by Dean Micknal
As detailed in a monitoring report released by the U.S. Department of Education’s Office of Special Education Programs (“OSEP”) last month, TEA’s use of the 8.5 percent special education representation indicator was determined to have contributed to a statewide pattern of practices that violated the Individuals with Disabilities Education Act (IDEA) child find requirements, resulted in a failure to make FAPE available to all eligible children with disabilities residing in the State, and demonstrated a failure on the part of TEA to fulfill its general supervisory and monitoring responsibilities under IDEA. TEA is now seeking “significant stakeholder engagement” regarding an initial draft of its plan to bring it back into compliance with IDEA. Detailed information about opportunities available for providing feedback (including a link to an online survey and calendar of upcoming stakeholder meetings) is available online here. This opportunity to provide input should not be ignored, as the plan has serious repercussions for public school districts.
Those wishing to review a full copy of OSEP’s 14 page monitoring report can access it here. However, the critical issue identified by OSEP can be summarized as a perceived widespread confusion on the part of local school districts with respect to the obligation to refer students for evaluation under IDEA as required by 34 CFR §300.111. Specifically, OSEP identified serious and systemic problems with how this “child find” mandate relates to Response to Intervention (“RtI”), Section 504, and the state’s dyslexia laws. The report emphasizes OSEP’s position that supports being provided in the general education environment through these and other programs cannot serve as a basis to delay or deny the referral of a struggling learner who is suspected of having a disability and needing special education and related services.
School districts should be aware that TEA’s initial proposal for remedying this issue includes the following provision:
TEA will require every district and charter school to identify all students who were in RtI for 6+ months, only had a Section 504 plan, or were exclusively in a dyslexia or dyslexia-related program. Schools must connect with the parents of these identified students not yet in special education and notify them of the corrective action plan and opportunity for a special education evaluation. The cost of identifying and conducting assessments for students suspect of having a disability has always been the responsibility of the district, which will continue.
While well intentioned, implementing this proposal could prove problematic for local school districts. First, the plan doesn’t address incidents in which a district might have legitimate reasons for refusing to conduct an evaluation. Second, it doesn’t consider the logistical issues that might arise from attempting to complete a potentially massive number of evaluations within the statutorily imposed timeframe. Finally, districts should recognize that the “costs of identifying and conducting assessments for students suspected of having a disability” includes costs associated with the procedural safeguards provided to the parents seeking those evaluations. These costs include the obligation to provide an Independent Educational Evaluation (IEE) at public cost and/or the right to request a due process hearing in response to disagreements regarding the evaluation.
Despite its fundamental importance, Child Find has proved to be a deceptively complicated concept. While undeniably challenging, the potential benefit of developing clear, concise, and unambiguous guidance in response to OSEP’s findings should not be overlooked. In the meantime, if you have questions about your district’s responsibilities under IDEA and/or participating in TEA’s efforts to address OSEP’s concerns, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.
by Heather Castillo
Yesterday, Attorney General Ken Paxton issued an opinion in response to Texas Senator Paul Bettencourt’s request regarding resolutions adopted by some school districts which were designed to encourage a culture of voting (the “Request”). Some of the resolutions referenced texaseducatorsvote.com and included the possibility of transporting employees and/or students to polling places. You can see the opinion here (the “Opinion”).
Bettencourt’s Request was submitted on December 12, 2017, which provided Paxton until June 11, 2018, to issue an opinion. While it was anticipated that an opinion would be issued prior to the upcoming election season, some suspect that the quick response from Paxton indicates that the Opinion was predetermined.
Bettencourt’s Request asked the following two questions:
- Does a school district providing or securing transportation for employees or students to and/or from polling places violate the Gift Clauses of the Texas Constitution?
- What legal constraints exist regarding a school district’s ability to spend or authorize the spending of public funds for political advertising or communications designed to influence voters to vote for or against a particular measure or candidate?
The “circumstances” Bettencourt described to Paxton in the Request consisted of a narrative replete with political rhetoric, unsubstantiated allegations and conclusions unsupported by any set of specific facts. Please peruse those for your own edification at the link to the Request here.
