2010 Fall Bootstrap Conference October 21, 2010

2011 GAINS Conference May 5, 2011Legal Issues Update

Presented by: Cory KirbyHarben, Hartley & Hawkins, LLPWachovia Center, Suite 750340 Jesse Jewell ParkwayGainesville, Georgia 30501Telephone: (770) 534-7341; Facsimile: (770) 532-0399ckirby@hhhlawyers.com

Third Times the Charm .2011-12 Work Calendar and Pay ScaleSalary Schedules: O.C.G.A. 20-2-212(a)SBOE shall establish a schedule of minimum salaries for services rendered which shall be on a ten-month basis. The minimum salary schedule shall provide a minimum salary base for each classification of professional personnel required to be certificated; shall provide for increment increases above the minimum salary basebased upon individual experience and length of satisfactory service. The minimum salary base for certificated professional personnel with bachelors degrees and no experience, when annualized from a ten-month basis to a 12-month basis, shall be comparable to the beginning salaries of the recent graduates of the University System of Georgia.3Salary Schedules Contd: O.C.G.A. 20-2-212(a)The General Assembly shall annually appropriate funds to implement a salary schedule for certificated professional personnel. For each state fiscal year, the state board shall adopt the salary schedule for which funding has been appropriated by the General Assembly. A LUA shall not pay to any full-time certificated professional employee a salary less than that prescribed by the schedule of minimum salaries; nor shall a LUA pay to any part-time certificated professional employee less than a pro rata portion of the respective salary prescribed by the schedule of minimum salaries.4School Year for Certified Staff:Old SBoE Rule 160-5-1-.015

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State Salary Schedule:Georgia Annual/Monthly Salary for 10 Months (190 Days) Employment8

SBoE Emergency Authorization for the 2010-2011 School Year9

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State Salary Schedule:FY2010 Amendment 1 (Reductions) Georgia Daily Salary Schedule12

New SBOE Rule 160-5-1-.02

For Grades K12, the LBOE shall schedule the school year for students as a minimum of 180 school days or its equivalent.

Beyond the school year for students, the LBOE shall adopt policies and procedures identifying the number of days to be utilized for professional learning for all employees.

Pre-KWhat Rules Apply to PreK Teachers?Statutes O.C.G.A. 20-1a v. O.C.G.A. 20-2Entity Department of Early Care and Learning (DECAL) v. State Board of EducationRules v. Guidelines

What Options Exist for Current Pre-K Teachers?Reduction in ForceMoving Teachers into K-12 slotRemain in Pre-K

What Options Exist? What Should School Districts Do?Consider Implementing a New Contract

Pursuant to the terms, conditions and agreements set forth below, which are mutually acknowledged to be of good and sufficient consideration, the Employer has offered and the Employee has accepted employment as a member of the Pre-K staff of the ________ Pre-K Program for the 2011/2012 program year.

The Employee shall be paid a salary equal to the minimum required to be paid to such an employee for the minimum number of days required under rules, regulations, guidelines and work calendars applicable to the 2011-2012 work year established by the Department of Early Care and Learning and set by the Employer in accordance with all applicable state guidelines

The salary will be decreased based on any decrease in the state minimum salary required by state guidelines. [Any salary greater than the minimum salary required by state guidelines is conditioned upon the continued availability of any and all funds available at the time of this contact, with all salaries subject to downward adjustment according to decreases in such funding from the level anticipated at the time this contract is signed.]

(4) The Employee agrees to teach the curriculum and standards, perform the duties of the position, and obey the rules and regulations of the Employer, the Department of Early Childcare and Learning, and, if applicable, the Professional Standards Commission in effect at the time of the execution of this contract or hereafter enacted or amended.

