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March 2011
Alabama Supreme Court
Ex parte Bessemer Board of Education, --- So.3d ---, 2011 WL 340585 (Ala. Feb. 4, 2011)
This case was filed by a teacher against the board and its members as well as several state education officials alleging that her statutory pay increase was miscalculated. The trial court held that the state defendants were entitled to immunity, but ordered the local board defendants to compensate the teacher for her recalculated pay. The local board defendants appealed and argued that they were also entitled to immunity.
The Court held that the state defendants and the local board, as an agency of the state, were entitled to absolute immunity from suit and dismissed the claims brought against those defendants. However, as to the members of the local board sued in their official capacities, they could be compelled to perform their legal duty or a ministerial act. The Court noted that the board members had the duty to properly pay the teacher and they were therefore not entitled to immunity from suit. The case was remanded to the trial court for calculation of the proper salary amount to be reimbursed.
Ex parte Phenix City Board of Education, --- So.3d ---, 2011 WL 118254 (Ala. Jan. 14, 2011)
This case arose after students were injured in a school bus accident. The students and their parents sued the board and the bus driver for negligence, wantonness and loss of services. The board filed a motion to dismiss claiming it was immune from suit, but the trial court denied the motion. The board appealed.
While not expressly stated in the statute which creates city board, the Court held that city boards, as local agencies of the state, enjoy absolute immunity from suit. Therefore, the Court ruled in favor of the board and dismissed the claims against it.
Circuit Court
Alexander City Board of Education v. Rogers, Tallapoosa County Circuit Court CV-2010-900072 (Feb. 28, 2011)
This case addressed the applicability of the Fair Dismissal Act to reductions in force. After declaring a reduction in force, the board terminated several classified employees. The terminations were effective immediately and did not provide rights pursuant to the Fair Dismissal Act.
The board filed an action in circuit court seeking a declaration that it did not have to terminate the employees under the FDA when the terminations were the result of a RIF. Among other points, the board argued that RIFs were not intended to be covered by the FDA. Specifically, the board argued that RIFs were designed for the purpose of laying off employees, while the FDA was designed to address disciplinary issues. However, because the Act lists “justifiable decrease in jobs in the system” as a reason for termination, that argument failed. Therefore, based on the plain language of the statute, the trial court held that the employees were entitled to FDA protections.
The board intends to appeal this decision. Given the importance of this issue to boards across the state, AASB’s Legal Assistance Fund is underwriting the cost of this litigation.
Greene v. Lloyd, Jefferson County Circuit Court, CV-2010-900124 (Jan. 3, 2011)
In this case, the board gave four days’ notice of a special called meeting to terminate its superintendent. The superintendent sued the board claiming that it violated the Open Meetings Act because it did not provide seven days’ notice of the meeting. The board argued that it was not required to provide seven days’ notice of the meeting because it was not a meeting which was “specified by law”. Rather, it was only required to provide a one day notice of the special called meeting. In making this determination, the board relied upon authority from the Attorney General and training provided by AASB. The court determined that the board properly posted notice of the meeting and further, that the board acted in good faith when it relied upon the authority of the Attorney General and the training provided by AASB.
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Attorney General Opinions
A.G. Op. No. 2011-038
This opinion was requested by the State Superintendent of Education regarding implementation of the payroll deduction ban for dues passed in December 2010. The Superintendent asked whether local boards could deduct such dues after the effective date of the statute banning such deductions. The effective date of the statute is March 20, 2011. In order for the ban to go into effect, preclearance must be issued. The Attorney General’s office submitted the statute to the Department of Justice for preclearance, but that decision was not reached at the time this opinion was issued.
Editor’s Note: The Justice Department issued preclearance of this statute on March 7, 2011. Therefore, the ban will be effective March 20, 2011 and dues may no longer be deducted from employee paychecks.
A.G. Op. No. 2011-037
This opinion addressed a possible conflict of interest resulting from a board member’s privately owned business. Prior to the board member’s election, the company he owned provided telephone service to the board. At the time of the board member’s election, his company had an active board contract. The opinion asks if the board member can retain the current contract, whether he can submit another bid for services in the future, whether he can serve as a subcontractor on a future bid if another company serves as the general contract and whether he can vote on an award to the general contractor.
The Competitive Bid Law prohibits board members from having a financial interest in or gaining a personal benefit from any contract entered into by their board. That benefit may be direct or indirect. A board member has such an interest if he or his spouse own the business or a majority of its stock or the business is a family-held corporation. Because the board member has a clear financial interest in the contract, he cannot retain the current contract nor can he submit a future bid. Further, having a separate general contractor submit the future bid does not cure the problem. As a subcontractor, the board member would still benefit from the contract. Therefore, such an arrangement would be prohibited as would permitting the board member to vote on such a contract.
A.G. Op. No. 2011-026
A local board requested this opinion after being advised by the State Treasurer’s Unclaimed Property Division that it would be subjected to an “unclaimed property review”. However, a review of the Uniform Disposition of Unclaimed Property Act made it clear that local boards are exempt from the statute’s requirements.
A.G. Op. No. 2011-014
This opinion sought clarification of the Open Meetings Act as it relates to committee meetings. If a committee meeting is scheduled and properly noticed to discuss committee business, but a quorum of the full body attends that meeting, is the meeting rendered illegal under the Act; and if not, can the full body in attendance address matters that were not on the committee’s agenda? As to the first question, the answer is no, the meeting is not rendered illegal. A quorum of the full body can attend the committee meeting without violating the Act as long as the quorum was not prearranged and the quorum did not deliberate matters expected to come before the full body at a later time. However, under these circumstances, the full body could not hold an impromptu board meeting at that time without violating the Act, so the answer to the second question is no. If the full body wanted to hold its meeting at the same time as the committee meeting, notice would have to be provided of the full meeting.
Matters of Interest
This case has been filed in federal court by AEA, its PAC and several employees of local boards of education against Governor Robert Bentley, State School Superintendent Joe Morton, State Comptroller Thomas White, State Finance Director David Perry, Postsecondary Education Chancellor Freida Hill and several local boards and officials. AEA claims that the legislation banning payroll deduction for dues was rushed through the special session by outgoing Governor Bob Riley and the incoming legislative Republican majority in retaliation for AEA’s political opposition to the Republican party and in violation of its members constitutionally protected rights. AASB will monitor progress of the case.
Earlier this year, the Fair Labor Standards Act was amended to include a requirement that nursing mothers be provided reasonable break time and a private location to express milk for children under the age of one. The private location cannot be a bathroom, but rather must be a functional location to express milk that is free from intrusion by coworkers and the public. The space may be temporary in nature, converted space or space made available when needed. For more information, visit http://www.dol.gov/whd/regs/compliance/whdfs73.htm.
As a result of recent health care reform legislation, all employers will soon be required to report the value of the health insurance coverage they provide on each employee’s W-2. In order to give employers time to make the change in their payroll procedures, reporting will be optional in 2011 before becoming mandatory in 2012. For more information, visit http://www.irs.gov/newsroom/article/0,,id=228881,00.html.
— Jayne Harrell Williams
Jayne is a shareholder with the law firm of
Hill, Hill, Carter, Franco, Cole & Black in Montgomery, Ala.
info@alabamaschoolboards.org
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