It was a weird set of circumstances that induced former Commissioner Michael Williams to ask the Attorney General about the legality of flat fee contracts between a school district and a law firm. The LaMarque ISD was going out of business, with the board of trustees being replaced by a Board of Managers appointed by the Commissioner. Before the transfer of power, the LISD board of trustees hired a law firm to file a lawsuit to keep the district alive.

We’re just guessing that if the flat fee for this work had been $5000 nobody would have questioned the arrangement. But the contract fee was $300,000. This much was guaranteed to the law firm, regardless of how much time the lawyers spent on the case. But they would be keeping track of their time, and if they went beyond 750 hours, the district would be billed at the firm’s hourly rate: $400/hour. So the law firm could not possibly lose on this deal.

Commissioner Williams asked the A.G. whether such an arrangement amounted to an unconstitutional gift of public funds. Complicating the matter was the fact that the board of trustees would not be around to oversee the litigation, since they would be replaced by a Board of Managers.

The A.G. has now issued his opinion and it tells us….not much. There is no direct answer to the questions posed. Instead, the A.G. expresses some general principles and then notes that the situation is fraught with too many “fact issues” which cannot be resolved through an A.G.’s opinion.

What are the general principles? That the school board manages and governs the district; that the board can employ lawyers to sue or to defend the district; that the board can expend money for these purposes; that expenditures must be “for a public purpose” and must “provide a clear public benefit in return.” And that trustees have a lot of discretion to decide whether or not a “public purpose” and a “public benefit” are being provided.

A flat fee contract is permissible, and if the majority of the board thinks the deal is a good one, then it probably passes all legal tests. Obviously, if members of the public think the board is wasting money there is always “public comment time.”

Attorney General’s Opinion KP-0099 was issued June 27, 2016.

DAWG BONE: FOR MOST DISTRICTS, RETENTION OF LAWYERS IS GOVERNED BY POLICY BDD. TAKE A LOOK.

File this one under: GOVERNANCE

DEAR DAWG:

I’ve got a “hairy” one for you! Our school board has taken a bold step forward toward educational excellence. All seven members solemnly pledged to shave our heads completely bald if our STAAR scores reached a certain point. This got a lot of publicity and really fired up the teachers and the kids. Sure enough, the scores went up and we had to prove that we would follow through on our commitment. Well, Dawg, it was quite a sight at our last board meeting. In strolled six of us, bald as billiard balls. Then we saw LulaMae, the seventh member of the board, with a full head of hair. She said, “One: I didn’t think the kids could do it. Two: I thought we were kidding. Three: I’m the only lady on the board and the rule shouldn’t apply to me. Four: my husband already told me that he signed up for better or for worse, but not for bald. Do you want to be responsible for a broken home?”

This is a delicate situation, Dawg, but we feel that LulaMae should follow through. If she doesn’t, what message are we sending the kids? If we make an exception for her based on her gender, are we violating Title IX? Some of the board members want to get her kicked off the board. What do you think? I DON’T LOOK SO GOOD, BUT AT LEAST IT’S A LOT COOLER IN THE SUMMER THIS WAY.

DEAR I DON’T LOOK:

Not much chance of getting LulaMae removed from the board based on this. Voters can’t recall a board member and we doubt that a judge would find this to be good cause for her removal. And I wouldn’t worry about Title IX on this one. You could try public shame, but we think that’s going to backfire on the six of you men picking on LulaMae. Enjoy your cool head and give LulaMae a break.

DAWG BONE: LET COOLER HEADS PREVAIL

File this one under: GOVERNANCE

A non-profit organization called COPE (Citizens for Objective Public Education) filed suit against the State Board of Education in Kansas over the curriculum standards for science.  COPE alleged that the Kansas board was “seeking to establish a non-religious worldview in the guise of science education.  It argues that such a worldview will be inculcated in children throughout their thirteen-year public school experience by requiring students, beginning in kindergarten, to answer questions about the cause and nature of life with only scientific, non-religious explanations.” According to the suit, this is all part of a plan that is “driven by a covert attempt to guide children to reject religious beliefs.”

The federal court tossed the case out, and now the 10^th Circuit has affirmed that ruling.  The court held that COPE had failed to establish “standing” to sue.  The suit alleged injuries that the court found to be speculative, based on what might happen in the future.  Thus with no “standing” the court did not have jurisdiction to consider the merits of the case.

However, the court’s opinion casts considerable doubt on the validity of any curriculum-based attack as broad as this one.  As a general rule, federal courts have always been reluctant to “constitutionalize” decisions about the curriculum to be taught in the public schools.  There are plenty of avenues for concerned citizens to have their voices heard about curriculum standards. Those fights will continue to be fought before textbook committees, school boards and state agencies.  Judges generally stay out of the fray.

The case is COPE v. Kansas State Board of Education, decided by the 10^th Circuit Court of Appeals on April 19, 2016.  We found it at 2016 WL 1569621.

DAWG BONE:  JUDGES DON’T LIKE TO “CONSTITUTIONALIZE” CURRICULUM DEBATES.