In summary, Paxton opined:
- Absent “an educational purpose,” transporting students to polling locations would constitute a gift of public funds;
- If a district employee does not have a “responsibility or duty to perform on behalf of the school district at the polling location,” then a court would likely conclude that transporting the employee to the polls serves no public purpose and would be a gift of public funds; and
- Regarding the resolution, “the use of public funds to link to an Internet website promoting a specific candidate or measure is itself a communication supporting or opposing a candidate or measure in violation of this provision.”
The Opinion is not law. Further, while Courts have stated that Attorney General opinions are highly persuasive and are entitled to great weight, the ultimate determination of a law’s applicability, meaning or constitutionality is left to the courts.
A school district must meet this three-part test to establish that an expenditure does not constitute a gift of public funds: (1) ensure that the predominant purpose is to accomplish a public purpose, not to benefit private parties; (2) retain public control over the funds to ensure that the public purpose is accomplished and to protect the public’s investment; and (3) ensure that the political subdivision receives a return benefit. Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers’ Comp. Comm’n, 74 S.W.3d 377, 384 (Tex. 2002); Op. Tex. Att’y Gen. No. GA-0076 (2003).
The Opinion is not based upon any set of specific facts. Individual school districts must first decide whether an activity meets the above three-part legal analysis based upon facts specific to their districts. A school district’s decision could then be challenged in court and would be subject to judicial review. An injunction from the court to prohibit the district from providing this service would most likely be the worst case scenario.
Bettencourt only made vague allegations that the texaseduatorsvote.com website contains “links to other websites that are partisan in nature.” Bettencourt did not provide any facts to Paxton to establish that any link promoted a specific candidate or measure or that “political advertising” somehow occurred in connection with any school district’s resolution. The Texas Election Code defines “political advertising” as:
(16) “Political advertising” means a communication supporting or opposing a candidate for nomination or election to a public office or office of a political party, a political party, a public officer, or a measure that:
(A) in return for consideration, is published in a newspaper, magazine, or other periodical or is broadcast by radio or television; or
(i) in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication; or
(ii) on an Internet website.
Tex. Elec. Code § 251.001(16) (emphasis added). A “measure” is defined as “a question or proposal submitted in an election for an expression of the voters’ will and includes the circulation and submission of a petition to determine whether a question or proposal is required to be submitted in an election for an expression of the voters’ will.” Tex. Elec. Code § 251.001(19).
The Texas Education Code, Texas Election Code, and the Texas Ethics Commission Rules, guides, and Texas Ethics Advisory Opinions provide the legal constraints that exist regarding a school district’s ability to spend or authorize the spending of public funds for political advertising. The Texas Ethics Commission’s Sworn Complaint process and imposition of fines, as well as criminal prosecution, are the enforcement mechanisms for specific violations.
If you have questions about Paxton’s Opinion or your school district’s efforts to promote a culture of voting, please do not hesitate to contact any of the attorneys at Leasor Crass.
by Mike Leasor
Normally in this space someone from Leasor Crass, P.C. extols the lessons to be learned from the latest court case, statute passed by the legislature, or edict from the federal government. Today though, I wanted to express my gratitude to you, our clients, for what you do each day. George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of “public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.” Presidential Proclamation, 1 Messages and Papers of the Presidents, 1789-1897, p. 64 (J. Richardson ed. 1897).
As an educator, my heart is grateful for the work each of you reading this will perform today, performed yesterday, and will perform in the future. Your dedication to the students of each of your districts is noticed each time myself or one of my partners speaks with you. Even after a long day, it is always evident that you want to do what is in the best interests of the students in your district.
As a father, I am grateful that you are in charge of educating the students of this great state. These students will interact with my children and my grandchildren. If your dedication to your students will positively impact my family and its future, is there more for which a father can be grateful? Alas, I am eternally grateful for the educators who provided the best education to me and my children.
As an attorney, I am grateful for the opportunity to practice school law. I will never be rich, but it is a righteous cause. I am grateful for each and every one of you, who allow me and the other attorneys at Leasor Crass the opportunity to assist and provide guidance each day as you truly do the most amazing job one could ever do. Thank you.
by Tommy Fisher
Have you ever used this, or similar, language in a settlement agreement with a claimant?
Subject to the provisions of the Texas Open Records and Meetings laws, the parties expressly agree that the terms and conditions of this Agreement, and all matters relating to the potential lawsuit not otherwise contained in any public records, shall be kept strictly confidential and shall not be revealed or divulged to any third persons or entities except as necessary for tax purposes and/or necessary and legitimate purposes, or pursuant to a court order.
