Illinois Legislature Shifts High Salary TRS Pension Costs to Local Districts and Creates New Tier III TRS Pension Plan

By Adam Dauksas

 

July 31, 2017

           Earlier this month, the Illinois General Assembly voted to override Governor Bruce Rauner’s veto of – and thereby turn into law – three crucial bills: SB 6, giving Illinois a new $36 billion budget; SB 9, raising the State’s individual income tax rate from 3.75% to 4.95%; and SB 42, addressing the budget’s implementation.  While the fact of actually having a state budget and the income tax hike have garnered much of the media’s attention, it is SB 42, the budget implementation bill, that contains significant changes which will immediately affect newer TRS members and all school districts. The “cost-shift” that school districts have long been expecting is beginning.                                                              

 Highly Compensated Employees

             Starting with the 2017-2018 school year, school districts will be charged the full TRS employer contribution (most of which was previously picked up by the State) for any employee’s annual creditable earnings that exceed the Governor’s salary (i.e. $177,412 currently).  Specifically, districts must now pay to TRS the employer’s normal cost (i.e. a percentage figure determined each year by TRS that is typically between 8%-12) multiplied by the amount of creditable earnings that are in excess of $177,412.  So, for example, if an employee’s creditable earnings during the school year are $200,000 and we assume an “employer normal cost” of 10%, the district would receive a bill from TRS for $2,258.80.  While this new cost may only affect a handful of administrators within a district, business managers should begin preparing and budgeting accordingly based upon its impact.

 Tier III Option

             Moreover, SB 42 created a new Tier III pension system option, intended to lessen the State’s pension responsibility.  In particular, employees who first become TRS members on or after a yet to be determined date (likely no sooner than July 1, 2018) will have the option to either join the current Tier II system or join a new Tier III hybrid defined benefit/defined contribution system.  Current Tier II members will also have the option to join the new Tier III system, but the Tier III system has no effect on current Tier I members or retirees. 

          With respect to the defined benefit portion of the new Tier III plan, an employee’s member contribution will be no greater than 6.2% of salary, instead of the current 9% for Tier I and Tier II members.  Meanwhile, with respect to the defined contribution portion of the Tier III plan, an employee must contribute at least 4% of his or her salary, while school districts will be required to contribute at least 2%, but no more than 6%, of an employee’s salary.  To further incent movement to Tier III, the legislature increased the cap on creditable earnings to the Social Security Wage Base – or about $15,000 higher than the current Tier II cap. Tier III members, however, will see a reduction in the yearly service credit factor, from the current 2.2% down to 1.25%.

          As you know, these changes come amidst uncertainty surrounding the status of SB 1, the evidence-based school funding reform bill.  We are closely monitoring that bill as well, and will provide an analysis if and when it is passed into law.  In the meantime, should your district have any questions regarding SB 42’s impact, please contact your attorney at Scariano, Himes and Petrarca, Chtd.     

 

SEVENTH CIRCUIT COURT OF APPEALS UPHOLDS PRELIMINARY INJUNCTION AND RULES AGAINST SCHOOL DISTRICT IN LOCAL TRANSGENDER CASE

 

By James Petrungaro & John Fester

 

June 2, 2017

             The federal appeals court having jurisdiction over Illinois schools released a unanimous decision by a three-judge panel this week that sends a strong message to school districts about how they should respond to transgender student bathroom access requests. In Whitaker v. Kenosha Unified School District No 1 Board of Education, the Seventh Circuit Court of Appeals ruled in favor of a student’s request for the issuance of a preliminary injunction, requiring the District to allow the transgender male student to use the boys’ restroom, pending a full review of the case at a later date. 

            At issue in the case is the school district’s decision (which the Court referred to as a “policy” despite the absence of a formal written policy on the issue), to deny the transgender male student access to the boys’ restroom. The school district told the student and his parent that it would allow the access only if the student could provide unspecified “legal” and “medical” certifications of being a boy, including proof of having undergone a complete surgical transition (which is not legally allowed for minors).  

          Background.    A basic understanding of the facts of the case are necessary to understand the Court’s decision. As of the ruling, the student was a 17-year old senior named “Ash” who was on the verge of graduation. During his freshman year of high school, Ash began to openly identify as a male, though he was born anatomically female. As a sophomore, he asked that teachers address him as a male. As part of his public transitioning to being a male, he saw a therapist and was diagnosed with Gender Dysphoria and in the summer before his senior year, began hormone replacement therapy. His public transitioning was largely without hostility or disruption and the record indicates that he was generally accepted by his high school community. 

            Toward the end of his sophomore year, Ash asked his school counselor for permission to use the boys’ restroom. The school district denied this request and assigned him to a gender-neutral restroom in the school’s main office, where he was the only student allowed to use that restroom. Ash initially reacted by restricting the intake of liquids to lessen his need to use the restroom and to combat the attention he thought would be drawn to the situation. But that approach aggravated a medical condition, which subjected him to an increased risk of fainting and seizures. During his junior year, Ash was also provided access to two other gender neutral and single-user restrooms. However, Ash used the boys’ restroom, notably without any incidents, disruptions or complaints to the district’s administration, until one day a teacher observed him and reported him to the administration. During the remainder of his junior year, Ash continued to use the boys’ restroom and was counseled several times about violating the District’s directives. 

            Heading into his senior year, Ash filed a federal lawsuit and requested a preliminary injunction to halt the school district’s “policy” prohibiting his use of the boys’ restroom. Ash alleged violations of Title IX and the Equal Protection Clause of the Fourteenth Amendment. For his Title IX claim, Ash argued that he was being unjustifiably discriminated against based upon the basis of his “sex.” For the Equal Protection claim, Ash argued that as a transgendered person, he is a member of a protected classification of individuals and his denial of equal access to the boys restroom was not justified by the school district. 

            In granting Ash’s preliminary injunction, the Court made quick work of finding that the school district’s policy decision subjected Ash to irreparable harm (a mix of physical and emotional injuries) and that Ash lacked other adequate remedies – both prerequisites of an injunction. The bulk of the Court’s analysis turned on whether Ash had viable claims under Title IX of the Civil Rights act of 1964 or the Equal Protection Clause of the U.S. Constitution. 

          Title IX.           The ultimate question in the Title IX claim was whether Congress intended to include transgender students in the statute’s protections against “sex” discrimination. The U.S. Supreme Court has not decided that question, leaving the Seventh Circuit to look to its own precedent and that of other circuits. Recognizing the lack of precedent in the student context and Title IX, the Court relied on its decisions in the employment context under Title VII.  

        First, the Seventh Circuit recognized that in 1984, it ruled in a transgender employment discrimination case that the definition of “sex” should be “given a narrow, traditional interpretation, which would…exclude transsexuals.” But the Court then acknowledged that the U.S. Supreme Court has held that Title VII does protect against “sex stereotyping,” including workplace policies that require employees to conform to certain standards of femininity or masculinity (e.g., sex-based dress codes). This is where the Court’s decision marked a sharp turn in transgender jurisprudence. Under a definition of “sex” that includes “sex stereotyping,” the Court ruled that Title IX does protect against discrimination of transgendered students, stating: “By definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.”  

