the amendment, may the public employer amend the re:rement plan to reduce future benefit accruals and other unaccrued rights of vested members? ANSWER: Yes, assuming that the public employer has adequately reserved the right to amend its re:rement benefit plan, the public employer may amend the plan to reduce future benefit accruals of vested members. In order to adequately reserve the right to amend future benefit accruals of vested members, however, the provisions of the re:rement plan must be sufficient to apprise members that their future benefit accruals are subject to modifica:on.
Ques:ons?
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Tennessee
Spring 2015
School Law Quarterly A TSBA Publication for School Board Attorneys, Board Members, and Administrators
Table of Contents Volume 15, Issue 1 Pages 1
City of Athens BOE v. McMinn County
Pages 3
Pamela Barkley v. Shelby County BOE
Pages 4
Attorney General Opinions
Page 5
Summer Law Institute
City Of Athens Board Of Education et al. v. McMinn County, Tennessee et al., Tennessee Court of Appeals, August 27, 2014 This litigation is a dispute between the boards of education of the cities of Athens and Etowah (“the City School Boards”) on the one hand and McMinn County (“the County”) over the distribution of tax revenues among the various school systems within the county. Tenn. Code Ann. § 49-3315(a) (2013) mandates that “[a]ll school funds for current operation and maintenance purposes collected by any county . . . shall be apportioned by the county trustee” among the local education agencies in the county based upon average daily school attendance. Over the years spanning from 1996 to 2011, the County apportioned funds in the account designated “general purpose school fund” to the City School Boards, but did not apportion funds from the County’s “educational capital projects fund.” The County argues that funds appropriated for and spent on school capital projects are not “school funds for current operation and maintenance purposes” under the language of the statute. The resolution of this case turns on the interpretation and application of Tenn. Code Ann. § 49-3-315(a), part of the Tennessee Education Finance Act of 1977. Section 49-3-315(a) provides, in pertinent part, as follows: For each [local education agency] there shall be levied for current operation and maintenance not more than one (1) school tax for all grades included in the LEA. Each LEA shall place in one (1) separate school fund all school revenues for current school operation purposes received from the state, county and other political subdivisions, if any. . . . All school funds for current operation and maintenance purposes collected by any county, except the funds raised by any local special student transportation tax levy as authorized in this subsection (a), shall be apportioned by the county trustee among the LEAs in the county on the basis of the [weighted full-time equivalent average daily attendance] maintained by each, during the current school year. All of the material facts are undisputed. The budget passed by the McMinn County Commission for fiscal year July 1, 2010 through June 30, 2011, included a proposed revenue item of $7,051,942 designated for and allocated to the general purpose school fund. The County states that this “represents
Tennessee School Law Quarterly or constitutes the only . . . funds proposed to be collected by the County which . . . constitutes the County Board of Education’s apportioned share of school funds from current property taxes pursuant to T.C.A. Section 49-3-315(a).” The budget also included estimated funds in an account designated “other capital projects fund” in the amount of $3,482,190. These funds were not apportioned among the County LEA and the LEAs of the Cities of Athens and Etowah. The County undertook a similar budgeting approach in earlier years. The City School Boards do not allege that funds allocated for capital projects were not actually spent on capital projects. Nor do the City School Boards argue that the County’s budgeting and spending process runs afoul of the wellestablished rule that “it is beyond the power of count[ies] of this State to take moneys raised for school purposes and appropriate them for other different purposes, or to take moneys raised for purposes other than school purposes and use them for school purposes.” The City School Boards’ argument is that Tenn. Code Ann. § 49-3-315 requires a county to apportion among local education agencies in the county all school funds collected by the county, regardless of whether a portion of those funds are appropriated and allocated for educational capital projects. The County responds by asserting that the plain and express language of Tenn. Code Ann. § 49-3-315(a) requires it to share only “all school funds for current operation and maintenance purposes collected” by the County, and that funds properly designated for capital projects are not “for current operation and maintenance purposes.” Both sides moved for summary judgment. The parties agree that the pertinent facts are undisputed and this case presents a question of law that is suitable for summary judgment. The trial Court granted summary judgment to McMinn County and the Cities appealed. On appeal the court discussed the language of statute, Tenn. Code Ann. § 49-3-315(a), which requires that “[a]ll school funds for current operation and maintenance purposes collected by any county, except the funds raised by any local special student transportation tax levy as authorized in this subsection (a), shall be apportioned by the county trustee among the LEAs in the county on the basis of the WFTEADA maintained by each, during the current school year.” The question is whether funds allocated for school capital projects are included in “school funds for current operation and maintenance.” Although Tennessee courts have not decided this exact issue under the current Education Finance Act, the Supreme Court has addressed this issue
Spring 2015
under earlier, and similar, statutory language pertaining to school funding. In each of its opinions, the High Court has noted a clear distinction between funds for current operation and maintenance and funds for capital projects. The Court discussed a number of Supreme Court rulings in similar holdings dating back to 1946 (see pp. 7-9 of the PDF opinion). The Court noted that the cited decisions stand for the proposition that a county may levy a special tax designated for a capital projects fund such as “for the building, repair, and equipment of rural schools,” or a “Rural School Building and Repair Fund,” without being required to allocate part of the funds to city school systems within the county. The Supreme Court reaffirmed this view in City of Harriman the same year the Tennessee Finance Act of 1977 was passed. Where, however, the county does not make such a special purpose levy, but lawfully appropriates funds to current school operations, as had been done here with the portion of sales taxes at issue, then those funds become subject to the apportionment provisions of the general school statutes. In the Southern case, supra, the county allotted tax proceeds to the school budget under the guise of a special levy for repair and maintenance. It was held that these funds had to be divided with a city school system. See 183 Tenn. at 290-291, 195 S.W.2d 857. The City School Boards point out that under the Education Finance Act, if the County had raised money for capital projects by issuing and selling school bonds, it would have been required to apportion the funds raised from selling the bonds. Tenn. Code Ann. § 49-3-1002 authorizes a county to issue and sell “general obligation school bonds.” Tenn. Code Ann. § 49-3-1003(b)(1) requires counties to share the funds raised from selling the bonds with city school systems as follows: In counties having a city or cities operating schools independent of the county, the trustee of the county shall pay over to the treasurer of the city that amount of the funds that bear the same ratio to the entire amount arising from this part as the average daily attendance of the year ending June 30 next preceding the sale of the bonds of the city or cities bears to the entire average daily attendance of the year ending June 30 next preceding the sale of the bonds of the county; provided, that the funds paid over to the city treasurer shall be kept separate from all other funds in the manner and for the purposes provided in this part for the county funds to be used.
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Tennessee School Law Quarterly Tenn. Code Ann. § 49-3-1004(a) provides that the funds from general obligation school bonds shall be spent as follows: The proceeds from the sale of school bonds issued under §49-3-1002 constitute a special fund to be known as the special school fund, except funds for aiding this state in the construction of state education facilities or institutions as provided for in subsection (b), which shall be kept by the trustees of such county and the treasurer of the city schools separate and apart from all other funds and shall be applied exclusively to purchase property for school purposes, to purchase sites for school buildings, to erect or repair school buildings, to furnish and equip school buildings and to refund, call or make principal and interest payments on bonds or other obligations previously issued for the same purposes, and to be used for no other purposes by the county board of education of the county, the city board of education or the governing board of the city. The City School Boards acknowledge that Tenn. Code Ann. §§ 49-3-1002 through -1004 do not apply in this case, but argue that “[i]t is inconceivable or an absurdity to believe that the General Assembly, when enacting the Tennessee Education Finance Act of 1977, intended that a city school system share based upon average daily attendance in funds derived from a bond issue for capital improvements, but not receive its fair share of school funds derived from City Schools property taxes if the funds from City Schools property taxes are designated for capital improvements within the county school system.” However compelling this argument may be, it is properly directed to others, e.g., the General Assembly, not to this Court. The statutory scheme as currently written is clear and unambiguous, and it does not require apportionment under the circumstances presented. Since we must apply Tenn. Code Ann. § 49-3-315 as written, we reject the City School Boards’ invitation to take a different approach. The trial court decision was affirmed. http://www.tsc.state.tn.us/sites/default/files/athens_v_mcminn_co.pdf
Pamela Barkley, et al. V. Shelby County Board Of Education Tennessee Court of Appeals, April 12, 2014 This was an action under the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101 et seq., (“GTLA”) to recover for injuries sustained by Pamela Barkley, the grandmother of two children who attended Riverdale Elementary School in Memphis, when she fell in a hallway at a Grandparent’s Day event; the school is operated by the Shelby County Board of Education (“the Board”). In a bench trial, the court held the school board 60% liable and plaintiff 40% liable. Following trial, the court made findings of fact and conclusions of law, on the basis of which it assessed damages at $45,000 for Ms. Barkley and $4,000 for the loss of consortium claim of her husband, James. The court determined that Ms. Barkley was 40% at fault, reduced the damages accordingly, and entered judgment for the plaintiffs in the total sum of $29,400. School Board appealed, articulating the following issues: 1. Whether the proof in the record preponderates against the Trial Court’s finding that the SCBE was negligent. 2. Whether the trial court erred by finding that the SCBE is not immune to suit pursuant to Tenn. Code Ann. § 2920-205, or in the alternative the public duty doctrine. 3. Whether the record preponderates against the trial court’s finding that the Plaintiff was not at least fifty percent at fault for her injury. While the evidence did not preponderate against the finding that plaintiff fell on water in the school hallway, there was no evidence that the Board had notice of the water. Consequently, the Court of Appeals reversed the judgment of the trial court and dismissed the case. http://www.tsc.state.tn.us/sites/default/files/barkleypamelaopn.pdf
Spring 2015
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Tennessee School Law Quarterly Attorney General Opinions (Below you will find the questions and opinions issued by the office of the Attorney General. For a more thorough analysis, click on the link following the opinion.)
