June 2007

CONTRACT PRINCIPALS

Evaluation requirement doesn’t apply to probationary contract principal. Failure to evaluate a probationary contract principal does not trigger an automatic one-year contract extension under the statute, according to the Alabama Court of Civil Appeals. In fact, the court held that the mandatory evaluation requirement in the law did not even apply to probationary contract principals.

A probationary contract principal challenged his termination by the Macon County school board on the grounds the school board failed to evaluate him as required under ALA. CODE § 16-24B-3(i)(1) and thus he was entitled to an automatic one-year contract extension under ALA. CODE § 16-24B-3(m). However, the court noted that both the statute and the state Department of Education manual governing the evaluation program only require evaluation of contract principals and not probationary principals.

The court had previously determined that the contract principal statute distinguished between contract and probationary principals. “By making this distinction, we must assume the Legislature intended to limit the application of § 16-24B-3(i)(1) to contract principals.” The court also noted that the principal had entered a one-year contract with the school board as a probationary principal, and as such, he was not entitled to an evaluation 90 days prior to termination of his contract. Holmes v. Macon County Board of Education, --So.2d--, 2006 WL 3823271 (Ala. Civ. App.) (Dec. 29, 2006).

TENURE LAW
High court says arbiters can’t be ‘second-guessed.’ In the first appeal to reach the state’s high court under the new tenure law, the Alabama Supreme Court reversed the appellate court decision ordering a new hearing on the proposed termination of a basketball coach/teacher.

The Mobile County school board terminated the coach for allowing his players to conduct a “one-minute” drill in which players were allowed to hit teammates who broke team rules or were underperforming. In one instance, a player was hurt as a result of the drill. While finding the coach’s conduct “reprehensible,” the arbiter reversed the school board’s decision to terminate and ordered a 30-day suspension without pay and a four-year ban from coaching.

The Court of Civil Appeals in a plurality opinion, however, found that the hearing officer’s conclusions regarding the actions as a basketball coach and record as a teacher inconsistent. The Supreme Court reversed the appellate court, reinstating the suspension and coaching ban.

In this case, the hearing officer’s decision clearly reflects his careful consideration of Dunn’s entire ‘employment history,’ including the good as well as the indefensible. Only after doing so did the experienced hearing officer determine what he considered to be the appropriate sanction for Dunn’s misconduct. Although we may disagree with the wisdom of the decision, we may not substitute our judgment for that of the hearing officer.

Arbiter failed to follow Alabama law. An arbiter’s decision in a termination proceeding was arbitrary and capricious because there was no punishment for an employee who clearly had violated the law and because the hearing officer failed to apply the teacher tenure law, the Alabama Court of Civil Appeals ruled.

The court ordered another termination hearing for a Madison County teacher and cheerleading sponsor, though the case, which has significant impact for school boards statewide, has been appealed to the state Supreme Court.

The school board terminated the employee based on 14 charges, including using school facilities to operate a private gymnastics business.  The hearing officer excused a number of the charges by concluding the employee was unaware of the rules and policies she violated or that the school principal was aware of the violations.  

While the hearing officer found the employee had violated the state ethics law by running a for-profit business at school, he concluded it was not a punishable offense because other employees had done so.

The appellate court, however, noted there was no evidence in the record that other board employees had run for-profit businesses on school property without complying with board policy and that the hearing officer had created a new – and impossible – standard for termination.

[T]he hearing officer effectively created a new standard for determining whether a teacher should be held accountable for his or her actions. In essence, the hearing officer determined that a teacher should not be held responsible for any violation that might also have been committed by another Board employee. Pursuant to that purported standard, it would be virtually impossible to find any teacher at fault or responsible for his or her conduct under similar circumstances.

Although the recent enactment of Act. No. 566, Ala. Acts 2004, created some changes in the Teacher Tenure Act, those changes did not establish a definition of the phrase “other good and just cause,” nor did those changes affect the prior case law addressing that phrase. In enacting those changes to the Teacher Tenure Act, the Alabama legislature is presumed to have had knowledge of the courts’ construction of the phrase “other good and just cause” and, in failing to modify that definition statutorily, is presumed to have adopted it.

Madison County Board of Education v. Wilson, --So.2d--, 2006 WL 2329340 (Aug. 11, 2006).

IMMUNITY
Principal/instructional assistant entitled to state-agent immunity. A principal and instructional assistant are entitled to state-agent immunity for various claims of negligent supervision, the Alabama Supreme Court ruled.

