Tag Archives: GOVERNANCE

We got no teacher unions here

I get angry when I hear Texas politicians blaming teacher unions for things.  You’ve heard the drill.  Teacher unions are loaded with money and political power and they use that muscle to protect bad teachers.  That’s why our schools are so bad.  It’s been repeated so often on so many TV and radio talk shows that it’s become the accepted conventional wisdom.

But it’s poppycock.  At least here in Texas it’s poppycock.  There are states where teachers have powerful unions, but Texas does not happen to be one of them.  To be a “union” you have to have the authority to engage in collective bargaining.  That’s illegal for public employees here in Texas.   If you’ve got no collective bargaining, you’ve got no union. What you have is an association that seeks to make life better for its members.

I guarantee you that if Texas had the kind of politically powerful teacher unions that exist in other states, the Senate would never have passed the insulting bill that bars teachers from paying  organizational dues by payroll deduction. The Senate bill allows cops and firefighters to use payroll deduction—but not teachers.

Big bad teacher unions make for a convenient scapegoat.  And if you are a politician who has helped undermine public education by raising standards while reducing resources, you sure need a convenient scapegoat.

It’s poppycock.


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Bond money to buy band uniforms? Who knew???

Mr. Strother complained that the Sweeny ISD was spending bond proceeds improperly.  Some of the bond money was used to buy band uniforms.  Is it OK to use bond money to dress out the band?

Apparently it is.  The auditor for Sweeny ISD said it was OK. The lawyer for the district said it was kosher.  And now Commissioner Morath has given his approval.

The statute says that bond money can be used for a variety of purposes, including the “equipment of school buildings in the district.”  Relying in part on an Attorney General’s Opinion from 1940 (A.G. Op. O-2547) the Commish tells us:

‘Equipment of a building’ is given a broad definition that includes items that are not normally attached to a building such as desks. Applying this definition to the present case, it would seem that band uniforms are equipment.  Band uniforms are intended for use in the enjoyment of a gym or stadium. Like most desks, band uniforms are not attached to a building, but they are often stored in a building.

Well, of course they are stored in a building. You wouldn’t want to leave the band uniforms out in the rain!

I’m pleased to let you know that Haley Turner of our law firm was the attorney for the district who persuaded the Commissioner that the district had done no wrong.  Haley tells me this practice of using bond proceeds for things like uniforms has been going on for some time but this is the first time we have had a specific decision approving of the practice. Nice work, Haley!

The case is Strother v. Sweeny ISD, decided by the Commissioner on November 29, 2016.  It’s Docket No. 017-R10-03-2016.


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See you next week!

Have you ever issued a “no-trespass” letter to a parent?

“Petitioner and Respondent have, to put it mildly, a rocky relationship.”  That’s Commissioner Morath’s characterization of the situation that exists between Killeen ISD and a parent.  The school district has issued letters to this parent since 2012, directing her to follow certain “protocols” when on district property.  The Commissioner characterized these as “no-trespass” letters.

The parent filed an appeal to T.E.A. but it wasn’t specifically about the “no-trespass” letters.  Instead, the parent alleged that a district employee defended the district’s decisions and in doing so made a false statement about the parent.

The Commissioner’s decision does not tell us what the statement was or who made it. Nor does the decision tell us whether the statement is true or false.  But it does tell us two things that are worth noting.

First, the Commissioner of Education in Texas “lacks jurisdiction over violations of federal law.” The parent asserted that the false statement violated a federal law.  The Commissioner noted that he lacks the power to address such an issue.

Second, allegations that a certified employee has violated the Code of Ethics should go to SBEC—not the Commissioner.  Again, this is a matter of jurisdiction.

Thus the case was dismissed for lack of jurisdiction, without any discussion of the legality or propriety of a “no-trespass” letter.

The lawyers in our firm have helped many school districts in situations like this.  The starting point is that school officials have the responsibility--and the duty--to maintain certain standards for all visitors to district property.  You can’t tolerate criminal behavior, threats of violence, or anything  that substantially disrupts school activities.  If you believe that a particular parent needs to be warned about such things, a written notice might be appropriate.  But we always recommend legal counsel in a situation like that.  Whenever you single out a particular parent for negative attention, you are likely to be accused of retaliation, discrimination of some sort and/or infringement on parent rights.

