KB Reference Desk: Trustees as Summer Volunteers

Q:      A couple of board members have expressed interest in performing grounds maintenance (general mowing, edging and leaf blowing) at our district campuses during June and July in an effort to reduce summer costs. They would like to perform this work in a purely volunteer capacity on a rotating schedule and using their own equipment. Is this allowable?

A:      Possibly, but it is not recommended. While the work will be unpaid and arguably temporary and intermittent, it is not advisable for board members to serve in any capacity that is routinely performed by a compensated district employee, on a regular basis, or for any type of compensation.

A 2001 Attorney General opinion discussed the various factors that are considered when a board member wishes to serve in a volunteer capacity for his or her school district. The Attorney General analyzed the issue under the doctrine of “incompatibility,” which prohibits a person from holding two simultaneous positions “where one position might impose its policies on the other or subject it to control in some way.” Tex. Att’y Gen. Op. JC-371 (2001). Of course, compensation is a major factor that will preclude a board member from being employed by the district. However, the AG has been clear that a lack of compensation alone does not make a board member’s volunteer services appropriate.

One important factor considered is the level of “supervision” that the Board and/or district administrators will have over the board member’s position. Here, maintenance work is typically performed by maintenance employees and supervised by the district’s operations manager. The same would be true here, as the trustee would be answerable to the administration (and use of one’s own equipment would not alter that, nor would it ever be recommended). While the AG has opined that volunteer work which is temporary/intermittent in nature may not violate the doctrine of incompatibility, the summer work that you describe likely does not fall within this category. In a 1998 opinion, the AG found that a university regent could volunteer his time as a part-time coach for the kickers on the football team “as needed.” Tex. Att’y Gen. L. Op. 98-036 (1998). The volunteer arrangement did not provide a conflict with his regent position because the regent received no payment or reimbursement and only contributed his coaching assistance sporadically and when necessary. Id. Moreover, the university did not have a regular coach for the kickers that the regent was replacing – this was simply an additional coaching service that was only needed a few times per season. In contrast, here, the lawn maintenance work to be performed by board members would be replacing work performed regularly by existing staff or contract laborers and pursuant to a regular summer schedule.

In sum, because the work described above will be performed by board members on a pre-set, rotating schedule, the position is unlikely to be considered “temporary and intermittent.” Tex. Att’y Gen. Op. JC-371. Further, a critical difference between this situation and the regent/coach case described above is that the school district regularly employs summer maintenance workers. Thus, the board members would be doing work that is routinely performed by a compensated employee. Therefore, this type of volunteer work would likely be considered “incompatible” with the office of school board trustee.

KB Reference Desk: Student Prayer at Graduation

Q:      Our graduation ceremonies are this weekend and we have a student-elected speaker slated to give the introduction. She has asked if she can provide a brief prayer as part of her remarks. Is this allowable?

A:      Yes, but only if the prayer is initiated and led by the student.

The Fifth Circuit Court has upheld a student representative’s right to deliver “nonsectarian, non-proselytizing invocations and benedictions for the purpose of solemnizing their graduation ceremonies.” Jones v. Clear Creek ISD, 977 F.2d 963 (5th Cir. 1992). In the Jones case, the school district allowed the student body to vote on the graduation invocation content. The students elected to have a nonsectarian prayer be given at the beginning of the event, and elected a representative to provide the prayer. The critical distinction that the Court made between this type of religious speech and other religious speech at school-sponsored events, was that the decision to include a prayer in the event was completely student-initiated and student led. Here, because the program simply says "introduction" and the content of the student’s message is purely up to him or her, the student’s speech is not attributable to the district and, thus, does not violate the Establishment Clause.

Before printing your programs, be sure to review your district’s board policy FNA (LEGAL) and (LOCAL) regarding student speech at graduation. Generally, the policy states that a student’s expression on an otherwise permissible subject may not be excluded from a limited public forum (e.g., graduation remarks) simply because the subject “is expressed from a religious viewpoint.” Importantly, FNA (LEGAL) provides that a verbal or written disclaimer must be provided to state that the student’s speech does not reflect the endorsement, sponsorship, position or expression of the district. Your FNA (LOCAL) policy may give more specific instructions regarding a disclaimer to be placed in your graduation programs. Such disclaimers often include a statement that the student speakers were selected based on neutral criteria and the content of their message is the private expression of the student and does not reflect any position of the District, school board, administration or employees. It is also important to ensure that your graduation programs do not indicate that the student’s message will be a “prayer” or “invocation,” rather the program should track the terms used in your FNA policy (e.g., “Opening/Closing Remarks”). This avoids the conclusion that the school district has made the decision that prayer will be a part of the program.

KB Reference Desk: Highest Ranking Graduate

Q:      Board policy requires we determine Valedictorian based upon the student’s grade point average at the end of the 5th six-weeks. Highest Ranking Graduate is awarded to the student with the highest GPA at the end of the school year. Based on grade projections, we anticipate a tie between two students for Highest Ranking Graduate. Our policy provides no instruction on breaking a tie. Can we have one Valedictorian based upon the 5th six-weeks determination and two Highest Ranking Graduates based upon the tie at the end of the school year? 