When an 11-year-old was erroneously released from school to an 18-year-old who claimed to be her brother and the student was assaulted, the mother sued various school officials and the Russell County school board alleging negligence and wantonness and negligent or wanton supervision or training. The Circuit Court granted summary judgment based on state-agent immunity for the school board and school secretary but not for the principal and the instructional assistant, who was checking students out of the office under the principal’s direction.

The court found that there was not an established student check out policy, and, thus, when the defendants allowed the student to leave with a man who purported to be her brother, they had not breeched the discretion granted to them in discharging their official duties and were entitled to state-agent immunity. The court also found the principal was entitled to state-agent immunity on the negligent supervision claim because assigning the assistant to check students out was within a principal’s duties and there was no evidence of bad faith or misconduct.

“The facts here, like those in other similar cases, make us question the wisdom of Ross’s and Trottman’s decisions as they relate to J.T.; hindsight, however is 20/20, and we will not second-guess their decision. Ross and Trottman have established a clear legal right to the relief requested.” Ex Parte Trottman, 2007 WL 779138 (Ala.) (March 16, 2007).

No qualified immunity for school employees for strip searches. Three school employees face a trial to determine whether or not a strip search of middle school students violated their constitutional rights and was a battery under state tort law.

Fifteen students from Russell County Middle School sued the principal, assistant principal and counselor in their individual and official capacities on a variety of federal and state claims stemming from classroom and strip searches after a teacher’s designer makeup bag and its contents, which included $12, disappeared.

Specifically, the students claimed the searches violated their 4th Amendment right under 42 U.S. § 1983 and constituted assault, battery, invasion of privacy and outrage under state law. The school board and then-superintendent also were sued, but they settled with the plaintiffs and the case was dismissed. The remaining defendants filed for summary judgment, claiming qualified immunity for the constitutional violations and state-agent immunity for the state tort claims.

The court ruled that the employees were entitled to qualified immunity for the classroom searches but were not entitled to it for the strip searches. The court also granted summary judgment for the defendants on the basis of state-agent immunity for the assault, invasion of privacy and outrage claims. However, the court denied summary judgment on the battery claims for strip searches. In relation to the battery claims resulting from the classroom searches, the court rejected the defendant’s claim of state-agent immunity for some searches and granted it for others due to the particular facts involved. H.Y. v. Russell County Board of Education, 2007 WL 1128890 (M.D. Ala.) (April 16, 2007).

FAIR LABOR STANDARDS ACT
SROs not due overtime; exempt employees. A federal district court held that school resource officers (SROs) fell under the administrative exemption from the overtime provisions of the Fair Labor Standards Act. The SROs, who were employees of the school board but were required to maintain state police certification, sued a Georgia school board seeking overtime for several years. The school board successfully argued that SROs function differently than traditional law enforcement officers, who generally are eligible for overtime, and thus are exempt from the FSLA’s overtime provisions.

The SROs, who were required to have a college degree and at least 10 years’ law enforcement experience, were paid roughly $10,000 more than law enforcement officers with the same experience. The SROs claimed most of their daily duties were equivalent to that of a patrol officer, and that the position was as physically demanding as that of beat officers. The school board disputed these contentions, arguing the officers were involved in office work. Despite the different perspectives, the parties did agree on the substance of the employees’ school duties.

Federal regulations include an administrative exemption for employees above a certain salary whose primary duty is non-manual work related to the general business operations or management of the employer and whose duties include the exercise of independent judgment in significant areas. Because they met the income criteria, the court analyzed the remaining factors and found SROs were not performing manual labor.

The court noted precedent required it to view the officers’ duties in terms of their value to the school board. “In doing so, a SRO performs the hybrid function of an in-house law enforcement officer with certain quasi-administrative responsibilities. As such, many of an SRO’s duties do not constitute manual work.”

Additionally, the court found the officers’ work was directly related to the board’s general business operation, noting there was a “critical distinction” between police officers who work for a law enforcement agency and those working for other agencies. Providing a safe, secure environment is “‘directly related to the management or general business operations’ of the School System” which is educating students. Thus, the court found the SROs had significant discretion in performance of these duties and, as a result, concluded SROs were exempt employees. Ferrell v. Gwinnett County Board of Education, 2007 WL 962853 (N.D. Ga.).