Slow down.  Talk to your lawyer. Craft your letter carefully.  We can help you with this sort of thing.

The case is Davis v. Killeen ISD, Docket No. 021-R10-03-2016, decided by Commissioner Morath on November 21, 2016.


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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.



Tomorrow: Coming to midwinter?

Annexation to Happy ISD: Denied.

We expect many people would like to send their children to the Happy ISD.  Among all of our school districts you would expect that Happy would rank right up there with Veribest and Paradise on customer satisfaction. So it’s not surprising to hear that someone might want to detach from one district and attach to Happy.  That’s what Ben Bressler tried to do, but it did not work.

Mr. Bressler presented a Petition for Detachment and Annexation to the Happy school board which granted the Petition. We expect they were happy to do so.  The folks in Canyon ISD, however, were not so happy about this. No one likes to lose territory. So the Canyon board voted it down.

This meant the matter was ripe for review by the Commissioner.   The Education Code says that when the Commish considers such a matter, he is to “consider the educational interests of the students in the affected territory and the affected districts and the social, economic, and educational effects of the proposed boundary change.” T.E.C. 13.051(j).

However, there are certain things that have to be proved before the Commissioner gets to those issues.  The petitioner has to provide 1) a metes and bounds description of the territory; and 2) evidence that a majority of the registered voters residing in the district signed the petition.  Mr. Bressler presented his case to the Commissioner, but failed to produce these two critical pieces of evidence.

Canyon ISD’s lawyers presented no evidence of their own, but just made a Motion for Judgment in favor of Canyon.  In this context, that’s legalese for “You left something out. WE WIN!”  The Commissioner agreed and granted the Motion.  Detachment and Annexation: Denied.

The case is Bressler v. Canyon ISD, decided by the Commissioner on August 25, 2016.  It’s Docket No. 052-R6-07-2015.  Our firm handled this one for Canyon—specifically Christine Badillo and Joey Moore.   Sharp lawyers, those two, I’m happy to report.


File this one under:  GOVERNANCE

The Wayback Machine: Board Fires the Superintendent. Is the Board “Incompetent”?

This is the second of two Wayback Machine entries this week. We’re doing this in anticipation of this weekend’s TASA/TASB Convention. We thought you’d be interested in old cases involving trustee removal.

Today we’re talking about the resolution adopted by the board in Nederland ISD on June 19, 1972. The resolution gave the superintendent, Emmett McKenzie, the opportunity to accept his termination in exchange for $20,000, which was the balance on his contract. The superintendent took the deal, but many members of the community were not happy about this. In the lawsuit, they noted that the majority of the board did not give any reasons for dumping the superintendent. They argued that this demonstrated incompetence.

The court’s opinion tells us that the superintendent had been a point of contention in NISD for some time. In a recent election, the anti-superintendents had taken over the majority on the board from the pro-superintendents. Shortly thereafter, Mr. McKenzie was gone.

(We know what some of you are thinking: plus ça change, plus c'est la même chose).

The jury sided with the pro-superintendent people, concluding that the board members were incompetent and should be removed from office. But on appeal, the decision was reversed. The court pointed out that there was nothing in the law that required the board to explain why they chose to buy out the superintendent. This was long before we had a Term Contract Nonrenewal Act, or Chapter 21 proceedings. Here, the court held that the board’s decision may have been unwise, but it was not illegal:

When public officials manifestly violate their duty, courts must have the courage to remove them or negate their actions. But where in a discretionary decision, such as here, the most that can be said is that perhaps poor judgment was used; for the courts to fly in and substitute their judgment for that of elected officials would be to undermine the very foundation of our political system.

The court concluded that the remedy of the plaintiffs in this case was “political, not judicial.”

The case is Harper v. Taylor, decided by the Court of Civil Appeals in Beaumont on January 11, 1973. You can find it at 490 S.W.2d 227.


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Tomorrow: Oh No! We are 0-4!! Can we fire the coach?

