Lawyers.com Blog

What to expect on your first appearance in criminal court

nospam@example.com (Matthew J. Ruff) — Sat, 07 Nov 2009 12:20:36 -0500

For many, the prospect of appearing in Court can be a terrifying experience indeed. Among the questions are What should I say to the Judge? Will the Court require that I post bail? Should I appear with an attorney? etc.

What you must understand is that no one inside the judicial system cares about your case. The only individual that cares is a retained attorney who will be acting as your advocate. Without an attorney you will be at the mercy of a public defender who is often overworked and underpaid. Do not get me wrong, public defenders are often great lawyers with a good heart, however, due to budget problems that stack too many cases in the lap of one person, the public defender cannot put the individual time required in any one particular case.

The first appearance is called the arraignment, During the arraignment or any proceeding in front of the criminal court, a criminal defense attorney can bring a motion to reduce bail. The judge decides whether to reduce bail and will consider the client's risk of flight and danger to the public. In a felony case, if your attorney is asking for an O.R. release, the court will most likely set the matter over for an O.R. hearing and order an O.R. report on the defendant. This process usually takes a week.

Special appearances occur when the criminal defense lawyer appears in court to ask for a continuance (a continuance is a request to postpone the proceedings to a future date) because they have not yet been retained by the defendant and the attorney has not been able to prepare their defense. Special appearances can only be made at the first appearance/arraignment.

In conclusion, although a defendant can proceed without a lawyer, it is not advised.

Continue reading "What to expect on your first appearance in criminal court"

FERS & CSRS Disability Retirement: Indicators

nospam@example.com (Robert R. McGill) — Fri, 06 Nov 2009 22:38:24 -0500

If your weekends are spent for the purpose of recuperating just so that you can have the energy, strength, mental acuity, and sustained focus and attention to go back to work on Monday, then it is an indicator that you may need to file for Federal Disability Retirement benefits under FERS or CSRS; if, after each day of work, you are so profoundly fatigued that you end up spending each evening just resting, unable to have any significant recreational enjoyment or time for relaxation, time with family, etc., then it is an indicator that you may need to file for Federal Disability Retirement benefits under FERS or CSRS; if you must take sick leave, LWOP or annual leave every few days, or after a week of work, because you need the time off to recuperate, then that is a further indicator. Ultimately, each individual must make his or her decision as to the timing and whether one has reached a critical point where filing for Federal Disability Retirement benefits under FERS or CSRS is necessary. Different reasons for different people; different factors at different times of one's life.

Sincerely, Robert R. McGill, Esquire

Car Accident Injuries and Personal Injury Law

nospam@example.com (Harvey Alford) — Fri, 06 Nov 2009 18:49:25 -0500

Car accident injuries that are caused by the negligence of another car, truck, or motorcycle driver fall into the realm of personal injury law. A personal injury can be physical or mental injury. Often, these injuries cause financial harm instead property damage. If someone dies as a result of car accident injuries, the claim would fall under wrongful death law. Auto accidents are one of the leading preventable causes of death in the United States

After being injured in a car accident, you may have grounds for a lawsuit. In motor vehicle accident cases, a lawsuit is often necessary to recover damages. If you are the victim of another driver's reckless or negligent driving, damages can include compensation for medical bills, physical rehabilitation, pain and suffering and lost wages.

Many accident victims try to deal with insurance companies on their own. Insurance companies are in the business to make money, and may not have your best interests in mind. Insurance adjusters often do their best to downplay the extent of your injuries and reduce damage claims. They have teams of lawyers working hard on their side, but our lawyers will work just as hard for you. If your case cannot be settled without a trial, our civil litigation attorneys are always prepared to go to trial to get you the compensation you deserve.

Alford & Bertrand, Boston Personal Injury Lawyers

1651 Blue Hill Avenue
Boston, MA 02126
Toll Free: 1-800-698-ATTY (2889)
Local: 617.926.8800

Watertown Office:
60 Arsenal Street,
Watertown, Massachusetts 02471

Lynn Office:
85 Exchange Street
Lynn, MA 01901

Quincy Office:
250 Copeland Street
Quincy, MA 02169

Continue reading "Car Accident Injuries and Personal Injury Law"

Condemnation and Eminent Domain, What do they mean for me?

nospam@example.com (B. Joan Davis) — Fri, 06 Nov 2009 16:49:18 -0500

Condemnation or eminent domain simply means that the government (the State, County or City) is taking private land for a public purpose. Usually the government is taking full ownership of the property, but there are times when the government takes a lesser interest in the land, such as a utility easement or a temporary construction easement.

The most common uses of property taken by eminent domain are for public utilities, road widening, highways, and railroads, but the government may take private land for any “public use” including, parks, greenways, airports, prisons etc. The laws of North Carolina require that the government pay you “just compensation” for your land. The law also generally requires that the government offer to purchase the property before resorting to the use of a legal action to take the land. It is wise to consult with a Raleigh business law attorney before negotiating or accepting an offer from the government for your condemned land.

Article Provided By:
Howard, Stallings, From & Hutson
5410 Trinity Road Suite 210
Raleigh, NC 27607

Continue reading "Condemnation and Eminent Domain, What do they mean for me?"

Intellectual Property Rights Are a Lynchpin to Business Success, Not an Add-On

nospam@example.com (Gary S. Fergus) — Fri, 06 Nov 2009 16:45:46 -0500

Intellectual property rights should not be an afterthought, but instead an integral part of your business model. The New York Times’ business writer Darren Dahl took a look at this by considering the experiences of Cryptography Research and Visa, Research in Motion and Blackberry and Trident Design (PowerSquid). Each illustrates the importance of establishing clear ownership of a technology or trade name. Also, intellectual properties sometimes require an ardent defense to maximize value.

Intellectual property litigation can go offshore as well, yet different patent systems in other countries can be expensive and unwieldy. Consequently, most companies cannot afford to pursue patent protection everywhere; a good strategy is to identify the countries (e.g., China and Japan) where copycat manufacturing or sale is most likely.

Melding IP considerations with overall business planning has other advantages. Interlopers monitor applications at the U.S. Patent and Trademark Office and will sometimes register a URL that the owner of the intellectual property might otherwise use for marketing or other purposes. Dahl’s example is “Upcakes,” the signature product of a New Jersey restaurant: the owner registered that mark but failed to buy the URL—and someone else did, likely after monitoring the trademark bureau’s website where applications are posted for public review.

