Category Archives: Dawg Bones

Dawg Bones

DEAR DAWG: I thought the cartoon was funny. I didn’t intend to offend anyone. Is this really “harassment”?

DEAR DAWG: I thought the cartoon was funny.  Other people had put cartoons on the bulletin board in the lounge.  Teachers enjoyed checking them out, passing them along and so on.  So I posted the cartoon.  I guess it was a bit on the risqué side, but hey…we’re all grown ups here.  So I thought.

Well.  Some of the ladies who work here were highly offended by the cartoon.  They thought it was vulgar, sexist and inappropriate.  I can assure you that was not my intent. I just thought it was funny.

I think these people are overreacting. And I thought we were moving away from “political correctness.” Can’t a person make a joke anymore?  Now someone has filed a formal complaint, accusing me of “harassment.”  What do you think?  NO MORE CARTOON POSTING FOR ME.

DEAR NO MORE: Was it “harassment”? That’s a decision that will have to be made by the administrator who is handling the complaint.  But we can tell you what the policies of most districts say about this.  Take a look at your district Policy DIA Local.  You will probably find that it   defines “harassment” in the way the courts have generally defined it.  The definition of “prohibited harassment” applies to conduct that is “so severe, persistent, or pervasive” that it 1) has the purpose or effect of unreasonably interfering with work performance; 2) creates an intimidating, threatening, hostile or offensive work environment; or 3) otherwise “adversely affects” performance, environment or opportunities.

You say that you did not intend to offend anyone, but your intent is not the only issue.  What was the effect?  That matters also.  A single insensitive remark, or cartoon posting, will usually fall short of being “so severe, persistent, or pervasive” that it “adversely affected” your co-workers.  But remember: the way that supervisors prevent big problems is by taking action on the small stuff.  This is a good example of that.  You didn’t intend any harm, but you caused some.  Your supervisor may not label it as “harassment” but in this Dawg’s opinion, your supervisor should take corrective action to make sure there is no repeat performance.

There are lots of funny cartoons. Find a better one next time.  You can post a cartoon that ridicules lawyers.  We won’t complain.

DAWG BONE: IT’S NOT JUST YOUR INTENT THAT MATTERS. WHAT WAS THE EFFECT?

File this one under: SEXUAL HARASSMENT

Tomorrow: Do I have to directly confront the person who is harassing me?

Dawg Bones

DEAR DAWG: Someone told me it’s OK for me to have sex with a co-worker as long as we are both happy about it. True? NOT SAYING I WOULD…JUST WANT TO KNOW MY OPTIONS.

DEAR NOT SAYING:  It’s above the Dawg’s pay grade to know whether or not it is “OK” for you to do this.  Lots of variables apply to that question.  We don’t know if you are referring to “OK” in terms of morality, marital fidelity, workplace harmony, or legalities.  So we will confine our answer to what we can speak about, which is the legal angle.

Let’s assume that Person A and Person B are employed at District C.  Person A makes sexual overtures toward Person B, to which Person B responds YIPPEE! YES!! BY ALL MEANS!!!  WHAT TOOK YOU SO LONG?????

Thus, with regard to Person A, Person B’s welcome mat is out, so to speak.  What we can say about that for sure, is that Person A has not engaged in sexual harassment.  Sexual activity of employees with students is always forbidden, but among the grownups who work for the district, the key term is “unwelcome.”

I always think of my friend and colleague Wayne Haglund when discussing this issue. Wayne is the lawyer who once pointed out the implications of this term “unwelcome.” It means that two employees in your district are free to have a sexual fling with each other as long as both parties are happy.

But there’s a hitch.  Once they get started they cannot stop. As long as all activities are “welcome” by both parties, you do not have sexual harassment.  As Wayne pointed out, it’s when one party pulls up the welcome mat that the legal issues arise.

Of course romantic and/or sexual activity in the workplace can be a problem even if it is enthusiastically welcomed by both parties.  That rendezvous at the copy machine lingers on much  longer than necessary. That lunch break stretches out.  Googly eyed employees are not as attentive to the task as they should be.  Any activity that gets in the way of the work being done is a problem—but it is not “sexual harassment” unless it is “unwelcome.”

This week here at the Daily Dawg we are going to focus on LOVE GONE WRONG aka “sexual harassment.” After all, it’s February, and the great Feast of Love (V-Day) approaches.  So we will focus on this issue this all of this week.  Stay tuned!

DAWG BONE: IF THE WELCOME MAT IS OUT, IT’S NOT SEXUAL HARASSMENT.

File this one under:  SEXUAL HARASSMENT

Tomorrow: Can it be “harassment” if I had no intention of giving offense?

Dawg Bones

DEAR DAWG: Our superintendent has a 50-yard line ticket to the Super Bowl, and we’re kind of wondering how that happened….