            Equal Protection.        The Court then turned its attention to the Equal Protection claim and centered its analysis on whether the restroom decision was an intentional or arbitrary discriminatory decision by the school district. In an equal protection analysis, courts must first determine whether the discriminatory act affected a “protected class.” If so, the judicial scrutiny of the decision becomes elevated and less deference is given to the policymaker. Here, the Court held that the school’s decision was in fact based on “sex,” thus prompting “heightened scrutiny.” Under a “heightened scrutiny” standard, precedent requires the school district to prove that its policy is both “genuine” and “exceedingly persuasive” (as opposed to the lesser standard of merely being “rational”). At every turn, the Court rejected the school district’s claimed justifications, finding:  

  • The district does not treat all boys and girls the same with its segregated restroom policy (as claimed by the school district) because it treated Ash differently than any other student by assigning him to single-user facilities;

  • All privacy arguments raised by the school district for the other students sharing the restroom with Ash were unfounded conjecture (there were no complaints or protests from students);

  • Identifying an individual’s “sex” is not a black and white exercise that can be determined even by reliance on a birth certificate since that marker “does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex.”

  • Restrooms in general are not a purely private place and any student wanting privacy can use a stall.

Notably, the Court wrote:  

A transgender student’s presence in the restroom provides no more of a risk to other student’s privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or classmates… [I]f the School District’s concern is that a child will be in the bathroom with another child who does not look anatomically the same, then it would seem that separate bathrooms also would be appropriate for pre-pubescent and post-pubescent children who do not look alike anatomically.  

Impact on Legal Landscape.   It is first noteworthy that the posture of the case makes the Court’s decision technically less authoritative. The decision is “preliminary” and is officially just a prediction by the Court of how it will rule when the case runs its full course. The Kenosha School District will be given an opportunity put on a more exhaustive factual demonstration to persuade the Court to decide differently before it issues a final decision on the underlying merits. If the parties presented a fairly complete factual record at the time of the preliminary injunction hearing, however, the Court’s decision can reasonably be expected to stand. The practical effect of the decision cannot be understated, however. The Court’s reasoning on the rudimentary “legal” questions of whether transgender students are entitled to the legal protections of Title IX and the Equal Protection Clause are not expected to change absent reversal by the U.S. Supreme Court. Therefore, if a school district denies a transgender student use of the bathroom associated with his or her gender identity, or requires use of a single-occupancy bathroom, this case will almost certainly be followed by federal district judges should the student seek legal relief. School districts can expect transgender advocacy groups to widely publicize this decision, so you may see an increase in bathroom requests from transgender students, or an increase in transgender students no longer “asking” for what may now be considered a right. 

            This case is different than the Fourth Circuit’s decision in Grimm v. Gloucester County School Board. In Grimm, the Fourth Circuit’s transgender-friendly decision was largely rooted in administrative guidance issued by the U.S. Department of Education’s Office of Civil Rights (OCR) under the Obama Administration. After that case worked its way to the U.S. Supreme Court, OCR (then under the Trump Administration) rescinded its guidance and the U.S. Supreme Court remanded the case back down for further proceedings. This Seventh Circuit decision, however, does not rely on OCR’s position – in fact it makes no mention of OCR or the Grimm case at all.   

            The transgender student access issue is a politically charged and emotional matter that only in the last few years has come to the forefront of the school law landscape. Unless and until the Seventh Circuit reverses itself or is reversed by the U.S. Supreme Court, its decision can practically be treated as controlling for school districts in Illinois, Indiana and Wisconsin. Scariano, Himes and Petrarca is prepared to assist you in reviewing your transgender student practices and procedures in light of this significant decision.

 

NEW BOARD OF EDUCATION TO ORGANIZE BY MAY 2ND AND NEW BOARD MEMBER TRAINING REQUIREMENTS LOOM

April 26, 2017

Organization Meeting

With the results of the April 4th consolidated general election mostly certified by now, school boards in Illinois are reorganizing to seat new board members. No later than May 2, 2017, all school boards must hold their organization meeting where the oath of office will be taken, the new board will be seated, new board officers elected, board committees appointed and a schedule of regular board meetings will be approved.

Board Member Training

New board members must complete two kinds of mandatory training sessions and we recommend that a third type of training be taken as well.

Pursuant to the Open Meetings Act (“OMA”), new board members must complete OMA training within 90 days of taking the oath of office. The board member has the option of completing either:

  1. The online training tutorial provided by the Attorney General’s Office of the Public AccessCounselor (PAC); or

  2. OMA training provided by the Illinois Association of School Boards (IASB). Seehttp://iasb.com/training/nbmw.cfm for registration information.

    Once the OMA training has been completed, the board member must file a certificate of completeness with the school district’s administrative office.

    New board members must also complete professional development leadership training (PDLT) which is mandated by the School Code. Compliance with this provision is required within one year of the board member being seated to the board. School districts must indicate on their website which of its board members have completed the PDLT training.

    A third type of training is required under Performance Evaluation Review Act (PERA) for any board member who will be called upon to vote on a teacher dismissal based upon an optional alternative evaluation dismissal process. So while that training is not legally mandated for all school board members, it is necessary as a practical matter. The PERA training must be completed before a board member can vote on a PERA dismissal – which can arise during the first year of office. Accordingly, we recommend that the training be accomplished sooner than later.

    The trainings detailed above are required only once per board member. A board member who has been reelected to office and who has received these training previously has the option of attending the trainings, but is not legally required to do so.

    Following past elections, Scariano, Himes and Petrarca has provided direct training to new school board members in the areas of PDLT and PERA, while the IASB provided the same training. Instead of duplicating the efforts of our colleagues at IASB, this year we have partnered with IASB to provide the PDLT and PERA board member training. On June 16, 2017, Lynn Himes and James Petrungaro will be presenters for the PERA and PDLT training sessions at IASB’s New Board Member Workshop at the Tinley Park Convention Center. See http://iasb.com/training/nbmw.cfm for registration information. IASB will also be providing the mandatory OMA training on that day, allowing for board members to complete all three mandatory trainings in a single day.

    Tags:    Board Governance

                Reorganization

                OMA

                PERA

                Personnel

ILLINOIS SUPREME COURT REJECTS ATTORNEY GENERAL'S ATTEMPT TO EXPAND THE OPEN MEETINGS ACT

By James Petrungaro

January 23, 2017

SH&P Filed Amicus Brief Arguing Against Overreaching Interpretation Requiring Boards to Explain Significance of Transactions

            In a decision that provides relief to not only school boards but to all Illinois public bodies subject to the Open Meetings Act (“OMA”), the Illinois Supreme Court on Friday rejected the efforts of the Illinois Attorney General to significantly expand the public recital requirement of the government transparency law. Primarily at issue in the case was the Attorney General’s interpretation of Section 2(e) of the OMA, which provides:

No final action may be taken at a closed meeting. Final action shall be preceded by a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted.

The meaning of that “public recital” requirement was contested between the Attorney General and the Board of Education of Springfield School District No. 186 (“Board”) concerning the school board’s action in March 2013 to authorize a separation agreement with its superintendent.

