GASPA May 6, Legal Issues Update

Transcription

1 GASPA May 6, 2010 Legal Issues Update Presented by: Phil Hartley Harben, Hartley & Hawkins, LLP Wachovia Center, Suite Jesse Jewell Parkway Gainesville, Georgia Telephone: (770) ; Facsimile: (770)

2 Update on 2010 General Assembly Action

3 HB 906 May 15 deadline Through year Check your policies Tender contract or notice of nonrenewal BOE s don t act if renewal is not recommended All certificated employees must be provided notice of nonrenewal

4 HB 908 Flexibility System average as to maximum class size and if waived by SBOE maximum class size can be system average Expenditure controls waived Through

5 HB 907 Middle School Funding Allows MS funding even if grades 6, 7, & 8 are not on same campus Changes to Special Needs Scholarship: Requires specific notice of website in January & April to all enrolled students by letter, electronically, and by automated phone system if district uses such SDOE must provide student transfer deadlines on August 1, October 1, and March 1 each year

6 SB 84 Board Governance Nepotism provision Grandfathers board members as of 7/1/09 and grandfathers relatives of all employees who are superintendents, principals, assistant principals or system administrative staff as of 1/1/10 Allows Districts with FTE 2800 or less or candidates therein to seek SBOE waiver, but LBOE must first provide notice and hold hearing to gather public input What is the effect of the lawsuit and the preliminary injunction? LBOE may sanction member with 2/3 vote following hearing, at least for members elected after 7/1/10 Governor may suspend all members when on accreditation probation after SBOE hearing

7 HB 977 O.C.G.A Salary If LBOE furloughs nonadministrative employees during a school year, the LBOE shall not use any state funds to provide a salary increase to the superintendent or administrators Not applicable to step increases on state salary schedule If local BOE uses local funds or private donations the LBOE must, prior to such action: 1)Provide 30 days notice of such intention 2)Conduct a public hearing Advertised at least 7 days prior to the date of hearing in legal organ

8 HB 400 BRIDGE Building Resourceful Individuals to Develop Georgia s Economy Act MS students provided counseling and 8 th graders get individual graduation plan HS students provided counseling to implement plan Review annually and revise as necessary SBOE to establish grants for model programs for chronically low performing schools

9 HB 923 O.C.G.A Leadership Degree Educator placement on salary schedule is not based on leadership degree unless educator is employed in leadership position Does not apply to those educators who: Have leadership degree prior to July 1, 2010, or Who earned Masters level leadership degree prior to July 1, 2012 Education specialist level degree prior to July 1, 2013, or Doctorate in leadership prior to July 1, 2014 as long as educator was enrolled in such leadership prep program on or before April 1, 2009

10 HB 1079 O.C.G.A Allows an applicant for a certificate provided by the Professional Standards Commission to pay such fees by credit card, debit card or other method approved by the PSC Beginning 1/1/11, Districts are out of fingerprinting process, whoops, at least for educators PSC required to issue clearance certificates to employees who have passed criminal and ethics background checks May employ new employee for maximum of 20 days awaiting clearance certificate or, if noneducator, the results of the background check

11 And left over from last year: HB Additional compensation for teachers in mathematics or science (1) On and after July 1, 2010, and until such date as may be determined by the State Board of Education that mathematics, science, or both are no longer areas in which there is an insufficient supply of teachers, a secondary school teacher in a local school system who is or becomes certified in mathematics or science shall be moved to the salary step that is applicable to six years of creditable service, unless he or she is already on or above such salary step. (3) Upon expiration of five years, or any year thereafter that the teacher does not meet or exceed student achievement criteria as required by paragraph (2) of this subsection, such teacher shall be moved to the salary step applicable to the actual number of years of creditable service which the teacher has accumulated. (4) This subsection shall be subject to appropriations of the General Assembly.