Continue reading "Intellectual Property Rights Are a Lynchpin to Business Success, Not an Add-On"

It's Never Too Early to Think About Nonrenewal

nospam@example.com (Bradley J. Domangue) — Fri, 06 Nov 2009 16:16:25 -0500

By Bradley J. Domangue - Associate
Schwartz & Eichelbaum Wardell Mehl and Hansen, P.C.
800.488.9045 | www.edlaw.com | information@edlaw.com

It can never be too early to discuss the nonrenewal process. Although the Education Code says that a notice to propose a nonrenewal must be given to an employee by the 45^th day before the last day of instruction, so much more must be done to have a successful nonrenewal process. That means now is the perfect time to discuss nonrenewal basics. There are three things to remember when it comes to the nonrenewal of contracts:

1) Time – is a crucial factor when it comes to implementing nonrenewals, and Texas Education Code Chapter 21 sets strict time guidelines for when a notice to propose a nonrenewal must be given to an employee and the steps that follow.

2) Policy – the district’s policy will have a detailed description of who falls under term contracts and nonrenewal process under the DCB(LOCAL). Reasons for nonrenewal and necessary steps the District must take to complete the nonrenewal process fall under the DFBB(LOCAL).

3) Documentation – The administrator recommending a nonrenewal must have sufficient documentation to show the board of trustees that there is a preponderance of the evidence in support of one or more stated reasons for nonrenewal.

Timelines on the front end must be strictly adhered to and not adhering to them will invalidate a nonrenewal. Here are some necessary time guidelines to remember, and all of them are for calendar days:

l Notice of proposed nonrenewal must be provided in writing to the employee at least 45 days before the last day of instruction. Failure to provide timely notice constitutes an election to employ the individual in the same professional capacity for the following school year. This notice should be given by hand or by mail. If it is given by hand make sure to acquire signed documentation from the employee that they received the document. If the proposed nonrenewal is sent by mail, make sure it is sent Return Receipt Requested and regular mail.

l After receipt of notice of proposed nonrenewal, the employee has 15 days to request a hearing before the board of trustees. If requested, the hearing must be held within 15 days unless the parties agree in writing to a different schedule. The hearing must be closed to the public unless the employee requests the hearing to be open. At the hearing, the employee may be represented, hear evidence supporting the reasons for the nonrenewal, cross-examine adverse witnesses, and present evidence.

l If no request for hearing is tendered, the board must notify the employee of its decision in writing within 30 days of the date on the notice of proposed nonrenewal. If the employee requests a hearing, the board must notify the employee of its action in writing within 15 days after the close of the hearing.

l Within 20 days of receipt of the board’s decision, the employee may appeal to TEA by filing a petition for review.

District policy will provide the mandatory steps to take in order to improve the chances of a smooth nonrenewal hearing and successful appeal. Here is a basic checklist:

þ Documentation of actions, attitudes, and events that support a reason for nonrenewal under DFBB (LOCAL). (This is discussed in detail later in the article.)þ Attorney’s review of documentation and approval to proceed. Your attorney should be contacted and asked to review the district’s documentation package before there is any communication to the employee regarding the anticipated action.þ Written recommendation on contract action from principal to superintendent. The recommendation should identify one or more reasons for nonrenewal as outlined in DFBB(LOCAL) and provide information supporting the identified reason(s). All principals must be familiar with DFBB(LOCAL) and mindful of it when drafting documentation throughout the year. þ Written recommendation for nonrenewal from the superintendent to the board of trustees. Upon receipt of the administrator’s recommendation, the superintendent should review all the documentation/information provided by the campus administrator and consider whether there is evidence to support one or more reasons for nonrenewal listed in DFBB(LOCAL).

If the superintendent proceeds with the recommendation, the superintendent will (1) give the board a general description of the reasons for nonrenewal based on DFBB(LOCAL); (2) affirm that there is evidence/documentation to support the reasons; and (3) confirm that the district’s attorney has been consulted and finds legal basis for the recommendation. This conversation occurs in closed meeting when the superintendent is presenting recommendations about contracts to the board.

þ Minutes from board meeting reflecting vote from board to accept the superintendent’s recommendation and propose nonrenewal. After receiving the superintendent’s recommendation, the board will vote in open session to propose the nonrenewal and send notice to the employee. Your attorney should be contacted for appropriate motion language. þ Notice letter to employee of the proposal to nonrenew the contract. If the board votes to accept the superintendent’s recommendation and proposes nonrenewal, notice must be provided to the employee no later than 45 days before the last day of instruction. þ Written request for hearing from employee. An employee has 15 days after the date she receives notice to propose nonrenewal to notify the board in writing of her desire for a hearing. If the employee does not request a hearing within the 15 days, the board must vote to renew or nonrenew the contract and send notice to the employee of that action within 30 days of the date on the notice to propose nonrenewal was sent. þ Written correspondence between school district and employee setting hearing within 15 days of employee request or written agreement from employee to waive 15 day timeline.

Documentation is crucial to a successful nonrenewal because it creates the foundation in support of the reason(s) for nonrenewal.

The only way to face a nonrenewal with confidence is to have documentation evidencing actions, attitudes, and events supporting one or more of the listed reasons for nonrenewal in the policy. That documentation should be:

· Dated and signed or initialed by the person preparing and delivering it

· Addressed to the employee

· Acknowledged by the employee upon receipt

· Contain references to impact on PDAS

· Explain exactly what the problem is and WHY it’s a problem

So how much evidence do you need? Enough for the Board to say it is more likely than not that the administration proved its case on at least one of the proffered reasons. And, enough for reasonable minds to find that the employee engaged in conduct that is listed in DFBB(LOCAL) as a reason for nonrenewal. The Board is your audience.

The following kinds of documentation will greatly improve chances of a smooth nonrenewal hearing and successful appeal:

Copies of letters/memos from supervisor to employee setting expectations and addressing performance deficiencies, signed by employee
Follow-up letters/memos signed by employee that identify noncompliance with written or verbal directives, re-statement of previous directives, and additional directives
Copy of Teacher In Need of Assistance (“TINA”) forms or other growth plan(s)
Copies of letters/memos addressing progress on TINA; compliance issues and identification of additional work needed (signed by employee)
Copies of letters/memos identifying workshops employee has been asked to attend in order to strengthen deficiencies
Copies of letters reflecting other opportunities for remediation provided to employee, if remediation is warranted or possible
PDAS Observation Summary Report and Summative Report (if completed and available)
Written reports by Curriculum and Instruction staff who have observed classroom teaching (if applicable)

The nonrenewal process has a strict time guideline and procedure that must be followed in order for a nonrenewal to be successful. It is important to remember that a lot needs to happen before the notice to propose a nonrenewal is given to an employee: (1) contemporaneous documentation of concerns and problems, (2) the recommendation from the principal, (3) the recommendation from the superintendent, and (4) the board meeting at which the board acts on employment recommendations all take place before the employee is given a notice to propose contract nonrenewal 45 days before the last day of instruction.

If you ever have any questions about the process make sure to contact your district’s attorney for the correct guidance on how to proceed. Below are brief summaries of recent Commissioner Decisions regarding nonrenewal.

