Transcript 2011 LEGAL UPDATE

WYOMING SCHOOL BOARDS ASSOCIATION
2011 CONVENTION
TRACY COPENHAVER &
SCOTT KOLPITCKE
COPENHAVER, KATH, KITCHEN & KOLPITCKE, LLC
P.O. Box 839
224 North Clark Street
Powell, WY 82435
(307) 754-2276
(307) 754-4744 fax
[email protected]
Statutory Changes – Evaluation –
Termination – Suspension
Contract Length:
12-Month or 9-Month
Public Records/Open Meetings
Recreation Districts
Drug Testing
Seclusion & Restraint
Student 1st Amendment
Teacher Termination,
Dismissal and Suspension:
Statutory Changes
Definitions:
1. Continuing contract teacher. New language
adds “has performed satisfactorily on
performance evaluations implemented by the
district”.
2. Suspension.
New language: “by the
superintendent with pay pending: 1) the
investigation of an allegation of misconduct,
which investigation shall not exceed 30 days”.
Duties of the board of trustees. W.S. 21-3-110(xix).
Based upon student achievement measures
established by the State Board, performance
evaluations shall serve as a basis for improvement of
instruction, measurement of both individual teacher
performance and professional growth and
development and the performance level of all
teachers within the school district, and as
documentation for unsatisfactory performance for
dismissal, suspension and termination proceedings.
A performance evaluation is required annually for
continuing contract teachers and bi-annually for
initial contract teachers.
Merely allowing a teacher to set a goal and
determine whether the teacher reach his/her goal
is no longer adequate.
W.S. 21-7-104. Employment of continuing contract
teacher.
Subject to satisfactory performance evaluations
a continuing contract teacher shall be employed by
each school district on a continuing basis . . .
W.S. 21-7-106. Notice of recommendation of
termination.
A continuing contract teacher shall be notified of a
recommendation of termination . . . on or before
April 15. The teacher may request a hearing on the
recommendation before an independent hearing
officer through the Office of Administrative
Hearings.
W.S. 21-7-110.
Effective July 1, 2012 the Legislature has added as
grounds for suspension, dismissal and termination,
inadequate performance as determined through
annual performance evaluation tied to student
academic growth completed in accordance with
W.S. 21-3-110(a)(xvii) – (xix)
and
conviction of a felony.
DIFFICULT
PERSONNEL DECISIONS
_______________________
DOING WHAT IS RIGHT
THE RIGHT WAY
Rules of Practice Governing Hearings and
Contested Cases Before the Board of Trustees,
Policy BEE, Regulation BEE-R.
APA rule adoption process.
There are three good reasons to
be a teacher - June, July, and
August.
~Author Unknown
12-Month Employment?
Employees: what is the last date of employment?
Health insurance ?
Unemployment ?
Don’t get caught in a lose-lose situation.
If policy provides for payment over 12 months, it
should specify that in the event of termination,
final payment shall be made within five (5) days
of termination and benefits shall cease.
Proposed Changes to the
Wyoming Public Records Act
and
Wyoming Open Meetings Act
The Joint Interim Judiciary Committee drafted several
proposed changes to the Wyoming Open Meetings
and Public Records Act, and met on October 13 to
finalize their proposals.
Proposed Changes to the Open
Meetings Act:
1. The definition of a “meeting” would change
to specifically include meetings conducted
telephonically, electronically, and in any
other manner where the members are able
to communicate with each other and the
public at the same time. The definition also
provides that sequential communication
should not be used to avoid conducting a
meeting.
2. Parties requesting notices of meetings must
make their request in writing. Notice of special
meetings may be verbal, electronic or written,
and must be issued at least 8 hours prior to
the start of the meeting. Proof of delivery of
verbal notice is permitted by affidavit.
Public Records Act Changes:
1. Clarifies that the term “Public Records”
includes e-mail communications and other
communications of a physical form. Voice
mails and text messages would not be public
records. Applications for access to public
records would have to be in writing, or in the
discretion of the custodian, a verbal
application is acceptable.