The negotiation of virtually every settlement between a district and a claimant will at some point cover the confidentiality of the terms of the agreement. More often than not, language similar to that above would be used to keep the agreement confidential. Confidentiality can be beneficial to both parties. A district may want to keep the amount confidential to head off copycat claims while a claimant may not want anyone to know what they received from the district. Until September 1, 2017, both parties could achieve some degree of confidentiality by having a confidentiality provision in the final settlement agreement. However, after September 1, the Texas legislature has significantly restricted that practice.
Texas HB 53 went into effect as new Chapter 116 of Chapter 5 of the Texas Civil Practice and Remedies Code. HB 53 reads as follows:
CHAPTER 116. SETTLEMENT OF CLAIM OR ACTION AGAINST GOVERNMENTAL UNIT
Sec. 116.001. DEFINITION. In this chapter, “governmental unit” has the meaning assigned by Section 101.001.
Sec. 116.002. CERTAIN SETTLEMENT TERMS PROHIBITED.
(a) A governmental unit may not enter into a settlement of a claim or action against the governmental unit in which:
(1) the amount of the settlement is equal to or greater than $30,000;
(2) the money that would be used to pay the settlement is:
(A) derived from taxes collected by a governmental unit;
(B) received from the state; or
(C) insurance proceeds received from an insurance policy for which the premium was paid with taxes collected by a governmental unit or money received from the state; and
(3) a condition of the settlement requires a party seeking affirmative relief against the governmental unit to agree not to disclose any fact, allegation, evidence, or other matter to any other person, including a journalist or other member of the media.
(b) A settlement agreement provision entered into in violation of Subsection (a) is void and unenforceable.
Sec. 116.003. EFFECT OF CHAPTER. This chapter does not affect information that is privileged or confidential under other law.
SECTION 2. The change in law made by this Act applies only with respect to a claim or action that is based on a cause of action that accrues on or after the effective date of this Act.
SECTION 3. This Act takes effect September 1, 2017.
For claims accruing after September 1st, in which the Settlement is $30,000.00 or more AND the money used to pay the settlement is derived from taxes collected, is received from the state or insurance proceed from a policy paid for with taxes collected or by the state, any language which requires a claimant to agree not to disclose the certain things related to the agreement will void the settlement and render it unenforceable. Practically speaking, this means that settlement of claims accruing after September 1st cannot contain language similar to that above.
While the new law seems straight forward, the issue that will create uncertainty for districts will likely become making a determination of when a claim “accrues”. Generally, a cause of action accrues when a wrongful act causes a legal injury. An exception to this general rule is known as the “discovery rule”. The discovery rule provides that an action does not accrue until a plaintiff (or claimant) knew or in the exercise of reasonable diligence, should have known, of the wrongful act and resulting injury. The result for districts is that a determination of when the claim accrued should be made for every claim made after September 1, 2017. Those accruing after September 1 and settle for $30,000.00 or more cannot contain confidentiality restrictions.
There are countless exceptions and nuances that impact the accrual analysis. The attorneys at Leasor Crass can assist Districts in making this determination and ensuring that District settlement agreements comply with HB 53 and other Texas laws.
by Dean Micknal
The Texas Legislature passed Senate Bill 7 (“SB 7”) this summer in an effort to address the increasing number of inappropriate relationships between educators and students being reported. The legislation, which became effective on September 1, 2017, included significant changes to the requirements for reporting educator misconduct found in Section 21.006 of the Texas Education Code.
Principal to Superintendent
Prior to the passage of SB 7, TEC 21.006 required a “superintendent or director of a school district, open-enrollment charter school, regional education service center, or shared services arrangement” to report certain acts of misconduct to the State Board for Educator Certification (SBEC). SB 7 added TEC 21.006(b-2), expanding the applicability of the law to the campus level in two instances.
As of September 1, 2017, principals are now required to notify the superintendent (not SBEC) no later than the seventh business day after the date the principal obtains information about the criminal record of an educator employed by or seeking employment by the district by a means other than the criminal history clearinghouse established under Section 411.0845 Government Code.