Commissioner Decisions in 2008

Sharan Dews v. Tyler Independent School District

The employee claimed that exhibits used in the nonrenewal rehearing were not entered into evidence and should not be part of the local record. The commissioner stated that because there was no official district policy on evidentiary procedure, the commissioner could only look at how the parties used the exhibits in the hearing. Because the exhibits were used as evidence, they were part of the record, but the commissioner urged the district to adopt an evidentiary policy for nonrenewal hearings.

Dale Jeffery v. Fort Bend Independent School District

The employee stated that instances of specific conduct were included in a supplemental notice of nonrenewal dated May 13, 2008 that were not part of the original notice to propose a nonrenewal on April 4, 2008. The commissioner ruled that because the original notice was presented at the correct time, the notice was timely and no specific incidents are necessary in the notice to propose a nonrenewal.

The commissioner also ruled that an employee does not have a right to remediation and that an employee’s acts themselves are sufficient to warrant nonrenewing a contract. However, this decision stresses the importance of documenting all disciplinary issues.

Rick Johnson v. Kenedy Independent School District

The commissioner ruled that a district can rely upon one single incident to support multiple reasons to support a decision to nonrenew.

Viola Wilkerson v. North Forest Independent School District

Because the District did not follow the timeline for nonrenewal set in the Texas Education Code, the employee was reinstated.

What Do You Call a School Administrator Who Conducts a Strip Search?

nospam@example.com (Dennis J. Eichelbaum) — Fri, 06 Nov 2009 16:12:08 -0500

By Dennis J. Eichelbaum - Managing Shareholder
Schwartz & Eichelbaum Wardell Mehl and Hansen, P.C.
800.488.9045 | www.edlaw.com | information@edlaw.com

The answer to this question is simple: Defendant. You have heard lawyers say that “bad facts make bad law.” The United States Supreme Court has accepted certiorari to consider an appeal of the United States Court of Appeals for the Ninth Circuit in Redding v. Safford Unified School District, et al. over a school official’s decision to strip search a thirteen year old student accused of possessing ibuprofen!

The vice principal, suspicious of the young lady (Savana) hiding prescription-strength ibuprofen, first asked permission, then searched the young lady’s backpack. After finding no contraband, the vice principal sent Savana with a female administrative assistant to the school nurse for a “more thorough search.” The school officials had Savana peel off each layer of clothing in turn. First, she removed her socks, shoes, and jacket for inspection for ibuprofen. The officials found nothing. Then, she was asked to remove her T-shirt and stretch pants. Savana complied and sat in her bra and underwear while the two school officials examined her clothes. Again, the officials found nothing. The assistant then instructed Savana to pull her bra out to the side and shake it. She “followed the instructions, exposing her naked breasts in the process. The shaking failed to dislodge any pills.” She next requested that Savana “pull out her underwear at the crotch and shake it. Hiding her head so that the adults could not see that she was about to cry, Savana complied and pulled out her underwear, revealing her pelvic area. No ibuprofen was found.”

The facts of this case should make any reasonable reader cringe. The search itself was the result of a tip given by another student who was found with and being disciplined for possession of the ibuprofen. This student said it was not hers but instead belonged to the Savana. Savana had no discipline record whatsoever.

The issues in this case are the typical issues of searches: (1) was the search justified at its inception, and then; (2) whether the search conducted was reasonably related in scope to the circumstances which justified the search in the first place?

The Court of Appeals considered the case en banc (the entire body of appellate judges considered the case, rather than a panel of three judges), and one could foresee trouble for the defendants when coming across the following sentence in the en banc decision: “the public school officials who strip searched Savana acted contrary to all reason and common sense as they trampled over her legitimate and substantial interests in privacy and security of her person.”

The Court of Appeals was troubled by the justification for the search. Because Savana had no previous disciplinary issues or previous association with contraband, it made it all the more troubling that the school officials were relying on the word of a person caught with contraband who was clearly trying to avert the punishment to anyone but herself. The Court felt that further investigation to corroborate the accusation should have taken place before the use of a strip search was imposed, since the initial tip itself did not indicate Savana was hiding the pills in a place that necessitated a strip search. Instead, the only corroboration was Savana’s denial that she possessed ibuprofen and a failed search of her backpack.

Having failed to pass the “justified at its inception” test, it continued to go downhill for the school district. The Court considered the potential psychological damage to the child and eventually determined that ibuprofen was not a danger if hidden and, therefore, would not justify such an intrusive search.

The facts of this case are beyond troubling. With the Supreme Court having extended schools the leeway to perform searches based upon reasonable cause instead of probable cause and having permitted drug testing searches for extra-curricular activities, there is a good chance this case will set schools back a few notches. The Supreme Court will hear oral argument in this case on April 21, 2009. A decision should be issued this year.

Your Space, MySpace - Social Networking Legal Update

nospam@example.com (Carol Simpson) — Fri, 06 Nov 2009 16:09:38 -0500

By Dr. Carol Simpson - Schwartz & Eichelbaum Wardell Mehl and Hansen, P.C.
800.488.9045 | www.edlaw.com | information@edlaw.com

Social networking sites like MySpace and Facebook are technology success stories. They allow extensive (and sometimes anonymous) communication between members. Today’s students use them to report just about everything in their lives – and sometimes the lives of others. But as with most great inventions, there is often a down side. For both school personnel and students, these sites and others like them have generated serious litigation. Here is an overview of recent caselaw:

Staff Use of Social Networking Sites

Teachers using these types of sites to communicate and “relate” to their students are often deemed unprofessional and suffer adverse employment actions as a result of their participation. For example, a student teacher—against the direction of her supervisors—advertised her MySpace page to her students. On the page she posted photos of herself in an intoxicated state and she made disparaging remarks about her cooperating teacher. The school dismissed her from her student teaching assignment for unprofessional conduct and she was unable to complete her teaching licensure at the university. The court upheld the university’s action. Snyder v. Millersville Univ., No.07-1660, WL 5093140 (E.D. Pa. 2008). A male teacher, who had a MySpace profile that included photos of naked men, engaged in non-school related conversations with his students via the profile. After being advised to discontinue the practice, the teacher deactivated the profile and substituted an essentially similar one. The school elected to nonrenew the teacher’s contract and the teacher sued for violations of his first amendment rights of speech and association. The school prevailed because most of the MySpace communication was not protected speech about a “matter of public concern” and the only arguably protected speech was not directly linked to the nonrenewal. Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. 2008).