The Joint Judiciary Committee also rejected a
proposal to allow for a “deliberate privilege”. This
would have allowed communications which are
“integral parts of the decision-making process,
including
suggestions,
advisory
opinions,
recommendations, projections, proposals and
deliberations” to remain confidential.
Recent Cases Involving Public Records:
•Laramie County School District No. 1 v.
Cheyenne Newspapers, Inc. (March 23, 2011)
•Sheridan Newspapers, Inc. v. City of Sheridan
(1983):
“The [government] should be ever mindful
that theirs is public business and the public has
a right to know how its servants are
conducting its business. Furthermore, it is for
government to remember that the written,
viewing and broadcasting press are the eyes
and ears of the people. The citizenry must be
permitted to hear and see what public officers
and their employees say and do . . .”
Recent Cases Involving Open Meetings:
•Raehal v. Carbon County School District No. 2
(Dist. Court, Carbon County, April 2011).
•Mosbey, et al. v. Board of Co. Commissioners for
Sweetwater County, et al. v. Van Matre, District
Court, Sweetwater County (March 2011).
The Mayor, in an interview with the newspaper, said
the charge was “frivolous bull ____”.
W.S. 16-4-403(a): “Action taken at a meeting not
in conformity with this act is null and void and
not merely voidable.”
Recreation Districts
A recreation district is NOT a school district. It is a
separate legal entity.
W.S. 18-9-201. The governing body of a school
district may establish a system of public recreation
as provided by W.S. 18-9-101(a)(i) – (iii) and shall
appoint a board of trustees to control, maintain and
supervise the properties.
1. The board shall be comprised of not fewer than
five members serving five-year terms, which
shall be staggered.
2. The board may adopt rules and regulations in
accordance with the Wyoming Administrative
Procedures Act (this denotes it is a
governmental entity subject to the same rules
as the school district).
Any monies accruing from tax levy made by the
governing body involved in the recreation system shall
be credited to the board and may be expended by
them for the maintenance, improvement, development, operation, management, and conduct of the
system.
The recreation board has authority to acquire, equip
and maintain land, buildings or other recreational
facilities (again denoting a separate legal entity).
Recreation board referenced in W.S. 18-9-102
specifically provides that upon filing the certificate
showing organization of the recreation district, the
board of trustees is a body corporate empowered
to sue and be sued.
Insurance ?
Student Drug Testing
Hageman v. Goshen County School District No.
1. June 2011
1. Drug tests mandated by school district’s policy
constitute searches for the purpose of
Constitutional search and seizure analysis.
Holding: The school district’s student activity
participant drug testing policy did not violate
the search and seizure provisions of either the
State or Federal Constitutions.
Goshen County School District No. 1’s drug
testing policy required all students, grades 7-12
who desired to participate in activities, including
activities not sanctioned by the Wyoming High
School Activities Association, to consent to
random drug and alcohol testing.
The school’s role is custodial and tutelory,
permitting a degree of supervision and control
that could not be exercised over free adults.
In order to maintain safety and welfare, schools
are afforded the flexibility to impose rules on
students that might be inappropriate for adults.
In order for policy to be permissible under the
Constitution, it was sufficient if the school
district established that there was a rational
connection between the policy chosen and the
problem identified.
Goshen County School District No. 1 participated
in the “Wyoming Youth Risk Surveys” which for
several years revealed a serious prevalence of
alcohol and drug use among students.
In 2008 the district participated in the “Wyoming
Prevention Needs Assessment State Profile
Report”.
6th graders:
 26% used alcohol
 4% used inhalants
within the past 30 days
 3% binge drinkers
8th graders:
 33% were at risk of
harm from drugs
10th grade:
12th grade:
 41% at risk of harm
 52% at risk of harm
from drugs
 47% had friends who
used drugs
from drugs
 40% expressed intent
to use
District’s drug policy does not violate the Equal
Protection clause of either the Wyoming
Constitution or the Federal Constitution.