EQUAL PROTECTION
Equal protection claim by “class of one” upheld. Without opinion, the Alabama Court of Civil Appeals upheld a lower court decision finding that the Birmingham school board violated an employee’s right to equal protection under the U.S. Constitution when it paid her based on a project coordinator salary schedule when she claimed she was doing the job of a community education coordinator, whom she replaced and who was paid on a higher salary schedule.

A Jefferson County circuit judge ruled in the employee’s favor and awarded attorneys’ fees. On appeal, the issue was whether the employee stated a valid equal protection claim as a “class of one,” and if valid, was it barred by the statute of limitations. AASB’s Legal Assistance Fund joined the Jefferson County Board of Education’s amicus brief on behalf of the board due to the ramifications the case has for all school boards regarding equal protection claims based on “a class of one.” The case has been appealed to the Alabama Supreme Court. Birmingham Board of Education v. McCord-Baugh, 2050955 (no opinion) (Ala. Civ. App.) (April 20, 2007).

IDEA
Parents have enforceable rights under IDEA. The parents of children receiving services under the Individuals with Disabilities Education Act have separate, enforceable rights under IDEA, the nation’s high court ruled. The decision reinstates a complaint which had been thrown out of court because the parents chose to represent themselves (pro se).

The appellate court dismissed the case because individuals only have the right to represent themselves in federal court if they are enforcing their own right. The parents, who were claiming that their son had not received a free and appropriate education (FAPE) as required under IDEA, had enrolled their son in private school and sought an administrative decision reimbursing them for private school expenditures and attorneys’ fees, among other issues.

After the hearing officer ruled against the parents, they sought relief in district court. The district court found for the school board, and the parents appealed to the Sixth Circuit Court of Appeals. The appellate court ruled that the right to a FAPE belongs to the child, making the parent’s right derivative of this right, and thus they were not entitled to appear on their own behalf.

The Supreme Court found that the clear text of IDEA, when the various provisions were considered, accords parents independent, enforceable rights. The court rejected the school board’s argument IDEA contemplates “parental involvement only to the extent parents represent their child’s interest.”

The court noted that the statute clearly defines its purposes “to ensure the rights of children with disabilities and the parents of such children are protected. Section 1400(d)(1)B. The word ‘rights’ in the quoted language refers to the rights of parents as well as the rights of the child; otherwise the grammatical structure would make no sense.” Because it found parents have an enforceable right, the court sidestepped the question of whether the parents could litigate their child’s rights in federal court without counsel.

In addition, the court rejected the plaintiff’s claim that such an interpretation of IDEA was barred by the spending clause of the U.S. Constitution. The school board argued that the Supreme Court’s decision in Arlington Central School District Board of Education v. Murphy (cite omitted), in which the spending clause argument was used to reject an interpretation that IDEA required states to reimburse experts’ fees to the prevailing parties, was analogous.

“The instant case presents a different issue; one that does not invoke the same rule. Our determination that IDEA grants to parents independent, enforceful rights does not impose any substantive conditional obligation on States they would not otherwise be required by law to observe. The basic measure of monetary recovery, moreover, is not expanded by recognizing that some rights repose both the parent and the child.” Winkelman v. Palmer City School District, 127 S. Ct. 1994, (May 21, 2007).

Parent has no right to copies of “all” educational records. A parent of a special education student does not have a right to copies of all of her child’s education records under state or federal laws and regulations, according to a district court decision.

The parent had requested a copy of all the student’s records to determine whether the student was receiving a free and appropriate education (FAPE) under IDEA. The parent filed a due process hearing when the school board would not provide a copy of every record although it did provide access to the records and offered to explain the documents to them, their attorneys and other service providers. The hearing officer ruled that, under Alabama’s public records law as well as the Individuals with Disabilities Education Act, the parent had a right to copies of all such records.

The district court took issue with the hearing officer’s decision, finding that the hearing officer did not have the authority to address issues in Alabama state law relating to public records; improperly addressed the issue of record access in the due process hearing instead of a more generalized complaint procedure; and that the open records act issue was not asserted on a timely basis. Furthermore, the court, based on its review of IDEA and implementing regulations, could find no requirement that parents be provided with all their child’s educational records. Instead, the court noted that the relevant legislation and rules show that parental access to such records is what is guaranteed.

On an application for rehearing, the parent claimed that she was entitled to such records due to exigent circumstances. The court rejected the argument that the student’s father, who had a 7th-grade education and a long-held belief that his child’s educational program, constituted exigent circumstances to require copies of all such records. Bevis v. Jefferson County Board of Education, Feb. 22; reconsideration denied, Jan. 3, 2001, 2:06-CV-0853-RDP (M.D. Ala.).