           The circumstances of the authorization of the separation agreement are notable, if only to explain the Attorney General’s involvement in the matter. In late 2012, the Board and superintendent began talks about ending their employment relationship. By February 2013, the two sides had tentatively agreed on the separation terms. At the Board’s February 4th meeting, six of seven Board members signed the separation agreement, which had already been signed by the outgoing superintendent. The Board considered its obligation to authorize that agreement in a public session, and decided to delay that action until its March 5th meeting. Meanwhile, after obtaining a copy of the signed separation agreement, on February 21st, a local newspaper reporter named Molly Beck filed a challenge with the Attorney General claiming that the Board had violated the OMA by allegedly taking “final action” in closed session.

            While the Beck complaint was pending with the Attorney General, the Board moved forward with its plans to authorize the separation agreement at its March 5th meeting. On March 1st, it posted the meeting agenda on its website, including an electronic link to the separation agreement, thus allowing the public to view the entire agreement. At the meeting, the Board president then announced:

I have item 9.1, approval of a resolution regarding the separation agreement. The Board President recommends that the Board of Education of Springfield School District No. 186 vote to approve the separation agreement and release between Dr. Walter Milton, Jr., and the Board of Education.

The lone Board member who had not signed the agreement at the prior meeting dissented and moved to table the matter, commenting in support of the superintendent. Another Board member thanked the superintendent for his service, but the terms of the separation agreement were not discussed. The Board voted and the measure passed 6-1.

Following the March 5th meeting, the Attorney General’s investigation of the matter expanded from reviewing whether the Board had taken an illegal final action in closed session to reviewing whether the Board had made a sufficient “public recital” when it authorized the agreement at its March 5th meeting. The Attorney General determined that the Board’s March 5th public action was insufficient because it did not include a recital of the “nature of the matter being considered” and “other information that will inform the public of the business being conducted.” The Attorney General interpreted the other information requirement to mean that public bodies must recite the “key terms” of the transaction such that a member of the public attending the meeting could understand the significance of the action being taken. The Attorney General also determined that the Board’s signing of the separation agreement in closed session was a violation of the OMA.

The Board of Education appealed the decision to the Circuit Court where, the decision was reversed. The Attorney General then appealed the matter all the way to the Illinois Supreme Court, which ruled in favor of the Board of Education on all issues, with no dissenting justices. Like the courts below, the Supreme Court held that the Attorney General had read additional requirements into the OMA that the legislature had not intended. The Supreme Court announced that the OMA requires no such recitation of “key terms,” nor does it require that sufficient information be recited that would allow a public understanding of the “significance” of the action being taken. The Supreme Court also held that the Springfield Board of Education’s public recital, although not particularly informative of the terms of the separation agreement, was sufficient to meet the obligations of the OMA, which it determined requires only a recitation of the “essence” or “character” of the action in addition to the nature of the action. Notably, the court based its decision on the Board’s oral recital of the action at the meeting and ignored the fact that the separation agreement had been made publicly available online days before. The court noted that a public body must abide by the public recital requirement at the board meeting and that making the information available in advance of the meeting was not sufficient.

Additionally, the Supreme Court was not critical of the school board’s actions in closed session. The court confirmed that public bodies are permitted to discuss and even take preliminary votes on personnel matters in closed session, provided that a final public vote is taken thereafter.

The Supreme Court’s rejection of the Attorney General’s preferred approach should not be underestimated. Had the Attorney General’s interpretation been endorsed, an unworkable standard would have bogged down public meetings, as school boards would have been forced to decipher what “key” information was to be shared. Though in the context of a single employment action that might not be overly burdensome, doing so for more significant actions (e.g., authorizing lengthy construction contracts; approving entire collective bargaining agreements; approving accounts payable; etc.) would have taxed school boards and even disenfranchised the public from attending what would become unduly long and overly technical sessions. That is exactly what James Petrungaro and Kevin Gordon argued in the amicus brief that Scariano, Himes and Petrarca filed with the Appellate Court and Supreme Court on behalf of the IASB/IASA/IASBO Alliance.

Despite the important victory for public bodies, the particular information necessary to satisfy the “public recital” requirement of the OMA remains a fact-specific exercise. Your attorneys at the Firm are prepared to assist you whenever called upon.

  Tags:    Board Governance

            OMA  

NEW LAW REQUIRES SCHOOLS BUILT BEFORE 2000 TO TEST DRINKING WATER FOR LEAD CONTAMINATION

By Jack Murphy

 

January 17, 2017

 On January 16, 2017, Governor Rauner signed Public Act 99-0922 into law, which requires schools servicing kindergarten through 5th grades and built before January 1, 2000 to test the school’s drinking water for lead contamination.  The water must be tested by a laboratory accredited by the Illinois Environmental Protection Agency and the testing results must be provided to all parents and legal guardians through written or electronic communication. Samples returning results of lead contamination of greater than 5 parts per billion require individual electronic or written notice to parents/guardians of all enrolled students. Contamination of 5 parts per billion or less may be communicated individually or via the district’s website.

 The required sampling and analysis must be completed by December 31, 2017 for school buildings constructed prior to January 1, 1987; and by December 31, 2018 for school buildings constructed between January 1, 1987 and January 1, 2000. A school district may seek a waiver if it has appropriately tested its drinking water after January 1, 2013.

 The law provides that a school district may use its Fire Prevention and Safety Fund to pay for the costs of the laboratory testing as well as any costs affiliated with repairs to the drinking water supply.  Additionally, the new law permits school districts to transfer money from its Tort Fund to its Operations and Maintenance Fund subject to the hearing and notice requirements of Section 17-2A of the School Code.  Such transferred funds could then be used to pay for costs relating to the drinking water testing and any possible required repairs.

 If you have any questions about this new law and how it might affect your schools, please contact your Scariano, Himes and Petrarca attorney.

ILLINOIS SUPREME COURT DETERMINES SCHOOL BOARDS ARE OWED DEFERENCE OVER HEARING OFFICERS IN TENURED TEACHER DISMISSAL CASES

By James A. Petrungaro and Anthony Scariano III

 

January 6, 2017

             In a decision with vast implications for schools statewide, the Illinois Supreme Court recently determined that although hearing officers play an important role in tenured teacher dismissal cases, the school board’s decision on a hearing officer’s findings and the tenured teacher’s continued employment is entitled to deference.

            The facts in Beggs v. Bd. of Educ. of Murphysboro Comm. Unit Sch. Dist. No. 186, are quite detailed and lengthy, far too much to discuss at length in this bulletin. In short, the school board did not agree with the hearing officer’s findings of fact and ultimate recommendation that the tenured teacher at-issue should be reinstated, notwithstanding the teacher’s work attendance issues. Accordingly, pursuant to Section 24-12(d)(8) of the School Code, the school board supplemented the hearing officer’s findings of fact and modified them. The school board also made a final decision to dismiss the tenured teacher despite the hearing officer’s recommendation that the teacher be reinstated. Obviously unhappy with the school board’s overturning of the hearing officer’s recommendation, the tenured teacher filed a lawsuit in circuit court seeking administrative review of the school board’s final decision. After the Circuit Court reversed the school board’s decision, and the Appellate Court agreed with the Circuit Court, the school board appealed to the Illinois Supreme Court.