New Clearance Certificates: HB 285Main Purpose: Fix criminal background problem allows both PSC and District to do criminal background checksEliminates temporary 200 day employment contracts (new employment contracts)Now, can employ for 20 days without a contract and without a clearance certificateApply for clearance certificate after running background check and after deciding to hire employeeClearance certificate use PSC standards as to criminal charges and no ethics violationsDo Not Forget .No more 200 day (new employee) contractWork/paid as a substitute until clearance certificate issuedPSC standard and Districts standard may not be the same as criminal recordEven if employee has a clearance certificate, STILL need to check for past certification issuesEven if there is a clearance certificate STILL need to run a background check

HB 192 Ubiquitous QBE StudyState Education Finance Study Committee created to evaluate QBE formulaComposed of 20 members, including superintendent, principal or other administrator, a teacher, member of LBOE, member of State Board, representative from University System, Technical College System, PSC, School Finance Officer, business representative, State School Superintendent, Chief Finance Office from DOE and legislatorsHB 192 contdMoves back the deadline from June 30, 2013 to June 30, 2015.Decision to request increased flexibility optionMaintains, extends from last year authority for districts to qualify for middle school funding even though the grades are not in the same building.HB 87 Illegal Immigration Reform and Enforcement Act of 2011Provides a definition of contractor and sub-subcontractorIf BOE does not maintain website, must provide employer federally issued user identification number and date of authorization to Carl Vinson Institute of Government of UGABefore a bid for any physical performance of service is considered by BOE, the bid shall include a signed, notarized affidavit from the contractor attesting to:Affiant has registered with, is authorized to use, and uses the federal work authorization programUser identification number and date of authorization for affiant; affiant will continue to use e-verify throughout the contract period and affiant will contract for the physical performance of services only with subcontracts who present an affidavit to the contractor with the same informationSubcontractor and sub-subcontract must comply with statuteContractor must submit affidavits, drivers licenses and other required information to BOE within 5 business days of receipt By August 1, 2011, Department of Audits shall create and post on website form affidavitsHB 87 contdNo later than 12/31 of each year, the BOE must submit compliance report to auditor certifying compliance.Compliance report must contain BOE federal work authorization program verification user number, date of authorization, legal name, address, federal work authorization program user number of contractor and date of contract between contractor and BOESubject to available funds, auditor is to conduct an annual compliance audit on at least half of the reporting agenciesIf BOE is found in violation, it shall have a 30-day cure period. If deficiencies are not cured within 30 days, BOE shall be excluded from list of qualified local governmentsCan seek administrative relief through OSAH

HB 87 contdBOE shall not be held civilly or criminally liable or responsible for unknowingly or unintentionally accepting a bid from contractor, subcontractor or sub-subcontractor who acted in violation of statute Suggested LanguageProposer/Bidder By providing a proposal or bid, proposer/bidder certifies that he/she is in compliance with O.C.G.A. 13-10-90, et seq. No proposal or bid will be considered by the BOE unless it is accompanied with a signed, notarized affidavit from the proposer/bidder attesting to the following: The affiant has registered with and is authorized to use and uses the federal work authorization programThe user identification number and date of authorization for the affiant; andThe affiant will continue to use the federal work authorization program throughout the contract period; andThe affiant will contract for the physical performance of services in satisfaction of such contract only with subcontractors who present an affidavit to the contractor with the same information required in subparagraphs (a), (b) and of this paragraph.HB 227 School Employees as ParamedicsSchool district may receive and store prescription epi pen onsite on behalf of student who is not able to self-administer the medication due to age or other reasonProvide that.Written statement from physician detailing name of medication, method, amount and time schedule for medication to be taken, andWritten statement from parent authorizing school nurse (other designated school individual) to consult with physician and releasing district and employees from civil liabilityProvides immunity from civil liability to school personnel who in good faith administers or doesnt administer epi penHB 325 Georgia Education Tax CreditAmended to index the $50 million tax credit cap to inflation rate of CPILimits the amount an organization can give to the average of state and local funding per pupil as determined by DOEArizona Christian School Tuition Organization v. WinnUnited States Supreme Court decision addressing Arizona tuition tax credit scheme similar to GeorgiasChallenge is based on the First A. establishment clause, but Court never gets thereInstead, finds that taxpayer has no standing since a tax credit never is the Governments moneyWhat does it mean for Ga?Why worry about vouchers if you can have tax credits?Expansion of current program, see HB 32550 million dollars will grow every yearPrivate schools, virtual private schools?What about the Georgia Constitution?HB 57Creates civil monetary penalty if driver of vehicle failed to stop when school bus has stop sign outAs evidenced by recorded imagesGraduated fine schedule 1st: $300, 2nd: $750, 3rd +: $1,000 (in five year period)