Attorney General Opinion No. 15-10 Transportation for Elementary and Secondary School Students QUESTIONS 1. Are there any restrictions on transportation fees charged by municipal boards of education? If yes, then: 2. Is it permissible to charge a transportation fee to students not included in the BEP calculation for transportation funding (students living within 1.5 miles of the school)? 3. Is it permissible to charge a transportation fee to all students to generate the funding necessary to bridge the difference between the transportation funds provided under the BEP formula and the total cost of delivering transportation services? ANSWER There are no restrictions on the transportation fees that can be charged by municipal boards of education. http://www.tennessee.gov/attorneygeneral/op/2015/op15-10.pdf
Attorney General Opinion No. 15-11 Arbitration of Disputes Involving Remittance of Liquor-by-the-Drink Tax Revenue QUESTION In the event of a dispute between local governmental entities over the remittance of liquor-by-the-drink tax revenue, does Tenn. Code Ann. § 49-2-203(d)(3)(A)(ii) authorize the Comptroller of the Treasury to undertake binding arbitration to resolve the dispute upon the unilateral request of one party? ANSWER Yes, provided one party requested arbitration on or before December 31, 2014, and the other party failed to pursue the statute’s alternative remedy of seeking equitable relief in the Davidson County Chancery Court on or before that date, then the Comptroller is authorized to undertake binding arbitration to resolve the dispute upon the unilateral request of the first party, even absent the affirmative agreement of the second party. http://www.tennessee.gov/attorneygeneral/op/2015/op15-11.pdf
Spring 2015
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Tennessee School Law Quarterly Summer Law Institute June 26 & July 24-25
Tennessee School Law Quarterly Published by: The Tennessee School Boards Association 525 Brick Church Park Drive Nashville, TN 37207 Phone: 615/815-3900 800/448-6465 Fax: 615/815-3911 Layout and Design by: Ben Torres Director of Research and Communications/Staff Attorney
The Annual Summer Law Institute sponsored by TSBA, in conjunction with the Tennessee Council of School Board Attorneys, presents its annual Summer Law Institute for board members, school administrators and school board attorneys. Visit TSBA’s website for more details at www.tsba.net. Topics • • • • • • • • •
Legislative Update Board Exposure to Civil Rights Lawsuits School System Liability Student Free Speech Rights Case Law Updates BEP Funding Issues* How to Avoid Litigation Special Education Law Updates* Ethics CLE* *Sessions offered in Gatlinburg Only
Content by: Randall Bennett TSBA Deputy Executive Director & General Counsel rbennett@tsba.net 615/815-3902
June 26, 2015 - Doubletree Hotel in Jackson, TN
We’re on the web! Visit us at: www.tsba.net
The Gatlinburg Summer Law Institute will be held July 24, 2015 from 8:00 a.m. - 5:20 p.m. with breakfast, breaks and lunch provided and on July 25, 2015 from 8:30 a.m. - 10:30 a.m. with breakfast provided.
Disclaimer: The information in this issue represents the opinions of the writers and does not necessarily represent the official position of TSBA
July 24-25, 2015 - Park Vista Hotel in Gatlinburg, TN The Jackson Summer Law Institute will be held June 26, 2015 from 8:00 a.m. - 4:00 p.m. Breakfast, breaks and lunch will be provided.
Registration Fees TSBA Board Members and TCSBA Members: $150 Non TSBA & Non TCSBA Members: $300 Registration fees must be received by TSBA prior to the meeting. Please make checks payable to the Tennessee School Boards Association.
Spring 2015
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Tennessee
Summer 2015
School Law Quarterly A TSBA Publication for School Board Attorneys, Board Members, and Administrators
Table of Contents Volume 15, Issue 2 Pages 1
CEF v. Cleveland Metro Schools
Page 2
Ward v. Knox County BOE
Page 2
Gellar v. Henry County BOE
Page 3
Smith v. Jefferson County Bd. Sch. Comm’r
Page 4
Fry v. Napoleon Comm. Schools
Page 5
Hamilton Cty. Educ. Assoc’n v. Hamilton County BOE
Page 6
Emory v. Shelby County BOE
Page 6
Barkley v. Shelby County BOE
Page 7
Rutherford Wrestling Club v. Arnold
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Attorney General Opinions
Child Evangelism Fellowship of Ohio, Inc. v. Cleveland Metro Sch. Dist., Sixth Circuit Court of Appeals, March 19, 2015 In this First Amendment case, the plaintiff Child Evangelism Fellowship of Ohio, Inc. (“CEF”) appealed the denial of its motion for a preliminary injunction against defendant Cleveland Metropolitan School District (“the District”). This controversy arose out of the District’s refusal to waive fees it assessed to CEF for use of school’s facilities. The District made its facilities available to outside groups through its Community Use Policy. The policy required a permit for any non-district activities and stated that the District would impose a “reasonable fee” for use of the facilities. CEF obtained the permit and sent a letter to the District’s Board of Education requesting a fee waiver. The District’s board denied the request and sent CEF an invoice for the facilities use. After learning that the Boy Scouts used the District’s facilities without paying a monetary fee, CEF renewed its request for a fee waiver which the District denied. CEF sued and alleged that the District had an unwritten policy allowing school principals to waive facilities fees at their discretion, and that the District’s preferential fee waiver for the Boy Scouts amounted to a violation of the First and Fourteenth Amendments. The District denied the allegation and explained that “in limited circumstances [the District] has agreed to accept goods or services as in-kind payment of the Permit Fee, when requested by the group.” The District said it had agreed to such an arrangement with the Boy Scouts. It produced a letter to the Scouts memorializing a “satisfactory accord based upon an exchange of in-kind services.” The District asserted that it does not consider the applicant organization’s viewpoint when evaluating a proposal for an in-kind arrangement. Finally, the District claimed that CEF never proposed an in-kind arrangement in lieu of a monetary fee. Instead, it simply asked the District to waive the fee altogether. The district court denied CEF’s motion for a preliminary injunction. The court found that CEF could not demonstrate a likelihood of success on the merits because the record lacked sufficient evidence to show that “a fee-waiver policy exists, let alone that [the District] operates it in a discriminatory matter.”