DEAR DAWG: The superintendent left work early today, in a buoyant, boisterous, almost giddy mood.  He’s on his way to Houston for the Super Bowl and he has let everyone within a three-county radius know that he will be sitting smack dab on the 50 yard line, about 20 rows up.  Just how much does something like that cost?  I don’t know, but I’m pretty sure that I would have to turn over my entire TRS account to get one of those prized ducats.  So how does our superintendent get so lucky? It turns out that he’s going to the game with some reps from the Acme Widget Company.  And it just so happens that the Acme Widget Company has a bid in on a major contract with our district that will be acted on by the board next month. Of course, the board will look for a recommendation from the superintendent about that. Hmmmm.  COINCIDENCE?  WE THINK NOT!

DEAR COINCIDENCE?  Hmmmm indeed! It sounds fishy!  But before you report your superintendent as a law breaker, find out who he sits with at the game.  It’s a violation of the Penal Code for certain public servants to accept gifts from vendors who have an interest in a pending contract.  But there is an exception for “food, lodging, transportation or entertainment accepted as a guest.”  So if the Acme folks are sitting right beside him, then we think he is a “guest,” and he is committing no crime.

However, he needs to report this.  A gift like this requires a “conflicts disclosure statement, as adopted by the Texas Ethics Commission.”  There is an exception if the gift is in the form of food, accepted as a guest. Otherwise, gifts have to be disclosed if the value exceeds $100.  We don’t know what Super Bowl tickets go for, but we think it’s a safe bet that they exceed $100.   Take a look at your policies at CHE and BBFA. It’s all spelled out there.

DAWG BONE: ENJOY THE GAME, BUT MAKE SURE YOU DISCLOSE THAT EXPENSIVE GIFT YOU JUST RECEIVED.

Dawg Bones

What’s harder—brain surgery or teaching?

I heard Commissioner Morath speak to the special education directors of Texas at the recent TCASE Conference.  He did a great job. The man is not only smart—he is thoughtful, insightful, respectful, humble.  I can just about get over the fact that he apparently does not own a necktie.

I especially liked the way he compared teaching to brain surgery.  He pointed out that the surgeon scrubs up prepared to operate on a human brain. While this is a complex process, the surgeon will be working on only one brain. Moreover, that brain is attached to a body that is strapped down and completely unconscious.  He might have added that the brain surgeon will be assisted by a swarm of highly qualified assistants operating whiz bang, state of the art equipment.

Compare that with a second grade teacher, who enters the classroom to operate on over 20 brains, none of which are attached to bodies that are strapped down and unconscious. Au contraire!  They are attached to wiggly, energetic, wide awake bodies. The equipment in the classroom was provided by the low bidder, and there is no there one to help out.

Who has the harder job? Which job requires greater expertise?

DAWG BONE: HUZZAH FOR THOSE TEACHERS! MORE SKILLED THAN BRAIN SURGEONS!

Tomorrow: the superintendent is headed to the Super Bowl, courtesy of the Acme Widget Company!

Dawg Bones

Is the competition fair?

We will hear a lot in this legislative session about how competition will improve public education. Much of the push for charters and vouchers is based on the belief that competition leads to better services.

Maybe so.  But a corollary to the notion that competition leads to improvement is that competition has to be fair.  If our legislature makes public money available to private schools, will the competition for those dollars be fair?

I think not. Competition is fair when everyone has to comply with the same laws.  But there are numerous laws that restrict public schools but not private schools.

Here’s a quick list:

*IDEA.  Private schools do not have to accept all students with disabilities, provide them FAPE or comply with the detailed paperwork and procedural requirements of IDEA.

*Chapter 37.  Private schools set their own standards for student discipline, including expulsion.

*U.S. Constitution.  Private schools do not have to afford due process to students or employees (14th Amendment), do not have to respect the right of privacy (4th Amendment) or free expression (1st Amendment).

*Chapter 21.  Private schools are not restricted to certified teachers, do not have to offer contracts or comply with nonrenewal and/or termination procedures.

If you speak to people who support vouchers, you might want to suggest that any school that accepts vouchers should also agree to subject itself to all of the above.  It costs money to comply  with these legal requirements.  So if the competition is to be fair, the laws need to apply to all in the same way.

Just sayin….

DAWG BONE:  WE LIKE COMPETITION, BUT ONLY IF IT IS FAIR.

What’s harder—brain surgery or teaching?

Dawg Bones

It’s Toolbox Tuesday! Can a person get “assault leave” for just one day?

We like to highlight the Toolbox on Tuesdays. The Toolbox is a full day training program that focuses on the legalities and proprieties of serving students with disabilities who may be disruptive or even dangerous.  Today, we take on a tangential issue—employee assault leave.