Students Online and Associated School Discipline

Students sometimes use the sites to vent their frustration with teachers and administrators by creating hostile or parody profiles under the names of those employees. Courts are mixed on how they view the students’ first amendment rights to create spoofed or disparaging profiles. For example, middle school students posted a MySpace profile of the school principal indicating he was a pedophile and sex addict. Combining the standard school speech analyses of Tinker v. Des Moines Indep. Comm. Sch. Dist. and Bethel Sch. Dist. v. Fraser, and tossing in the recent Morse v. Frederick decision, the court found that the students could be punished for the profile even though it was created wholly off-campus. The court reasoned that because the profile was lewd, indecent, and potentially illegal, and there was some effect on the campus, the effect did not need to be a “significant disruption” to qualify. JS ex rel Snyder v. Blue Mountain School District, No. 3:07cv585, WL 4279517 (M.D. Pa. 2008). Similarly, when a high school student vented frustration with school administration by posting a scathing blog on livejournal.com, she was deemed ineligible to run for senior class secretary. The court ruled that when the blog entry was related to school issues and it was reasonably foreseeable that other students and administrators would see the posting, the blog entry could be treated as on-campus speech. Doninger v Niehoff, 514 F. Supp. 2d 199 (D. Conn. 2007).

On the other hand, a female vice-principal sued students and parents claiming intentional infliction of emotional distress, conspiracy, defamation, libel, and negligence when the students posted a fake MySpace profile that displayed her name and photo along with explicit, graphic sexual content. The trial court dismissed all the allegations, and the appeals court upheld the trial court. One judge, in her concurrence, lamented that the law gave the educator no recourse for this insult. Draker v. Schreiber, No. 04-07-00692-CV, WL 3457023 (Tex. App.–San Antonio 2008). Likewise, a middle school student judged delinquent for harassment because of a vulgarity-laced MySpace tirade against her former principal had her sentence overturned. The Indiana Supreme Court upheld a lower court’s determination that because the principal was unlikely to discover the rant on MySpace, the actions did not meet the “intent of legitimate communication” element of the offense of “harassment” under state law. AB v. Indiana, 885 N.E. 2d 1223 (Ind. 2008).

And for a case that provides no guidance whatsoever, a student disciplined for creating a parody site of the high school principal on MySpace sued the school and the administrators as individuals for violating the student’s first amendment rights. The student had created the site on his own away from school, but used the principal’s photo from the school’s web page. The court found that even though the discipline violated the student’s first amendment rights because there was no school disruption related to the site, the administrators had qualified immunity because the student’s right was not well-established at the time of the disciplinary decision . Layshock v. Hermitage School District, 496 F. Supp. 2d 587 (W.D. Pa. 2007).

What Can Administrators Do?

Most social networking sites have ways to remove offensive or fraudulent profiles. For example, MySpace has a guide for school administrators that explains the service and how to remove false or offensive profiles. See information at http://cms.myspacecdn.com/cms/SafetySite/documents/SchoolAdministratorGuide.pdf) It also has suggestions on ways schools can use MySpace (and other social networking sites) to promote school activities and enhance school spirit. The terms of service of the sites explain what activities are acceptable and which are not. Those terms specifically prohibit material that “constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous.” MySpace identifies in its School Administrator Guide ways to contact MySpace in emergency situations such as threats and cyberbullying.

So what does all this mean? Social networking will not go away. Students will use these services for friendly communication, immature steam-venting, and potentially abusive or illegal activities. School administrators would do well to stay aware of such activity and encourage students to alert them to cyberbullying activities and other online threats. In some of the cases above, the staff member’s admitted naïveté about social networking disfavored discipline: the court believed that because the target of the parody would likely never have found the potentially libelous material, no communication was intended. Having a clear student complaint process can also defuse frustration before it gets out of hand.

Public school faculty, if they use these sites at all, probably should not indicate their school affiliation, and certainly should not use these uncontrolled sites for communication with current students. Requiring faculty to communicate to students in a professional environment that the school controls is the best way to minimize the risks above. Making it clear to faculty and staff where communication with students should occur can save a lot of headaches later.

District Web Page Advertising Links: If You Are Missing Links, You Could Be Missing Potential Income

nospam@example.com (Carol Simpson) — Fri, 06 Nov 2009 16:06:41 -0500

By Dr. Carol Simpson - Schwartz & Eichelbaum Wardell Mehl and Hansen, P.C.
800.488.9045 | www.edlaw.com | information@edlaw.com

Sure, school districts have web pages, with links to board policy service, student codes of conduct, and handbooks, but what about advertising? What are the merits and liabilities of placing community organizations/business web links on a school district website?

Selling links on the school district web site is a way to generate additional revenue for the school. To protect itself from potential First Amendment challenges, the district must carefully establish the web site as a closed forum for the purposes of speech, and insure that those denied an ad on the page are not denied on the basis of their point of view. However, the district may deny ads to those whose products or services are inconsistent with the mission of the school in much the same way that schools control other publications that bear the imprimatur of the school.

The Power of Web Advertising

Having commercial links on school district web pages is a rising phenomenon. Southlake Carroll ISD has been very successful selling such links. They sell ads on the school website as well as license their trademarked logos to appear on commercial websites (“Proud supporter of the Carroll Dragons!”)[1] Their policy GKB (LOCAL) is a good model for this sort of enterprise. While not all school districts may make as much money as affluent Southlake Carroll, ad money is revenue that does not have to be derived from taxes. Nevertheless, there are collateral issues that a school district should consider before going forward.

Advertising is a form of speech protected by the First Amendment.[2] If a school district declines an ad because it feels the ad is in poor taste or the business is not appropriate as a school partner, the declined party may claim a First Amendment violation. However, government need not permit all forms of speech on property that it owns and controls, including its website.[3] Some areas such as streets and parks are considered open or traditional public forums. In those forums the state may only enact content-neutral “time, place, and manner” restrictions or content-based rules that are “necessary to serve a compelling state interest” and “narrowly drawn to achieve that end.”[4] A school district web site is probably not a traditional open forum.

A non-public forum consists of “[p]ublic property which is not by tradition or designation a forum for public communication.”[5] The government may be more restrictive in its regulation of speech in a non-public forum than in a traditional public one. The government may “reserve the [nonpublic] forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.”[6] The daily operation of schools is usually a non-public, or closed, forum for most speech, and the school may control the message presented as long as the regulation is reasonable.

Between public and non-public forums are limited and designated public forums. Courts are not always consistent in how they label and define these intermediate forums. Generally, in a designated public forum the government makes public property (that would not otherwise qualify as a traditional public forum) generally accessible to all speakers. In such a forum, regulations on speech are “subject to the same limitations as that governing a traditional public forum” –namely, strict scrutiny.[7] Unless the school district has created a feature of its website to allow anyone at all to post on its web page, the district’s web page is probably not a designated public forum.

A limited public forum, by contrast, is “created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects.” In a limited public forum, the government creates a channel for a specific or limited type of expression where one did not previously exist. In such a forum, “the State may be justified in reserving [its forum] for certain groups or for the discussion of certain topics,” subject only to the limitation that its actions must be viewpoint neutral and reasonable.[8] If a section of the school’s web page allows citizens to post messages to the football team, the district probably created a limited public forum of the web page, and messages both positive and negative would need to be accepted.