A:      Likely yes, because the determination of the Highest Ranking Graduate is purely a local decision. 

Valedictorian and Highest Ranking Graduate are recognitions awarded based upon the criteria set out in Board Policy EIC (Local). While similar, the two awards are not synonymous and board policy should address the selection criteria for each award. 

Valedictorian is not recognized in the Education Code and is a purely local honor. Highest Ranking Graduate, however, is an honor established in the Education Code, and allows Texas institutions of Higher Education to “issue scholarships each year to the highest ranking graduate of each accredited high school of this state, exempting the graduates from the payment of tuition during both semesters of the first regular session immediately following their graduation.” TEC 54.301.

The Attorney General has previously determined that in the event of a tie, a maximum of two students may be awarded a Highest Ranking Graduate certification, but under no circumstances can a district issue more than two certificates. Tex. Att’y Gen Op. 529 (1982).  Because in the above scenario there is no policy in place to break the tie, awarding two certificates is acceptable. To prevent recurrence, we recommend the Board adopt policy codifying its practice in the event of a tie. Best practice would be for the new policy to take effect with the incoming freshman.

KB Reference Desk: Non-School Sponsored Out of State Trip

Q:      A local youth jazz band is taking a trip to Louisiana this summer for a jazz performance. The organizer of the trip is a campus principal, whose son is a member of the jazz band. Her participation is in no way associated with her position as principal, and the only school involvement was to allow distribution of flyers to the jazz band members with trip information. Some parents are confused and have signed their student up to attend thinking the trip is school sponsored and chaperoned. What can we do to limit confusion and liability?

A:      If sued, immunity would exist under Texas law for most personal injury and accident claims, unless resulting from a district employee’s negligent use or operation of a motor vehicle. As such, you should be safe. Nonetheless, because of the confusion regarding school association, and to avoid even the possibility of suit, it would be prudent for your district to send a notice to parents clearly stating that the trip is not school sponsored and any participation is at the student's own cost and risk.

The notice should identify the trip in question by location and date. It should also clearly state that the trip is not a school-sponsored activity and that the school district has no responsibility or liability for any injury or other loss that may occur in connection with the trip.  In addition, parents should be informed that the students will be under the sole authority and supervision of the volunteer individuals who are organizing the trip, and that the organizers, while they may be school employees, are acting in their own personal capacity. Finally, we would advise obtaining acknowledgement of receipt by requiring the form be signed by parents of students participating and returned to the school district. 

KB Reference Desk: Election Canvass

Q:      Our district is currently conducting school board elections, with Election Day this Saturday, May 6, 2017. We have a school board meeting the following Monday. Can the new board members be named and sworn in at the Monday board meeting?

A:      No, the newly elected board members cannot file their statement of elected officer or be sworn in until the currently sitting board canvases the vote, which cannot occur until at least three calendar days after the election. Tex. Elec. Code 67.003(b)(1).

Typically the canvass must occur between the eighth and eleventh day after an election; however, if the election occurs on a uniform election day in May, the canvass period is longer, between the third and eleventh day following the election. Tex. Elec. Code 67.003.In actuality though, because the canvas cannot occur until the ballot board has verified and counted all provisional ballots, if applicable, and  counted all timely submitted absentee ballots cast outside the United States, the ballots may not be prepared for canvas by the third calendar day. Each district should work closely with their County Clerk in obtaining proper ballot information. 

Once received, canvassing must occur under a board meeting posted for at least 72 hours, with two board members constituting a quorum. No other school business can be conducted unless there is a full quorum present and the item is properly posted on the agenda. Regardless of the quorum, after the canvass, the presiding officer may issue Certificates of Election. After the canvassing and issuing of Certificates of Election, the newly elected trustees must file the Statement of Elected Officer with the Board President, and then the new trustees are eligible to take the oath of office and assume the duties of trustee. Tex. Elec. Code 67.016. While the oath of office can be administered by any public official (including a notary public) at any time after the votes are canvassed, the certificate of election issued, and the Statement of Elected Officer is filed, most trustees choose to take the oath during a board meeting or ceremony conducted by the district.

During the election process and canvassing of the votes, the currently sitting trustees holdover in their positions until the newly elected trustees take the oath of office, which officially transfers power from the prior trustee to the newly elected trustee. 

KB Reference Desk: Use of Leave and Excessive Absences

Q:      One of my veteran teachers has almost 40 days of banked leave. She has told her campus principal that she intends to take at least 3 days’ vacation every week until the end of the semester. While she may have these days available, her absences will create a major disruption on the campus. What leverage do we have to prohibit this type of excessive absenteeism?

A:      Lots. While a teacher may have leave days available, your local policies and campus handbooks likely require approval from the campus principal for use of discretionary leave and should also identify limits for use of non-discretionary leave, including a maximum number of consecutive number of days used, restrictions pertaining to the timing of the leave and obligations to provide medical certification.