Additionally, principals are now required to notify the superintendent (not SBEC) no later than the seventh business day after the date of an educator’s termination or resignation following an alleged incident of misconduct that is described in TEC 21.006(b)(1). This list (which should already be familiar to superintendents) includes:
- abuse or another unlawful act with a student or minor;
- a romantic relationship with or solicitation of or engaging in sexual contact with a student or minor;
- possession, transfer, sale, or distribution of a controlled substance, as defined by Chapter 481, Health and Safety Code, or by 21 U.S.C. Section 801 et seq.;
- the illegal transfer, appropriation, or expending of funds or other property of the school district;
- an attempt by fraudulent or unauthorized means to obtain or alter a professional certificate or license for the purpose of promotion or additional compensation;
- a criminal offense or any part of a criminal offense on school property or at a school-sponsored event; or
- conduct that violates the assessment instrument security procedures established under Texas Education Code Section 39.0301.
As written, the new law does not provide any exceptions for circumstances in which the superintendent is already aware of the information that the principal is required to report. Regardless of whether this was intentional or the result of a legislative oversight, at this time we strongly encourage principals to err on the side of caution and file a report even when doing so may appear redundant.
Superintendent to SBEC
Under the revised law, superintendents must still report to SBEC not later than seven business days after learning about an educator’s termination or resignation following an alleged incident of misconduct described by TEC 21.006(b) or learning about an educator’s criminal record. However, SB 7 amended TEC 21.006(c) to include a third reporting trigger. Consequently, superintendents must also make a SBEC report not later than seven business days after receiving a report from a principal, as described above. Again, there does not appear to be any exceptions for incidents in which the superintendent already knew (or already reported on) the information conveyed by the principal’s report.
Superintendents should also be aware of another seemingly minor tweak made by SB 7 that could have major implications. Prior to September 1, 2017, TEC 21.006(b)(2) required notification if an educator was terminated or resigned based on evidence that the educator engaged in misconduct. SB7 broadened this provision to now require notification if an educator is terminated or resigned and there is evidence that the educator engaged in the described misconduct. In other words, the actual basis of the employment action is no longer determinative as to whether the report must be filed.
District to Parent or Guardian
Senate Bill 7 also added Section 21.0061, which requires a district to notify the parent or guardian of a student with whom an educator allegedly engaged in abuse or an inappropriate relationship as soon as feasible after the district becomes aware the alleged misconduct may have occurred. Under the new law, the notice must inform the parent or guardian 1) that the alleged misconduct occurred, 2) whether the educator resigned or was terminated in light of an investigation, and 3) whether a report was submitted to SBEC concerning the alleged misconducted.
All District Employees
Finally, employees should be reminded that these reporting requirements are in addition to, and do not replace, their existing legal obligation to report suspected abuse or neglect to law enforcement or Child Protective Services within 48 hours.
It is critical that District personnel understand and comply with these mandates. While current law already allows SBEC to impose sanctions on superintendents for failing to provide required notice, SB 7 extends the allowable sanctions to principals who fail to provide notice to the superintendent. An administrative penalty of between $500 and $10,000 is added for superintendents or principals who fail to provide timely notice. Additionally, failure to provide timely notice with an intent to conceal an educator’s criminal record or alleged incident of misconduct is a state jail felony. If you have any questions about these new and revised requirements, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.
by Heather Castillo
House Bill 674 (“HB 674”) has two parts:
(1) it adds Texas Education Code (“TEC”) § 37.005(c), which prohibits out-of-school suspension (“OSS”) for students below 3rd grade, with some exceptions; and
(2) it adds TEC § 37.0013, POSITIVE BEHAVIOR PROGRAM, which authorizes districts to create new disciplinary alternatives for students below 3rd grade who engage in conduct eligible for OSS under the district’s Student Code of Conduct (“SCOC”).