The Impact of the First Amendment

When planning to offer ad space in any school district publication, the district must consider First Amendment implications that will occur if the district rejects ads. For example, the district will most likely not wish to accept advertising links to the local beer store, a birth control clinic, or a business of questionable taste. In addition, political candidates or those espousing a particular political viewpoint may seek to have links to their campaign websites from the school district page.[9]

A governmental entity may limit access to “non-public” or “designated public” forums based on category of speaker or subject matter so long as the limitation is reasonable.[10] Certainly there would need to be rules about what is appropriate, and possibly specifically establish a non-public or limited public forum. In the primary case to address the relationship between links and forum designation in a government website, Putnam Pit found that the city could establish a policy to limit who might be linked, so long as the limits were reasonable and did not allow for viewpoint discrimination. In Page, a school district denied a citizen equal web page access to counter information about pending legislation posted by the school on its own web page. The court said that “[I]n a nonpublic forum the government may employ a selective access policy in which individual non-ministerial judgments govern forum participation ... subject to ... two limitations: the policy must be reasonable and viewpoint neutral.”[11] The Page court found it particularly significant that the district maintained complete control of its website, retaining the right and ability to exclude any link at any time, did not incorporate any material from linked websites into its own, and “disclaimed” contents of linked websites.[12]

Following that reasoning, the district could establish a policy that limited ads to only local businesses, or only businesses that provide services to students, or any businesses that do not deal in alcohol or reproductive services or discuss controversial issues of any type. But once the district sets the limit, all viewpoints within the approved categories must be accepted.

Apparent District Endorsement

Schools gain an extra consideration for selection of potential advertisers, however, when the advertiser appears under the name of the school as it would on a web page. When the publication (the web page) bears the “imprimatur” of the school, the district has much greater control of the content and any potential affiliations.[13]

Schools should take care to avoid political advertisements on their web pages. The Texas Election Code strictly limits schools on “political advertising,” defined as “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” when that advertisement appears on an Internet website (among other locations).[14] The Election Code does provide an exception for factual descriptions of “the purposes of a measure if the communication does not advocate passage or defeat.”[15] The same prohibition applies to internal websites available only to employees.[16] Violation of any of these statutes is a class A misdemeanor.

Decisions do not end with content: Does the district require the ad it to be text only, or a does it allow links? Links click through to a site the district cannot control and may have links to other inappropriate sites. The district can provide some warning, if not protection, from such contact by enabling an intervening message such as that discussed in Page, e.g. “Warning you are now leaving the __ISD website. __ISD has no control over the content. Continue / Cancel.”

In addition, the district must address what is allowed in the ad itself. Name of business only? Images? Proselytizing messages? Many districts have an advertisement policy in place for the school paper, yearbook, or football program. If those policies have survived challenge, they may work for this as well.

Your District Web Site is not only a link for the public to gain information; it may also be a link for the District to gain revenue.

[1] See Southlake Carroll I.S.D., The Green Pages.

[2] See Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633 (1980).

[3] Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992) (ISKCON).

[4] Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983).

[5] Id. at 46.

[6] Id.

[7] ISKCON, 505 U.S. at 678.

[8] Good News Club v. Milford Central School, 533 U.S. 98, 106-07 (2001) (citations omitted).

[9] See, e.g. Page v. Lexington County Sch. Dist. One, 531 F.3d 275 (4th Cir. 2008) (holding that a district did not establish an open forum when sites to which it linked added political information to their web sites).

[10] Putnam Pit, Inc. v. City of Cookesville, Tenn., 221 F.3d 834, 843 (6th Cir. 2000) (holding that a city’s web site was a non-public forum, but using a definition of “designated public” forum that more closely describes the “limited public” forum defined above).

[11] Page, 531 F.3d at 283 (citation omitted) (finding that the portion of the district website advocating defeat of voucher legislation was a nonpublic forum that the district could control).

[12] Id. at 284.

[13] Planned Parenthood of S. Nev. v. Clark County Sch. Dist., 941 F.2d 817 (9th Cir. 1991) (en banc) (holding that a school may reject ads from a family planning organization for school yearbooks, newspapers and athletic programs when the forum was not public, a limited public forum was not established, and the district’s reason that it wanted to avoid advertisements on controversial issues was reasonable).

[14] Tex. Elec. Code. Ann. § 251.001 (16) (Vernon 2003).

[15] Id. at § 255.003(b).

[16] See, generally, id. at § 255.0031.

Before Bon Voyage: Things to Consider Prior to a Senior Trip

nospam@example.com (Kelly J. Shook) — Fri, 06 Nov 2009 16:01:33 -0500

By Kelly J. Shook - Associate
Schwartz & Eichelbaum Wardell Mehl and Hansen, P.C.
800.488.9045 | www.edlaw.com | information@edlaw.com

It’s time to say goodbye to the Class of 2009! For better or worse, school districts all over the state have managed to stick it out with their seniors, and have hopefully made it through unscathed. Well, almost. For those school districts adventurous enough to permit the words “senior trip” to be uttered on campus, adventures with the Class of 2009 aren’t quite over yet! Here are a few things school districts may want to consider before sending those wide-eyed seniors out into the early summer air.

Whose Trip is it Anyway?

Before getting into the nuts and bolts of preparing for senior trips, school districts must first answer the all-important question, “Is this trip school-sponsored?” To decide the answer, consider the following:

Have students used class time for fundraising?
Is the school district providing an employee whose expenses are paid by the school as a sponsor for the senior trip?
Will the employee sponsor attend the trip as a chaperone?
Does the majority of work conducted by the senior class focus on planning and fundraising for the senior trip?
Are senior trip funds stored in a school district account?
Has the trip been scheduled as the “School District Senior Trip,” and have tickets, hotel rooms, or other travel arrangements been planned under this name?
Have school district supplies and equipment been used to promote the senior trip? (for example, the copy machine, telephones and computers, personnel, etc.)

The more times a school district answers “yes” to the above questions, the more likely it is that the district’s senior trip will be construed as “school-sponsored.” And, the more likely a trip is to be considered school-sponsored, the more responsibility school districts will have to take for the students who participate. However, don’t confuse “responsibility” with “liability.” The school district simply cannot and will not be liable for injury to students or property damage that students may cause. School district officials should make sure that is communicated loud and clear every chance they get.

Non-School Sponsored Trips

If the answer is “yes” to some small number of the above questions, but the school district wants to avoid classifying a senior trip as school-sponsored, then it would be a good idea to ensure that the word gets out. Now. For instance, a district may want to consider sending letters to parents clarifying that the senior trip is not school-sponsored or school-sanctioned, and the district will assume no liability for any injury or loss that may occur in connection with the trip. If needed, it may also be appropriate to inform parents that any information parents may have received from their children regarding a senior trip was not given to them by the school district. If school district staff members are helping to organize the trip, then beware! Extra precautions may be needed to clarify that staff members are acting in their personal capacity and are not representing the school district in matters relating to the senior trip.