Board Policy DEC (LEGAL) and (LOCAL) outlines your district’s leave policies. The type of leave that the employee is likely relying on is “discretionary leave” which most local policies require to be approved by the campus principal before use (often with three to five days advanced notice). In deciding whether to approve or deny the request, the principal cannot consider the reasons that the employee requests to use the leave. However, the administrator can consider the “effect of the employee’s absence on the educational program or District operations.” [Example of DEC (LOCAL) policy language]. This may include considering the need for core teacher instruction right before an exam or state assessment, or the availability of substitutes. Your local policy likely also sets a limit to the number of discretionary leave days that may be used consecutively (e.g., no more than three days in a row).

Your local policy may also designate certain days when discretionary leave cannot be used. Days which may be excluded for discretionary leave use under your DEC (LOCAL) policy may include:

  • The day before or after a school holiday
  • Days scheduled for end-of-semester or end-of-year exams
  • State-mandated assessment days
  • Professional/staff development days
  • The first or last day of instruction in a school year

If the employee begins calling in “sick” in order to use these days, check your DEC (LOCAL) policy for provisions on requiring medical certification. Typical local policies will require a doctor’s note when the employee is absent for three consecutive work days. In circumstances like this where the leave is taken in one day increments every week, look for language allowing the district to require medical certification “due to a questionable pattern of absences or when deemed necessary by the supervisor (i.e., campus principal) or Superintendent.” This language gives the district some leverage to require proof of illness if the employee is routinely calling in sick in order to use banked leave days.

Consistent application of your leave policies will be critical when denying an employee’s request to use discretionary days; however, these policy provisions will help place limits on excessive absenteeism at the end of the school year. It is recommended that the district’s policies and expectations be laid out in writing to the employee. Your school district’s attorney can be helpful in considering your particular fact patterns and drafting employee notices.

KB Reference Desk: Parent Access to Tryout Documents

Q:      We had varsity cheerleader tryouts last month and three candidates did not make the team. The parent of one of these girls has requested a copy of her daughter’s tryout evaluations and score cards. Do we have to give the mom copies of these documents?

A:      Yes. Both state and federal law provide that a parent is entitled to all written records of a school district concerning their child, including records regarding participation in extracurricular activities.

The Family Educational Rights and Privacy Act (FERPA) requires a school district to provide parents access to their child’s education records upon request. Taking it one step further, the Texas Education Code, in a section commonly referred to as the “parental rights statute,” provides that a parent is entitled to full information regarding the school activities of a parent’s child.” This section goes beyond a basic request for academic records (hence the reference to “full information”) and encompasses all school activities, including extracurricular (not just classroom matters). Thus, if a parent requests a copy of the tryout evaluation form pertaining to their child, the law requires that the district provide the parent with a copy.

Multiple documents, of course, may be responsive to a general request for tryout evaluation forms, including teacher evaluations, judging score sheets, tabulation records, etc. To the extent your selection process includes teacher feedback, note that a parent’s access to “full information” requires that the teachers identify themselves on the evaluation forms by name. In Byard v. Clear Creek ISD, the school used anonymous evaluations in a cheer tryout process to get teacher input on each candidate’s attitude, integrity and responsibility. One parent’s child did not make cheerleader and the parent requested the evaluation documents. Upon receipt and discovery that the evaluations did not identify the teachers issuing the particular ratings, the parent then requested the identity of the teachers who completed each form in order to discuss with the teachers the basis for their scores. When the District refused to reveal the teacher’s identity, the parent appealed to the Commissioner, who ruled in favor of the parent. The Commissioner held that the Texas Education Code provides parents with a “greater right to information about a child’s school activities” than that of the Texas Public Information Act or even FERPA. The Commissioner went on to find that “anonymous evaluations of a student which determine a grade or whether a student may participate in a school-related program violate Tex. Educ. Code §26.008(a).” Because schools are required to “partner with parents in their child’s education,” the Commissioner held that anonymous evaluations also violate Education Code section 26.001.

To the extent that you might receive a request for evaluation forms for all candidates (not just the child of the requestor), FERPA would require redaction of personally identifiable information of all candidates other than the child of the parent making the request. Personally identifiable information would include name, competition number, order of presentation or any other notation on the documents that could easily trace or identify the student.  Sometimes FERPA determinations can be difficult, so don’t hesitate to contact your school district’s attorney with questions.

KB Reference Desk: Student Remarks at Board Meetings

Q:      Our district allows a different student speaker to open our board meeting each   month. Some students elect to open the meeting with prayer, and a parent is now complaining that the students should not be allowed to pray. Must we exclude prayer as an option for our student speakers at board meetings?

A:      No. Because the introduction fits into the legislative prayer exception to traditional Establishment Clause jurisprudence, the district is not required to prohibit student speakers from praying to open a board meeting.