Failure to exhaust remedies. The 11th U.S. Circuit Court of Appeals upheld a district court decision dismissing a case claiming violation of the Individuals with Disabilities Education Act because the plaintiffs failed to exhaust the required administrative remedies available to them prior to filing the lawsuit. (The decision is not reported.) J.P. v. Cherokee County Board of Education, 2007 WL 582418 (C.A.11 (Ga.)).

DESEGREGATION STATUS
Unitary Status granted to school board:
Lee v. Roanoke City Board of Education, 2007 WL 1196482 (April 23, 2007)

Unitary Status granted to state school board on special education issues:
Lee v. Lee County Board of Education, 476 F.Supp. 2d 1356 (M.D. Ala. 2007)

IMPACT AID
The U.S. Supreme Court rejected a challenge by two New Mexico school districts to a federal regulation implementing the Impact Aid Act they claimed deprived them of resources. Under the regulations, the U.S. Department of Education considered the funding to New Mexico schools equalized, allowing the state to offset the federal aid received by the districts.

At issue was the equalization formula that calls for no more than a 25 percent disparity between the districts, but instructs the Department of Education to disregard school districts with per pupil expenditures above the 95th percentile or below the 5th percentile. The department did not discount those districts per se, but rather those districts whose students account for 5 percent of the state’s student population at the high and low ends. In a 5-4 decision, the court found the regulation to be a reasonable way to achieve the law’s objectives. Zuni Public School District No. 89 v. Department of Education, 127 S. Ct. 1534, (April 27, 2007).

STATE ATTORNEY GENERAL'S OPINIONS
Superintendent not required on specific personnel action. State law does not require the superintendent’s recommendation regarding the termination or renewal of a probationary contract principal, according to Attorney General’s advisory opinion 2007-042 (Feb. 6, 2007). The opinion noted that ALA. CODE § 16-24B-3(a) expressly required the board to take action and is silent regarding the superintendent’s recommendation. The opinion stated that the specific requirements of the contract principal law are controlling over the more general provisions of state law dealing with the duties of county school superintendents (ALA. CODE § 16-9-23).

State law does not require agencies to export data from its database. State law giving the public access to public records does not require a public agency to provide the information in the format requested, according to Attorney General’s advisory opinion 2007-001 (Oct. 2, 2006). A newspaper reporter had requested data from the state banking department in a specific electronic format though the information requested could be obtained from records available for public inspection. The opinion stated: “Because a state agency may regulate the manner in which public records are produced, inspected and copied, a state agency, to be in compliance with [ALA. CODE] § 36-12-40 and § 36-12-41, is not required to distribute public records in the manner the requester specified.”

State funds can be used to promote passage of a constitutional amendment. If the governor determines a public purpose will be achieved by passage of a constitutional amendment, state law does not prohibit the use of funds to promote the amendment’s passage, according to Attorney General’s advisory opinion 2007-075 (April 9, 2007).

Previously, the attorney general had issued similar advisory opinions interpreting state election laws, but the election laws have been recodified. The opinion determined that the recodification and changes to the laws had no affect on previous opinions expressed by the office. “The Governor is not prohibited by [ALA. CODE] subsection 17-1-7(b) and 17-1-7(c) of the code or by § 17-17-4 and § 17-17-5, as recodified, from educating the voters of this state on issues of public importance and from using public funds to promote the passage of a proposed constitutional amendment … when the Governor determines that a public purpose is served by the expenditure.”

School board has authority to involuntarily transfer students needing nursing services. Because school boards must comply with state Board of Nursing standards for the practice of nursing, school boards have the authority to adopt reasonable rules related to student placement when those students are in need of nursing services, according to Attorney General’s advisory opinion 2006-127 (Aug. 11, 2006).

“[A] board of education has authority to adopt reasonable rules and regulations that place students at schools other than the school in the students’ attendance district to provide the students with the necessary nursing services to accommodate their health-care needs. The board of education retains the authority to transfer a student which requires nursing services to a school with a full-time nurse over the patient’s or guardian’s objection to the transfer.”

The court based its opinion on the broad authority given in Alabama law and did not address the issue of federal law regarding issues related to Section 504 services.

“Pork list” a public document. A written list of projects given to the postsecondary education chancellor by two legislators to be funded through state funds appropriated to the department is a public record, according to Attorney General’s advisory opinion 2007-31 (Jan. 9, 2007).

