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:

1. 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?
2. 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:

1. Absent “an educational purpose,” transporting students to polling locations would constitute a gift of public funds;
2. 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
3. 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.

Transportation

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.

Political Advertising

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

(B)  appears:

(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.

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.

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)
• assault
• 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:

1. positive behavioral intervention and support;
2. trauma-informed practices;
3. social and emotional learning;
4. a referral for services, as necessary; and
5. 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.

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.

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.