Tennessee School Law Quarterly The parties agreed that CEF engaged in protected activity and that the District had created a limited public forum. On appeal, CEF renewed its argument that the District maintained an unwritten, discretionary fee-waiver policy that administrators had applied in a discriminatory manner. CEF argued that the District’s actions constituted viewpoint discrimination, content discrimination, and a violation of the Equal Protection Clause. CEF asserted that the District’s refusal to waive CEF’s fees while not charging the Boy Scouts amounted to viewpoint discrimination. The Court of Appeals found that CEF’s evidence in support of its request for injunctive relief did not adequately show that the District had a fee-waiver policy. The court concluded that the record at this stage showed that the Scouts provided consideration in excess of their assessed facilities fees, strengthening the District’s argument that its in-kind arrangements do not subsidize speech at all, let alone selectively, and affirmed the district court. http://www.ca6.uscourts.gov/opinions.pdf/15a0220n-06.pdf
Michael S. Ward d/b/a Feredonna Commc’n v. Knox Cnty. Bd. of Educ., Sixth Circuit Court of Appeals, May 11, 2015 Since 1989, Knox County children have sold coupon books as part of an annual fundraising campaign for their county’s schools. Michael Scott Ward and Feredonna Communications (collectively, Feredonna) won the contract to print Knox County’s coupon books in 1994. The relationship between Feredonna and Knox County lasted until 2009, when Knox County switched to another, lower bidder. In 2011, Feredonna filed suit against both the Knox County Board of Education and Knox County, alleging that Knox County’s coupon books infringed on the trademark, trade dress, and copyright of Feredonna’s coupon books. The district court denied Feredonna’s requests for a temporary restraining order and a preliminary injunction, and eventually granted Knox County’s motion for summary judgment. The Court of Appeals affirmed the district court by concluding that the School Coupon mark associated with the book was not entitled to trademark protection. It then opined that the plaintiff ’s trade dress argument failed because the plaintiff could not establish that the disputed trade dress had acquired secondary meaning. The Court also affirmed the district court’s summary judgment on copyright infringement by stating that Feredonna did nothing more than change the style and format of the language submitted by merchants, which the Sixth Circuit has held as not enough to reflect the requisite originality. http://www.ca6.uscourts.gov/opinions.pdf/15a0352n-06.pdf
Stephen P. Geller v. Henry Cnty. Bd. of Educ. Sixth Circuit Court of Appeals, June 1, 2015 Stephen Geller began working for Henry County Schools in 1990. Following the 2011–2012 school year, he was removed from the assistant principal position and transferred to a teaching position. Geller was 64 years of age at the time of this demotion, and claimed that his removal was based on age discrimination. In 2009, the State of Tennessee adopted new rules for the qualification of administrative positions. Beginning in September of that year, personnel with more than fifty percent of their responsibilities involved in instructional leadership were required to be licensed administrators or enrolled in the appropriate licensing program. Geller was aware of the new requirement, but chose not to apply. In the spring of 2012, Geller submitted an application for an upgraded license, despite the fact that he had never earned a license. The State’s licensing authority notified Geller that his application was denied. The Director of Schools chose not waive the requirement, but attempted to find Geller a suitable position that he could
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Tennessee School Law Quarterly fill for the coming year. During a meeting, the Director commented on Geller’s plans for retirement by noting that it was a good thing not to wait too late in life to enjoy oneself, as the Director’s father had done. It was undisputed that Geller could have obtained the needed license prior to the commencement of the new school year. The newly vacant assistant principal position went to Renae Lassiter. She was 39 years old at the time. Geller was offered a teaching position and signed an employment contract accepting his new position. At the bottom of the page he wrote, “I believe I was wrongfully removed as Assistant Principal at Henry County High School and am signing this contract only as a matter of financial necessity.” Prior to receiving Geller’s executed contract that included this message, the Board was unaware that Geller believed his reassignment to be at all wrongful. During two subsequent meetings Geller never suggested that his removal was based on age. Geller submitted a formal complaint to the Board alleging that he was illegally transferred as the result of his age. Geller believed he was being treated in a discriminatory manner because his transfer was inconsistent with his years of experience and his favorable job performance history, and because he was replaced by a woman with very little experience who was 25 years his junior. The complaint was dismissed after the administrative reviewers found no evidence of discrimination and determined that Geller’s transfer was based on his failure to maintain a license. Geller unsuccessfully appealed. Geller then brought a suit in district court. The Board moved for summary judgment, based on the undisputed facts, and also indicating that a number of the school system’s administrators, including the Director, were in the same protected age class as Geller and had not been subject to any adverse employment actions, because they had earned an administrator’s license. The district court granted the Board’s motion and Geller appealed. At the Court of Appeals, Geller did not argue that he had direct evidence of age discrimination so the Court analyzed the evidence under the McDonnell Douglass burden-shifting framework. The parties disputed whether Geller demonstrated a prima facie case of age discrimination. The Court noted that the third element was at issue because Geller could not claim to be qualified since he was required to maintain an administrator’s license and failed to do so. The Court stated that nearly all of the evidence supported the conclusion that Geller was removed from his post based solely on his failure to apply for and maintain an administrator’s license. The Court also opined that Geller was responsible for keeping apprised of the licensing requirements and for maintaining the appropriate license. The Director had engaged Geller to see if he could or would become licensed, and made reasonable attempts to accommodate Geller. The Court agreed that given the facts, no reasonable jury to conclude that Geller was discriminated against on account of his age, let alone that his age was the but-for cause of the adverse employment action. http://www.ca6.uscourts.gov/opinions.pdf/15a0392n-06.pdf
Steve B. Smith, David Kucera, and Vicky Forgety v. Jefferson Cnty. Bd. of Sch. Comm’r, Sixth Circuit Court of Appeals, June 11, 2015 In this action, two alternative school teachers brought a suit against the district, asserting a violation of the Establishment Clause after the district’s Board voted to eliminate the district ran alternative school program and contract with a local religious school, Kingswood, to provide alternative-school services. The Sixth Ciruit had previously ruled that the plaintiff teachers had standing, in their capacity as municipal taxpayers only, to raise the Establishment Clause claim. Kingswood had two separate programs: the day program and the residential program. The residential program served troubled, neglected, and abused children and maintained a religious character and included deliberate religious instruction. The day program, however, did not feature deliberate religious instruction and was the program that Jefferson County students attended. Students were not entirely insulated from the schools religious environment, however, since forms,
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Tennessee School Law Quarterly report cards, school letters, official documents and the school’s website contained scriptures from the Bible. In July 2013, the district court issued its findings and held that the Board had violated the Establishment Clause. The court enjoined the Board “from contracting with Kingswood or another religious entity for the operation of its alternative school.” It also awarded plaintiffs damages for lost wages. On appeal, The Sixth Circuit weaved together the Lemon Test and Justice O’Connor’s Endorsement Analysis from Lynch v. Donnelly, which the Court viewed as a clarification of the Lemon Test. The Court of Appeals agreed that the Board had a secular purpose in contracting with Kingswood. The Court then found the district court’s conclusion that the Kingswood atmosphere was coercive to be clearly erroneous. Students were not coerced into taking part in religious activity of any kind, and classroom activities did not include religious instruction, prayers, or moments of reflective silence. The Court of Appeals then looked at the case from the perspective of a reasonable observer and concluded that the relationship between the Board and Kingswood could not be interpreted as a governmental endorsement of religion. Parents and students encountered only de minimis religious references in Kingswood’s day program. The Board chose a high-performing, statecertified alternative school on short notice to fulfill its obligation. The move saved significant taxpayer money and ensured that the alternative students received a sound education over the course of the seven-year arrangement. The mere status of Kingswood as a religious organization did not itself give rise to an endorsement. As a result, the Court reversed the district court and vacated the injunction and damages award. http://www.ca6.uscourts.gov/opinions.pdf/15a0119p-06.pdf
Fry v. Napoleon Cmty. Sch., Sixth Circuit Court of Appeals, June 12, 2015 Does a student’s wish for greater independence qualify as an educational goal? According to a recent 6th Circuit opinion yes. The Court held that issues relating to the presence of the student’s service dog were crucially linked to her education. The Court ruled that the parents could not pursue Section 504 or Title II claims against a former school district until they exhausted their administrative remedies under IDEA. The majority noted that the exhaustion requirement applies if the IDEA’s Administrative procedures can provide some form of relief or if the claims relate to the provision of FAPE. The parents were disputing the appropriateness of the student’s IDEA services…specifically, they argued the dog’s presence allowed the student to be more independent so that she would not have to rely on a one-to-one aide for tasks such as using the toilet and retrieving dropped items. They also maintained that the student needed the dog in school so that she could form a stronger bond with the animal and feel more confident. The court reasoned that the parents’ allegations brought the claim squarely within the IDEA’s scope. “Developing a bond with the dog that allows the student to function more independently outside the classroom is an educational goal just as learning to read Braille or learning to operate an automated wheelchair would be. “ The Court affirmed the district court’s ruling that the parents’ failure to exhaust their administrative remedies required dismissal of their Section 504 and Title II claims. The panel was split on the decision 2/1. http://www.ca6.uscourts.gov/opinions.pdf/15a0121p-06.pdf
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Tennessee School Law Quarterly Hamilton Cnty. Educ. Ass’n v. Hamilton Cnty. Bd. of Educ., U.S. District Court, Eastern Dist. of Tenn. at Chattanooga, June 9, 2015 What does “dominate, interfere or assist in the administration of any professional employee organization” or “interfere with, restrain, or coerce employees in the exercise of rights guaranteed in § 49-5-603” mean? These questions were at the heart of a complaint filed by the Hamilton County Education Association (HCEA) against the Hamilton County Board of Education (HCBOE) and recently decided by the U. S. District Court, Eastern District of Tennessee at Chattanooga. During the final year of the last EPNA contract with HCEA, there was a concerted effort by the Association to convince principals to continue their membership even though principals and other administrators would no longer be a part of the “bargaining unit” for the purposes of the Professional Educators Collaborative Conferencing Act (PECCA), which replaced the EPNA. When informed of this, Assistant Superintendent for Human Resources Stacy Stewart wrote a letter to Association President Sandra Hughes and stated the following: • •
• •
that the Association could not represent principals or count them among membership totals for the purposes of PECCA that she was concerned regarding other statements made by Association representatives at their September 17 meeting that she worried “could be construed as intimidating” specifically referring to Association claims that, without the Association, teachers could be subjected to ten hour workdays and 100+ page code of conduct documents and could lose medical and retirement benefits she referenced pejorative comments made regarding a competing professional organization; and she closed the letter by citing to the PECCA prohibition on professional organizations attempting to coerce employees. Stewart stated that continuing this conduct would “either result in an official request for a retraction of such statements or in clarification/correction of these statements by the district” (emphasis added).