In 1983, the Supreme Court ruled prayer to open the Nebraska legislative session was constitutional because “the opening sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.” The Court revisited the issue in 2014, again finding that the legislative prayer exception was applicable to a town hall meeting in Greece, New York, further clarifying that the prayer must not “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.”

Just last month, the 5th Circuit applied the same legislative prayer exception to Birdville ISD where a student speaker opened each board meeting, often including prayer. BISD officials did not direct the students on what to say, except to require the statement be relevant to the school-board meeting and not obscene or inappropriate. The court found that “a school board is more like a legislature than a school classroom or event.” Therefore, the student-prayer opening the meeting is permissible under the legislative prayer exception. 

Of course, when student speech occurs at a school function, rather than a board meeting, the legislative exception is inapplicable. As such, you’ll want to ensure that board policy FNA (Local) creates a limited public forum for student speakers at the particular event where the introductory comments are expected.   The district should also confirm that students are instructed not to use the platform to proselytize or make obscene or inappropriate remarks.  Finally, the specific content of the student’s remarks should not be directed by a district employee and the decision whether to pray or not should be made by the student. 

KB Reference Desk: Return to Probationary Status

Q:        I have a term contract teacher whose performance has been lacking this past year in regards to classroom management and instruction. I am not ready to recommend the proposed nonrenewal of her contract because she is in a highly desired field that would be difficult to replace. Can I offer this teacher a probationary contract next year rather than a term contract?

A:       Yes, provided that you give the teacher written notice of this decision, an opportunity to consult with an attorney or teacher organization, and three days to consider the offer.

A term contract may be ended only by termination for good cause, nonrenewal or by the teacher’s resignation. Otherwise, the teacher’s contract will renew by operation of law if no specific action is taken to renew or nonrenew the contract. Texas Education Code 21.206(b). A small exception is carved out in Texas Education Code section 21.106(c) which provides that a teacher may agree to be returned to probationary status under certain conditions. This agreement may occur after the superintendent has communicated the intention to recommend the teacher’s proposed termination for good cause or nonrenewal to the board. To make the agreement valid, the statute requires that written notice is given to the teacher that:

1.      Informs the teacher of the district’s offer to return him or her to probationary contract status;

2.      The period during which the teacher may consider the offer (must be at least three district business days); and

3.      The teacher’s right to seek counsel (or contact their teacher organization).

Should the teacher consider the offer and agree, the board is free to renew employment under a probationary contract for the next year. However, should the teacher refuse, the district will either need to offer the teacher a term contract for the following year or begin proceedings to propose the teacher’s nonrenewal or termination. 

KB Reference Desk: Failure to Return Contract

Q:      We are issuing teacher contracts for the 2017-2018 school year next week. We have had some issues in the past with teachers timely returning their signed contract. Do we have any recourse if a teacher fails to meet the deadline stated in the contract?

A:      Yes. Assuming you have a standard “Expiration of Offer” clause in your employee contracts, the failure of an employee to return the contract timely results in an automatic resignation effective at the end of the current school year.

Standard TASB contracts, both term and probationary, contain a provision entitled “Expiration of Offer,” which provides:

Expiration of Offer. This offer of employment contract shall expire unless you sign and return this Contract, without changes, to the Superintendent on or before [RETURN DATE]. If you are currently employed under a contract with the District and you fail to sign and return this Contract, without changes, by the return date, you shall be deemed to have resigned from employment at the end of your existing contract term.

This contract provision has been reviewed and held enforceable by the Commissioner of Education. Thus, an employee presented a contract with the above language who fails to return the document by the date provided resigns his or her employment at the end of the current contract year and the Board’s offer of employment for the subsequent school year is withdrawn. This resignation is considered “automatically accepted” under Board Policy DFE (LOCAL) because it is effective at the end of the contract term. However, as a belt-and-suspenders measure, it may be wise to send the employee a written notice of the failure to timely return their signed contract and acceptance of his or her resignation effective at the end of the current school year. Closely monitoring the calendar for compliance will result in consistent enforcement of the contract provision.

KB Reference Desk: Spring Break Off-Campus Crime

Q:      I received a phone call earlier this week from our local police department that one of our high school students was involved in a gang-related shooting over Spring Break. The investigation is still ongoing, but the student was arrested and charged with “deadly conduct.” Can we place him in our DAEP based solely on notification from law enforcement for this off-campus behavior?

A:      Yes. Notification from law enforcement that a student has been arrested for commission of a Title 5 felony is sufficient to form a “reasonable belief” that the student engaged in the prohibited conduct sufficient to mandate a DAEP placement.

