ARMS(Alabama Risk Management for Schools)

SSA New Superintendent ProgramNovember 17, 2011

Dwight A. Hester, Ph.D., J.D.

ARMS History

1976 AASB Liability Program

1982 ASBIT Workers’ Comp Fund

1985 ASBIT General Liability / Errors and Omissions Fund

1986 ASBIT Automobile Liability Fund

1987 ABSIT Workers’ Comp Fund Terminated

1999 ASBIT name changed to ARMS

ARMS Structure

♦ ARMS – a self-insured trust or risk management cooperative

♦ ARMS – not an insurance company

ARMS Governance

♦ ARMS is governed by 7 trustees appointed by the AASB board of directors

♦ ARMS trustees include 5 board members, 1 superintendent and 1 school business official

ARMS Superintendent Trustees

♦ Dr. Tom Ingram (former)

♦ Dr. Joe Morton (former)

♦ Dr. Bob Clemmons (former)

♦ Mr. Lynn Smith (former)

♦ Mr. Donny Breaseale (former)

♦ Dr. Suzanne Freeman (former)

♦ Dr. Martha Rizzuto (former)

♦ Mr. John Heard (current)

ARMS AL Claims Reporting

♦ To Lucy Hester Sellers, JD

– Via E-Mail: lhs@hestersellers.com

– Via USPS Mail: 2512 Lurleen B. Wallace Blvd, Northport, Alabama 35476

– Telephone: (205) 454-6052

– Website: www.hestersellers.com\ALNoticeofClaim.html

♦ Within 15 days

ARMS GL/EO Claims Reporting

♦ To Dwight Hester, PhD, JD– Via E-Mail: dah@dwighthester.com– Via USPS Mail: 2512 Lurleen B. Wallace Blvd.,

Northport, Alabama 35476– Telephone: (205) 333-9090– Website:

www.dwighthester.com/GLEONoticeofClaim.html

♦ Claim = Lawsuit

♦ Within 15 days (Submit Copy of Complaint)

ARMS Certificate of Coverage

♦ Written Request– Via E-mail: wpm@dwighthester.com– Via Website:

www.dwighthester.com/CertificateofCoverage.html

♦ From Superintendent or Risk Management Coordinator

♦ Allow 3 Days to Process

Immunity: Board of Education

♦ “That the state of Alabama shall never be made a defendant in any court of law or equity.”

♦ Ala. Const. art. I, § 14 (1901)

♦ Boards of education are local agencies of the State

♦ Ex parte Hale County Bd. of Educ., 14 So.3d 844 (Ala. 2009)

♦ Ex parte Monroe County Bd. of Educ., 48 So.3d 621 (Ala. 2010)

♦ Ex parte Phoenix City Bd. of Educ., 2011 WL 118254 (Ala. 2011)

Immunity: State Agent / Discretionary

♦ “[5] exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound minds, or educating students.”

♦ Ex parte Cranman, 792 So.2d 392 (Ala. 2000) (emphasis added)

Follow Policy or Lose Immunity

♦ Ex parte Yancey, 2008 WL 4757049 (Ala. 2008)

♦ Giambrone v. Douglas, 874 So.2d 1046 (Ala. 2003)

♦ Bayles v. Marriott, 816 So.2d 38 (Ala. Civ. App. 2001)

♦ Policies - few and follow

Course and Scope

♦ While acting in official capacity within the course and scope of official board of education duties

♦ Immunity

♦ ARMS Liability Coverage

Board of Adjustment

♦ Ala. Code 41-9-60 et seq.

♦ Created in 1935

♦ To act when no court has jurisdiction, but when a state agency has created a moral obligation which should be discharged as a public duty.

♦ Property Damage / Personal Injury Claim Form: http://bdadj.alabama.gov/downloads/BOAClaimDamagesInjury09-02-10.pdf

Alabama Tort Claims Act

♦ Ala. Code 11-93-1 et seq.

♦ Boards of education when not operating as “…functions of the State of Alabama.”

♦ Limits $100,000 / $300,000 Bodily Injury

$100,000 Property Damage

The Volunteer Service Act

♦ Ala. Code 6-5-336

♦ Adopted 1991

♦ Immunity granted to any volunteer acting in good faith and within official functions and duties for a school district or other agency of any state (board of education).

Workers’ Compensation

♦ Workers’ compensation insurance not mandated for boards of education until funded from the education trust fund.

♦ Ala. Code 25-5-50

♦ ARMS Defends Employee Injury Lawsuits

Automobile Liability

♦ Boards of education shall provide vehicle liability coverage for any employee required to transport pupils.

♦ Ala. Code 16-27-7

Board of Education Contracts

♦ Superintendent shall approve in writing all contracts of whatever kind entered into by the board.

♦ Ala. Code 16-12-7 (city), 16-9-18 (county)

♦ School or Campus Level Contracts

♦ Indemnity Agreements

Employment / Termination

♦ Boards of education may employ or terminate persons upon the written recommendation of the superintendent.

♦ Ala. Code 16-11-17 (city), 16-8-23 (county), 16-24-1 et seq., 36-26-102

♦ Vacancy Posting (Ala. Code 16-22-15)

♦ Open Meetings Act (Ala. Code 36-25A-1 et seq.)

♦ School Hiring / Termination

Fair Labor Standards Act

♦ Enacted in 1938 (29 U.S.C. 201, et seq.)♦ Administered and enforced by the U.S. Department of

Labor, Wage and Hour Division♦ Establishes minimum wage, overtime pay, recordkeeping,

and youth employment standards affecting employees in the private sector and in Federal, State, and local governments, including Alabama boards of education

♦ Any worker deemed to be covered and not exempt from the FLSA is entitled to minimum wage of not less than $7.25 per hour and overtime pay at a rate of not less than one and one-half times the regular rate of pay after 40 hours of work in a workweek.

Fair Labor Standards Act

♦ If an employer requires or permits a covered non-exempt employee to work (which includes requiring the employee to be on premises or on duty, whether or not work is performed) in excess of 40 hours during the workweek then the employer is generally required to pay the employee overtime compensation.

♦ The right to overtime compensation may not be waived by agreement and an employer’s proclamation that overtime work is not permitted does not impair an employee’s right to overtime compensation.

♦ FLSA requires maintenance of contemporaneously prepared time records. Records are required to defend against claims of overtime. MAINTAIN RECORDS!!!

Fair Labor Standards Act

♦ Common Issues or Problems♦ Employee vs. Independent Contractor♦ Classification of Employee (Exempt or Non-Exempt)♦ Failure to Maintain Proper Records♦ Dual Employment Positions♦ Use of Volunteers♦ Lump Sum Payments

♦ Recommendations♦ Properly classify individuals♦ When possible have one employee perform one job only♦ Train supervisory staff of FLSA compliance issues♦ Determine permissibility of non-exempt employees volunteering♦ Keep track of time and monitor time records regularly♦ Monitor employee classifications regularly

Problem Exposures

♦ Sexual Harassment / Abuse / Molestation

♦ Title IX

♦ Access to Facilities

♦ Corporal Punishment

♦ Field Trips

Never Exposures

♦ Student Cruises

♦ Strip Searches

♦ Fire Batons

♦ Students Operating Tractors, Golf Carts, ATVs

Questions

Dwight A. Hester, PhD, JD2512 Lurleen B. Wallace Blvd

Northport, Alabama 35476(205) 333-9090

dah@dwighthester.comwww.dwighthester.com