Let’s assume that you have a student with a disability who physically attacks a teacher or aide.  There are various tools in the Toolbox that might be appropriate in that situation.  You may need to contact law enforcement (Tool #10).  Depending on the severity of the injury, you may be able to declare “special circumstances” (Tool #5). A short term removal might be proper (Tool #7 or #8).  You might seek a change of placement as a punitive measure (Tool #6).  You probably should consider a BIP, or revising the existing one (Tool #1).

But what about the employee?  Let’s assume that the employee suffers physical injuries that require a few days off of work.  Sick leave?  Personal leave?

I think you will find that most employees would prefer to get “assault leave” for this.  That way they are paid for the time they miss, but they do not have to use sick leave or personal days.   Assault leave is authorized by Texas Education Code 22.003(b):

In addition to all other days of leave provided by this section or by the school district, an employee of a school district who is physically assaulted during the performance of the employee’s regular duties is entitled to the number of days of leave necessary to recuperate from all physical injuries sustained as a result of the assault.

Notice that there is nothing in the statute that limits assault leave to situations where an employee misses a large chunk of time at work.  It could be one day, if that’s all it takes to recover from the physical injuries.

DAWG BONE:  MOST PROFESSIONS DON’T OFFER “ASSAULT LEAVE.”  MOST PROFESSIONS DON’T NEED IT.

File this one under: ASSAULT LEAVE

Tomorrow: Some thoughts about school choice and fair competition.

Dawg Bones

Attorney seeks over $100K in fees from district; court awards $6,500. How does this work?

A recent decision from the federal court in Beaumont illustrates what much of special education litigation is about these days. It’s not about services to the student. It’s about attorneys’ fees.

The basic rule is that parents who prevail in a special education due process hearing are entitled to then recover their attorneys’ fees.  In this case, the parents won the due process hearing with regard to some of the key issues.  The district chose not to appeal the decision, and thus was obligated to provide the relief that the hearing officer ordered.  The subsequent lawsuit, then, had nothing to do with services to the student.  It was about how much the lawyer should be paid.

The parents’ attorney, Dorene Philpot, sought recovery of fees in federal court in the amount of $101,843.44.  The district was not willing to fork over that amount, and thus the case ended up in front of Judge Marcia Crone.

Judge Crone held that the parents had indeed “prevailed” in the hearing and thus, were entitled to recover attorneys’ fees. But she reduced that award from $101,843 to $6,500.  In part, this was based on a finding that the reasonable hourly rate was $250 per hour, rather than the $295 Ms. Philpot sought.  But the main reason for the reduction was based on the fact that the district had made a written settlement offer prior to the due process hearing that offered more relief than the parents obtained from the hearing officer. Thus the judge disallowed recovery of any fees after the date of the settlement offer. Not only did the district’s offer provide more relief to the parent than she ultimately obtained, it also offered more to the attorney.  The offer included a payment of $10,000 to Ms. Philpot.

In short, the judge concluded that the parent—and her attorney—would have been better off with the district’s settlement offer than with what they got from the hearing.

The case is a reminder of the wisdom of districts obtaining a cold hearted legal analysis of their case before going to hearing.  Here, the district anticipated some legal exposure and wisely put an offer on the table in an effort to resolve the matter.  Everyone would have saved a lot of time and money if that offer had been accepted.

Nor did the district’s efforts to resolve this case end with that offer. The court noted:

Further, since this case was filed, the evidence and the record clearly show that the District has acted in good faith and attempted multiple times to resolve this case, including engaging in mediation and making repeated settlement offers after the case was filed in this court, including substantial settlement offers for attorneys’ fees far above the $6,500 awarded by the court.

FOOTNOTE: The court understands that Plaintiffs were not required to accept a settlement offer. The settlement offers are referenced because Plaintiffs have repeatedly alleged in their submissions to the court that the District has “stonewalled” them; however, Plaintiffs’ allegations of stonewalling are not supported by the evidence before the court.

 The case is I.W. v. Hardin-Jefferson ISD, decided by the federal court for the Eastern District of Texas on January 3, 2017.

DAWG BONE: A GOOD SETTLEMENT OFFER CAN SAVE TIME AND MONEY.

File this one under: SPECIAL EDUCATION

Tomorrow: Toolbox Tuesday!! We discuss assault leave.

Dawg Bones

Coming to MidWinter?

Our law firm is hosting its annual reception for Mid-Winter Conference attendees on Tuesday, January 31st from 5:00 to 6:30 at Flemings Restaurant, just a block away from the Convention Center. Be there!!  Libations, great food and even greater fellowship!!

DAWG BONE: THE WALSH GALLEGOS RECEPTION: WHERE ALL THE COOL KIDS WILL BE

 

Dawg Bones

The Boeing Case and Why It Matters…

During this legislative session you are likely to hear a lot about the Public Information Act.  Senator Kirk Watson (Austin) and Representative Giovanni Capriglione (Keller) have introduced legislation that would change the PIA, closing what the legislators call a giant loophole. It all goes back to the case of Boeing Company v. Paxton. 