Texas Education Code Chapter 37.006 provides that a student shall be removed from class and placed in a DAEP based on “conduct occurring off campus and while the student is not in attendance at a school-sponsored or school-related activity” if the superintendent (or designee) has a “reasonable belief” that the student has engaged in a Title 5 felony or aggravated robbery. In determining whether there is a “reasonable belief,” section 37.006(e) allows a superintendent to consider “all available information,” including the notification by law enforcement required by the Texas Code of Criminal Procedure Article 15.27. The law states that a law enforcement agency that arrests a person believed to be enrolled in a public school shall ascertain if/where the student is enrolled and shall “orally notify” the superintendent of the arrest or referral within 24 hours or before the next school day of the arrest. Written notification is required within seven (7) days. The law allows a superintendent to rely on the information given by law enforcement when forming the Superintendent's reasonable belief that the student engaged in the prohibited conduct. In this instance, because the offense of “deadly conduct” is a Title 5 felony under the Penal Code (check your policy FOC (EXHIBIT) for a list of all Title 5 felonies) and 37.006(e) notice has been provided, DAEP placement is mandatory.

KB Reference Desk: Political Advertising

Q:      Our school district has board elections in May, and the high school principal has a bumper sticker supporting a trustee candidate on his car. He parks in a parking spot visible to both students and parents in front of the high school that has a sign designating the spot “Principal Parking.” Is this permissible?

A:      Likely no. The Texas Ethics Commission has determined that election bumper stickers are political advertising for purposes of the election code. In this instance, because the principal’s car with the bumper sticker is visible to students during the school day, and the car is clearly marked as belonging to the principal, the designated benefit can be construed as an indirect expenditure of public funds for purposes of political advertising. 

Texas Election Code section 255.003  is the governing statute, which prohibits direct or indirect expenditure of public funds for purposes of political advertising. Examples of indirect expenditures include use of personnel, equipment, email and facilities. While the principal may argue he has a right to free speech under the First Amendment, the State of Texas’ interest in providing a politically neutral educational environment outweighs a district employee’s interest in expressing their political views to students while the district employees perform their job duties. As such, The Texas Ethics Commission, which is the state agency that oversees violations of the Texas Election Code, interprets the prohibition against political advertising broadly. According to the Commission, even conducting a meeting on public property involves an indirect use of public funds. In general, school districts should not host political events or political speech, and any use of district property should be in compliance with the district’s facility use policy, GKD (Local). Finally, note that noncompliance with the prohibition against political advertising is a Class A Misdemeanor. 


KB Reference Desk: Subs and Unemployment

Q:      We have an individual on our substitute list who has not been given an assignment in about a month. This person has filed a claim with the Texas Workforce Commission for unemployment. Will they be able to receive benefits as a substitute currently on our approved sub list? If so, how can we combat this in the future?

A:      Possibly. The Texas Workforce Commission (TWC) views substitutes not currently working an assignment as “laid off,” which may make them eligible for benefits.

The Texas Unemployment Compensation Act provides that, under certain circumstances, weekly payments may be made to unemployed individuals from an unemployment compensation fund (contributed to by employers subject to unemployment taxes) or through reimbursement. Generally, a person is ineligible for benefits if he or she left the job voluntarily (there are some exceptions to this) or is discharged for misconduct. This creates benefit eligibility for those who are “laid off” or who lose their job due to business interests and through no fault of their own. TWC defines “laid off” as unemployment “due to lack of work, not work performance.” Historically, substitutes were not considered “unemployed.” However, the law on this issue has changed. In 1993, the Legislature adopted a new definition of the term “unemployment” that focused more on wages, rather than the employer-employee relationship. See Tex. Lab. Code §201.091. Therefore, substitutes (who have earned wages from your district in the past) currently without an assignment are considered “laid off” by TWC for purposes of unemployment. While a substitute may be technically eligible for benefits, however, this does not necessarily mean that your district will be charged.

When a substitute files his or her initial claim, TWC will look at the wages the employee has earned in the preceding five quarters completed before they filed. TWC will discard the most recent quarter of wages, leaving four quarters of wages to calculate a person’s entitlement to unemployment benefits. This means that the longer a substitute has been employed by the district and on assignments, the more the district may be on the hook to pay. If the sub is brand new, there may be little to no wages to report and pay for – even though the employee is eligible. If the sub has been working multiple assignments in the last 5 quarters (excluding the most recent), then those wages will be used to pay the claim.

Board policy CFR (LEGAL) and (LOCAL) address “Letters of Reasonable Assurance.” These form letters can be used to guard against substitutes filing unemployment claims during periods of time that the district is not doing business (e.g., spring break, summer break, winter break, Thanksgiving). Since TWC considers substitutes without an assignment “laid off” (and thus eligible for unemployment), it is crucial to document the district’s intention to employ the substitute in the near future after business resumes. A substitute will not be able to use wages from a district to calculate benefits if the substitute has reasonable assurance to return to work when the break is over – the letter of assurance is evidence that the sub will return to normal employment.

KB Reference Desk: Appraisal of Non-Principal Administrators

Q:      Our district has adopted the T-PESS appraisal system for our campus principals. Can we use T-PESS to evaluate campus administrators (other than principals), such as assistant principals, academic deans, etc.?

A:      Yes. However, modifications must be made to the T-PESS rubric to ensure that it matches the job descriptions of each category of administrator.