A legislator requested the opinion when then-Chancellor Dr. Tom Corts refused to provide a list of discretionary projects for certain legislators which were to be funded from the Department of Postsecondary appropriations. Corts refused to provide the list, believing it was his notes from conversations and not a public document. The opinion stated that if a written list was received, it was a public document subject to public disclosure under Alabama’s laws covering public writings and public disclosure. (ALA. CODE § 36-12-40 and § 41-13-1.)

City not authorized to operate school voucher program. State laws governing municipalities neither directly nor indirectly give cities authority to operate a school voucher program, according to Attorney General’s advisory opinion 2007-073 (April 5, 2007). “The appropriation of city funds for the purpose of funding a school voucher program is neither expressly nor impliedly authorized by the state, nor is the authority essential to the operation of the city … .”

City currently lacks authority for scholarship program. Absent specific authorization, a city cannot appropriate funds to award college scholarships to graduates of the city’s high school, according to Attorney General’s advisory opinion 2007-074 (April 6, 2007). The opinion stated: “Because there is a lack of authority, the city cannot make appropriations directly or indirectly to the Anniston City Schools’ Foundation for the purpose of awarding college scholarships to graduates of Anniston High School unless voters in Anniston vote to levy a special tax for a scholarship program, and the City Council determines such a program would serve a public purpose.”

Five percent pay raise applies to five additional school days. The 5 percent pay raise passed by the Legislature for the 2006-2007 school year should be based on a 187-day contract year for regular teachers, according to Attorney General’s advisory opinion 2007-004 (Oct. 11, 2006).

In the legislative session in which the pay raise was enacted, the Legislature also passed a law lengthening the school year for Alabama students by adding five instructional days. When funding for the pay raise was calculated, it was based on 182 calendar days. The opinion noted that both legislative acts passed the respective legislative chambers on the same day.

Based on the rules of statutory construction, the opinion stated it should be assumed that the Legislature was aware of the provisions extending the school year when it passed the budget. “The fact that both acts passed on the same day demonstrates that the Legislature was aware of the five additional days when they (sic) passed the pay raise. If the Legislature had intended for the five percent raise to apply only to 182 days and not the remaining five days, it could have specifically stated that in the pay raise act. Because the Legislature did not specifically limit the number of instructional days to which the pay raise would apply, the increase must be applied to all instructional days worked by certificated education employees.”

Education pay raise must be paid within fiscal year in which it is enacted. When a school board elects to pay an education employee’s salary in 12 equal payments and a pay raise is enacted based on the fiscal year, the pay raise must be received by the September close of the fiscal year, according to Attorney General’s advisory opinion 2006-111 (June 20, 2006). Furthermore, if an employee leaves the school system at the conclusion of the contract period during that school year, the employee’s final pay raise should be adjusted to receive the full amount of the enacted pay raise.

STATE ETHICS COMMISSION OPINIONS
Ethics Commission opinion sends mixed signals. An Alabama ethics opinion stated that a school board member could continue to work for the school system as a tutor under the state ethics law.

Ethics Commission advisory opinion 2006-18 stated that the night tutor, who had just been elected to the school board, could continue in that capacity after assuming office, provided: “the conditions of her employment as a night school tutor do not change upon taking her seat; and, that she not vote, attempt to influence, or in any way participate in any board actions affecting the night school program or the distribution of the grant used to fund the night school program that affect her differently than all other night school tutors.” (Advisory opinion 2006-18) (Oct. 4, 2006). Note: The Ethics Commission is confined to addressing issues related to the state ethics law. Except in limited cases, state law governing school boards, which is outside the jurisdiction of the commission, prohibits school board members from being school board employees.

School employees can accept a free trip. A principal and assistant principal can go on a free trip awarded by the local educational foundation based on the school’s sale of coupon books, according to Ethics Commission advisory opinion 2006-14 (Aug. 2, 2006). The commission indicated that because the coupon sales program and free trip, which was an incentive for a systemwide coupon book sales, were made available to all employees and the program was sanctioned by the school board, acceptance of the trip would not violate the ethics law.

Book related to state work permissible. A public employee who is involved in education leadership activities may write a for-profit book on the topic under certain conditions, according to Ethics Commission advisory opinion 2006-11 (June 7, 2006). The opinion stated that an employee may collaborate in writing the book, provided that the activities related to writing the book are done on the employee’s time; there is no use of public equipment, facilities, materials, human labor or other public property under the employee’s control when writing the book; and writing the book is not part of the employee’s normal job responsibilities.