            The majority of the Supreme Court’s focus was on the Appellate Court’s opinion that the hearing officer’s decision, not the school board’s, should be given deference when reviewing tenured teacher dismissal cases. Ultimately, the Supreme Court determined that the plain language of Section 24-12 of the School Code provides that the school board’s decision is final for purposes of administrative review. Therefore, the Supreme Court reviewed the school board’s supplemental factual findings in addition to the hearing officer’s findings when determining the correctness of the school board’s decision.

            Ultimately, The Supreme Court found that the overwhelming majority of the school board’s factual findings were against the manifest weight of the evidence (i.e., not credible), and the school board’s decision to dismiss the teacher was therefore clearly erroneous. The decision therefore serves as a reminder that school boards intending to refute and ignore an ISBE hearing officer’s findings of fact and recommendation to reinstate a tenured teacher should be wary that those decisions will be reviewed with careful scrutiny by the Court. Nevertheless, the Court’s decision regarding the deference owed to school boards (as opposed to hearing officers) in teacher dismissal cases sets important and valuable precedent for boards of education.  As always, if you are faced with a situation regarding potential discipline of a tenured teacher, we are here to guide you through that process.    

COURT DENIES PARENTS' ATTEMPT TO HOLD SCHOOL DISTRICT LIABLE FOR FAILING TO PREVENT STUDENT BULLYING

By James Petrungaro

November 28, 2016

            In the last few years, we have seen a mounting increase in parent-lawsuits seeking to impose liability against school districts related to student bullying. Typically relying on the bullying provisions that were added to the School Code over the last 10 years, most of those lawsuits included a tort claim that school officials responded to the bullying with willful and wanton disregard. Thanks to the immunity provided in the Tort Immunity Act for the discretionary actions of school administrators, most school districts have found success in defending these tort claims on a motion (or very low settlement) prior to reaching trial. Under that immunity, courts have largely held that so long as the District can demonstrate that it did not recklessly disregard the bullying, and so long as the District implemented some response to the situation within the framework of the District’s bullying policies and procedures, the case should be dismissed.

            As bullying cases have exceedingly been dismissed on the basis of that immunity, parents’ attorneys have adjusted their strategy in choosing which legal claims to file against school districts. That strategy was most recently on display in Mulvey v. Carl Sandburg High School. In Mulvey, parents sought to hold the school district liable for physical and emotional injuries their daughters allegedly sustained as a result of being bullied by teammates on the basketball team.  

In addition to pleading the typical willful/wanton tort claim found in most bullying lawsuits, the Mulveys also asserted a breach of contract claim. Undoubtedly, the contract claim was an attempt to overcome the application of tort immunity, which is not a defense to a contract claim. The Mulveys argued that the school district’s Parent-Student Handbook and board policy – which collectively prohibit bullying and set forth procedures for investigating bullying claims and disciplining those who commit bullying – created a binding and enforceable contract between the students and the school district.

            The Appellate Court didn’t agree with the parents’ arguments, holding that the handbook and policy didn’t satisfy at least two of the essential elements of a viable contract claim: a promise that was broken by the defendant and consideration from the plaintiff as part of a bargained-for-exchange.  First, the court determined that the policy and handbook lacked a promise by the school district to prevent or eliminate bullying. Second, the court denied the parents’ claim that their daughters’ attendance at school was valid consideration, instead holding that attendance was required by law. As a result, the court dismissed the contract claim. The willful and wanton claim was also dismissed, with the court finding that the tort immunity for discretionary actions applied because the bullying policy necessarily required the exercise of discretion by school officials.

            The Mulvey case underscores that although school officials must meet the demands of the School Code’s anti-bullying provisions by having a well-crafted bullying policy in place and being responsive to bullying claims, so long as school leaders provide a reasonable response to bullying incidents within the framework of the policy, they will generally be free from liability. To ensure that the District’s response to the bullying claim falls within the tort immunity for discretionary actions, we remind you that documentation of the administration’s response to the bullying should be kept as part of the student record.

 

2016-2017 SH&P ELECTION MANUAL RELEASED; COOK COUNTY CLERK UNVEILS NEW ONLINE "RUNNING FOR OFFICE STARTER KIT"

By Adam Dauksas

October 14, 2016

    Scariano, Himes and Petrarca, Chtd. is pleased to share with you its 2016-2017 Election Manual, which is attached.

    Additionally, last week, the Cook County Clerk’s Office released its new online “Running for Office Starter Kit.”  This application allows suburban Cook County residents to enter their address and, depending on where they live, then provides all of the available offices for which they can run.  Once a specific office is chosen, the “Running for Office Starter Kit” then shows a wealth of information related to that office (e.g. previous election results, what forms must be filed by a candidate and where to file them, and the number of seats to be elected).  Finally, the “Running for Office Starter Kit” will generate a candidate packet that prepopulates the Statement of Candidacy, Petition, and Loyalty Oath (which is optional) forms with the user’s information, thereby reducing the likelihood of costly candidate filing mistakes (Note: The program does not produce a Statement of Economic Interest form, which is required to be filed by school board candidates).

 Tag:     Elections

RECENTLY ENACTED LEGISLATION AFFECTING SCHOOL DISTRICTS

September 2, 2016

             As school districts begin a new school year, Scariano, Himes and Petrarca, Chtd. is pleased to provide the following summary of some of the new laws that may affect your district’s operations. To access our recent eBlackboard on the Local Government Travel Expense Control Act, which was approved by Governor Rauner on July 22, 2016, please click here.  If you have any questions or concerns about the following, please contact your attorney at Scariano, Himes and Petrarca, Chtd. 

Student Residency Procedures

 Public Act 99-0670 

            This amendment to the School Code makes several significant changes to the process by which school districts adjudicate student residency matters. As of January 1, 2017:

 1. The school district’s initial determination that the student is a non-resident must detail the specific reasons why the school district arrived at that determination.

 2. If a hearing is requested, at least 3 calendar days before the hearing, both parties must submit to each other all written evidence, testimony, and a list of witnesses. The hearing notice sent by the school district must notify the person requesting the hearing that if the above is not disclosed in time, it will be barred at the hearing unless the other party consents.

 3. Extends the deadline for a school board to decide residency matters to 30 calendar days (from 15) after the conclusion of the hearing.

4. Gives the person who enrolled the student the ability to petition the regional superintendent for review of the board’s decision regarding the student’s residency and details the procedures governing that review.

 Open Meetings Act and Transparency of IMRF Retirement Payments

 Public Act 99-0646

             This law requires school boards to discuss, and disclose, at a minimum, the following at an open meeting before making a “disclosable payment” to IMRF employees (a payment that would increase the employee’s reportable monthly earnings by at least 6%, and is made between a year and 90 days before the employee retires) who began participation in IMRF before January 1, 2011, and are not subject to a collective bargaining agreement: (1) the employee’s name; (2) the purpose and amount of the increase or payment; (3) the employee’s retirement date; (4) the effect of the payment upon the employee’s expected retirement annuity; and (5) the effect of the payment upon the liability of the employer to the Article 7 fund.