Texas Education Code 21.354(c) specifically addresses the evaluation of campus administrators other than principals, and provides that districts can choose to evaluate this classification of administrator under either the commissioner-adopted process or a local appraisal process and performance criteria. In this instance, of course, the Commissioner has not yet adopted a process for non-principal campus administrators. Luckily, the administrative regulations provide that T-PESS may be utilized, “provided the school district makes appropriate modifications to ensure that the T-PESS rubric and components fit the job descriptions of the campus administrators other than principals evaluated with the T-PESS.” 19 TAC 150.1028(b). A close review of each category of non-principal administrator and their job roles will aid your district in revising the T-PESS rubric for each type of administrator.

As the regulation specifically allows for use of the T-PESS system without further action, any use of an instrument other than T-PESS for your non-principal campus administrators is subject to scrutiny as a “local appraisal process,” requiring evidence that both the process and performance criteria were “developed in consultation with district and campus-level committees established under Texas Education Code §11.251” and “approved by the Board of Trustees.” Without having complied with these pre-requisites, a District is wise to utilize T-PESS this year for all campus administrators, whether principal or not.

KB Reference Desk: Start Date

Q:      During a board workshop recently several trustees expressed interest in starting school earlier next year. Our proposed 17-18 calendar goes to the board for approval in May. Is there a way to include a start date before the fourth Monday in August?  

A:      Yes. If a board of trustees approves a resolution to become a District of Innovation (DOI) by a 2/3 vote, a school district can file its DOI status for the sole purpose of beginning school earlier than the fourth Monday in August.

TASB’s Board Policy Resource Manual includes a sample DOI resolution in AF (EXHIBIT). After the board approves the resolution by 2/3 vote, it must hold a public hearing within 30 days to discuss whether the district should develop an innovation plan. Passage of the resolution and conducting the public hearing may occur the same night, so long as the public hearing is held after approval of the resolution.

Subsequent to the public hearing, the board must appoint a committee to develop the innovation plan. In this case, the committee need only meet for the purpose of stating that the district will be exempt from the mandatory start date in TEC section 25.0811. Before final approval by the board, a district must 1) post the plan on the school district website for 30 days, 2) provide the Commissioner notice of intent to approve the plan, and 3) a majority of the District Advisory Committee must consider and approve the plan in a public meeting. The board may then consider the plan in the same public meeting and approve its contents by a 2/3 vote. Assuming the board approves, the district is exempt from the mandatory start date for the next 5 years. 

KB Reference Desk: Reassignment

Q:      We have a middle school math teacher that is not meeting expectations for instruction and classroom management. We are interested in renewing her employment for next year; however, we think she would be better suited in a non-core elementary environment as a P.E. teacher. This reassignment will not affect her salary. Do we have to give her notice of this change before offering her the 2017-18 contract?

A:      No. As long as the new assignment is within the “same professional capacity” and there is no reduction in overall compensation between contract years, the notice of the new assignment can be issued at any time prior to the initiation of the 2017-2018 school year.

If you intend to reassign a professional employee, Texas Education Code §21.206 requires that the new assignment be within the “same professional capacity.” This means that an employee who is currently employed as a “teacher” must remain in a teaching position. Modifications to campus or grade-level assignments or changes to the subject taught has been held to be in the “same professional capacity.” See Gustafson v. Canutillo ISD, Dkt. No. 113-R10-0812 (Comm’r Educ. 2014). However, reassignments that accompany significant differences in duties or responsibilities have been held to be not within the same professional capacity and a breach of the employment contract. For example, the Commissioner has held that reassignment from Superintendent to Assistant Elementary Principal, while both administrative, was not within the same professional capacity because of “major distinctions in authority, duties, and salary.” Barich v. San Felipe-Del Rio CISD, Dkt. No. 117-R1a-484 (Comm’r Educ. 1985).

In contrast, the Commissioner upheld a reassignment from Principal to Assistant Principal noting that while there are differences between the two roles, principals and assistant principals “are both administrators” and “share the same certification.” McCoy v. Kermit ISD, Dkt. No. 004-R3-0908 (Comm’r Educ. 2012).  In reviewing the “authority, duties, and salary” of each position, the Commissioner found that the two roles were within the “same professional capacity.” Id. The Commissioner reiterated this finding in the 2014 Gustafson case (above) noting that the certification, training, and qualifications required of both principals and assistant principals support a finding of the “same professional capacity” for both roles. Another Commissioner decision upheld a reassignment from Attendance Coordinator to Middle School Assistant Principal, noting that while the positions are not “identical,” they are in the same professional capacity as certified administrator. Eliz v. Donna ISD, Dkt. No. 011-R3-999 (Comm’r Educ. 2000). The Commissioner held that both positions require the employee to “function as an administrator and require comparable professional skills and responsibilities.” Id.