12 Just as important What we avoided SB 320 Teachers Bill of Rights SB 515 No Furloughs if Unreserved Fund Balance exceeds 6% HB 1097 Uniform Start Date HB 1100/SB 352 Grading Schools SB 361 Expanding vouchers and parental choice SB 521 Uniform evaluation for all teachers, 50% based on student performance

13 Questions? 13

14 What do we do about teacher contracts? First, what does the law say and how can we ignore it?

15 STUDENT YEAR O.C.G.A (c)(1) (c) (1) Except as otherwise provided in this Code section, public elementary and secondary schools of this state receiving state aid under this article may provide each eligible student with access to no less than 180 school days of education each fiscal year, or the equivalent thereof as determined in accordance with State Board of Education guidelines. The State Board of Education shall define a school year, which shall be no less than 180 days of instruction in accordance with the provisions of this subsection, or the equivalent thereof; shall define the length of the school day, based on a 180 day school year, and equivalent lengths; and shall provide that all public elementary and secondary schools, beginning in the school year, may be closed for instruction on November 11 of each year to enable students, teachers, and administrators to participate in Veterans Day programs to honor veterans of the armed forces. 15

16 STUDENT YEAR O.C.G.A (c)(1) (c) (1) Except as otherwise provided in this Code section, public elementary and secondary schools of this state receiving state aid under this article may provide each eligible student with access to no less than 180 school days of education each fiscal year, or the equivalent thereof as determined in accordance with State Board of Education guidelines. The State Board of Education shall define a school year, which shall be no less than 180 days of instruction in accordance with the provisions of this subsection, or the equivalent thereof; shall define the length of the school day, based on a 180 day school year, and equivalent lengths; and shall provide that all public elementary and secondary schools, beginning in the school year, may be closed for instruction on November 11 of each year to enable students, teachers, and administrators to participate in Veterans Day programs to honor veterans of the armed forces. 16

17 SBOE Rule SCHOOL DAYS FOR STUDENTS 17

18 (a) Kindergarten shall be scheduled for not less than 4 1/2 hours (270 minutes) of daily instruction. 18

19 (b) Any grade 1-3 shall have not less than a daily average of 4 1/2 hours (270 minutes) of instructional time based on the 180-day school year. 19

20 (c) Any grade 4-5 shall have not less than a daily average of 5 hours (300 minutes) of instructional time based on the 180-day school year. 20

21 (d) Any grade 6-12 shall have not less than a daily average of 5 1/2 hours 330 minutes of instructional time based on the 180-day school year. 21

22 SALARY SCHEDULES O.C.G.A (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 base based upon individual experience and length of satisfactory service. The minimum salary base for certificated professional personnel with bachelor s 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

23 SALARY SCHEDULES Cont d O.C.G.A (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.

24 SCHOOL YEAR FOR CERTIFIED STAFF SBOE Rule

25 (b) School year for certified staff- a minimum of 190 days. 25

26 (b) Each school system shall submit an annual school calendar to the department. The calendar shall specify: full-length days for certified staff, including 10 for planning. 26

27 SBOE Rule TEACHER SALARY SCHEDULE 27

28 (2) REQUIREMENTS. (a) Local units of administration (LUAs) shall pay to full- and part-time certified professional employees the salary prescribed by the state schedule of minimum salaries adopted annually by the Georgia Board of Education. 28

29 STATE SALARY SCHEDULE GEORGIA ANNUAL/MONTHLY SALARY SCHEDULE FOR 10 MONTHS (190 DAYS) EMPLOYMENT 29

30 (c) In accordance with state law, LUAs may supplement the minimum salaries of certified personnel. 30

31 LOCAL SUPPLEMENTS O.C.G.A (b) LUA s may supplement the salaries of personnel subject to the schedule of minimum salaries. In any fiscal year in which such personnel receive an increase under the minimum salary schedule, a LUA shall not decrease below the local supplement amount received in the immediately preceding fiscal year at least two public hearings.

32 EMERGENCY SITUATIONS 4 DAYS O.C.G.A (c)(3) (3) A local board of education may, without the necessity of authorization from the state board, elect not to complete, as makeup days, up to four additional days otherwise needed which are the result of days when school was closed due to emergency, disaster, act of God, civil disturbance, or shortage of vital or critical material, supplies, or fuel. In any such case, the school year applicable to that local board of education may terminate, in the discretion of the local board, at the end of the last school day originally designated by the local board as the end of the school year, regardless of the day of the week on which the school calendar was scheduled to end. The provisions of this paragraph shall not limit the authority of the state board under paragraph (2) of this subsection. 32

33 EMERGENCY SITUATIONS 4 DAYS O.C.G.A (c)(3) (3) A local board of education may, without the necessity of authorization from the state board, elect not to complete, as makeup days, up to four additional days otherwise needed which are the result of days when school was closed due to emergency, disaster, act of God, civil disturbance, or shortage of vital or critical material, supplies, or fuel. In any such case, the school year applicable to that local board of education may terminate, in the discretion of the local board, at the end of the last school day originally designated by the local board as the end of the school year, regardless of the day of the week on which the school calendar was scheduled to end. The provisions of this paragraph shall not limit the authority of the state board under paragraph (2) of this subsection. 33