The Wayback Machine: Trustees Ousted for Keeping Taxes Too Low

With the TASA/TASB Convention about to open, we thought it would be interesting to enter the Wayback Machine and look at two long ago cases where legal efforts were made to remove school board members from the board. In both cases a jury found the board members incompetent and worthy of dismissal. One case was about school finance. The other was about firing the superintendent. We will review one today and the other tomorrow.

Today’s case arose in Aldine ISD in 1959, and it was all about the tax rate. The Harris County Attorney charged three Aldine ISD board members with incompetence and official misconduct when they voted for a tax rate they knew would be insufficient for the operation of the school for the upcoming year. The charge was that the board had adopted a budget that required a tax rate of $1.59 and then these three voted for a tax rate of $1.35, knowing full well that the district had no means of making up the difference.

The case went to a jury which ruled against the three trustees. The court then tossed the three off the board and the Court of Appeals affirmed that ruling. Wow! In light of the anti-tax sentiment that is so prevalent today, we thought the following quotes from the court’s opinion were noteworthy:

In fact, it appears to this Court that respondents [the three board members] wholly disregarded the advice that they had received with reference to what was necessary for the operation of the school, and did nothing to avert the threatened and impending bankruptcy of the school district which resulted in the closing of the school before the school term was out.

As we understand our school laws and the statutory duties of the Trustees of our school districts it occurs to us that the failure of [the three board members] as above indicated and found by the jury is and was an outright violation of their clearly defined statutory duty.

The Dawg found it interesting that the three guilty board members turned to a convenient scapegoat—the attorney--who advised them to do what they did. The court was not impressed:

Under the undisputed factual situation here the duty of the respondents was crystal clear with or without legal advice.

The case is Tautenhahn v. State, decided by the Court of Civil Appeals in Waco on March 31, 1960. You can find it at 334 S.W.2d 574.


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Tomorrow: Trustees ousted for the way they ditched the superintendent.

Charters Revoked. LaMarque ISD Shut Down. T.E.A. Vindicated.

In three recent decisions, the Austin Court of Appeals has validated T.E.A.’s authority to take strong action—action to revoke a charter school’s charter, or to shut down a traditional district.  All manner of legal arguments were put forth by the schools in these cases to no avail.   We’re not going into detail on these cases here, but just want to let you know that the failure to meet state standards can have major negative consequences.

Two of these cases involved the revocation of a charter school’s charter. They are Texas Education Agency v. American YouthWorks, Inc. 2016 WL 3230661, decided by the Court of Appeals in Austin on June 10, 2016; and Texas Education Agency v. Academy of Careers and Technologies, Inc., 2016 WL 3917177, decided on July 13, 2016.

The third case is Morath v. LaMarque ISD, 2016 WL 3517955, decided on June 24, 2016.


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Is it risky for board members to text each other about school business?

It is a violation of the Texas Open Meetings Act for a school board member, or a group of members, to knowingly conspire to circumvent the Act by meeting in numbers less than a quorum for secret deliberations.  However, to prove that the Act has been violated, you have to show that a quorum of the board is involved.  Thus evidence that three of the seven board members are meeting secretly to discuss school business will likely fall short of proving a TOMA violation.

This came up in Harper v. Best, a Court of Appeals decision from April of this year.  The state charged Mr. Harper, a member of the Somervell County Hospital District, with violating TOMA via text messages that he sent to other members.  The Hospital District Board, like a school board, has seven members. So a quorum is four.

The evidence came close to proving that Mr. Harper violated the law, but fell one person short. The evidence showed that Mr. Harper had “conversations” with two other board members via text about the tax rate and other matters involving the hospital district.  But three board members doth not a quorum make.  The only evidence about a fourth board member was a single text in which Mr. Harper referenced that he had informed the fourth member of the motions he intended to make.  Importantly, there was no indication that this fourth board member responded or in any way took part in the “conversation.”

The court pointed out that the charge of “conspiracy to circumvent” TOMA requires proof that the purpose of the parties was to conduct “secret deliberations.”  (Emphasis added).  A “deliberation” is “a verbal exchange.”  Thus to prove that Mr. Harper conspired to circumvent TOMA there would have to be some evidence of an “exchange.”  Since there was no evidence that the fourth board member had joined in on the discussion, the case fell short.

Is it risky for school board members to communicate about school business outside of a duly called meeting?  Absolutely.  But as this case indicates, “risky” does not always lead to liability.