Based on the letter, HCEA filed the complaint alleging unlawful acts under both EPNA and PECCA as well as a violation of the Association’s First Amendment rights. HCBOE responded by arguing that there was no violation of state or federal law and pointed to its own right in TCA 49-6-606(a)(5) to “express any views of opinions on the subject of employer-employee relations; provided however, that such expression shall contain no threat of reprimand, discharge or promise of benefits.” After pointing out the obvious flaws in the Association’s arguments the Court found the letter did not violate any provisions of the EPNA or PECCA because if falls squarely within the protective space afforded to the Board in the law referenced in the previous paragraph. Additionally the Court found that the letter did not burden the Association’s right to expressive Association and found for the district on the First Amendment violation claim granting summary judgment to the district on both claims. (This decision was emailed to the TCSBA listserv on Wednesday June 10).
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Tennessee School Law Quarterly Rogelynn Emory v. Memphis City Sch. Bd. of Educ., now known as Shelby Cnty. Bd. of Educ., Tennessee Court of Appeals, April 29, 2015 This case was an appeal brought under the Tennessee Teacher Tenure Act in effect during 2005 and 2006 when the events in question occurred. As a tenured teacher, the plaintiff was employed by the Memphis City Board of Education. In 2005, the principal of Central High School noted that the plaintiff did not appear to have control of her students and demonstrated low levels of teaching. As a result, the principal recommended, and the superintendent agreed, that the plaintiff should be terminated. In response to her suspension letter, the plaintiff requested a hearing before the Board. The Board acknowledged receipt of the letter on November 11, 2005 but failed to hold a hearing on the charges until November 1, 2006 even though the law required a hearing within 30 days after the demand was made. The Board terminated the plaintiff on November 13, 2006. The plaintiff timely appealed to the chancery court seeking a reversal of the Board’s decision, but no action was taken by the Board until 2011 after the plaintiff filed a motion for default judgment. The trial court held that since the delay did not affect the outcome of the hearing, the Board’s failure to comply with the Tenure Act was harmless and the teacher was not entitled to relief. The Court of Appeals reversed the trial court and awarded back pay for the additional days the plaintiff was suspended without pay after determining that the thirty day hearing requirement was directory in nature. The Court then concluded that since the statute was a directive, the Board’s failure to comply did not void the original termination. http://www.tncourts.gov/sites/default/files/emoryrogelynnopn.pdf
Pamela Barkley, et al. v. Shelby Cnty. Bd. of Educ., Tennessee Court of Appeals, March 18, 2015 This case was brought under the Tennessee Governmental Tort Liability Act to recover for injuries sustained in a slip and fall at a school operated by the Shelby County Board of Education. The plaintiff in the case was Pamela Barkley, the grandmother of two children who attended Riverdale Elementary School in Memphis. Ms. Barkley fell in a hallway during the school’s Grandparent’s Day event. The trial court held the school board 60% liable and plaintiff 40% liable. The Board of Education appealed the determination that it was negligent, that its immunity was removed, and that the plaintiff was less than 50% at fault for her injury. The Court of Appeals first set forth the general rule of governmental immunity: “Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of such governmental entities wherein such governmental entities are engaged in the exercise and discharge of any of their functions, governmental or proprietary.” The Court then turned to a few specific findings of fact made by the trial court: (1) To reach a trash can, Plaintiff walked past a hand washing station that was in the hallway outside the boys’ restroom. (2) Barkley was wearing “crocs” when she slipped and fell in water near the hand washing station. (3) Syndi [sic] Whitaker also stated that she saw water in the area by the boy’s hand washing station and that people had tracked through it. She testified that there is soap available at the hand washing station. (4) Barkley slipped and fell which resulted in her suffering a hip dislocation and required medical treatment and physical therapy. The Court noted that the evidence was conflicting, particularly with respect to whether Ms. Barkley fell on water which was on the floor, or whether the shoes she was wearing caused her to fall and spill a cup she had in her hand. The Court believed that there was no evidence to support a finding that the Board had actual notice of water on the floor sufficient either to remove the board’s immunity or to otherwise establish liability. It stated that the plaintiff presented no proof as to the length of time the water had been present or any other facts upon which to conclude that the Board had constructive notice of the specific condition. The Court stated that general knowledge of such a condition does not constitute constructive knowledge of a specific condition. As a result, there was no basis upon which to hold the School Board liable.
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Tennessee School Law Quarterly http://www.tncourts.gov/sites/default/files/barkleypamelaopn.pdf
Rutherford Wrestling Club, Inc. v. Robert Arnold, et al., Tennessee Court of Appeals, April 30, 2015 In 1995, a member of the Sheriff ’s Office, Mr. Kennedy, established the Sheriff ’s Athletic Fellowship and Enrichment (S.A.F.E.) program. The program was very successful and in 1998 Mr. Kennedy began a wrestling program under the S.A.F.E. program. As the size of the program continued to grow, Mr. Kennedy in his capacity as a member of the Sheriff ’s department, applied for and received a federal grant to purchase wrestling equipment and insurance. By 2005, the program’s current facilities could not longer support the amount of participants so Mr. Kennedy sought permission to construct a building on school property. The Board approved the request made from the “Rutherford County Sheriff ’s Department Wrestling Club”, which was funded through donations and funds from the Sheriff ’s Office. The club also received 501(c)(3) status from the IRS. In 2010, Mr. Kennedy resigned from the Sheriff ’s Department. After his resignation, the Sheriff removed the equipment from the building. The Board of Education required the club to submit a Use of Facilities Form since it was no longer associated with Rutherford County. When Mr. Kennedy refused, the Director of Schools denied the club access. The club filed suit on a number of charges and the trial court ultimately dismissed all of the claims, concluding that the Board of Education owned the building and the Sheriff ’s Office owned the contents. The Court of Appeals affirmed the trial court, finding that: (1) the building was constructed on behalf of the S.A.F.E. program, not the wrestling club; (2) the wrestling club was acting as a booster-club-type organization and the building was donated to the school system with title vesting in the Board of Education pursuant to Tenn. Code Ann. 49-6-2006; and (3) the personal property was bought under the auspices of the S.A.F.E. program which was administered by the Sheriff ’s Department. http://www.tncourts.gov/sites/default/files/rutherfordwrestlingclub.opn_.pdf
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Tennessee School Law Quarterly Attorney General Opinions (Below you will find the questions and opinions issued by the office of the Attorney General. For a more thorough analysis, click on the link following the opinion.)