HR 113 School Bus Safety StudyWill we see seatbelts on school buses? If so, who pays?HR 810 House State Health Insurance Plan Alternative Funding Study CommitteeWhereas, the rapidly rising health insurance premiums are impacting state budgets, and the states fiscal pressures are leading the need to encourage proposals to change funding and cost sharingWhereas, there is a general trend toward greater cost sharing for all plan typesStay tuned.Other legal issues from 2011 SessionSB 184: seniority is bad; what about the evaluation of teachersHOPE: valedictorians and salutatorians

Implementing the New Bullying and Existing Harassment Requirements39Bullying RequirementsBy 8/1/11, LBOE policy with specified elementsBullying prohibition must be in codes of conduct for ALL schoolsAlternative school assignment for grades 6-12 after tribunal finding of 3rd bullying offenseNotification of parents of bully and victimSDOE model already issued

40SBOE Model Policy and GuidanceReporting requirement may be anonymous, required for staff, must be investigation, immunity provided, no retaliationApplies to bullying, harassment, intimidation and retaliationDefinitions much broader than state statuteModel policy not mandated, how do you decide?41Local Board Policy by 8/1/11We are suggesting that local boards not necessarily adopt the model policy.Consider all issues carefully, and consult with your attorneys.You have to decide what conduct you want your policy to cover.42

Harassment under Federal LawStatutes involved include:Title VI of the 1964 Civil Rights ActTitle IX of the Education Amendments of 1972Section 504 of the Rehabilitation Act of 1973Title II of the Americans with Disabilities ActHarassment under Federal LawOn October 26, 2010, USDOE Office of Civil Rights put out a Dear Colleague letter addressing bullying and harassment.The OCR letter praised the current efforts at the state and local level to combat bullying, but had as its principal purpose to remind that bullying activity may also trigger responsibilities under federal antidiscrimination laws.Those responsibilities broader than standard set by the courts for monetary liability

44Harassment under Federal LawSchool districts may violate these civil rights statutes and the Departments implementing regulations when peer harassment based on race, color, national origin, sex or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.45Harassment and IntimidationDOE has come up with a definition for harassment and intimidation centering on the motive for the actions, which may include electronic communication without regard to its origins.Motives are based on any actual or perceived characteristic including race, color, ethnicity, religion, gender, sexual orientation, ancestry, national origin, physical attributes, socioeconomic status, physical or mental ability or disability, or by any other distinguishing characteristic.

46Procedures for reports of bullying and harassmentMay want to have uniform procedures in place at each school on how reports of bullying and harassment are reported, investigated and documented.Documentation or investigation, discipline and remedial stepsResponse to the victim just as important as punishment47OCR requirementsHaving a complaints procedureHaving a Coordinator appointedDetermine that the conduct is harassment that would be under the purview of OCRConduct an immediate investigationTake prompt and effective steps reasonably calculated to end harassmentEliminate any hostile environment and its effectsPrevent the harassment from recurring

48Biggest ConcernsWho determines if its bullying or harassment or nothing?Are the investigations for bullying vs. harassment different? Do they have to be documented differently?How to follow the appropriate procedures to meet both the State and Federal requirements.How to coordinate the documentation and investigation throughout the District.How to train staff and parents?49Code of Ethics and Conflict of Interest Policies for Local BOEsSending them to SBOESending them to Georgias AG for preclearance by US AGWhat if we Didnt?How to Do it?Enforcement in the Future