In addition to some sort of communication with parents, it’s likely to be in the district’s best interest to take as many steps as possible to remove the school from the senior trip process. This may include preventing announcements or other activities regarding the senior trip from taking place during the school day, and avoiding references to the trip as the “[insert school name here] Senior Trip.” These recommendations may not always keep a trip from being classified as a school-sponsored event, but may help reduce the district’s chances of the trip’s being considered a school district activity.

Perhaps the best way to avoid any confusion about whether or not the trip is school-sponsored is to make the students take the trip after they have graduated—in June for instance. Once they have graduated, they are not “students” anymore; they are just 17 and 18 and 19 year olds on a trip with their friends and any family who care to attend.

School-Sponsored Trip

If the Class of 2009 Senior Trip is likely to be considered school-sponsored, there may be some potential liability issues to consider. In Texas, school districts are liable under tort law only for injuries arising out of the negligent use or operation of a motor vehicle by a district employee acting within the course and scope of employment. Therefore, school districts are shielded from liability for all other personal injury clams by students that may be caused by the negligence of the school district or agents acting on the district’s behalf or that are caused by the students themselves. However, if the senior trip will take a school district’s students out of state or out of the country, this immunity may not apply, and the school district could potentially be liable for any injury or loss that occurs to students or others, especially residents of the state or country where the students are visiting, during the course of that trip.

So what can the district do? One method that may be useful in an attempt to shield the school district from liability would be to create a release of liability and choice of venue document that all students/parents must sign before students will be allowed to participate in the senior trip. In addition to expressly releasing the school district from liability, the document would designate Texas law and Texas courts for any lawsuits that may arise. However, school districts should be aware that even with this document, the district is far from bulletproof. Release from liability and choice of law provisions will not protect the district from the claims that citizens of other states or countries may make against the district or its students, and there is still a possibility that even with such an agreement, the liability release and choice of law provisions could be set aside by a court as being inconsistent with public policy.

In addition to a release of liability and choice of law document, school districts may also want to consider using the following documents to help maintain order and reduce the risks of liability while on a senior class trip:

Student Trip Agreement
1. This handy little document may be useful for setting forth the terms and conditions of the senior trip, and may include the rules that students must adhere to (i.e., the Student Code of Conduct), penalties for noncompliance with student trip rules, a list of chaperones, and any other rules and disclaimers that the school district may feel necessary to have in written form before departing for the trip.
Chaperone Agreement
1. This agreement would set forth similar terms to the Student Trip Agreement, but for trip chaperones. The school district may consider addressing expectations of chaperone conduct, restrictions on use of alcohol, tobacco, drugs, etc., penalties for noncompliance with any of the conditions, and chaperone responsibility for any additional costs arising out of the trip.
Medical Consent Form
1. A medical consent form may be useful for the purpose of authorizing the school district to consent to emergency medical treatment for any injury or illness that may occur on the trip, if the injured party is unable to provide his or her own consent. It might also be wise to clarify who will be responsible for payment of the costs associated with any medical treatment.

Again, use of these documents will not eliminate all risks of liability that the school district may face during a school-sponsored senior trip. The best method of preventing legal liability would be to refuse to sponsor the trips at all. School districts should consult with their local counsel before embarking on any senior trip, in order to ensure that all the proper steps will be taken to help minimize the district’s risks of liability.

Social Security, SSI, and Disability Myths and Misconceptions

nospam@example.com (Robertson H. Wendt) — Fri, 06 Nov 2009 15:58:56 -0500

Like many government-run programs, Social Security, SSI, disability claims, and other such legal matters can seem overwhelming to the common citizen. Without a skilled Social Security disability lawyer, the disability process will be very difficult and the claim will have a lower chance of success.

Some common myths

Before filing a Social Security disability claim, it is important to avoid some common myths and misperceptions:

Social Security denies everyone the first time they apply for disability. While the Social Security Administration has no policy to this effect, it is easy to see why most believe it. Nationwide, approximately 70 percent of all disability claims are denied on the first application. However, this is often due to mistakes made during the filing process by those not using a disability insurance benefits attorney. If you find yourself in such a situation in South Carolina, contact a Beaufort disability insurance benefits attorney today.
Social Security denies you a certain number of times before approving you. This is not the case. Also, if the disability claimant starts with a new application, he or she will most likely be denied again. However, if the claimant properly appeals the initial decision, the claim may eventually get approved, assuming the claimant is disabled and his or her medical records prove it.
The statement of a physician can get you automatically approved for benefits. In most cases, the outcome is determined by a review of the claimant’s entire medical record. In fact, a statement from your physician that you are disabled holds little weight unless it is supported by other medical evidence. In most cases, personal physicians either do not submit such statements or submit statements lacking in sufficient detail.
Certain conditions mean automatic approval. Certain impairments are indeed specified in the Social Security Administration Listed Impairments regulations, and claimants with medical problems at the level specified in the Listed Impairments may be approved for benefits somewhat easily. However, disability will not be awarded simply because you have a certain medical condition – the evidence must also prove that the medical condition meets highly technical severity standards specified in the regulations.
The way to appeal a Social Security claim denial is to file a brand new application. This is not true. Application denials should be followed up with an appeal, not a new application except under very limited circumstances.
You cannot be awarded Social Security disability benefits if you have ever used drugs or alcohol. It is not possible to receive Social Security disability benefits based solely on addiction. However, if you have other disabling medical conditions, you may be eligible for disability as long as the substance abuse is not a “materially contributing factor”. In other words, if complete abstinence from alcohol or drugs would not restore your ability to work, your disability claim can still be approved.

Continue reading "Social Security, SSI, and Disability Myths and Misconceptions"

What the Heck is a Code Blue?! Communication Issues in Emergency Planning

nospam@example.com (Kelly J. Shook) — Fri, 06 Nov 2009 15:56:13 -0500

By Kelly J. Shook - Associate
Schwartz & Eichelbaum Wardell Mehl and Hansen, P.C.
800.488.9045 | www.edlaw.com | information@edlaw.com

As George Bernard Shaw eloquently stated, “the single biggest problem with communication is the illusion that it has taken place.” This may be true in many aspects of the school environment, and emergency planning is no exception. As school years gear up and administrators become more preoccupied with the unexpected events that inevitably arise each school year, communication regarding school emergency operations plans may accidentally fall to the wayside. However, in order to reduce panic and better ensure a proper response when school emergencies do occur, it is important to ensure that school district’s multi-hazard emergency operations plan thoroughly address communication issues that will likely arise before, during, and after an emergency event.

Multi-hazard emergency operations plans for school districts were first mandated by the legislature in 2005. The statute requires school districts to adopt operation plans for the mitigation, preparedness, response, and recovery of emergency situations. As a brief reminder, the multi-hazard emergency operations plan must provide for:

District employee training in responding to an emergency;

Mandatory school drills to prepare district students and employees for responding to an emergency;
Measures to ensure coordination with local emergency management agencies, law enforcement, and fire departments in the event of an emergency; and
The implementation of a security audit at least once every three years.