No OSS for students below 3rd grade, unless…
HB 674 applies beginning with the 2017-2018 school year. It prohibits districts from placing students below 3rd grade in OSS, unless the student, while on school property or attending a school-sponsored or school-related activity, engages in conduct that contains the elements of:
- a weapons offense under Texas Penal Code § 46.02 (Unlawful Carrying Weapons) or 46.05 (Prohibited Weapons)
- sexual assault
- aggravated assault
- aggravated sexual assault
- selling, giving, or delivering to another person or possessing, using, or being under the influence of marijuana, a controlled substance, a dangerous drug, or an alcoholic beverage
Positive Behavior Programs
HB 674 also provides districts with the authority to create Positive Behavior Programs and train staff regarding disciplinary alternatives for students below 3rd grade. In consultation with a district’s campus behavior coordinators and Regional Education Service Center representatives, a district may now create disciplinary alternatives for students below 3rd grade who violate the SCOC and, in accordance with the new TEC § 37.005(c) discussed above, cannot be placed in OSS. Such programs must:
(1) be age-appropriate and research-based;
(2) provide models for positive behavior;
(3) promote a positive school environment;
(4) provide alternative disciplinary courses of action that do not rely on the use of in-school suspension, OSS, or placement in a DAEP to manage student behavior; and
(5) provide behavior management strategies, including:
(A) positive behavioral intervention and support;
(B) trauma-informed practices;
(C) social and emotional learning;
(D) a referral for services, as necessary; and
(E) restorative practices.
If you or your staff have questions about this new law, or would like training related to any of these issues, the attorneys at Leasor Crass stand ready to assist.
by Rhonda Crass
Texas law prohibits collective bargaining and strikes by public employees, but it preserves the right to redress of grievances. Tex. Gov’t Code Ann. §617.005 provides: “This chapter does not impair the right of public employees to present grievances concerning their wages, hours of employment, or conditions of work either individually or through a representative that does not claim the right to strike.” Further, Tex. Gov’t Code § 617.005 has been construed broadly to include evaluations, salary disputes, grading policies, sick leave, and “any other matter which is appropriate for communications from employees to employer concerning an aspect of their relationship.” A school district must provide parents, students, employees, and the general community the opportunity to have their complaints and concerns heard by those in positions of authority. Administrators and school boards are those “invested with the powers of government” in a school district, and they are the persons to whom citizens must present grievances.
School districts in Texas that use the TASB Policy service have grievance policies in accordance with state law under the legal policies and have adopted local guidelines for grievances in their local polices. The three types of grievances are employee grievances, student grievances and community grievances. Policy DGBA (Legal and Local) addresses employee grievances, while Policy FNG (Legal and Local) addresses student grievances. Community Grievances guidelines are found in Policy GF (Legal and Local). These local policies normally provide three levels at which the complaint should be heard. In large urban districts, some have four levels for grievances.
While the terms “complaint” and “grievance” are used interchangeably, basically, anything that has to do with the school district—from the reading materials in the library to the color of paint in the gym—may be the subject of a grievance. Grievances tend to be an inherently adversarial action because the grievant is challenging a decision made by an administrator, supervisor or your local school board. However, the importance of a grievance is that if a decision has been made that highlights an ineffective policy, bad local practice, or poor decision from a supervisor, the best practice is to revise the policy and not carve out exceptions to the rule.
Districts also hold a public forum at the beginning of each board meeting. Public forum is not the place for individuals to air grievances. Board policy states that the presiding officer or designee shall determine whether a person addressing the Board has attempted to solve a matter administratively through resolution channels established by policy. If not, the person shall be referred to the appropriate individual to seek resolution. Individuals should not be allowed to seek an audience with the Board in closed session unless the grievance policy is followed. Furthermore, levels I or II should not be waived to expedite a hearing before the board unless the board is the lowest level at which the requested relief may be granted. Because there are strict guidelines regarding the time frame for bringing grievances, individuals will often attempt to use the public forum avenue to bring their concerns to the board when the grievant has failed to meet the deadlines for bringing a grievance.
As a rule, board members do not necessarily enjoy hearing level III grievances as they are elected officials and generally do not like having to say no to constituents. Also, grievants are often their friends or neighbors which makes these decisions especially difficult. For that reason, the Board encourages students and parents to discuss their concerns and complaints through informal conferences with the appropriate teacher, principal, or other campus administrator. Even after initiating the formal complaint process, students and parents are encouraged to seek informal resolution of their concerns.
As a final reminder, it is important to check your local policy to ensure that the level I, II and III grievance forms are in your board policies DGBA, FNG and GF as an exhibit to the local policies. Many school district administrators have access to them, but it is important that the employees, students, parents, community members and key stakeholders have access as well. In reviewing your level I, II and III grievance policies, it is important to include a place on the form for not only the grievant’s physical address, but email and phone contact information as well.