Note that notice of any reduction in overall compensation between contract years, whether the result of a reassignment, removal of a stipend or reduction in number of days worked, must be issued to the employee in writing at least 45 days prior to the first day of instruction. This rule follows the 45 day “penalty-free” resignation date under Tex. Educ. Code §21.210, by requiring a school district to give notice of salary reductions while the educator still has time to resign and find another position.

KB Reference Desk: TPIA

Q:      A parent recently emailed one of my campus principals asking for the most recent evaluation of her child’s teacher. This parent has accused the teacher of rough handling her child in the past, and I believe that she is digging for information that may support a complaint against the teacher. I know the teacher’s evaluation is confidential by law – do I even have to respond to this request?

A:      Yes. Under the Texas Public Information Act (TPIA), any written request for information or documents from a governmental body triggers the Act’s requirements. If a governmental entity believes the documents are confidential, it must request an opinion from the Attorney General’s office before withholding the information from public disclosure. Very few exceptions apply to this general rule.    

The Public Information Act, found in Chapter 552 of the Texas Government Code, applies when an individual submits a written request for government records to a governmental body. The legislature has amended the Act to explicitly include e-mail as an acceptable medium of making a request. Tex. Gov’t Code 552.301(c). A public school district is, of course, a governmental entity of the State that is subject to the Act’s requirements. The individual’s request, to be valid, must seek records or documents that currently exist; thus, a governmental body is not required to create new information, research, or answer questions.

In instances where the document requested is confidential by law, or appears to fall within one of the numerous exceptions to disclosure identified in the statute, section 552.301 of the Government Code requires that the district seek an Attorney General Decision within ten (10) business days of its receipt of the request. This 10 day letter must identify the exceptions to disclosure from the Act that the district believes apply. Within 15 days of receipt of the request, the district must submit to the Attorney General argument and authority supporting its rationale for why the stated exceptions apply. With this 15 day letter, the district must submit copies of the information requested or, at least, “representative samples” of the information if voluminous.  Your school district’s attorney will be helpful in determining what information is excepted from disclosure under the Act and can aide in drafting the necessary letters and legal arguments to the Attorney General’s office.

Of critical importance, note that failure to request an opinion within the 10 and 15 day timelines, even if missed by only one minute, will trigger a ruling that the district waived the exception and result in the information being deemed public. Keep in mind, however, mandatory exceptions, which protect from public disclosure information that a governmental body is prohibited from releasing, are not waivable and will not require release of a confidential document despite a missed deadline. This includes any information considered confidential by law, including judicial decisions, and any information that will affect the rights of a third party.

Finally, in some limited instances, a governmental entity is permitted to redact information without the determination of the Attorney General. However, this authority is limited to certain account numbers and personal employee information with a proper election under the statute. Similarly, information protected under FERPA and social security numbers can be withheld or redacted without a determination from the Attorney General.  In these instances, notice must be provided to the requestor outlining the type of information withheld and the requestor’s right to appeal the school district’s determination to the Attorney General.

Your Board Policy GB Series (GB, GBA, and GBAA) provides information on responding to request and requesting Attorney General opinions. The Attorney General’s Public Information Handbook (the most recent version is 2016) also provides guidance, and can be found at the following address:


KB Reference Desk: Recess

Q:      A second grader has been assigned classroom detention during recess for 3 days this week due to bad behavior in the classroom. The child’s parent is claiming that the student is required to participate in recess every day. Can the classroom teacher assign the student lunch detention or otherwise suspend a child from recess as a form of discipline? 

 A:     Yes, students can be suspended from recess. However, in so doing, the administration must ensure that the suspension does not take the student below the minimum 135 minutes of physical activity required weekly for elementary students. 

Any suspension of physical activity in grades K-5 requires consideration of the total number of minutes the student participates in moderate to vigorous physical activity weekly. The Texas Education Code at section 28.002 requires 30 minutes per day or “if the district determines, for any particular grade level, that requiring moderate or vigorous daily physical activity is impractical due to scheduling concerns or other factors, the district may as an alternative require a student in that grade level to participate in moderate or vigorous physical activity for at least 135 minutes during each school week.” An exemption, of course, can be provided for any student who is unable to participate due to illness or disability. These rules apply to full day pre-K programs as well.

Middle School students have similar physical activity requirements. Students in grades 6-8 are required to engage in 30 minutes of structured vigorous activity every school day for at least four semesters during those grade levels.  If the campus uses block scheduling, the Education Code requires a minimum of 255 minutes during each period of two school weeks. Participation in extracurricular activities, and in some instances activities sponsored by a private club or league, can satisfy the physical activity requirements. High school students need only ensure that they have at least one credit in physical education and that 50% of the course includes actual physical activity. For more information, see policies EHAB and EHAC (LEGAL) and (LOCAL).


KB Reference Desk: Nepotism & Substitutes

Q:      We have had a substitute on our sub list for over a year. She has worked on and off, without any permanent assignment, at various campuses in our District. She recently finished an Alternative Certification Program and received her teaching certificate. We would like to hire her as a teacher, but her father is a member of our Board of Trustees. Can we hire her as a full-time classroom teacher?