FOIA – Noncompliance and Associated Fees and Presumptions

 Public Act 99-0586 

            This Public Act makes the following changes to the Freedom of Information Act effective January 1, 2017:

 1. If a requester seeks relief in circuit court after a request is denied, there will be an automatic presumption that the school district willfully and intentionally failed to comply with FOIA if: (1) the Attorney General’s Public Access Counselor (“PAC”) issued a binding opinion regarding the request; (2) the school district does not seek administrative review of the PAC’s opinion within 35 days of being served with the PAC’s opinion; and   (3) the school district does not comply with the PAC’s opinion within 35 days of being served with the PAC’s opinion.

 2. The school district can rebut the presumption in #1 above by showing that it is making a good faith effort to comply with the PAC’s opinion, but compliance was not possible within the 35-day time frame.

 3. If a requester seeks relief in circuit court after a request is denied, and the court determines that the school district willfully and intentionally failed to comply with FOIA, or acted in bad faith, an additional penalty of $1,000.00 (on top of any civil penalties assessed per occurrence of bad faith or willful non-compliance) may be imposed for each day non-compliance continues if: (1) the school district fails to comply with the court’s order after 30 days; (2) the court’s order is not on appeal or stayed; and (3) the court does  not allow additional time for compliance with the court order. 

Speech Rights of Student Journalists Act

 Public Act 099-0678 

            Effective July 29, 2016, public high school students who gather, compile, write, edit, photograph, record, or prepare information for dissemination in school-sponsored media have the right to exercise freedom of speech and press in school-sponsored media, regardless of whether the media is supported financially by the school district or produced in conjunction with a class. The Act prohibits prior restraint of material prepared for official school publications unless the speech is: (1) libelous, slanderous, or obscene; (2) constitutes an unwarranted invasion of privacy; (3) violates federal or State law; or (4) incites students to commit an unlawful act, to violate policies of the school district, or to materially and substantially disrupt the orderly operation of the school. The Act places the burden on school officials to show justification without undue delay prior to limiting the student speech that is in question, and provides civil and criminal immunity to school districts, employees, and parents/guardians for student expression, except in cases of willful or wanton misconduct. 

Prevailing Wage Resolutions

Senate Bill 2964 (vetoed) 

            Senate Bill 2964’s most significant amendment to the Prevailing Wage Act would have required the locally approved prevailing wage to be no less than the rate for similar work performed under collective bargaining agreements in the area so long as those agreements covered at least 30 percent of workers on the project. However, on July 22, 2016, Governor Rauner issued an amendatory veto, which returns the bill to the House and Senate. Both houses can vote to either accept the Governor’s proposed amendments with a simple majority, or with at least 60% of the vote in both houses, override the Governor’s amendatory veto. Unless either of those actions happen, SB 2964 is dead. 

School Construction Projects and Zoning Compliance

Public Act 99-0890 

            Boards of education are now required to comply with any valid local government zoning ordinance or resolution that applies where the pertinent part of the school district is located. This law amends the Counties Code, Township Code, and Illinois Municipal Code and requires counties, townships, and municipalities to make reasonable efforts to streamline the zoning application and review processes for school boards and minimize the administrative burdens involved in the zoning review process. This includes requiring counties, townships, and municipalities to reduce application fees and other costs, limiting the number of times a school board must amend site plans, and reduce the number of copies that need to be submitted to each body of local government during the zoning review process.  

Amendment to the School Breakfast and Lunch Program Act

 Public Act 99-0850 

            This law requires school boards to provide “breakfast after the bell” (i.e. breakfast in class, grab and go breakfast, and second-chance breakfast) to students in each school building: (1) in which at least 70% of students qualify for free or reduced-price lunches based upon the previous year’s October NSLP claim; or (2) in which at least 70% of students are low-income based upon the Fall Housing Data from the previous year (for schools that do not participate in the NSLP). The effective date of the law is January 1, 2017. However, the program would not need to be implemented until the first school day of the 2017/2018 school year. 

            There is a “safe-haven” for school districts who are already providing school breakfast effectively to 70% or more of free or reduced-price-eligible students or if expense reimbursement would not cover the costs of implementing a “breakfast after the bell” program. The board must hold a public hearing and pass a resolution if it finds that, pursuant to a cost analysis, the reimbursement would not cover the cost of the program. 

Food Contracts

 Public Act 99-0552 

            Effective July 15, 2016, school boards are prohibited from entering into a contract to purchase food if the contract terms prohibit the board or school district from donating food to food banks, including, but not limited to, homeless shelters, food pantries, and soup kitchens. 

Insuring School Buses

 Public Act 99-0595 

            Allows the Illinois Vehicle Code’s minimum insurance requirement for school buses of $2,000,000 to be satisfied by either: (1) a $2,000,000 combined single limit primary commercial automobile policy; or (2) a $1,000,000 primary commercial automobile policy and a minimum $5,000,000 excess or umbrella liability policy. 

Prohibition of Employers’ Access to Employees’ and Applicants’ Online Accounts

 Public Act 99-0610 

            Effective January 1, 2017, the Right to Privacy in the Workplace Act will be amended to prohibit employers or prospective employers from requiring or coercing any employee or applicant for employment to: (1) provide their username, password, or any other information that would allow the employer or prospective employer to gain access to the employee’s or applicant’s personal online account; (2) access the employee’s or applicant’s personal online account in the presence of the employer or prospective employer; (3) invite the employer to join a group affiliated with any personal online account of the employee or applicant; and (4) join an online account established by the employer or add the employer to the employee’s or applicant’s list of contacts that enable the contacts to access the employee’s or applicant’s personal online account. The amendments also prohibit employers from retaliating against employees who refuse to do any of the above.

             The amendments also carve out several “safe havens” for employers who may, under certain circumstances, need to screen, access, or gather content from employees’ or applicants’ personal online accounts. 

Withdrawal from Special Education Joint Agreements (Elementary Schools)

 Public Act 99-0729 

            This law amends the School Code immediately to allow elementary school districts (maintaining grades up to and including the 8th grade) to withdraw from special education joint agreements subject to various, specific conditions.

ADA Training During Teacher Institute Days

 Public Act 99-0616 

            Beginning with the 2016-2017 school year, teacher institute days must include, at least once every 2 years, professional development on the subject of the Americans with Disabilities Act as it pertains to the school environment.

Interfund Transfers

 Public Act 99-0713 

            In a previous eBlackboard, we told you that Section 17-2A of the School Code granted boards of education the authority to transfer money between the Educational, Operations and Maintenance and Transportation Funds for any reason, but that authority would expire on June 30, 2016. Through Public Act 99-0713, the legislature has extended the authority for the transfers under Section 17-2A to June 30, 2019. In addition, Section 17-2.11(j), which grants boards of education the authority to transfer surplus life safety tax revenue and interest to the Operations and Maintenance Fund, was similarly extended. Both types of transfers require notices, hearings and resolutions. 

Monthly Reports of Concussions from High Schools

 Public Act 99-0831 

            This law immediately requires the IHSA to mandate its member schools that employ certified athletic trainers to complete a monthly report on concussions suffered by its student-athletes during a school-sponsored activity or event. This mandate requires the reporting to take place immediately during the months of the 2016-2017 school year. The law provides immunity to IHSA-member high schools from civil and criminal liability that could result from reporting the required information, except for willful or wanton misconduct. The law also gives the IHSA the authority to “take action” against a member school if the member school fails to adhere to its reporting requirements. 