Attorney General Opinion No. 15-18 Public Employer’s Amendment of Retirement Plan Affecting Vested Members QUESTION Presuming that a public employer has adequately reserved the right to amend the retirement benefit plan that it maintains for its non-certificated employees, and the amendment does not impair vested rights or otherwise reduce vested benefits that have accrued at the time of the amendment, may the public employer amend the retirement plan to reduce future benefit accruals and other unaccrued rights of vested members? ANSWER Yes, assuming that the public employer has adequately reserved the right to amend its retirement benefit plan, the public employer may amend the plan to reduce future benefit accruals of vested members. In order to adequately reserve the right to amend future benefit accruals of vested members, however, the provisions of the retirement plan must be sufficient to apprise members that their future benefit accruals are subject to modification. http://www.tn.gov/attorneygeneral/op/2015/op15-18.pdf
Attorney General Opinion No. 15-25 County Board of Education Vacancies QUESTIONS 1. Why are county commissioners, who have no education requirements and who are not as familiar as a school board with county education issues, allowed to appoint school board members? 2. Would amending Tennessee Code Annotated §§ 49-2-201(a)(1) and -202(e) to allow the members of a county school board to appoint new members to fill vacancies violate Article VII, Section 2, of the Tennessee Constitution? ANSWERS 1. Article VII, Section 2, of the Tennessee Constitution requires local legislative bodies to make appointments to fill vacancies that occur on local school boards until the next election. 2. Yes. http://www.tn.gov/attorneygeneral/op/2015/op15-25.pdf
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Tennessee School Law Quarterly Attorney General Opinion No. 15-31 Local Agencies Combining Procurement Bids QUESTION Is it possible for a local sheriff ’s office and a school board to combine their food procurement bids in order to take advantage of the higher total purchase amount so that both local governmental entities save money? ANSWER Yes. http://www.tn.gov/attorneygeneral/op/2015/op15-31.pdf
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Tennessee School Law Quarterly
Tennessee School Law Quarterly Published by: The Tennessee School Boards Association 525 Brick Church Park Drive Nashville, TN 37207
NSBA’s Legal Clips is a service of the National School Boards Association’s Office of General Counsel and the NSBA Council of School Attorneys (COSA). This free service provides thousands of subscribers with weekly updates on important and interesting school law issues, as well as helpful resources. To register visit http://legalclips.nsba.org/about/.
Phone: 615/815-3900 800/448-6465 Fax: 615/815-3911 Layout and Design by: Ben Torres Director of Research and Communications/Staff Attorney Content by: Ben Torres Randall Bennett TSBA Deputy Executive Director & General Counsel rbennett@tsba.net 615/815-3902 We’re on the web! Visit us at: www.tsba.net Disclaimer: The information in this issue represents the opinions of the writers and does not necessarily represent the official position of TSBA
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TCSBA Annual Meeting November 15, 2015 The TCSBA Annual Meeting will be held November 15, 2015 from 10:00 a.m. - 11:30 a.m. at the Opryland Hotel and Convention Center in conjunction with TSBA’s Annual Convention. There will be an opportunity for TCSBA members to gain CLE credit by attending a pre-convention legal workshop from 1:00 p.m. - 4:30 p.m. on Saturday, November 14. The cost of attendance will be $75. Legal Workshop topics include: • • •
A look at the legal issues surrounding mold and other environmental issues in school buildlings. Avoiding joint employment of your contractors’ employees.
Learning what every school board member needs ot know about what the law requires.
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Fall 2015 Tennessee School Law Quarterly
Tennessee
School Law Quarterly A TSBA Publication for School Board Attorneys, Board Members, and Administration
Table of Contents Volume 15, Issue 3 Pages 1-2
Leonard Rowe v. Hamilton County Board of Ed.
Pages 3-4
Smith/Kucera/Forgerty v. Jefferson County Board of Ed. Sixth Circuit Court of Appeals
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Attorney General Opinions
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TSBA Legal Workshop 2015 Annual Convention
Leonard Rowe v. Hamilton County Board of Education Court of Appeals of Tennessee at Knoxville July 13, 2014 Rowe began teaching in Chattanooga in 1967 but was denied tenure at the end of the 1968-99 school year. After service in the military he returned to teaching in Chattanooga and was granted tenure in either 1972 or 1973. In 1970 he was discharged “for cause, including insubordination and inefficiency.” The charges arose from his conduct during and after a discussion with the principal about Rowe’s evaluation. Specifically he was charged with walking out of two conferences called by the principal, refusing to enter into discussion with the principal, and stating that the principal had not been truthful about previous events. After a Board hearing Rowe was dismissed. He appealed but the Board’s decision was upheld by the Chancellor and the Court of Appeals. Beginning in 1986 or 1987 Rowe again attempted to obtain a teaching job in the Chattanooga school system. He was placed on the substitute teacher’s list in 1987 and worked approximately one-half of the school days that year. There were no negative occurrences reported and he received favorable recommendations for full time employment from the principals of the two schools where he taught. Sometime after the school year ended, however, Reynolds, the new superintendent, was asked by Board members why Rowe’s name was placed on the substitute list when he had previously been discharged for cause. Upon verifying the dismissal, Reynolds directed that Rowe’s name be removed from the list. Despite these “setbacks” Rowe continued to apply for employment with the school system and ultimately filed a complaint with the City of Chattanooga Human Rights and Human Relations Commission in 1990 alleging discrimination after his efforts to gain employment were unsuccessful. The complaint was unsuccessful but the Commission recommended the Board adopt a uniform policy to address “previously dismissed teachers’ and substitute teachers’ ability to obtain employment within Chattanooga City Schools. The Board adopted the following policy language:
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Tennessee School Law Quarterly Any employee of the Board of Education terminated for cause inefficiency or immorality shall not be eligible for reemployment, whether at the same or different level. Neither shall such individuals be eligible for employment on a contract basis, including serving as a substitute teacher. Rowe filed a complaint under 42 U.S.C. § 1983 alleging a violation of his due process rights and contending that the policy was unconstitutional. Following a bench trial, the chancellor invalidated the policy but refused to award Rowe any other relief. The Court of Appeals affirmed the lower court’s ruling on the unconstitutionality of the policy but reversed and remanded the holding on damages. The Tennessee Supreme Court determined that Rowe did not have a property or liberty interest in potential employment with the school system and affirmed the Chancery court’s dismissal of his complaint. Rowe also advanced litigation in the federal district court and the Sixth Circuit Court of appeals and was unsuccessful on the basis of res judicata because it was clear that the action arose from the same set of facts that had been litigated in State Court.