If a school district is located within 1,000 yards of a railroad track, the district is also required to include in its multi-hazard emergency operations plan a policy for responding to train derailment near a district school.

The multi-hazard operation plan regulations ensure that school districts set up appropriate procedures for emergency threats such as natural disasters, acts of terrorism, or infectious diseases. However, many communication nuances are not expressly discussed. For instance, in the planning stage, it may be most effective to use “plain English” terms for emergency drills. Secretive names like “code blue” for a tornado alert may only serve to panic students, substitutes, and teachers who may not have a clear understanding of what the code means. The last thing a district needs in an emergency situation (or in a drill) is for a teacher to have to locate the “code” book in his or her desk and attempt to decipher for the class what is going on. District personnel may also wish to distribute multiple copies of an emergency plan (and also multiple versions—perhaps one for teachers, one for administrators, and/or one for students) in order to ensure that there are copies available throughout the school in case they are needed.

Communication during an emergency may also pose unique problems. Does the school district’s emergency plan set forth alternative means of communication for a situation where classroom phones (or—dare we say it---even cell phones) are not available as lines of communication? Examples of such alternative modes may include intercoms, radios, or even runners. In determining possible alternative methods of communication, the district may wish to consider how vulnerable the method is to interception by others during the crisis period.

After the emergency event has occurred, school districts must immediately begin thinking of contacting parents. As automated phone and email notification systems grow in popularity, the district may need to consider carefully the locations of those systems. If the automated phone system is located at each school, then the district may experience communication problems if the school is not safe for re-entry after the emergency event occurs. Locating such devices off-site of the school may help ensure that communication could be handled efficiently even if the school’s offices are not accessible.

Additionally, a school district must carefully consider how to respond to the media attention that is likely to follow an emergency. Developing a plan for addressing the media, and perhaps developing a working relationship with the media prior to a crisis situation, may be useful for limiting the amount of media speculation surrounding an emergency event. For instance, a school district may consider designating a “media area” for the news crews so that they may succinctly be given statements regarding the events. It may also be wise to designate a “spokesperson” at each school who will disseminate appropriate information to news crews. Remember that when dealing with the media, the Family Education Rights and Privacy Act (FERPA) still applies, and student names should not be released by district officials to the media.

Although these suggestions only touch the surface of potential considerations for improving a school’s multi-hazard emergency operations plan, they may be useful as a starting point for updating and improving a district’s emergency plan. As always, school districts should contact their local counsel with any questions they may have regarding their current multi-hazard emergency operations plan.

Prayer at School Board Meetings: The Debate Continues in Tangipahoa

nospam@example.com (Kelly J. Shook) — Fri, 06 Nov 2009 15:54:28 -0500

By Cheryl T. Mehl - Shareholder
Kelly J. Shook - Associate
Schwartz & Eichelbaum Wardell Mehl and Hansen, P.C.
800.488.9045 | www.edlaw.com | information@edlaw.com

The latest round of litigation over the Tangipahoa Parish School Board’s policy regarding invocations at board meetings is underway. On June 24, 2009, the District Court for the Eastern District of Louisiana held that the school board’s practice of praying before the opening of board meetings comes within the “legislative prayer” exception articulated in Marsh v. Chambers. However, a final determination on the constitutionality of the school board’s particular prayer policy practices must be determined at trial.

Note: This decision, while instructive, is not binding on Texas courts. There continues to be no binding precedent on the constitutionality of prayer at Texas school board meetings. It is almost a certainty, however, that whatever the decision after trial, this case will be appealed to the Fifth Circuit Court of Appeals. When there is a final decision from that court, it will apply to Texas school boards. It is that likelihood that makes this case worthwhile for Texas school districts to follow.

The Facts of Tangipahoa II

The Tangipahoa Parish School Board has adhered to the practice of opening its school board meetings with prayer since 1973---and, in this predominantly Christian community, such prayers have frequently made reference to Christian ideals. “John Doe,” a member of the Tanigpahoa community, filed suit against Tangipahoa in 2003 on the basis that this practice was an unconstitutional violation of the Establishment Clause, which prohibits the government from “establishing religion.” The 2003 case was eventually dismissed by the en banc Fifth Circuit in 2007 because the plaintiffs lacked standing for the suit, leaving John Doe with no remedy for the alleged Establishment Clause violations.

In August 2007 after the first case was dismissed, the Tangipahoa school board adopted a new policy related to school board prayer. The new policy authorized the secretary of the board to create a list of local religious congregations and send out letters inviting the leaders of those congregations to offer a prayer before school board meetings begin. Religious leaders who responded to the letter were chosen to pray on a first-come, first-serve basis, with no speaker allowed to pray at consecutive board meetings or more than 3 times total during the year. No person in attendance at the board meeting was required to participate in the prayer, and the prayer was not listed as an agenda item.

When the Tangipahoa school board adopted the new 2007 policies, John Doe filed a new lawsuit, again alleging violations of the Establishment Clause, and requesting an injunction to prevent the school board from continuing the practice of praying before board meetings.

Background of School Board Prayer Litigation

School-sponsored prayer has been held unconstitutional by the United States Supreme Court. However, it is less than clear whether prayer at a school board meeting would constitute school-sponsored prayer or would instead be considered prayer by a legislative body. The difference in classification determines the level of scrutiny the prayer would be subjected to by the courts.

If prayer at school board meetings is viewed as a school-sponsored activity, it is likely to be prohibited. The Supreme Court adheres to the “Lemon test” and its corollary “endorsement” and “coercion” tests in evaluating Establishment Clause litigation. The Lemon test demands a strong separation between church and state in activities related to public schools and public school children. Specifically, the Lemon test, as it has been applied in Texas, has led a court to hold that the school board violates the Establishment Clause when “the government directs a formal religious exercise in such a way as to oblige the participation of objectors.”[1]

If, however, school board prayer is determined to be part of the board’s legislative function, the school board would be subject to the “legislative prayer exemption,” which makes a policy of school board prayer more likely to be upheld by the courts. The “legislative prayer exemption,” as it is termed, permits prayer before the opening of legislative sessions on the basis that “prayer is deeply embedded” in the history of the US. Although this exemption does generally allow prayer by legislative bodies, there are still limitations on what prayers may be said. Specifically, for the prayers of a legislative body to be constitutional, there must be “no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.”[2]

Court Conclusion in Tangipahoa II

The Louisiana District Court ultimately concluded that the school board is a public body responsible for adopting rules related to the governance and operation of the school system. As a public body, the school board’s functions are much more closely related to the legislature than to the activities in a school classroom or school event. Therefore, the “legislative prayer exemption” applies to the Tangipahoa school board. However, the court did note that applying the “legislative prayer exemption” does not automatically resolve the matter of whether or not school board prayer is constitutional. There must be a separate inquiry into the facts surrounding the board prayer, and whether or not the prayers advance any one religion (in this case, whether the prayers specifically advance Christianity). The court declared that it had an incomplete record on which to base the determination of whether or not the prayer opportunity advanced one faith over others, and remanded the case to the trial court in order to determine these factual issues.