Epi-Pen Administration

 Public Act 99-0711 

            We previously reported on amendments to the School Code that affected epinephrine administration in schools. This law further amends those School Code provisions to add school buses to the list of locations where asthma medication and epinephrine auto-injectors (better known as Epi-Pens) can be carried and administered. Additionally, if a school district’s independently-contracted transportation provider maintains a supply of undesignated Epi-Pens, the amendments require those school districts to send a report to ISBE detailing how many undesignated Epi-Pens are in the transportation contractor’s supply. Recall that “undesignated” Epi-Pens are prescribed in the name of a school district instead of a particular student.    

Charter School Authorizations and Renewals

 Public Act 99-0840 

            This law amends the Charter Schools Law to provide that initial charters granted on or after January 1, 2017 shall be for 5 school years. Additionally, charters granted on or after the bill’s effective date may be renewed by a local board for incremental periods not to exceed 10 school years, and not to exceed 5 school years if renewed by the Charter Schools Commission.

ATTORNEY GENERAL'S BINDING OPTION HOLDS THAT EMAILS SENT AND RECEIVED ON PERSONAL EMAIL ACCOUNTS THAT PERTAIN TO PUBLIC BUSINESS ARE "PUBLIC RECORDS" UNDER FOIA

August 29, 2016

By James A. Petrungaro and Anthony Scariano III

            Earlier this month, the Illinois Attorney General’s Public Access Counselor (“PAC”) Office issued a binding opinion that has sweeping implications under the Freedom of Information Act (“FOIA”). The opinion stemmed from a FOIA request submitted by CNN to the Chicago Police Department for “all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed” for 12 police officers within two date ranges. As you may recall, Laquan McDonald was shot and killed by a Chicago police officer in October of 2014 and the release of the police video related to the incident sparked outrage, protests and the firing of CPD Chief Gary McCarthy, among other CPD changes. 

             The PAC’s opinion addressed whether emails on the officers’ personal email accounts met FOIA’s definition of “public records,” which includes electronic communications “pertaining to the transaction of public business...having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.” Ultimately, the PAC determined that the emails on the officers’ personal accounts were public records.

             The PAC reasoned that because public bodies always act through its employees and officials, emails discussing public business that those employees and officials prepare and possess do not lose their public character merely because the public body does not possess them on its servers. To the PAC, the inquiry under FOIA should be focused on the content of correspondence (such as emails), and not the method by which the correspondence is sent. 

             The PAC also reiterated the Illinois General Assembly’s intent when it created FOIA, which was to ensure that the public had full access to records pertaining to the transaction of public business. If the General Assembly’s intent was ignored, the PAC opined, public officials would be able to circumvent FOIA’s reach by using personal devices to discuss public business. The PAC did not address whether its decision concerning the reach of the Illinois FOIA is permitted by the Fourth Amendment of the United States Constitution, which prohibits unreasonable government searches and seizures of persons and their property.

            The City of Chicago has not yet announced whether it will appeal the PAC’s decision and its time for doing so has not yet expired. Although the PAC’s decision is binding on only the City of Chicago, the broad ruling of the decision and the likelihood that the PAC would issue a similar ruling in other cases means that it is effectively the law of the land unless and until overturned by a judge. Your attorneys at Scariano, Himes and Petrarca stand ready to assist you with navigating this far-reaching FOIA decision.

 

New Law Requires Specific Board Policy Regulating Travel Expenses

By James Petrungaro and Anthony Scariano, III

July 28, 2016

             Recently, Governor Rauner signed into law a new piece of legislation that regulates travel expenses for school districts and other units of local government. The Local Government Travel Expense Control Act requires that school boards enact a policy no later than July 1, 2017, regulating the reimbursement of all travel, meal, and lodging expenses of board members and employees, including at least the following:

 The types of business for which travel, meal and lodging expenses are allowed;

  • The maximum expense amount for travel, meal and lodging expenses;

  • A standardized form for the submission of travel, meal and lodging expenses that requires documentation of the expense (e.g., a receipt, invoices, etc.).The minimum documentation to be provided to the Board before an expense or reimbursement may be authorized is as follows:

    • A description of the actual amount of meal, travel and lodging expenses if already incurred, or an estimate if they have not yet been incurred;

    • The name and title of the individual incurring the expenses;

    • The date of the travel and the nature of the business being conducted.

             The Act also allows, but does not mandate, that the Board policy may permit expense/reimbursement approval beyond the maximum amount because of extraordinary circumstances or emergency. If a policy as outlined above is not approved by the Board by July 1, 2017, no travel, meal or lodging expenses of any kind – whether within the maximum limit or not – may be paid or authorized by the Board until such a policy is authorized.

             Furthermore, entertainment expenses that are not “ancillary” to the program or event may not be paid for by the Board under any circumstances.

            Additionally, the Act requires that by March 2, 2017, any (1) employee expenses or reimbursements that exceed the Board’s maximum amount as set forth by policy, or (2) Board member expenses/reimbursements (whether exceeding the maximum amount or not), must be authorized by a roll call vote of the board during public session. Based on the spirit of the law, we conservatively interpret that to mean that the action should be a separate, stand-alone action with each member of the board casting a vote.

             The conflicting timelines in the Act present an inconsistency in the legislation. On the one hand, the Act states that a new policy must be in place no later than July 1, 2017, otherwise no expenses or reimbursements may be authorized by the Board. On the other hand, the Act separately provides the earlier March 2, 2017 deadline for the policy as it pertains to establishing a maximum expense amount, which if exceeded by an employee, requires a roll call vote of the board. Accordingly, we recommend that the Board’s new expense policy be adopted no later than the end of February 2017.

             It is expected that PRESS and other similar policy subscription services will promulgate a model policy for boards to adopt. If your District does not use a policy subscription service or would otherwise like our assistance in preparing or reviewing a compliant policy, we stand ready to assist.

 Tags:    Board Governance

               Policies

               Operations

               Finance

New Regulations Clarify Overtime Entitlement

By John Fester

 May 26, 2016 

Last week the U.S. Department of Labor announced updates to federal wage regulations that will increase worker eligibility for overtime.  As a refresher, the general rule is that all employees are entitled to overtime after working 40 hours in a workweek, unless one of the exceptions set forth in the Fair Labor Standards Act (“FLSA”) applies.  Illinois also has an overtime law, but this update will focus primarily on the FLSA and the new regulations. 

The good news is that nothing in the new regulations applies to teachers.  Teachers remain exempt from overtime, regardless of salary level.  However, other school district employees will be impacted by the changes.  This is because the minimum salary that must be paid to a non-teaching employee in order to exempt that employee from overtime eligibility rises from $23,660 ($455 per week) to $47,476 ($913 per week) on December 1, 2016.  Employees paid hourly, or paid an annual salary of less than $47,476, will be eligible for overtime and no further analysis is needed. 

Remember that annualizing an hourly rate is not the same as being paid a “salary” for FLSA purposes.  Being paid on a “salary basis” means an employee regularly receives a predetermined amount of compensation each pay period.  The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work. With few exceptions (for example,  unpaid FMLA leave), an exempt employee must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours actually worked. 