34 SBOE AUTHORITY O.C.G.A (c)(2) (2) Any provision of this subsection or this article to the contrary notwithstanding, when the President of the United States proclaims a national emergency or when the Governor proclaims a state of emergency or when, because of emergency, disaster, act of God, civil disturbance, or a shortage of vital and critical material, supplies, or fuel, the continued operation of the public schools according to the definitions of school year, school month, or school day is impractical or impossible, then the state board shall have the power to authorize local boards of education to depart from a strict interpretation of these definitions, and such departure need not be uniform throughout the state. 34

35 SBOE AUTHORITY O.C.G.A (c)(2) (2) Any provision of this subsection or this article to the contrary notwithstanding, when the President of the United States proclaims a national emergency or when the Governor proclaims a state of emergency or when, because of emergency, disaster, act of God, civil disturbance, or a shortage of vital and critical material, supplies, or fuel, the continued operation of the public schools according to the definitions of school year, school month, or school day is impractical or impossible, then the state board shall have the power to authorize local boards of education to depart from a strict interpretation of these definitions, and such departure need not be uniform throughout the state. 35

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37 State Board of Education Emergency Authorization. The State Superintendent of Schools recommended that the State Board of Education exercise its authority under O.C.G.A. Section (c)(2) to recognize an emergency and critical shortages in state revenue as documented below and authorize local boards of education during FY 2010 to depart from a strict interpretation of school year for certified staff as defined in State Board Rule and in other related rules. 37

38 By taking the action recommended, the State Board will allow local boards of education flexibility concerning all school days in excess of the 180 days of instruction or the equivalent thereof mandated by state law. 38

39 Please note that upon gathering additional information, the Department decided that a change to the salary schedule would not be appropriate. 39

40 STATE SALARY SCHEDULE FY 2010-AMENDMENT #1 (REDUCTIONS) GEORGIA DAILY SALARY SCHEDULE 40

41 Furloughs vs. Changes in the work schedule A furlough is unpaid time off from work required by the employer. A change in work schedule under a written contract is different. Didn t the Governor order furloughs? No. What the Governor did was reduce available funds. How your district responded was dependent on its contracts with its teachers. And doing furloughs has other consequences, such as affecting TRS contributions. 41

42 1. Furloughs are considered a temporary downward adjustment in an employee s salary and not a permanent salary reduction. Since Georgia law states contributions are remitted based on the member s full rate of regular compensation for his full normal working time, contributions will continue to be reported based on the member s full regular salary prior to the implementation of the furlough. 42

43 2. Salary reductions and reductions in contracted days are permanent in nature and become the employee s full rate of regular compensation for their full normal working time. Therefore, employee and employer contributions should be remitted based on the employee s adjusted regular salary. 43

44 Such contracts when tendered to each teacher or other professional employee shall be complete in all terms and conditions of the contract, including the amount of compensation to be paid to such teacher or other professional employee during the ensuing school year, and shall not contain blanks or leave any terms and conditions of the contract open. O.C.G.A (b) 44

45 Such contracts when tendered to each teacher or other professional employee shall be completein all terms and conditions of the contract, including the amount of compensation to be paid to such teacher or other professional employee during the ensuing school year, and shall not contain blanksor leave any terms and conditions of the contract open. O.C.G.A (b) 45

46 3. Payment: The employee's annual salary is based upon a certificate level and years of creditable service in accordance with the official salary schedule, approved by the State Board of Education for certified personnel employed for a full school year, as defined by the rules of the State Board of Education and in accordance with the official work schedules adopted by the employer. The employee will be compensated as follows: $ State base salary (based on State Salary Schedule) $ State supplement* $ Local supplement $ -- TOTAL *State supplement (Check as appropriate): Principal's supplement ($ ) Teacher of the Year ($ ) National Board for Professional Teaching Standards certification (min. 10% of state base salary) ($ ) Other ($ ) 46

47 The Employee shall be paid a salary equal to the amount shown on the 2010 Georgia State Board of Education Schedule of Minimum Salaries ( state minimum salary schedule ) based on the Employee s level of certification and years of creditable service. Employee certifies that documentation confirming the level of certification and years of creditable service stated in this contract has been provided to the employer as of the time the contract is signed. The salary will also include a local supplement to be determined by the Board of Education as a part of its budgeting process. Attached to this Contract is a memorandum providing information as to the determination of the salary which is incorporated by reference as a part of this Contract. 47