A:      No, the Attorney General has stated that the substitute exception and the continuous employment exceptions to the general prohibition against nepotism do not apply to the promotion of an uncertified substitute to a full-time certified teaching position. Thus, the substitute’s employment as a classroom teacher is barred by nepotism laws.

Texas Government Code §573.041 and board policy DBE (LEGAL) outline the general prohibition against nepotism in public employment. That is, a public official may not appoint a person to a position that is compensated by public funds if the person is related to the public official by a prohibited degree. Most board policies include a consanguinity (relation by blood) and affinity (relation by marriage) chart at policy DBE (EXHIBIT) which can be helpful to determine prohibited degrees of relation. Clearly, a father and daughter are within the prohibited degree. Thus, unless an exception applies, the daughter’s employment will be barred by the nepotism laws.

The most common exception pertains to substitute teachers. A school district is exempt, by law, from having to comply with the nepotism statutes when it comes to the general employment of substitutes. Thus, the daughter’s previous employment was not in violation of the anti-nepotism policies. However, some districts have attempted to rely on this exception when promoting substitute teachers to full-time teacher positions. The Attorney General has held that this is prohibited under the Government Code since the exception clearly applies only to substitute teachers. Tex. Att’y Gen. Op. JM-0185. Once the substitute moves from her sub position to the certified teacher position, the exception goes away.

Similarly, school districts have attempted to rely on the “continuous employment” exception when promoting substitutes to full-time teacher positions. The “continuous employment” exception is found in Texas Government Code §573.062(a) and board policy DBE (LEGAL). It provides that if an employee has been “continuously employed” for six (6) months prior to their relative’s election to the board (or employed at least 30 days prior to a board member’s appointment), the anti-nepotism laws do not apply. For example, if a certified teacher has been employed with a district for three years and then her husband gets elected to the board of trustees, nepotism laws will not bar his election or her continued employment. However, this exception does not apply to candidates who have been previously employed as substitutes. The Attorney General has stated that a teacher’s service as a substitute teacher does not satisfy the “continuous employment” exception because having one’s name put on a “sub list” creates “neither a guarantee of being contacted by the school district … nor an obligation to accept a teaching assignment if offered one.” Tex. Att’y Gen. Op. JM-861 (1988). Thus, the continuous employment exception does not apply to our scenario and the daughter’s employment with the district as a teacher will be barred by nepotism laws. In the alternative, her father may resign his position on the board; however, as required by the holdover doctrine, a successor must be appointed and sworn in before the daughter can be hired.


KB Reference Desk: Updated TASB Model Contracts

Q:      I just received notification that TASB revised their contract forms. Are the edits significant enough that we need to change our contract forms for next year?

A:       Yes! The revised model contracts incorporate important changes to the law, as well as clarify key contract provisions to more closely track the Education Code.

TASB offers model contracts for probationary and term teachers to all member districts who subscribe to HR Services in addition to their general TASB membership. HR Services contains multiple benefits, including the HR Library, which houses model probationary and term contracts.TASB’s 2017 updates to the model contracts are summarized below.

·       Certification/Highly Qualified Status: The Every Student Succeeds Act (ESSA) removed the requirement that teachers meet the “highly qualified” standard under the No Child Left Behind Act (NCLB). Now, teachers are only required to meet the certification requirements of their state. The revised contract’s language now tracks the requirements of ESSA and removes references to NCLB.

·       Criminal History Review: Contract provisions concerning criminal history checks were revised to reflect the mandatory requirement for certified employees to submit to the criminal history background check.

·       Representations During the Contract: This provision has been revised to specify that the timeline for employee notification of reportable criminal history should be the time period adopted in Board Policy or seven calendar days if no timeline is specified in local policy.

·       Incentive and Performance Pay: The Texas Legislature did not fund the program for state incentive pay and thus reference to this section of the Education Code was removed.

·       Termination: The revised termination provision more closely tracks the Education Code’s language at section 21.211(a).

Issuing an employee a contract with incorrect or obsolete provisions could bind the District and/or the employee to outdated legal obligations and could cause undue confusion on both sides.  As such, it is critical to update your contract forms as recommended.

Also included within the HR Library are multiple contract addendums.  When issuing contracts to new hires, be sure to review the model certification addenda and use it anytime you employ a teacher who is not yet certified. Often, teachers are hired before they have officially completed their certification requirements or taken their final test. This can be problematic if they fail to finalize their certification while employed under contract. The certification addendum allows you to set a specific date for the employee’s certification to be completed and puts the non-certified employee on notice that their contract can be declared void if they do not complete the requirements by the date specified. Check “yes” in the contract document itself where it asks if the contract includes an addenda, then complete and attach the addendum to the contract document itself for execution by the employee.

If your District subscribes to the HR Library, you can find a copy of the new model contracts and addenda at www.tasb.org/Services/HR-Services/myTASB.aspx.