parties filed competing motions for summary judgment. The trial court granted summary judgment in favor of the Defendants based on res judicata and Rowe filed a motion to reconsider which was denied. Rowe then appealed. The Court of Appeals concluded that the trial court correctly determined that the claims Mr. Rowe has made arose from the same nexus of facts as those presented in his previous litigation and that the issue of whether an enforceable contract existed is pretermitted as moot. The trial court was affirmed and costs were assessed against Rowe. http://www.tsc.state.tn.us/sites/default/files/rowe_leonard_ opinion_final.pdf
In 1997, the Hamilton County Board of Education assumed operation of the school district from the City of Chattanooga. It was undisputed at the time of the merger that Rowe had not be employed in either school district since 1987. Rowe then began filing actions in the federal district court against the Hamilton County Board of Education based on the same set of facts both in 2006 and 2008. In 2006 the Sixth Circuit affirmed the dismissal by the federal district court which concluded that Rowe provided insufficient allegations to even establish any claim of employment discrimination under state or federal law. Rowe again brought an action in federal district court in 2008 which the court dismissed with prejudice and enjoined Rowe from filing in its court further lawsuits against the same defendants and “any person or persons who either currently or in the future occupy and hold the position of Superintendent of Hamilton County Department of Education…” without first obtaining the court’s written approval. Rowe, in 2014, filed the most recent complaint in Hamilton County Circuit alleging breach of contracts and claiming damages exceeding $1 million dollars for lost employment opportunity. Defendants filed a motion to dismiss asserting that no enforceable contract had ever existed between Rowe and Defendants. The Court denied the motion and the
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Tennessee School Law Quarterly Smith/Kucers/Forgerty v. Jefferson County Board of Education Sixth Circuit Court of Appeals June 11, 2015 The Jefferson County school board, facing a budget shortfall, abolished its alternative school and contracted for its students to be educated in the secular, alternativeschool program at a private, Christian school. David Kucera and Vickie Forgety, teachers who lost their jobs in the abolition of the original alternative school, sued the school board, asserting an Establishment Clause violation. The district court held that the School Board’s action violated the Establishment Clause and awarded damages and an injunction. The Board appealed. In the present case, the Sixth Circuit found the following: The parties stipulate that the School Board’s “sole motivation” for contracting out its alternative-school services to Kingswood (a religious institution) was “to reconcile the Board’s budget with the Commission’s fund allotment.” There is no question, then, that the Board had a secular purpose, as Lemon’s first prong and Justice O’Connor’s subjective test require. Our inquiry, then, should be threefold. First, does historical practice indicate that the Board’s action was constitutionally compliant, regardless of any specific test? Second, did the relationship with Kingswood have the effect of advancing religion—or, in other words, did it objectively convey a message of religious endorsement? Third, did it foster an excessive entanglement of government and religion? We must next consider whether the relationship between the School Board and Kingswood had the primary effect of advancing religion, or whether the action conveyed an objective message that the government was endorsing religion. The Supreme Court has made clear that the state endorses religion when it coerces participation in a religious activity. Coercion not only includes securing participation through rules and threats of punishments but also includes imposing public pressure, or peer pressure, on individuals. Here, there is no suggestion that the Board’s association with Kingswood coerced students to partake in religious activity of any kind, either directly or through peer pressure. Although the students met with a pastor for intake
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meetings, there is no indication that the meetings touched on religion in any way. And although the students used the chapel for assemblies, the record does not indicate that the assemblies required participation in any religious or spiritual practice. Classroom activities did not include religious instruction, prayers, or moments of reflective silence. In light of these facts, we find the district court’s conclusion that the atmosphere was coercive to be clearly erroneous. A reasonable observer would not interpret the School Board’s relationship with Kingswood as a governmental endorsement of religion. Parents and students, for example, encountered only de minimis religious references in Kingswood’s day program. The evidence indicates that students in the day program were not exposed to any religious instruction, prayer, or any mentions of religion at all. Their school building was devoid of any religious imagery. Their assemblies in the chapel were as close as the day students came to religious exposure, and yet those assemblies were completely secular activities. Viewed in this context, it is clear that the taxpayers, School Board, parents, and students all benefited from the relationship between the Board and Kingswood. While this benefit was being conferred, parents and children received only slight exposure to religious content. The exposure they did receive stemmed from Kingswood’s pre-existing status as an unapologetically Christian institution. The mere status of Kingswood as a religious organization does not itself give rise to endorsement. Furthermore, the religious communications were not targeted specifically at the day students, much less the Jefferson County students in particular, but were disseminated in accordance with the way that Kingswood had always operated as an institution. Imbued with this background knowledge—none of which was a secret—a reasonable observer would not have viewed the arrangement as a governmental endorsement of religion. Such an observer would have instead interpreted the arrangement of the School Board as doing the best it could, in the face of unexpected budgetary constraints, to fulfill its legal obligation to provide an alternative-school system and to give the alternative students the best available education.
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Tennessee School Law Quarterly In sum, this case involves a secular legislative purpose, does not give rise to a governmental endorsement of religion, and does not entail an excessive entanglement between the government and religion. There is no violation of the Establishment Clause, and we therefore reverse the judgment of the district court. The District Court decision was reversed. http://www.ca6.uscourts.gov/opinions.pdf/15a0119p-06. pdf
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Tennessee School Law Quarterly Attorney General Opinions
Attorney General Opinion No. 15-53 Registration of School Buses for Hire QUESTION 1 When a school bus is owned by a private contractor and operated under contract with the county to provide transportation to students attending county schools, should the bus be registered under Tenn. Code Ann. § 55-44-112(a), with the fee depending on the vehicle’s seating capacity? OPINION 1 Yes. A bus operated for hire to transport passengers should be registered under Tenn. Code Ann. § 55-4-112(a). QUESTION 2 Alternatively, should the school bus be registered under Tenn. Code Ann. § 55-4-111, Class (B); Tenn. Code Ann. § 55-4-111, Class (E); or as a freight motor vehicle under Tenn. Code Ann. § 55-4-113(a)(2), with the specific registration class and fee depending upon the weight of the vehicle? OPINION 2 No. http://attorneygeneral.tn.gov/op/2015/op15-53.pdf
Attorney General Opinion No. 15-58 Uniform Grading Policy and HOPE Scholarship Eligibility QUESTION Are private secondary schools as defined in Tennessee Code Annotated § 49-4-902(10)(B) required to use the state Uniform Grading Policy as set forth in Tenn. Code Ann. § 49-4-902(41) for purposes of establishing student eligibility for the HOPE scholarship? OPINION No. It appears that the Legislature intended that HOPE scholarship eligibility may be determined either through the use of the State uniform grading scale or another grading method that permits a determination of the mathematical equivalence to grades on the uniform scale. http://attorneygeneral.tn.gov/op/2015/op15-058.pdf
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Tennessee School Law Quarterly Attorney General Opinions Attorney General Opinion No. 15-62 License for Providing Canine Detection Services to Public Schools and Private Entities QUESTION 1 Are private entities that provide canine detection services to county high school systems required to be licensed under Tenn. Code Ann. § 62-26-202, et seq., also known as the “Private Investigators Licensing and Regulatory Act” (the “Act”)? OPINION 1 Yes. A private entity that contracts to provide canine detection services is acting as an “investigations company” and a “private investigator” as defined in Tenn. Code Ann. § 62-26-202 and must be licensed unless otherwise exempt from the Act. None of the exemptions set forth in Tenn. Code Ann. § 62-26-223 is applicable to entities or their employees that provide these services to county high schools. Specifically, they are not exempt under Tenn. Code Ann. § 62-26-223(b)(1) as “a governmental officer or employee performing official duties” because they are independent contractors, not employees of the county high school systems. QUESTION 2 Are private entities that provide canine detection services to private entities required to be licensed under the Act? OPINION 2
Yes. As stated above, a private entity that contracts to provide canine detection services is acting as an “investigations company” and a “private investigator,” and is not exempt from the Act under Tenn. Code Ann. § 62-26223. http://attorneygeneral.tn.gov/op/2015/op15-062.pdf
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Tennessee School Law Quarterly TSBA Legal Workshop 2015 Annual Convention
Saturday, November 14 - 1:00-4:30 p.m. - Pre Convention Legal Workshop (Last chance for CLE in 2015; see agenda below)
Tennessee School Law Quarterly
Sunday, November 15 - 10:00 -11:30 a.m. - TCSBA Meeting (Annual Business Meeting and Tennessee Roundtable) Reserve your spot now: https://tsbaregistration.wufoo.com/
Published by: The Tennessee School Boards Association 525 Brick Church Park Drive Nashville, TN 37207
Saturday, November 14, 2015 1:00 p.m. - 4:30 p.m.
Phone: 615/815-3900 800/448-6465 Fax: 615/815-3911
1:00-2:00 p.m. “Is Student Speech Free?” When May Students Face Consequences for Online Behavior?
Layout and Design by: Katie Hock Director of Communications and Member Services
A look at when school districts may discipline students for online speech and other electronic communications.
Content by: Randall Bennett TSBA Deputy Executive Director & General Counsel rbennett@tsba.net 615/815-3902 We’re on the web! Visit us at: www.tsba.net Disclaimer: The information in this issue represents the opinions of the writers and does not necessarily represent the official position of TSBA
2:00-2:15 p.m.
Christy Ballard – General Counsel, Tennessee Department of Education
Break
2:15-3:15 p.m. “The Top 6 Causes of School Board Employees Getting Into Trouble” Valerie Speakman, General Counsel, Shelby County Board of Education Have you ever said…”Oh! I wish she hadn’t said THAT?” This session will take a look at what school district employees need to know about the art of being discreet. 3:15-3:30 p.m.
Break
3:30-4:30 p.m. “Your School Has Been Sued! SO NOW What?”