File this one under: GOVERNANCE

Are you planning to attend the Summer Leadership Institute in San Antonio?  If so, the Dawg recommends that you catch the two presentations done by attorneys with our firm.  On June 16 at 11:15, Elizabeth Neally and Robb Decker present “WTFNG: Effectively Navigating District Grievances.”  Then on June 17 at 9:30 you can hear Mark Goulet and Joey Moore on “Freedom of Tweets: School Board Members and Social Media.”  And don’t forget to stop by the Walsh Gallegos table!

TOMORROW: CAN YOU BAN ADULTS FROM THE FELLOWSHIP OF CHRISTIAN ATHLETES MEETINGS?

A citizen complained to the Attorney General that the Elgin ISD was violating the law by excluding handgun license holders from carrying their guns into the school administration building. The school had posted the appropriate signs just inside the two front entrances of the building.  Everyone knows that guns are prohibited in the building where the teachers and the kids are. But what about the admin building?

The AG concluded that the district did not violate the law:

Having concluded that the district is an educational institution pursuant to Penal Code Section 46.03(a)(1), the OAG determines the signage at the front entrance of the district’s administration building is not in violation of section 411.209 of the Government Code.  The OAG is closing this complaint.

This is from a letter dated April 29, 2016, signed by Assistant Attorney General Matthew Entsminger, closing out OAG Complaint No. 23.

DAWG BONE: THE A.G. VIEWS THE ADMIN BUILDING AS A PLACE WHERE GUNS ARE PROHIBITED.

TOMORROW: A TYPE OF EMPLOYEE LEAVE YOU MAY NOT KNOW ABOUT!

Attorney General Ken Paxton has issued an opinion stating that school boards in El Paso County can probably post on their websites the personal financial statements of board members.  In the language of AG Opinions, Mr. Paxton said that “A court would likely conclude” that a board can do this if the majority so chooses, even over the objection of one of its members.

Why El Paso County? Because only in El Paso County are school board members required to submit a personal financial statement.

Why is that so?  Because the 2013 Legislature said so.

You may wonder: how does the Lege adopt a law that only applies to El Paso County?  Well, of course the law does not say that it only applies to El Paso County. Section 11.0641 of the Texas Education Code “applies only to the board of trustees of an independent school district that is located on the international border and in which a municipality with a population of 600,000 or more is located.”

Let’s see….international border. Big city.  Must be El Paso.  So now we will see if any of the nine districts in the county decide to divulge this information. Stay tuned.

This is from Attorney General Opinion KP-0069, issued March 14, 2016.

DAWG BONE: BOARD MEMBERS IN EL PASO HAVE LESS PRIVACY THAN OTHERS.

Many districts are making good use of an educational foundation to provide support, both financial and otherwise, for teachers and kids.  In fact, due to increased student enrollment, a rise in the number of students with special needs, and less money from the state, an educational foundation becomes almost a necessity.  The foundation and the school are united in a common mission, but it is important to keep them separate for legal and accounting purposes.

Public school resources can only be used for public educational purposes.  There are many non-profit and charitable organizations in your community that serve students or families and thereby benefit the overall mission of public education. But your board of trustees is required to make sure that public school resources—money, property and staff—are used only for the public schools and under the control of public school authority.

So it’s important to have a contract between your foundation and the school, setting out the parameters of the relationship.  If the foundation is allowed to use school office space, equipment, school logos, or have school staff perform some of its work, you will need to have a contract that expresses the public educational purpose for that. You will also need to maintain adequate controls.  The contract should be approved by board resolution, approving the arrangement with the foundation based on the board’s determination that it serves a proper public purpose.

We can help with this.  If you are thinking of starting up a foundation, or you have questions about your existing foundations, give us a call at Walsh Gallegos Trevino Russo & Kyle, P.C.

DAWG BONE: KEEP YOUR FOUNDATION AND YOUR SCHOOL SEPARATE WITH A CONTRACT.

Does your school district have an academic performance rating that is at least “acceptable”? Do the folks in your community like the idea of “local control”? If so, you should explore the possibility of becoming a District of Innovation.

This is a new concept for us in Texas, but has been done in other states. It came to Texas with the adoption of HB 1842 during the 2015 legislative session.  Some have referred to this bill as “charter school lite” because it empowers traditional schools to operate more like charters do—freed up from some of the requirements of state law.

We look for draft rules from the Agency sometime this month. When these are published, we encourage you to take a good look at them. The Agency will give us guidance as to how innovative a District of Innovation can be. For example, can the district exempt itself from Chapter 37—student discipline? What about Chapter 21, regarding teacher contracts?  HB 1842 sets out a few sections of state law that cannot be “innovated” away, such as graduation requirements.  And of course, a state law cannot exempt the district from the application of federal laws, such as IDEA, FERPA and Section 504.

But there is nothing in the language of HB 1842 that takes Chapters 21 of 37 off limits. In fact, the law allows for “any other innovations prescribed by the board of trustees.”

The process of obtaining D of I status is laid out in the law. Suffice it to say that the plan must be widely supported by the board (at least a two-thirds’ vote) and the community and only after a very transparent, open process of developing the plan.

So look for the draft rules, and talk about this in the district. Here at Walsh Gallegos Trevino Russo & Kyle, we are ready to help. Give us a call if you have questions.

DAWG BONE: BE THE FIRST IN YOUR COUNTY TO BE “INNOVATIVE”!