For more information regarding grievances, please contact Leasor Crass. We also provide a training for administrators, supervisors and central office personnel on best practices for conducting grievance hearings.
by Mike Leasor
The Texas Legislature passed, and the Governor recently signed, Senate Bill 7 in an attempt to address what many have come to view as an epidemic of inappropriate relationships between educators and students. This piece of legislation, which becomes effective on September 1, 2017, is one of the most talked about coming out of this legislative session. It is imperative that administrators pay close attention to this law and the topic it covers. Your certificate may depend on it.
Following is a bullet point list of the significant additions to the law in this area:
- The principal must notify the superintendent not later than the seventh business day after the date of an educator’s termination of employment or resignation following an alleged incident of misconduct or the principal knew about an educator’s criminal record.
- The superintendent must now notify the State Board for Educator Certification (“SBEC”) by filing a report with the board not later than the seventh business day after the date the superintendent receives a report from a principal.
- Immunity is still provided for reports made in good faith.
- An educator is now prohibited from inappropriate behavior with any student known to be enrolled in any public or private primary or secondary school.
- Mandatory reporting by a superintendent to SBEC under 21.006(b)(2) is now triggered by termination and evidence of wrongdoing rather than termination based on evidence of wrongdoing.
- The superintendent must complete an investigation of any allegation involving abuse, unlawful acts, romantic relationships, or sexual contact with a student or minor and report it to SBEC even if the educator is terminated or leaves the district.
- Requires notice to parents of a student with whom an educator is alleged to have engaged in misconduct involving abuse, an unlawful act, romantic relationship, or sexual contact.
- Although districts currently have policies in place regarding staff/student electronic communications, the policy must now have a provision that staff personal phone numbers and email addresses are not required to be disclosed.
- SBEC is now authorized to impose administrative penalties of up to $10,000 against principals and/or superintendents who fail to comply with the reporting requirements.
- Failure to comply with the reporting requirements with the intent to conceal an educator’s criminal record or alleged incident of misconduct is punishable as a state jail felony.
- Applicants must now disclose if they have even been charged with having an inappropriate relationship with a student.
- If a certified employee assists an educator who has had an inappropriate relationship with a student in gaining employment in another district, that employee’s certificate may be revoked.
- If an educator is convicted of a felony involving an inappropriate relationship, it prohibits TRS payments.
If you would like more information on this topic or seek a review of your district’s policies or procedures regarding this new law, please do not hesitate to contact one of the attorneys at Leasor Crass, P.C.
by Melissa Mozingo
This post is the first in a two-part series that will provide guidance and strategies to district and campus administration and HR personnel on conducting effective sexual harassment investigations. Although this article focuses on sexual harassment, the advice in it applies equally to racial, age-based and other types of harassment investigations.
In February 2017, a former Uber employee published a detailed, horrific story of alleged structural sexual harassment at the company. The article described an office culture in which members of an almost entirely male staff were routinely and openly hostile to female employees, from instances of verbal abuse and belittlement to job-based “blackmail” by HR and extensive sexual harassment. Among other things, the author recalls being suggestively coached on her appearance by her manager, his frequent use of striking racial slurs and his disparagement of business “ethics.” The author also described a habit among male employees of creating sexually explicit narratives about female peers and superiors in online group chats. The author alleges that she was propositioned for sex over company chat. When she reported the incident to Human Resources, she says, he did not lose his job because she was told the man was a “high performer” and it was his first offense. She says she later discovered this was untrue: Other women had reported the same manager to HR for similar offenses.
Whether or not the allegations are true, this case is a perfect example of a ‘Human Resources failure’ for how to deal to harassment claims. Here are some basics to a district’s obligations to investigate when an employee complains of harassment.