Charles M. Purcell, Attorney Purcell, Sellers & Craig
In spite of all your training and best efforts, you’ve been served with a lawsuit. This session will discuss what you should do when that happens. 4:30 Adjourn
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Winter 2016 Tennessee School Law Quarterly
Tennessee
School Law Quarterly A TSBA Publication for School Board Attorneys, Board Members, and Administration
Table of Contents Volume 16, Issue 1 Pages 1-2
Susan Jones v. Knox County Board of Education
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Service Employees International Union Local 205 v. Metropolitan Nashville Board of Public Education, Et Al.
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Attorney General Opinions
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TSBA Winter CLE
Susan Jones v. Knox County Board of Education December 21, 2015 This appeal concerns a tenured teacher’s legal challenge to her transfer from the position of Instructional Coach to classroom teacher, a transfer she considers to be a demotion. At the end of the 2011-2012 school year, Superintendent, Dr. James McIntyre, transferred Jones, a tenured teacher with Knox County schools, to her new position. In August 2013, Jones sued Defendants in the Trial Court, alleging that her transfer was arbitrary, capricious, and in violation of the requirements of Tenn. Code Ann. § 495-510 (2013), which provides: The director of schools, when necessary to the efficient operation of the school system, may transfer a teacher from one location to another within the school system, or from one type of work to another for which the teacher is qualified and licensed; provided, that transfers shall be acted upon in accordance with board policy. Jones also alleged that her grievance process was unduly cut short mid-process. At the heart of the complaint was the allegation that her performance evaluations were not considered by McIntyre, as required. Several exhibits were attached to Jones’ complaint to this end. In the achievement and growth measures of her total evaluations, Jones received the highest possible results, according to her complaint. However, Jones acknowledged also having received criticism from a school principal, and receiving an unsatisfactory score of 2 in section 5 regarding classroom coaching. In October 2014, Defendants filed a motion to dismiss asserting that Jones lacked a redressable grievance because she did not contest the accuracy of the data used in the evaluations. Moreover, according to Defendants, Jones’ transfer had a rational basis in that, by her own acknowledgement, Jones had received certain criticism and unsatisfactory marks in her evaluations. Therefore, per Defendants’ argument, Jones transfer could not be arbitrary or capricious. In January 2015, the Trial Court granted Defendants’ motion to dismiss. In its final order of dismissal, the Trial Court found that Jones’ transfer was not arbitrary, capricious, or contrary to the requirements of the law and that Ms. Jones’ transfer was fair and reasonable; second, that Ms. Weaver Jones filed an improper grievance,
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Tennessee School Law Quarterly and, therefore, the grievance was not entitled to secondary review; and thirdly, Superintendent McIntyre acted properly in refusing to allow the plaintiff to advance her evaluation grievance. Jones appealed raising the issue that the Trial Court erred in granting Defendants’ motion to dismiss. While directors of schools have discretion to transfer teachers, this discretion is not unbounded. Tenn. Code Ann. § 49-1-302(d)(2)(A)(2013), states in relevant part: “The evaluations shall be a factor in employment decisions, including, but not necessarily limited to, promotion, retention, termination, compensation and the attainment of tenure status.” Jones’ complaint alleges that Defendants failed to consider her evaluation results which is contrary both to state statutory law requiring her evaluations to be a factor in Defendants’ employment decision to transfer her as well as State Board of Education Policy 5.201, which requires that evaluations be used to decide, among other things, assignments. Defendants contend, however, that because the transfer was not arbitrary or capricious, Ms. Jones’ transfer is presumed to be reasonable.
Jones’ factual allegations as true for purposes of the motion, made findings, and ruled on the merits of the case. Jones’ claim may or may not succeed on its merits. Nevertheless, in our judgment, Jones has alleged facts sufficient to state a claim for relief. We hold that the Trial Court erred in granting Defendants’ motion to dismiss. In conclusion, the Court held that “Jones has alleged facts sufficient to state a claim for relief. Namely, our Supreme Court in Lawrence County articulated the legal route by which a tenured teacher may bring a direct action to challenge a transfer alleged to be arbitrary, capricious or contrary to applicable law. Taken as true, Jones’ allegation that she was transferred arbitrarily without any consideration of her evaluation results could warrant relief. We take no position as to the ultimate outcome of this case. We hold only that the Trial Court erred in granting Defendants’ motion to dismiss. We reverse the judgment of the Trial Court, and remand this case for further proceedings.” https://www.tncourts.gov/sites/default/files/jonesswopn.pdf
The Court indicated the major flaw in Defendants’ argument is that, while decisions to transfer are in fact presumed to be reasonable and fair, this presumption is rebuttable. It is insufficient and circular for Defendants to state simply that Jones’ transfer was reasonable, and rest on that. It begs the question. If Jones’ complaint is construed liberally and her factual allegations are taken as true, as they must be at the motion to dismiss stage, then McIntyre improperly failed to consider her evaluation results in making the decision to transfer her. Defendants argue that because Jones herself acknowledges that she received certain unsatisfactory marks and criticism, the transfer cannot have been arbitrary or capricious. Defendants' interpretation would serve to vitiate any protection for tenured teachers seeking to legally challenge a transfer because under that interpretation potentially any criticism of a teacher’s performance, no matter how insignificant, could justify a transfer. Such an interpretation is inconsistent with the applicable law, especially our Supreme Court’s framework for challenging transfers. Moreover, the Court found that the Trial Court applied the wrong standard in deciding Defendants’ motion to dismiss. Rather than applying the required standard applicable to a Rule 12.02(6) motion to dismiss as discussed above, the Trial Court instead did not take
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Tennessee School Law Quarterly Service Employees International Union Local 205 v. Metropolitan Nashville Board of Public Education, Et Al. December 21, 2015
employees and to direct the Director to comply with the LNP. On March 12, the Chairperson responded by letter to SEIU, stating that the complaint was “without merit and should proceed no further.”
This case involves the ability of the Service Employees International Union Local 205 (“SEIU”), a labor union, to represent service employees of the Metropolitan Nashville Board of Public Education (“the Board”).
SEIU filed a complaint in Davidson County Chancery Court on July 16, 2012, consisting of two counts. In count one, the complaint alleged that the LNP had been enacted by the Board pursuant to the powers granted it at Tenn. Code Ann. § 49-2301(b)(1)(A) and (HH), the Metropolitan Charter, and “other applicable law”; that the Board had never rescinded the LNP or delegated the authority to do so; that the Director refused to recognize SEIU as the exclusive bargaining representative, refused to meet and confer with SEIU, and refused to abide by the payroll deduction section of the LNP by allowing members of SEIU to revoke their membership and stop the deduction of dues from their pay at any time of the year.
The parties agree that in July 2000, the Board adopted the Labor Negotiations Policy (“LNP”), which gave nonlicensed (i.e., non-teaching) employees the right to join an employee organization; to choose exclusive representatives to meet and confer with the Director of Schools (“the Director”) on matters relating to working conditions and other terms and conditions of employment; to have their representatives enter into nonbinding memorandums of understanding (“MOU”) with the Director; and to have organization dues deducted from their paychecks with their written authorization. Pursuant to the procedure set forth in the LNP, the SEIU was selected as the exclusive representative by a majority of service employees in October 2000, and the Board duly certified SEIU as the exclusive representative. SEIU thereafter entered into a series of MOU’s with the Director, the most recent of which extended from July 1, 2008, to June 30, 2011. The Director did not meet with SEIU to negotiate a new MOU to take effect after June 30, 2011; after that date he permitted employees to stop automatic withdrawal of SEIU dues from their paychecks and did not recognize SEIU as the exclusive representative of the workers. In December 2011, the Director sent a letter to the representatives of SEIU and the United Steelworkers, the union which represented the bus drivers, advising that he “desire[d] to establish a harmonious working relationship with our support employee unions” and that “[f ]or our future relationship with support employee unions to be mutually beneficial and productive, we must acknowledge the recent changes in state law.” The letter stated that, in light of these changes in the law, the Director and his executive staff had “met and voted to rescind [the LNP].” On the same day, the Director notified the members of the Board by electronic mail of his decision and attached a copy of the letter. SEIU sent a letter to the Chairperson of the Board on January 9, 2012, filing a complaint against the Director and asking the Board to confirm the SEIU’s status as the exclusive bargaining representative of the support
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Count two alleged that the meeting at which the Director and his executive staff rescinded the LNP did not comply with the Open Meetings Act. SEIU sought a declaratory judgment that “[t]he Court should declare that the LNP remains in effect and is binding upon the Director of Schools” and “further declare that [the Director] is in violation of the LNP” and other relief, including a permanent injunction requiring the Director to comply with the LNP, and an award of damages as well as attorney’s fees and costs. The Board filed its Answer on September 4, 2012, asserting that the Director had the authority to rescind the LNP and that “due to the changes in state law and Board policy, the School System is no longer required to maintain the LNP or enter into negotiations with SEIU.” Both parties moved for judgment on the pleadings and for summary judgment. In due course, the court granted SEIU’s motion on the pleadings in part, ruling that Tenn. Code Ann. § 49-2-301 did not give the Director the authority to abrogate the LNP and, consequently, the LNP was still in effect. On the parties’ cross motions for summary judgment on count one of the complaint, the Court granted SEIU’s motion and denied the Board’s motion, declaring that: [The LNP] is a full-fledged policy of the Board of Education, as opposed to some lesser policy or procedure. The LNP can only be revoked by the Board of Education. The Director of Schools does not have legal authority to revoke the LNP under any statute, charter provision, or Board of Education policy reviewed by this Court.