Drug Testing of Staff
The 4th Amendment to the U.S. Constitution states:
“The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched,
and the person or things to be seized.”
The Wyoming Constitution also protects individuals
against unreasonable searches and seizures.
The Federal courts have held that drug tests are a
form of search, and that the 4th Amendment
generally protects public employees (including
school district employees) from warrantless drug
tests. There are exceptions.
One exception is for testing based on “reasonable
suspicion.”
Smith County School District v. Barnes (Miss. App.
Ct., September 2011).
In order to implement drug testing based on
reasonable suspicion, the school district must
adopt a policy which describes the process. The
process must describe the method for identifying
the specific, articulable signs that an employee
may be under the influence of a controlled
substance.
For example, if the employee smells of marijuana or
alcohol, exhibits poor motor skills, bloodshot eyes,
dilated pupils, slurred speech and/or other similar
specific signs of impairment, the supervisor may
request that the employee submit to testing.
Seclusion and Restraint
W.S. 21-3-110(a)(xxxi) mandates that school
districts adopt a policy and training
procedures regarding the use of seclusion and
restraint in schools.
1. Required notification of parent each time.
2. Prohibition of the use of locked seclusion.
3. Comply with all requirements provided by rule
and regulation adopted by the State
Superintendent.
4. Applies to all students, not just special
education.
“Restraint” means the use of physical force, with
or without the use of any physical device or
material, to restrict the free movement of all or a
portion of a student’s body. “Restraint” does not
include comforting or calming a student, holding a
hand or arm of a student to escort the student if
the student is complying, intervening in a fight, or
using an assistive or protective device prescribed
by an appropriately trained professional or
professional team.
“Seclusion” means removing a student from a
classroom or other school activity and isolating
the student in a separate area. “Seclusion” does
NOT include a student-requested break or inschool suspension, detention or other appropriate
disciplinary measure.
Seclusion:
1. “Seclusion from the learning environment”
means visually or auditorally isolating the
student from the classroom or other school
activity away from peers in an area that
obstructs the student’s ability to participate in
regular classroom or school activities.
2. “Isolation room” means purposefully placing
the student in an enclosed room built in
compliance with all relevant health and safety
codes.
Isolation room physical space requirements:
a.
b.
c.
d.
Continuous visual and auditory monitoring;
Adequately lighted;
Adequately ventilated;
Temperature within the normal comfort
range;
e. Clean and free of objects and fixtures that
could be potentially dangerous;
f. Wall and floor coverings designed to prevent
injury;
g. Capable of being opened from the inside
immediately upon the release of the security
mechanism held in place by constant human
contact;
h. Adequate width, length and height to allow
student to move about and recline
comfortably.
Training:
•All staff shall receive training in the
prevention of physical restraint and
seclusion, including skills training relating
to positive behavior supports, safe physical
escort, conflict prevention, de-escalation
and conflict management.
•Limited classified and certified staff will
receive training in the appropriate use of
physical restraint.
•All staff shall also annually receive training
and information regarding the implementation of the seclusion and restraint
policy.
First Amendment Issues:
Bullies Have Rights
Recent Cases:
•Zamecnik v. Indian Prairie School District #204, 636 F.3d
874 (7th Cir. 2011).
•Layshock v. Hermitage School District (3rd Cir. 2011).
•Patterson v. Hudson Area Schools, 551 F.3d 438 (6th Cir.
2009).
Bottom line:
bullying, harassment and
intimidation are serious issues, and schools should
investigate and address them.
Schools also need to understand the limits of their
authority, and recognize that they cannot
discipline students for speech that is protected by
the First Amendment.
QUESTIONS?
Copenhaver, Kath, Kitchen &
Kolpitcke, LLC
(307) 754-2276
[email protected]
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