48 Number of Days in Pay Status 190 x Annual Salary - Amount Paid = Amount Due The number of days in pay status shall be equal to the actual number of employee work days completed by the employee, as defined in the rules of the State Board of Education, and in accordance with the official work schedule adopted by the employer, during the term of this contract. In the event the employee is eligible for and participates in instructional programs for which extended-day or extended-year salaries are earned in accordance with rules of the State Board of Education and the employer, compensation for such services shall be in accordance with the terms and conditions of an addendum to this contract. 48

49 The Employee acknowledges that the full annual salary applicable to the employee s position is based upon the number of workdays designated by the official employee calendar for the position held by the Employee. The annual salary shall be subject to adjustment on a pro rata basis for the number of days the employee does not work during the annual pay period due to employment after the start of the contract year, resignation or termination of employment prior to the completion of all scheduled work days, any absence from duty during which the employee does not qualify for salary payment, or adjustment in official work schedules by Employer action. Such pro rata salary shall be determined in accordance with the following formula: Number of Days in Pay Status Number of Workdays in Work Year x Annual Salary Amount Paid = Amount Due 49

50 The salary is conditioned upon the continued availability of state funds under appropriations acts, as well as all amendments thereto, of the General Assembly, with all salaries subject to upward or downward adjustment according to increases or decreases in state funding from the level provided for at the time this contract is signed. 50

51 (3) The contract salary is conditioned upon the continued availability of any and all funds available at the time of this contract, with all salaries subject to upward or downward adjustments according to increases or decreases in such funding from the level projected at the time this contract is signed. The contract salary will be decreased based on any decrease in the state minimum salary schedule and may be decreased based on a finding by the Board of Education that there has been a decrease in funds from any source due to unforeseen shortfalls in revenue below revenue amounts projected at the time of this contract so as to justify a reduction in the amount for salaries. 51

52 SAMPLE TEACHER CONTRACT

53 is equal to the minimum required to be paid to such an employee for the minimum number of days required under state law and State Board rules applicable to the work year and in accordance with the official work calendars and salary schedules adopted by the employer. 53

54 The contract salary is conditioned upon the continued availability of any and all funds available or anticipated at the time of this contract 54

55 The contract salary will be decreased based on any decrease in the minimum amount required to be paid to such an employee under state law and State Board rules applicable to the work year and may be decreased based on a finding by the Board of Education that there has been a decrease in funds from any source due to unforeseen shortfalls in revenue below revenue amounts anticipated at the time of this contract so as to justify a reduction in the amount for salaries. 55

56 What options do we have? 190 teacher days with or without local supplement teacher days with or without local supplement, if the SBOE gives the authority 176 student days and 180 to 186 teacher days An equivalent year based on 180 (or 176?) student days and??? teacher days But how much do we pay teachers? ? When did we start paying teachers by the hour and why does it matter?

57 The importance of your documents Teacher contracts minimum commitment recommended A memo to accompany the contract A supplemental contract to be issued when? The school year calendar The work calendar The salary schedule

58 SCHOOL BUS DRIVER SALARY SBOE Rule

59 (e) Salary. 1. School systems shall not pay to any regular driver in their employment, regardless of the type of ownership, a salary less than that prescribed by the state uniform minimum salary schedule. The driver shall receive the state minimum monthly salary for 12 months provided the driver works the entire 180-day school year. The 180 days include the authorized sick and personal leave. 59

60 (e) Salary. 1. School systems shall not pay to any regular driver in their employment, regardless of the type of ownership, a salary less than that prescribed by the state uniform minimum salary schedule. The driver shall receive the state minimum monthly salary for 12 months provided the driver works the entire 180-day school year. The 180 days include the authorized sick and personal leave. 60

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63 Re-Examining the RIF Policy O.C.G.A , the Fair Dismissal Act, provides for termination of a written employment contract during its term: (6) to reduce staff due to loss of students or cancellation of programs This has been broadly interpreted by the state board of education and the courts to give local boards power to cut staff for any valid financial or reorganizational reason.

64 When is a RIF Policy NOTNeeded? At Will Employees Nonrenewal of Nontenured Teachers Normal Attrition and Reassignment What about Fairness & Politics?

