Reporting suspected child abuse is one of the most unpleasant, but important, responsibilities of teachers and administrators.  Our child abuse laws are one of the few instances in which the failure to act might be a crime.  Ever since we’ve had child abuse laws we’ve also had laws designed to protect the person who makes the report, as long as they are acting in good faith. 

HB 621 strengthens those protections.  It amends the Family Code to permit a lawsuit for an injunction and/or damages if a “professional” is punished for reporting—in good faith—suspected abuse or neglect.  We have long had provisions in the Family Code along these lines, but up until now they applied only if the person who reported possible abuse was suspended, terminated or “otherwise discriminated” against. 

The new law, which goes into effect September 1, adds a more specific category of unlawful retaliation: an “adverse employment action.”  Thus a principal who takes “adverse employment action” against the nurse or teacher who, in good faith, reported abuse, may be looking at some serious legal concerns.  Here is the new law’s definition of this important term:

“Adverse employment action” means an action that affects an employee’s compensation, promotion, transfer, work assignment, or performance evaluation, or any other employment action that would dissuade a reasonable employee from making or supporting a report of abuse or neglect under Section 261.101. 

Plaintiffs in cases based on this statute will assert that a change in “work assignment” is an “adverse employment action” even when there is no cut in pay or status. They will also argue that any negative mark in the performance evaluation is “adverse” and illegal if done in retaliation for the good faith report of possible abuse or neglect.

Remember that reports of child abuse are to be made when there is “reason to suspect.”  We are obligated to make that report long before we are certain that it occurred. Thus reports of abuse might turn out to be wrong.   Moreover, the definitions of abuse and neglect leave room for reasonable people to interpret them differently.  Just because a teacher reports abuse when you think it was unnecessary does not mean that the teacher is lacking “good faith.” So let’s be sure that all “adverse” employment actions are based on job related concerns, independent of any good faith child abuse reporting.

DAWG BONE: AS WE OFTEN REPEAT: DOCUMENT, DOCUMENT, DOCUMENT. 

Tomorrow: Trouble in Serenity Falls!

The Governor wasted no time before signing this one into law.  HB 1597 permits the children of military personnel to attend school in the district where the parent has been transferred to a military installation that is either in or adjacent to the school district.  This amends Texas Education Code 25.001 which is our basic statute about residency and school attendance.  Here is the specific new language:

A person whose parent or guardian is an active-duty member of the armed forces of the United States, including the state military forces or a reserve component of the armed forces, may establish residency for purposes of Subsection (b) by providing to the school district a copy of a military order requiring the parent’s or guardian’s transfer to a military installation in or adjacent to the district’s attendance zone.  T.E.C. 25.001(c-1).

The statute goes on to require the parent to provide proof of residence not later than the 10^th day after the arrival specified in the order. “Residence” is defined to include “military temporary lodging facility.” 

Charter operators are also affected by this new law.  It adds one more section of the Education Code that will now apply to charters—Section 25.001 regarding the establishment of residency.

DAWG BONE: DOES A “TEMPORARY LODGING FACILITY” INCLUDE A TENT?

Tomorrow: new wrinkle on child abuse laws.

Are you the campus behavior coordinator for your school?  You are?? Congratulations!! Your name and contact information is going to be posted on the district’s website! This is due to SB 1306:

A school district shall post on the district’s Internet website, for each district campus, the e-mail address and dedicated telephone number of a person clearly identified as: (1) the campus behavior coordinator designated under Section 37.0012.  T.E.C. 26.015.

The Dawg knows what you are thinking about that.  “We don’t like this.  This will overburden our already overburdened CBCs.  We’ll just put a sentence in our District of Innovation plan to exempt ourselves from the requirement to name a CBC.”

Looks like those smarty pants legislators are one step ahead of you.  They added this:

Or, (2) if the district has been designated as a district of innovation under Chapter 12A and is exempt from the requirement to designate a campus behavior coordinator under Section 37.0012 under the district’s local innovation plan, a campus administrator designated as being responsible for student discipline.  T.E.C. 26.015.

Somebody’s name, email address and phone number (work—not cell) is going to be on your district’s website. Congrats, CBCs!

DAWG BONE: PUBLIC RECOGNITION IS A GOOD THING, RIGHT?

Tomorrow: More new laws.

The legislature has repealed a statute that authorizes school districts to join forces to form an SSA—a Shared Services Arrangement. Does that mean districts can’t do this anymore?  Must all districts, no matter how small or rural, operate their special education program alone?

No. That’s not what it means.  The statute, T.E.C. 29.007, was one of several listed in S.B. 1376 for repeal. This bill was the culmination of efforts designed to reduce the size of the Education Code. With regard to SSAs the intent of the statute was aimed not at the first sentence of the statute, but rather, the second. 

*First sentence:  “School districts may enter into a written contract to jointly operate their special education programs.”

*Second sentence: “The contract must be approved by the commissioner.”

While the intent was to get T.E.A. out of the process, the statute was repealed in its entirety. So that specific authorization in the Education Code is gone.