- Districts have a duty to conduct investigations. Districts have an affirmative duty to maintain a working environment free of harassment on the basis of a federally protected characteristic, such as race, color, or national origin, religion, sex, disability, age, or genetic information. 42 U.S.C. 1981; 42 U.S.C. 2000e et seq. (Title VII); 20 U.S.C. 1681 et seq. (Title IX); 42 U.S.C. 12111 et seq. (Americans with Disabilities Act); 29 U.S.C. 621 et seq. (Age Discrimination in Employment Act); 29 U.S.C. 793, 794 (Rehabilitation Act); 42 U.S.C. 2000ff et seq. (Genetic Information Nondiscrimination Act); U.S. Const. Amend. I; Human Resources Code 121.003(f); Labor Code Ch. 21 (Texas Commission on Human Rights Act); Labor Code Ch. 21, Subchapter H (genetic information). Districts can be held liable for failing to take the steps necessary to prevent such harassment from occurring or for failing to promptly correct any harassing conduct about which it knew or should have known was occurring. 29 CFR 1604.11(d), (e), (f); 1606.8(d), (e).
- Districts may have to take action before conducting the investigation. Based on the allegations and facts of the case, as a precautionary measure, a district should consider whether immediate action is warranted. The EEOC set forth examples of precautionary steps that may be necessary include: “scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.” However, districts need to ensure that the complainant “should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.”
- The investigation must be immediate. How soon the investigation must start depends on the circumstances. In Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708 (2d Cir. 1996), the employer’s response was held to be prompt where it began its investigation on the day the complaint was made, conducted interviews within two (2) days, and fired the harasser within ten (10) days. In Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th 1994), the court held that an employer’s response to complaints were not immediate when it did not seriously investigate or reprimand the supervisor until after the plaintiff filed a charge with the state Fair Employment Practices agency, even though the harasser was eventually terminated. In Saxton v. AT&T, 10 F.3d 526 (7th Cir. 1993), the court found that the investigation was prompt when it started one (1) day after the complaint was made and a detailed report was completed two (2) weeks later. In Nash v. Electrospace Systems, Inc., 9 F.3d 401 (5th Cir. 1993), the court held that an investigation was prompt when it was completed with one (1) week. The court in Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317 (7th Cir. 1992) found that an investigation was adequate when it was completed within four (4) days.
- The investigator must be experienced, unbiased, and trustworthy. There is no legal prohibition that internal employees, such as Human Resources personnel, cannot conduct investigations into employee complaints. The investigator does not have to have investigation experience or meet any certain training requirements. However, districts should take the time to thoroughly train an in-house person who can conduct harassment investigations. First, the person needs to be able to conduct appropriate investigations in order to limit the liability of the district. Second, the person’s experience and training will likely be closely examined, if not challenged, by opposing counsel if the case develops into litigation. Training for potential district investigators could include the law and district board policies regarding harassment, selecting the appropriate investigative process for different types of investigations (i.e., who to interview first), assessing credibility of witnesses, and workplace investigative techniques and report writing.
The investigator cannot have a conflict of interest or bias towards the alleged victim or alleged harasser, so it is very important to select a person who does not have any personal involvement with any of the parties who are a part of the investigation. To avoid the appearance of any undue influence, the investigator must not be subject to any control or supervisory control of the alleged harasser. This means that for some smaller districts or in cases where the assistant superintendent or superintendent is alleged to have harassed someone, it is recommended that an outside third-party or law firm be hired to conduct the investigation.
If you need assistance with a workplace investigation, please feel free to contact me or any other attorney at Leasor Crass, P.C. The next post in this series will be How to Conduct a Sexual Harassment Investigation (Part 2).
by Heather Castillo
School districts should be aware of a recent court of appeals decision concerning the Texas Whistleblower Act. In Burleson v. Collin County Community College District, the court of appeals reversed the trial court’s decision to grant the College’s plea to the jurisdiction because it found that some personnel actions might be considered “adverse personnel actions” under certain circumstances when the Texas Whistleblower Act (the “Act”) is involved. At issue were personnel actions that school districts would typically consider benign or routine. For example, changing an employee’s schedule or shift, or issuing an employee a “coaching” memo that is not typically considered formal discipline.
Texas Whistleblower Act Overview
Generally, governmental entities such as school districts and colleges are immune from suit and liability under the sovereign immunity doctrine. However, the Act waives immunity from suit to the extent that a governmental entity is liable under the Act’s provisions. See Tex. Gov’t Code § 554.0035. The Act protects “a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.” Tex. Gov’t Code § 554.002(a). The Act prohibits retaliation by providing that: “a state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee” who makes such a report. Id. (emphasis added). The Act defines “personnel action” as: “an action that affects a public employee’s compensation, promotion, demotion, transfer, work assignment, or performance evaluation.” Tex. Gov’t Code §554.001(3). However, the Act does not define what constitutes an “adverse” personnel action.