65 Fair Dismissal Act 1. Incompetency; 2. Insubordination; 3. Willful neglect of duties; 4. Immorality; 5. Inciting, encouraging or counseling students to violate any valid state law, municipal ordinance, policy or rule of the board; 6. Reduction of staff due to loss of students or cancellation of programs; 7. Failure to secure and maintain necessary educational training; or 8. An other good and sufficient cause.

66 Challenging the Decision to RIF "A reduction in force involves the efficient administration of the school system and the need to adjust how the school system is operated, regardless of when the need arises." Decisions such as whether to institute a RIF are legislative in nature and will not be overturned by the courts unless they amount to a gross abuse of discretion. State Board of Education Georgia Court of Appeals

67 What should be in a RIF Policy?

68 Re-Examining the RIF Policy While not required by law, a local Board of Education RIF (reduction in force) policy is highly recommended. Given the number of RIFs that have faced school districts this year, a reexamination of RIF policies was in order.

69 nothing in this policy shall be construed to extend to any employee substantive or procedural rights not required under state law. Specifically, nothing in this policy shall extend to professional personnel any expectation of re-employment or due process rights greater than are available under the Fair Dismissal Law of Georgia. This policy is not to be construed to mandate the promotion, transfer or reassignment of an employee to any other position with the School District, even though the employee who is to be terminated may be qualified or certified for a higher or other position.

70 When the Superintendent determines that the application of this reduction in force policy is necessary, it shall be his or her primary responsibility to prepare for presentation to the Board of Education a plan for reduction in force (RIF).

71 In proposing the plan, the Superintendent may: (1) determine the group(s) of employees to which the RIF will be applied, (2) select individuals or positions to be subject to the RIF, or (3) any combination of (1) and (2).

72 Factors to be considered by the Superintendent in devising a RIF plan may include, but shall not be limited to, the professional expertise, effectiveness, overall job performance, tenure status, level of certification, and length of continuous service of individual employees with the Board.

73 Reduction in Force Once the necessity for a reduction in force program has been shown, the Local Board can adopt, or approve, any number of methods for selecting which employees will be terminated While the local board could have used the method advocated by Appellant, it chose, instead, to use a method that the Local Superintendent felt resulted in the retention of the strongest teachers. Porter v. Heard County Board of Education

74 United States Supreme Court Decisions Crawford v. Metropolitan Government of Nashville and Davidson County Ricci v. DeStafano Gross v. FBL Financial Services, Inc.

75 Americans with Disabilities Act It is the intent of Congress that the primary object of attention in cases under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual s impairment is a disability under the ADA should not demand extensive analysis.

76 Consensual Sex with Student Not a Crime This decision does not mean, of course that the General Assembly has concluded that it wise or moral or healthy for 16 year olds to engage in sexual activity. It is simply the line the General Assembly has drawn to distinguish between sexual behavior that is so destructive to individuals in the society at large that use of the hammer of the criminal law is appropriate. Chase v. State, 285 Ga. 693 (2009)

77 Administrative Tenure Words, like people, are judged by the company they keep. the critical phrase without any break in employment with the local board for which the person had been a teacher, when read in the context of the clause preceding it, clearly means that there can be no break in employment with the local board with which the teacher originally obtained tenure rights prior to April 7, Such a break, however, occurred here. Patrick v. Huff

78 Hearings under Every board of education shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law.

79 TRS Trap full time public school lunchroom, maintenance, or warehouse managers or supervisors, or full time public school transportation managers or supervisors shall have the option of becoming members of the Teachers Retirement System of Georgia. O.C.G.A (d)

80 Consolidation and Coordination of All Leave Policies

81 Latest FMLA Entitlements for Military Families Deleted in support of contingency operation language. Extended qualifying exigency (12 weeks) and caregiver leaves (26 weeks) eligibility to employees in regular Armed Forces, not just Reserves or National Guard on or called to active duty. Extended qualifying exigency leave eligibility to families of all servicemembers deployed in foreign countries. Extended caregiver leave eligibility to families of certain veterans, not just current members of the Armed Forces. 81

82 Other Leave Policies Sick Leave Maternity Leave Disability Leave Bereavement Leave Legal Leave

83 And That s Not All Military Leave Sabbaticals Vacation Sick Leave Banks Family Medical Leave

84 What to Accomplish? How does leave relate to contract length? How does leave relate to work calendar? Do all leave policies tie together? What is the maximum time an employee can be absent?

85 How to Accomplish It? Is paid leave a part of family medical leave? Dealing with discretionary leave Differences among different staff members Three Policies FMLA, sick leave bank, everything else

86 Questions? 86