However, there are other provisions in the Code that empower districts to continue to work together to provide special education services.  Like this:

The board of trustees of an independent school district may contract with a public or private entity for that entity to provide educational services for the district.  T.E.C. 11.157. 

And this:

The board may enter into contracts as authorized under this code or other law and delegate contractual authority to the superintendent as appropriate.  T.E.C. 11.1151(c)(4). 

While districts are still authorized to come together with an SSA, there may be provisions in your existing agreement that are no longer needed.  Administrative regulations adopted by the Commissioner or the Agency pursuant to the repealed statute are no longer in effect. So this would be a great time to review your existing SSA if you have one, and get some legal counsel as to revisions that might be necessary, or at least helpful. 

We can help with that.  Let us know if you’d like a Walsh Gallegos attorney to help you navigate your way to a new and improved SSA. 

DAWG BONE: NO MORE T.E.A. OVERSIGHT OF SSAs. 

Tomorrow: Toolbox Tuesday!!

DEAR DAWG: Here in Serenity Falls ISD we are concerned about the basic communication skills of our new in house counsel.  I know that a person must be pretty smart to get out of law school and pass the bar, but still—we wonder what’s going on.  Here is an example of part of a written communication we got from our new lawyer that raised eyebrows:

I’ve examined this from all angels, running the gambit of every possibility.  Based on existing case law, my opinion is that the court will not conclude that the matter is mute, but will take jurisdiction of the case.  The rationale for the decision offered by the district may not pass mustard with the court.  Its possible that we could lose the case and have to pay damages, attorneys’ fees and costs—in other words, the whole kitten caboodle. 

See what I mean?  AT LEAST THE SPELLING IS RIGHT.

DEAR AT LEAST: You have good reason to ring the alarm! This does not at all “pass mustard.”  Perhaps the good readers of the Daily Dawg can help out.  A free extension of your subscription to the first person to email a list of every word that is incorrect in the above.  Send it to jwalsh@wabsa.com.  

DAWG BONE: DOESN’T PASS THE KETCHUP EITHER.

The Dawg barks again on Monday. Enjoy the weekend!

SB 2432 adds a new offense to the list of those that require a DAEP placement.  I predict that this one will lead to a big jump in referrals from teachers asking that students be assigned to DAEP. 

The bill amends Texas Education Code 37.006, which lays out the mandatory DAEP offenses.  It says the student must go to DAEP if the student:

Engages in conduct that contains the elements of the offense of harassment under Section 42.07 (a) (1), (2), (3), or (7), Penal Code against an employee of the school district. 

So is that one new DAEP offense, or four?  The umbrella term is “harassment” but the statute identifies four ways in which a student can commit “harassment.”

The relevant sections of the Penal Code are as follows:

A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

(1) Initiates communication and in the course of the communication makes a comment, request, suggestion or proposal that is obscene;

(2) Threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony offense against the person, a member of the person’s family or household, or the person’s property;

(3) Conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury;

(7) Sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. 

It’s that first one that is likely to be cited most often.  A student “initiates communication” in the course of which the student utters the famous F-word.  Perhaps the F-word is followed by “you.”  Do we now have evidence of  a “suggestion or proposal that is obscene” done with “intent to harass, annoy, alarm, abuse, torment, or embarrass” the teacher?

I think a lot of teachers will see it that way. Get ready for lot of kids being sent to the office.

DAWG BONE: CHAPTER 37 NEVER GETS SHORTER.

Tomorrow: Will it “pass mustard” with the court?

In 2017 our legislature restricted the authority of school administrators to order an out-of-school suspension for a student below grade three.  Suspensions of those young ‘uns was limited to offenses involving weapons, violence, drugs or alcohol.

This year the legislature put students who are homeless in the same category.  Regardless of age or grade level, a student who is homeless can be suspended out of school only for those same four categories of behavior.   Instead, the new law instructs the campus behavior coordinator to “coordinate with the school district’s homeless education liaison to identify appropriate alternatives.”

This one is HB 692.

DAWG BONE: RESTRICTIONS OF OUT OF SCHOOL SUSPENSION FOR  STUDENTS WHO ARE HOMELESS.

Tomorrow: Is the F-word ever uttered on your campus?

The legislature passed HB 811, which will impact your Code of Conduct.  The bill adds two items to the list of factors that must be considered before a student is suspended or removed to DAEP or JJAEP. Previously the law required that the school administrator must consider:

1. Self-defense;
2. Intent, or lack of intent;
3. The student’s disciplinary history; and
4. A disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct.

As of next school year you can add two more items to that list:

1.  A student’s status in the conservatorship of DFPS; and
2.  A student’s status as a student who is homeless.

Did you know that Walsh Gallegos has a Code of Student Conduct for you to purchase and modify to your district’s specs? We also offer a Student Discipline Guide. Both of these products can be purchased through the firm’s website, and will be updated to conform with new legislation, such as HB 811.

DAWG BONE: IN FACT, IF YOU SUSPEND A STUDENT WHO IS HOMELESS THERE ARE OTHER CONCERNS. TUNE IN TOMORROW!

Tomorrow: Limits on suspensions of students who are homeless.