However, the fact that an employee is paid on a salary basis is not alone sufficient to exempt that employee from the FLSA's overtime requirements.  Generally, one of the FLSA’s “white collar” duties exemptions must also apply.  These exemptions exclude "bona fide" executive, administrative, and professional employees from overtime requirements. Determining whether a “white collar” duty exemption applies requires a fact-specific review of a position’s actual job duties.  These exemptions will almost always apply to central office administrators (superintendent, assistant superintendents, directors, business managers, etc.) and building administrators (principals and assistant principals).   

Conversely, the “white collar” exceptions will rarely apply to support staff positions because of the authority required for the executive exemption; the discretion and independent judgment required for the administrative exemption; and the advanced knowledge and consistent exercise of discretion and judgment required of the professional exemption.  For example, even if you have an administrative assistant earning a salary of more than $47,476 on December 1, the position will remain eligible for overtime unless the administrative exemption test can be satisfied. 

Employers have a range of options for responding to the increased standard salary level. For each affected employee newly entitled to overtime pay, employers may, subject to applicable collective bargaining agreements and bargaining obligations: 

  • Increase the salary of an employee to whom a “white collar” duties exemption applies to at least the new salary level to retain his or her exempt status;
  • Leave the employee below the new threshold and pay an overtime premium (or compensatory time) of one and a half times the employee's regular rate of pay for any overtime hours worked;
  • Reduce or eliminate overtime hours;
  • Reduce the amount of pay allocated to base salary and use the difference to account for overtime for hours worked over 40 in the workweek, in order to hold total weekly pay constant; or
  • Use some combination of these responses.  Obviously, some responses will be received better than others by the employees. 

Just as has been done for non-exempt employees in the past, it will be essential for employers to keep accurate records of hours worked for those employees who become newly eligible for overtime on December 1.  As a refresher, the following records should be kept (preferably electronically) for each non-exempt employee for three years: 

            1.         Employee's full name and social security number.

            2.         Address, including zip code.

            3.         Birth date, if under 19.

            4.         Gender and occupation.

            5.         Time and day of week when employee's workweek begins.

            6.         Hours worked each day.

            7.         Total hours worked each workweek.

            8.         Basis on which employee's wages are paid (e.g., per hour, per week)

            9.         Regular hourly pay rate.

            10.       Total daily or weekly straight-time earnings.

            11.       Total overtime earnings for the workweek.

            12.       All additions to or deductions from the employee's wages.

            13.       Total wages paid each pay period.

            14.       Date of payment and the pay period covered by the payment.  

Also in the area of recordkeeping, the Illinois Department of Labor recently required the following information be kept for all employees:  name and address, the hours worked each day in each work week, the rate of pay, copies of notice of hire rate and notice of any subsequent changes, the amount paid each pay period and all deductions made from wages or final compensation. Additionally, for employees given paid vacation, employers must maintain for a period of not less than 3 years accurate records of the number of vacation days earned for each year and the dates on which vacation days were taken and paid.  The consequence for failing to keep these records is the inability to contest the employee’s recollection and estimate of time worked but not paid, overtime worked but not paid, and the amount of vacation pay owed at separation. 

This does not necessarily mean non-exempt employees must punch a time clock each day.  Employers have options for accounting for workers' hours.  There is no particular form or order of records required and employers may choose how to record hours worked for overtime-eligible employees.  For example, where an employee works a fixed schedule that rarely varies, the employer may simply keep a record of the schedule and then indicate the changes to the schedule that the worker actually worked when the worker's hours vary from the schedule. 

We recommend you take some time this summer to review positions currently paid less than $47,476 per year, identify those that you presently treat as exempt from overtime, and analyze the identified positions to determine whether it makes sense to try to continue the overtime exemption by raising the employee’s salary, or whether other steps should be taken to ensure overtime compliance on and after December 1, 2016. 

Questions regarding overtime eligibility or exemption require a very fact specific analysis.  If you have questions about a particular position or positions in your district, please contact your attorney at Scariano, Himes and Petrarca.  

Federal Court Stops School Board From Enforcing Unconstitutional Public Participation Policy

By Adam Dauksas

 April 28, 2016

Earlier this month, a federal district court judge enjoined a suburban school board from enforcing a policy that prohibited criticism of school officials during the public comment portion of its meetings.  The case, Mnyofu v. Board of Education of Rich Township High School District 227, is the latest reminder to boards of education and other public bodies of the harsh judicial treatment to which content-based speech restrictions will be subject to if enacted or enforced.

In Mnyofu, a local resident of the district alleged that his First Amendment rights had been violated by the board and its president when they, in accordance with a board policy, prevented him from criticizing school officials at a meeting.  The policy was, in fact, verbally stated prior to the public comment portion of the meeting and printed on the agenda as well.  It stated, in pertinent part, “[p]lease refrain from mentioning the name of students and employees.” 

Along with his motion for a preliminary injunction, Mnyofu submitted a video showing him speaking and beginning to criticize certain individuals by name.  At that time, the board president asked for the microphone to be turned off, for the security guard to stop Mnyofu from speaking and for the police to be called.  Mnyofu alleged that “[t]here is no compelling reason or legitimate government interest of any kind in prohibiting criticism of public officials at public meetings while allowing favorable comments about public officials.”

 In rejecting the school board’s arguments to dismiss Mnyofu’s claims, the court entered the preliminary injunction he sought and found that Mnyofu was likely to succeed on the merits of those claims because “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”  “Additionally, there can be no irreparable harm to a municipality when it is prevented from enforcing an unconstitutional statute because it is always in the public interest to protect First Amendment liberties.” 

While Mnyofu is instructive concerning a board of education’s attempt to restrict a citizen’s speech based on that speech’s content, the case presents just one of the many issues the public comment portion of meetings may bring about.  For instance, some boards of education require those wishing to make a public comment to state their concerns in writing before being given the chance to speak.  Section 10-6 of the School Code, however, provides that when a board president or superintendent “receives a written correspondence from a resident within the school district’s territory, requesting the consideration of a matter before the board, the author of the correspondence shall receive a formal written statement from an appointed official of the board stating the board’s position on their request, no later than 60 days from the receipt of the correspondence . . . .”  Thus, in such a scenario, a board may actually be required to respond in writing to what it assumed to be a routine public statement. 

If your board of education has a public comment policy that needs to be revised in light of Mnyofu or simply needs a fresh review for identifying other possible legal issues, Scariano, Himes and Petrarca, Chtd. stands ready to assist.  

36th Annual School Law Seminar

 

Registration Now Open

36th Annual School Law Seminar

Registration is now open for our 36th Annual School Law Seminar. 

This year’s Seminar will be held on Saturday, March 5, 2016 at:

McDonald’s Hamburger University

2715 Jorie Boulevard

Oak Brook, IL 60523

Click Here to Register

 

Please Register No Later Than February 26, 2016

 2016

APPELLATE COURT OVERRULES ATTORNEY GENERAL ON SIGNIFICANT OPEN MEETINGS INTERPRETATION

 December 18, 2015       

 By James Petrungaro     

Last year, we reported to you decisions from the Attorney General concerning the process employed by the Springfield School District 186 Board of Education when it authorized a settlement agreement with its departing superintendent. The facts of the dispute were largely uncontested. 