Boeing tried to block the public disclosure of certain information that was contained in its lease of space at Kelly Air Force Base in San Antonio.  Boeing claimed that disclosure of this financial information would give an advantage to its competitors on future projects.  The Attorney General rejected Boeing’s argument and ordered the release of the information.   The district court in Austin and the Court of Appeals also ordered the disclosure of the information. But the Texas Supreme Court saw things otherwise, and ruled in favor of Boeing.

The key issue was whether or not Boeing, as a private party, could raise the issue at all.  The PIA allows information to be withheld from public disclosure if its release “would give advantage to a competitor or bidder.”  In accordance with the historical interpretation of this exception, the AG ruled that only the governmental entity could raise this issue.

Think of it this way: assume that your school district is asked to release financial information pertaining to the Acme Widget Company, which has bid on a project.  Your district is concerned that the release of the information about Acme would benefit other bidders, thus impairing the ability of your district to get the best deal.  According to the A.G., your district could cite the PIA exception, but Acme could not.  If your district chose to release the information, Acme could do nothing about it.

The Texas Supreme Court changed that in its Boeing decision. It held that the private party could also raise the exception, and if it could establish that the release of the information would give its competitors an advantage, it could seek to have the information withheld.

Senator Watson and Representative Capriglione describe this as a gigantic loophole that is keeping important information away from the public. So keep an eye on these bills as they make their way through the legislature.

The case of The Boeing Company v. Paxton was decided by the Texas Supreme Court on June 19, 2015.  We found it at 466 S.W.3d 831.

DAWG BONE: THE PIA: ONE MAN’S REASONABLE EXCEPTION IS ANOTHER MAN’S LOOPHOLE. 

 File this one under: GOVERNANCE and PUBLIC INFORMATION ACT

Tomorrow: Coming to midwinter?

Dawg Bones

Strong opinions make for interesting cases….

I’ve known a lot of football coaches in my time.  As a general rule, I like these guys. They are hard working, fun loving, competitive, dedicated and often are very positive influences for students.  They also, seems to me, frequently hold strong opinions.  Have you noticed?  The word “stubborn” comes to mind, although I expect the coaches would prefer “firm.”

So when you get a coach at odds with his school district over an issue that stirs the blood, you have the makings of a very interesting court case.  Such is the case of Borden v. School District of the Township of East Brunswick.

 The case is about school prayer and the proper role for school officials when the students wish to pray.  The football team had a custom of reciting a prayer at their pre-game meal, and then again, on one knee in the locker room right before kickoff.  When a parent complained about this practice, the superintendent got the school lawyer involved, who laid out some guidelines, largely based on a decision from our 5th Circuit, Doe v. Duncanville ISD, 70 F.3d 402 (5th Cir. 1995).  The coach was instructed not to lead, initiate, mandate or even participate in student prayer.

Rather than comply with these restrictions, the coach quit. This was in October—right in the middle of football season.  Less than two weeks later, the coach rescinded his resignation, came back to work and promised to abide by the school’s guidelines.  I’m guessing there was a lot of hoo hah in the community between the resignation and the rescission.

Just six weeks later, (perhaps right after the final game?) the coach filed suit against the district, claiming that it had infringed on his constitutional rights.  In the suit, the coach was very specific.  He understood that he could not lead, initiate or mandate prayer. He understood that he’d been ordered not to “participate.” But all he wanted to do was to show respect for his players and their prayers by 1) bowing his head during grace; and 2) taking a knee with them in the locker room.

This generated a 24-page opinion from the 3rd Circuit Court of Appeals. All three judges ruled for the school district on this one, holding that the restrictions on the coach were not only constitutional—they were mandated if the school was to avoid violating the Establishment Clause.

Cases like this drive a lot of people crazy.  I’m guessing that the majority of people, and almost all football coaches, would agree with the coach that his silent gestures only signaled respect—not endorsement of religion.  The judges saw it otherwise, although you can tell from their opinions (all three had something to say) that it was a close call, and at least one of them did not much like the outcome.

These arguments continue.  Many of you probably read about the Christmas-oriented Charlie Brown poster that landed Killeen ISD in court right before Christmas.  As long as we have freedom of religion along with a prohibition of government endorsing religion we are going to have some tension around these issues.

The Borden case was decided by the 3rd Circuit Court of Appeals on April 15, 2008. We found it at 523 F.3d 153.

DAWG BONE: TEACHERS AND COACHES HAVE FREEDOM OF RELIGION….BUT NOT SO MUCH WHEN ON THE JOB

 File this one under: RELIGION

Tomorrow: an important case about the Public Information Act