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Tennessee School Law Quarterly Therefore, Dr. Register did not effectively rescind the LNP. The LNP is still in effect. The Board appeals, raising the following issue: “Did the Trial Court err in granting judgment in favor of the SEIU, determining that the LNP is still in effect and leaving open the possibility of enforcement?” Prior to amendments to Title 49 which took effect in 2011, the Director had the following powers: (EE) Within the approved budget and consistent with existing state laws, board policies and locally negotiated agreements covering licensed personnel, employ, transfer, suspend, nonrenew and dismiss all personnel, licensed or otherwise, except as provided in § 49-2-203(a)(1) and in chapter 5, part 5 of this title. Nothing in this subdivision (b) (1)(EE) shall be construed to alter, diminish or supersede the Education Professional Negotiations Act, compiled in chapter 5, part 6 of this title; (FF) All persons who are employed in a position for which no teaching license is required shall be hired on a year-to-year contract. The director shall provide a person who is employed in such a position fifteen (15) days’ notice of nonrenewal of the contract before the end of the contract period[.] In 2011, the General Assembly enacted amendments to various parts of Title 49, including the duties of the director listed in section 301(b). The amendments to the statute pertinent to this appeal read as follows: (EE) Within the approved budget and consistent with existing state laws and board policies, employ, transfer, suspend, non-renew and dismiss all personnel, licensed or otherwise, except as provided in § 49-2-203(a)(1) and in chapter 5, part 5 of this title; (FF) All persons who are employed in a position for which no teaching license is required shall be hired at the will of the director of schools. The local board of education shall develop a policy for dismissing such employees[.] Tenn. Code Ann. § 49-2-301(b)(1). The practical effect of these amendments was to require the Board to assign to the Director the duty to hire, transfer, suspend, non-renew, and terminate all personnel and to remove the requirement that those decisions be made in accordance with “locally negotiated agreements covering licensed personnel.”
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At the same time as the amendments to Tenn. Code Ann. § 49-2-301 were passed, the Professional Educators Collaborative Conferencing Act of 2011 was enacted in chapter 378 of the 2011 Tenn. Pub. Acts. The Act requires local school boards “to participate in collaborative conferencing with professional employees, or their designated representatives, if any, with respect to only those terms and conditions of employment that are specified in this section”; the specified terms and conditions are salaries or wages, grievance procedures, insurance, fringe benefits, working conditions, leave, and certain payroll deductions. Tenn. Code Ann. § 49-5-608(a). The Act grants the following rights to professional employees (i.e., licensed teachers): (1) the right to self-organization, (2) to form, join, or be assisted by organizations, (3) to participate in collaborative conferencing with local boards of education through representatives of their own choosing, and (4) to engage in other concerted activities for the purpose of other mutual aid and benefit; provided, that professional employees also have the right to refrain from any or all such activities. Tenn. Code Ann. § 49-5-603. The Act also ensures that professional employees of school boards have the right to engage in collaborative conferencing “through representatives of their own choosing” and that “no professional employee, group of professional employees, or professional employee organization shall be denied the opportunity to represent themselves or groups of professional employees in discussions.” Tenn. Code Ann. § 49-5-605. Reading the amendments to Tenn. Code Ann. § 49-2-301 and the amendments to part 6 of chapter 5 of Title 49 in pari materia, the General Assembly granted the right to engage in collaborative conferencing on the terms and conditions of employment only to licensed teachers while making the employment of non-licensed personnel to be at the will of the director. In vesting sole discretion to make employment decisions pertaining to non-licensed personnel in the Director, the Legislature negated any Board policy which has the effect of removing that discretion. Much of SEIU’s argument was premised on the contention that the LNP was unaffected by the 2011 amendments. To the contrary, the Court concluded that LNP was abrogated by the amendments. The requirements that the Director recognize a single exclusive representative of the employees, meet with that organization’s representative to discuss the terms and conditions of service workers’ employment, and permit payroll deduction for only that organization’s dues, are not consistent with the employment at will status
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Tennessee School Law Quarterly conferred on non-licensed personnel at Tenn. Code Ann. § 49-2301(b)(1)(FF). After the 2011 amendments became effective, the LNP was no longer operable; the Director was not obligated to follow it, and no Board action was required to rescind it. As the Director is bound by statute to see “that the laws relating to the schools and rules of the state and the local board of education are faithfully executed,” Tenn. Code Ann. § 49-2-301(b)(1)(A), the Director was properly exercising the authority granted to him by law when he exercised his discretion to not follow the procedures in the LNP. The Court reversed the trial court’s grant of summary judgment to SEIU and remanded the case for any further proceedings necessary. https://www.tncourts.gov/sites/default/files/svc. emp_.v.metroopn.pdf
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Tennessee School Law Quarterly Attorney General Opinions
Attorney General Opinion No. 16-01 Assumption of Memphis City Schools’ Debts by Shelby County after Transfer of School Operations to County QUESTION 1 The City of Memphis Special School District (Memphis City Schools) carried an unfunded Other Post-Employment Benefits (OPEB) liability when it surrendered its charter several years ago. At that time all Memphis City Schools operations were transferred to Shelby County Schools. Under State law, what process is required for Shelby County to assume the OPEB indebtedness of Memphis City Schools that existed when school operations were transferred? OPINION 1 For Shelby County to assume the OPEB indebtedness of Memphis City Schools that existed when school operations were transferred to Shelby County Schools, Tennessee Code Annotated § 49-2-1002(d) requires the county legislative body to adopt, by a vote of a majority of its members, a resolution assuming the OPEB indebtedness owed by Memphis City Schools.
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Tennessee School Law Quarterly Winter CLE
Tennessee Council of School Board Attorneys Friday February 26, 2016 10:00 a.m. - 2:15 p.m TSBA Headquarters - Nashville
Tennessee School Law Quarterly Published by: The Tennessee School Boards Association 525 Brick Church Park Drive Nashville, TN 37207 Phone: 615/815-3900 800/448-6465 Fax: 615/815-3911 Layout and Design by: Katie Hock Director of Communications and Member Services Content by: Randall Bennett TSBA Deputy Executive Director & General Counsel rbennett@tsba.net 615/815-3902 We’re on the web! Visit us at: www.tsba.net Disclaimer: The information in this issue represents the opinions of the writers and does not necessarily represent the official position of TSBA
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AGENDA 10:00 – 11:00 How Tennessee Schools Should Respond to Open Records Requests Samuel L. Jackson – Lewis, T Thomason, King, Krieg, and Waldrop, P.C. 11:00 – 12:00 The Transgender Issue – What’s Happening in the Courts? Emily Harper Mack – Lewis, Thomason, King, Krieg, and Waldrop, P.C. 12:00 – 12:15
Break & Working Lunch
12:15 – 1:15 Ethics in the Life of an Attorney Randall G. Bennett – Deputy Executive Director/General Counsel TSBA 1:15 – 2:15 Legislative Update – What’s Happening in the General Assembly? Charles W. Cagle – Lewis, Thomason, King, Krieg, and Waldrop, P.C. TSBA is applying for three (3) hours general credit and one (1) hour dual. To Register – Click Link https://tsbaregistration.wufoo.com/forms/s1dhsefw1xykibp/
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This is a publication of the Tennessee School Boards Association 525 Brick Church Park Drive Nashville, TN 37207 www.tsba.net