The Texas Supreme Court has adopted a test used in a United States Supreme Court decision to determine whether retaliation has occurred in violation of the Act. The test is this: for a personnel action to be adverse within the meaning of the Act, it must be material and likely to deter a reasonable, similarly situated employee from reporting a violation of the law. This test is meant to separate “petty slights” and “minor annoyances” from legitimate retaliatory actions that would be likely to deter an employee from reporting violations of law.
Burleson v. Collin County Community College District
In the recent Burleson v. Collin County Community College District case, plaintiffs Jon Mark, Craig Bennight, and Billy Burleson, are police officers working for the Collin County Community College District. All three officers sued the College alleging violations of the Whistleblower Act claiming that they suffered retaliation in the form of adverse personnel actions after they reported crimes.
In a plea to the jurisdiction, the College claimed that sovereign immunity defeated subject matter jurisdiction because the College did not take adverse personnel action against the three officers. The College also argued that two of the officers did not meet the jurisdictional prerequisites for a whistleblower grievance. The trial court granted the College’s plea, so the officers appealed.
Mark alleges that he was retaliated against after he reported illegal activity. Specifically, he reported that he was ordered to lock an intoxicated person in a closet for four hours and that such action constituted the crime of official oppression. After making this report, he received an “employee coaching” form write-up and a schedule change to “deep nights” (6 p.m.-6 a.m.) in light of “violations claimed in the coaching report.” He filed a grievance, which was denied by the College.
Bennight and Burleson had been investigating the theft of books from the College bookstore when they began to suspect a scheme to defraud the College, corruption, and a cover-up by high ranking officials. They reported violations of the law related to the bookstore, including coercion of a public servant, public corruption, tampering with evidence, and tampering with a witness to various law enforcement authorities. They also reported to the College’s police chief that employees were stealing from the bookstore, but they assert that they were then ordered to close their investigation. Bennight alleged retaliation because his schedule was changed to “deep nights” and he was assigned to another campus. Bennight asserted that he was hired to be an investigator, but that he could no longer do his normal duties on the new late night shift because he could not file cases with the district attorney when the courts are closed. Burleson also alleged retaliation because his schedule was changed from the 10 a.m.-6 p.m. shift to the 2 p.m.-10 p.m. shift and he was removed from “flex time.” Burleson asserted that the College police chief had previously allowed Burleson to work a flexible schedule because he was aware of Burleson’s “precarious” financial situation following a divorce. Further, Burleson alleged that the Chief was aware that Burleson would have even less time with his three young children under this new shift schedule. Bennight and Burleson also filed grievances, which were denied by the College.
The College argued that the above-described personnel decisions, i.e., issuing a “coaching form” and making schedule changes, were not adverse personnel actions as defined by the Act. However, the court of appeals disagreed. The court of appeals looked at the specific facts underlying the personnel actions concerning the officers. Regarding Mark, the court of appeals found that even though the “employee coaching form” stated that it was not a “formal disciplinary action,” it also warned of possible termination and “was unreasonable in a number of respects.” The court of appeals also stated that “a schedule change that affected an employee’s ability to earn extra income in other part-time jobs, and that affected the employee’s ability to spend time with his children, could constitute an adverse personnel action.”
The case is not over. The court of appeals reversed the trial court’s decision to grant the College’s plea to the jurisdiction and remanded the case back to the trial court for further proceedings. The College will now have additional opportunities to prove its claims to the trial court.
What are the consequences for taking adverse personnel action against a whistleblower?
A plaintiff is entitled to sue for: (1) injunctive relief; (2) actual damages; (3) court costs; and (4) reasonable attorney fees. Further, a plaintiff who was suspended or terminated in violation of the Act is entitled to: (1) reinstatement to his former position or an equivalent one; (2) lost wages; and (3) reinstatement of fringe benefits and seniority rights.
If you or your staff have questions about taking personnel action against an employee who claims to be a whistleblower, or how to respond to a grievance filed by an employee who asserts whistleblower protection, or you would like training related to these issues, the attorneys at Leasor Crass stand ready to assist.