The case of Harper v. Best was decided by the 10th Court of Appeals on April 21, 2016.


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Tomorrow: Have you heard of The After School Satan Club?

Canadian ISD Trustee sues for defamation….

School board members who sue for defamation will likely have to prove “actual malice” in order to win.  That’s the upshot of the decision by the Texas Supreme Court in a case brought by former Canadian ISD trustee, Salem Abraham.

Mr. Abraham claimed that an internet blog, AgendaWise, defamed him in its description of what happened at a public campaign event in Levelland in 2012.  The event was sponsored by Jim Landtroop, a candidate for state legislature.  Mr. Abraham supported Ken King, Landtroop’s opponent.  The original post on the blog stated that Mr. Abraham “had to be forcefully removed…by Governor Perry’s DPS detail.”

Mr. Abraham complained about this to Daniel Greer, the executive director of AgendaWise, and as a result, the blog issued a correction that stated that Mr. Abraham “was asked to leave” the event “for heckling.” The post added that Mr. Abraham “cooperated” with this request.

Mr. Abraham complained again, thus leading to a second correction which read as follows:

Correction: On Wednesday August 1, Mr. Abraham contacted AgendaWise claiming he was not forcefully removed by DPS agents, as an earlier version of this story claimed.  According to Mr. Abraham, he was asked to leave by campaign personnel, voluntarily cooperated, and DPS wasn’t involved.  The portion about Mr. Abraham’s exit has been omitted.

AgendaWise also sent two letters of apology to Mr. Abraham.

He sued anyway.

The case worked its way to the Texas Supreme Court, where the issue was: does Mr. Abraham have to show “actual malice” to win his case?  In a defamation suit (slander or libel) an ordinary citizen only needs to prove that the defendant made statements that are defamatory and false.  But a “public official” has to show something more than that: actual malice. This is based on a famous U.S. Supreme Court decision, New York Times Co. v. Sullivan, (1964).

Mr. Abraham essentially argued that this incident had nothing to do with his service on the Canadian school board.  He was not acting as school trustee when he attended this event—he was participating as a citizen in a campaign event organized by a candidate for the state legislature. Moreover, the event was held in Levelland—200 miles from Canadian.  The internet blog said nothing about Mr. Abraham’s service on the school board.

According to the Supreme Court, none of that mattered. The court made four key points about defamation suits involving public officials.

First, some public officials are “so well known in their communities that the general public automatically associates them with their official positions.”  This would appear to apply to Mr. Abraham, who served on the Canadian board for 12 years, including service as president and vice president.  Moreover, he is a 4th generation Canadian, a highly successful businessman, and perhaps the only resident of Canadian, Texas with a Wikipedia page.  The guy is well known.

Second, the “public official” designation applies only when the case involves that person’s “official conduct.” But the court, citing New York Times, Co. v. Sullivan, noted that this includes not just official actions, but also “the official’s fitness for office.”  Thus allegations that a school board member had to be forcefully removed from a public meeting by the DPS might meet that requirement.

Third, “actual malice” is “about the defendant’s attitude toward the truth, not his attitude toward the plaintiff.”

The court’s fourth point is the one of most importance to other school trustees, most of whom are not as well known as Mr. Abraham:

School board trustees are accessible to the public, they are the public’s link to public education. ….they have many public responsibilities. They hire and fire superintendents, set the annual budget, negotiate and approve contracts, seek voter approval of bond packages, set goals, and generally establish a vision for the district. Their meetings are typically open to the public, and, as a board, they are accountable for the school district’s performance.  Abraham’s office is thus a very public one.

This case still has a long way to go.  Mr. Abraham’s attorneys have made a number of other arguments, including the important assertion that an internet blog of this nature is not true “journalism.”  But this ruling from our state’s highest court is important for all school board members.  While few are as well known in their local communities as Mr. Abraham, the court’s sweeping language about the public nature of service on a school board makes it more likely than not that a school trustee seeking relief in a defamation suit would have to show actual malice.

The case is Greer v. Abraham, decided by the Texas Supreme Court on April 15, 2016.   We found it at 2016 WL 1514425.


File this one under: GOVERNANCE