 A few months ago the Texas Court of Criminal Appeals shot down a portion of the Texas Open Meetings Act (TOMA).  The court held that the part of the law dealing with a “walking quorum” was unconstitutionally vague.  In an effort to fix that problem, the legislature has passed SB 1640. 

If the governor signs it, SB 1640 will makes it a crime for a member of a governing body (such as a school board) to knowingly engage in any communication concerning an issue that is within the body’s jurisdiction if that communication is part of a series of communications all of which occur outside of a duly called meeting and collectively involve a quorum of the board.  This single communication (text, email, phone call, etc.) might be a criminal act if the member knew at the time that the series of communications would involve a quorum, and would amount to an exchange among the members concerning an issue within the body’s jurisdiction.

Let’s break that down with an example.  Board Member A sends a text message to Board Member B that says “I really like that guy we interviewed for A.D. last night.”  Board Member B responds: “Me too.” 

So far, no problem.  Just two board members are involved.

But suppose that Board Member B’s “Me too” response was cc’d to all of the other board members.  Board Member B has just violated TOMA.  He has knowingly engaged in a communication about school business with a quorum of the board, outside of a proper meeting. 

Suppose that Board Member A responds to the text from Board Member B with “Glad to hear it!”  Has he now violated TOMA?  If he hit “reply to all” he has definitely violated TOMA.  If he only replied to Board Member B, it’s not as clear.  But the case can be made that he knew that all of the board members were in on this “series of communications” and therefore, his participation in it is a violation.

To summarize, it’s an offense if a board member:

A. Knows that his/her single communication is going to a quorum of the board, or is part of a series that will, eventually, involve a quorum; and
B. Knows that the communications are about issues within the board’s jurisdiction.

Is that too vague?  We shall see. Statutes are presumed to be constitutional until a court says they are not. So unless Governor Abbott vetoes it, this new law will be our guiding light regarding communications among board members outside of a board meeting. Be careful.

DAWG BONE: AND DON’T EVER HIT “REPLY ALL.”

Tomorrow: Toolbox Tuesday!!

ERO International LLP claims that Mission CISD owes it a considerable sum of money for work done on the renovation of Mission High School.  When ERO filed suit to collect the dough, the district filed a Plea to the Jurisdiction, asking the court to dismiss the case without looking into the merits of the situation. The district’s position was that it had governmental immunity from this claim, and, therefore, the court lacked jurisdiction.

Now I know that the readers of this blog are public school people. But let’s pause for a moment to think about this from the contractor’s perspective.  Was there a contract between the parties?  Yes.  Was there a dispute over how much was owed under the contract?  Yes. Isn’t that exactly the type of dispute that we take to court?  Yes. So how can it be that the court does not even have the power to weigh in on this?  Can school districts sign contracts with contractors and then ignore them?

The answer to that last question is No.  Districts have to comply with contracts and can be hauled into court for failing to pay what is owed.  But in order to get past the “governmental immunity” enjoyed by school districts the contract has to be in full compliance with Chapter 271 of the Local Government Code.  That Chapter includes the following:

Adjudication procedures, including requirements for serving notices….before bringing a suit…. that are stated in the contract….or that are established by the local governmental entity and expressly incorporated into the contract or incorporated by reference are enforceable except to the extent those procedures conflict with the terms of this subchapter.  Texas Local Government Code 271.154. 

In other words, a school board can adopt a policy that requires certain “adjudication procedures” that must be accomplished before a contractor can file suit.  It can incorporate that policy into the contract.  If it does those two things, the “adjudication procedures” are “enforceable.” 

That’s exactly what happened here. Mission ISD adopted Policy CJ Local, which required a disgruntled contractor to file an “administrative complaint” within 90 days of when the contractor believed that the district had breached the contract.  ERO sent the district a bill and said it was due within 30 days.  The district did not pay it.  That was the alleged breach.  Thus the 90-day timeline began to run when the bill became past due.  However, ERO did not file its “administrative complaint” until almost a year later. 

So the district argued that it still had immunity from this suit: the contractor did not comply with the policy, which was incorporated into the contract.  Toss this case out, Your Honor.

That’s what the appellate court did. 

We need to add that the case may get a rehearing, or go to the Texas Supreme Court.  In this opinion, this court noted that other Texas appellate courts have not viewed the “adjudication procedures” in the same light.  They have not viewed them as a basis to grant a Plea to the Jurisdiction. That kind of disagreement among our Courts of Appeal frequently produces a Supreme Court decision.  So we will keep an eye on this one. 

In the meantime, you want to take a look at the local policy adopted by Mission CISD and ask your school attorney about adopting such a policy and incorporating it into contracts.  The lawyers at Walsh Gallegos are ready to help you with that.

The case is Mission CISD v. ERO International LLP, decided by the Court of Appeals for Corpus Christi-Edinburg on March 14, 2019. We found it at 2019 WL 1187018.  You can find Mission CISD’s policy CJ Local on the district’s website: www.mcisd.net.   

DAWG BONE: GET CREATIVE WITH YOUR CONTRACTS!

The Dawg retires to the Dawg House for the weekend, but will bark again come Monday.