What Does Tangipahoa II mean for Texas Schools?

This opinion does not have a direct impact on school board prayer in Texas schools. The judgment of a Louisiana court is not binding on Texas, and the case was ultimately remanded for a trial to fully determine whether the Louisiana school district “exploited” their opportunity for prayer to proselytize for or against any particular faith or belief. We, therefore, still have no precedent in this state as to whether or not school board prayer is constitutional. However, the case remanded to the trial court may be appealed to the Fifth Circuit, and Fifth Circuit decisions would be binding on Texas school boards. The rulings in Tangipahoa II may impact Texas schools in the future.

Regardless of whether or not the Fifth Circuit provides any input in Tangipahoa II, it is important to remember that rulings under the Establishment Clause are incredibly fact-specific, and the constitutionality of a school district’s policy may hang on the placement of a single word. For this reason, it is particularly important for Texas school districts to consult legal counsel regarding their practice, policy, or procedure related to invocations at the beginning of board meetings.

[1] Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963, 970 (5th Cir. 1992).

[2] March v. Chambers, 463 U.S. 783, 794-95, 103 S. Ct. 3330 (1983).

Prayer at School Board Meetings: The Debate Continues in Tangipahoa

nospam@example.com (Cheryl Tremaine Mehl) — Fri, 06 Nov 2009 15:50:53 -0500

By Cheryl T. Mehl - Shareholder
Kelly J. Shook - Associate
Schwartz & Eichelbaum Wardell Mehl and Hansen, P.C.
800.488.9045 | www.edlaw.com | information@edlaw.com

The Facts of Tangipahoa II

Background of School Board Prayer Litigation

Court Conclusion in Tangipahoa II

What Does Tangipahoa II mean for Texas Schools?

[1] Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963, 970 (5th Cir. 1992).

[2] March v. Chambers, 463 U.S. 783, 794-95, 103 S. Ct. 3330 (1983).

Love Your Neighbor - Using Interlocal Agreements to Your Advantage

nospam@example.com (Carol Simpson) — Fri, 06 Nov 2009 15:42:06 -0500

By Dr. Carol Simpson - Schwartz & Eichelbaum Wardell Mehl and Hansen, P.C.
800.488.9045 | www.edlaw.com | information@edlaw.com

When economic times get tough, schools think about downsizing and economizing. Why duplicate effort and administrative costs when the expertise of state agencies and other local governments is available to provide services? Purchasing services from other entities already successfully operating those functions can save startup time, overhead costs, and operational aggravation.

Authority to Contract

The Government Code[1] permits local governments to contract with other local governments and state agencies (from Texas and other states) to study whether such cooperation would benefit the parties, or to actually perform governmental functions and services. Each party to the contract must be entitled to perform the services included.

The types of agencies that may be potential parties to such an agreement include a department, board, bureau, commission, court, office, authority, council, or institution of state government; a state university or college, a junior college district, or any service or part of a state institution of higher education; a local workforce development board; and any statewide job or employment training program for disadvantaged youth that is substantially financed by federal funds. All parties need not be school districts. A school district may contract with entities such as the county, or the city, or the local community college to provide needed services the district has no ability or desire to administer.

An interlocal contract must:

Be authorized by all the governing bodies involved (with one exception)[2];
State the purpose, terms, rights, and duties of the parties;
Specify that payments due under the contract must come from present revenues;
Fairly compensate the party providing functions or services;
Comply with the laws regarding historically underutilized businesses if purchasing is involved; and
Not involve the purchase of engineering or architectural services.

Interlocal agreements may be renewed annually. Because an interlocal agreement is a complex contract, school districts would be wise to involve the school attorney in the creation and approval process.

Statutory Encouragement to Form Interlocal Agreements

Texas Education Code § 11.003 gives districts a strong push toward cooperative shared services functions through the regional education service centers. The code mandates that each service center notify local districts of the types of shared services it coordinates. The code also directs the service center to evaluate the need for other types of cooperative service agreements in the ESC area and consider organizing groups for those purposes. The ESCs are tasked to assist districts to form interlocal agreements with other districts, political subdivisions, ESCs, or institutions of higher learning to share administrative services such as transportation, food services, purchasing and payroll. Under § 8.053, regional education service centers have authority to contract with public and private entities for several types of services, including continuing education courses and other programs for educators.

The Commissioner may require districts to enter a cooperative shared services agreement for administrative services if the Commissioner decides the district does not meet a financial accountability requirement and the cooperative would assist the district to “enhance its performance on the financial accountability standard identified.” He may require the same of a charter school if an audit shows that shared administrative services would “promote efficient operation” of the charter school.

Virtually any type of school function can be provided through an interlocal agreement, provided it is a function that the other party(ies) would have authority to perform, unless it is specifically prohibited in the law. Cities commonly use these agreements to provide back-up (or even primary) emergency services, wastewater treatment, water supply, and purchasing. Schools often use purchasing consortia, such as the Department of Information Resources (DIR); transportation cooperatives; and shared services agreements for alternative education placements (both disciplinary and for dropout recovery or acceleration) or special education services. Use of an interlocal purchasing agreement or a state agency for purchasing satisfies the statutory requirement for using a competitive purchasing process.

Are you buried in records that cannot yet be destroyed under the district’s retention schedule? The Government Code specifically authorizes cooperative ownership of a regional records center to store records, including those designated by the Texas State Library and Archive Commission (TSLAC) as “records of permanent value.” TSLAC is available to provide assistance to set up such a center.

Once You Have It, Who Runs It?

To supervise an interlocal contract, the parties may create an agency, designate to one government the authority to supervise, or contract with a non-profit agency. The supervising entity has all authority to perform necessary administrative functions such as purchasing supplies, hiring personnel, and signing leases. Any property held for the purpose of the interlocal agreement is taxable or tax exempt as would be the respective participating entities. For example, if two districts agree to form a kindergarten cooperative, and the cooperative builds a facility, the facility has the same tax status as the two districts - exempt.

Interlocal agreements are not just for large districts or the education service center. Smaller districts can benefit as much, or more, than large ones because it allows them to provide services economically and locally. Regional, county-wide or multi-district transportation or special education services agreements share the costs of providing needed services without duplication of administration that can eat away scarce services dollars.

[1] All reference to the Government Code refer to Tex. Gov’t Code Ann. § 791.001-.033 (Vernon 2008).

[2] The exception applies when contracting with a municipally owned electric utility.