  • In late 2012, the School District’s superintendent approached the board about terminating their employment contract.

  •  At a February 4, 2013 board meeting, six of seven board members signed a separation agreement during closed session. The agreement called for the payment of more than $177,000 to the departing superintendent.

  •  Instead of taking final action in public after the closed-session on February 4, 2013, the Board of Education took a public roll-call vote at its next regular meeting on March 5, 2013.

  • The separation agreement was made publicly available days before the March 5, 2013 meeting on the District’s website.

  • At the March 5, 2013 meeting, the board identified the superintendent by name and position in its motion to authorize the separation agreement, but did not identify the monetary or other specific terms of the agreement.

 After the March 5, 2013 meeting, a member of the media filed a complaint with the Public Access Counselor’s Office of the Attorney General complaining that the board violated the Open Meetings Act (OMA) by: (1) voting on the separation agreement in closed session on February 4; and (2) not adequately informing the public of the nature of the action on March 5.            

In two separate binding opinions, the Attorney General ruled that the board’s actions violated Section 2(e) of the OMA, which provides: Final action. No final action may be taken at a closed meeting. Final action shall be preceded by a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted.  The Attorney General surprisingly reasoned that the board’s signing of the separation agreement in closed session was a “final action” that was prohibited by the OMA. She further contended that even if the school board’s action on March 5 was a lawful “ratification” of its prior action on February 4, that vote did not sufficiently inform the public of the nature of the action being taken. Particularly, the Attorney General took issue with the board’s failure to orally describe the payment amount and other pertinent terms at the time the board voted in public session on March 5.            

The Board of Education appealed the decision to the Circuit Court, which reversed the Attorney General’s decisions. The Attorney General then appealed that decision to the Appellate Court. On appeal, Scariano, Himes and Petrarca represented the Illinois Association of School Boards (IASB), Illinois Association of School Administrators (IASA) and the Illinois Association of School Business Officials (IASBO) by filing an amicus brief with the Appellate Court. Chiefly, the Associations were concerned that the Attorney General’s stance could wreak havoc on the orderly conduct of school board meetings.            

For example, if a board were prohibited from signing a settlement agreement in closed session prior to taking public action on that same agreement, the Attorney General could similarly prohibit boards from testing the water in closed session through informal and non-final straw polls that are part of the fabric of board governance. Additionally, the Associations cautioned the Appellate Court that if Boards were required to publicly cite the “pertinent terms” of all board actions, board meetings would be unnecessarily bogged down, thus deterring and disenfranchising public participation.            

On December 15th, the Appellate Court soundly rejected the Attorney General’s decisions and held that signing the settlement agreement in closed session was not a final action since the Board of Education in fact later took a public vote on the settlement agreement. The Appellate Court also held that the announcement of the separation agreement with the named superintendent, coupled with the Board’s posting of the actual settlement agreement online prior to the meeting, was sufficient public notice and description of the action being taken that night.            

This case is just one example of the aggressive position the Attorney General has taken concerning public body compliance with the OMA, yet it serves as a reminder that the Attorney General’s opinion is not necessarily the final word on compliance issues. If you have any questions concerning your board’s compliance with the OMA, do not hesitate to contact us.

Implementation Date of New Concussion Law Extended

December 10, 2015 

By Darcee C. Williams

On August 3, 2015, Senate Bill 7 was signed into law (Public Act 99-245) creating the Youth Sports Concussion Safety Act.  The Act adds section 22-80 to the Illinois School Code (105 ILCS 5/22-80) and generally requires concussion education, the appointment of a Concussion Oversight Team to develop return to learn and return to play protocols and requires the Board to develop a written school-specific emergency action plans.  The law also requires certain individuals to undergo concussion training.  A school district must implement the Act if it offers interscholastic athletic activities or interscholastic athletics under the direction of a coach (volunteer or school employee), athletic director, or band leader. 

 The new concussion law had an immediate effective date.  However, on November 30, 2015, Governor Rauner signed legislation (Senate Bill 219; Public Act 99-486) into law extending the implementation date of the new concussion law to the beginning of the 2016-2017 school year.  Accordingly, school districts and other affected organizations do not have to scramble to comply with the new concussion law.  Nonetheless, we recommend that school districts begin implementing the law’s requirements in the upcoming months to the extent practicable, including compliance with the law’s training requirements and taking steps toward developing emergency action plans. 

 The IASB has developed a Checklist for Youth Sports Concussion Safety Act available on their website.  Implementation guidance is also available from Lurie Children’s Hospital, which supported passage of the new concussion legislation.  Lurie has developed a publication titled Return to Learn after a Concussion:  A Guide for Teachers and School Professionals available on their website.  Lurie also has a free 30-minute online educational module of the content outlined in the Return to Learn Guide.  

 Additionally, the American Academy of Pediatrics, the CDC, and the Illinois High School Associationhave useful information on the recognition, response, and prevention of concussions.

 At our annual client seminar on March 5, 2016, we will discuss and answer questions regarding the new concussion law.  In the meantime, if you have any questions regarding the new concussion law or would like a copy of Scariano, Himes and Petrarca’s Concussion Policy and Procedures, please contact Darcee Williams or Anthony Scariano

DEPARTMENT OF EDUCATION FINDS THAT DISTRICT DISCRIMINATED AGAINST TRANSGENDER STUDENT IN PROHIBITING LOCKER ROOM USE

November 6, 2015

By A. Lynn Himes and Parker R. Himes 

On November 2, the Department of Education’s Office of Civil Rights (“OCR”) concluded that a Chicago-area high school district discriminated against a transgender female student by prohibiting her use of the girls’ locker room.

The student had been born male but had identified from a young age as female.  During middle school, the student transitioned to living full-time as a female.  Since middle school, the student has presented female appearance, completed legal steps (e.g. obtaining a passport reflecting the gender change), and taken an ongoing course of hormone therapy.

Before enrolling at the high school, the student’s parents communicated extensively with the district to plan her transition to high school.  The district honored the student’s request to be treated as female in all respects except the request to be provided access to the girls’ locker rooms.  Importantly, the district identifies the student by her female name and uses female pronouns, designates her gender as female in its computer system, provides her unlimited access to the girls’ restrooms, and, upon receipt of permission by the IHSA, allows her to participate in girls’ athletics. 

After multiple conferences with the parents and a tour of the girls’ locker room facilities, the superintendent concluded, however, that it would not be practicable to honor her request to change privately in the locker rooms because the stalls were too few and the students too many.  The superintendent explained that the decision was based not only on the particular student’s rights and needs, but also on the privacy concerns of all students.

OCR’s legal analysis begins with the acknowledgement that the district “has treated [the student] consistent with her gender identity as a girl,” yet, “as a result of the District’s denial of access to the girls’ locker rooms, [the student] has not only received an unequal opportunity to benefit from the school’s educational program, but has also experienced an ongoing sense of isolation and ostracism throughout her high school enrollment at the school.”  Further, “[t]he denial of access has also meant that, in order to satisfy her graduation requirements and receive a high school diploma, [the student] has no other option but to accept being treated differently than other students by the District.”  Based on evidence that the district had installed some privacy curtains in one of its locker rooms, OCR also concluded that the district could accommodate the student by installing privacy curtains in all the locker rooms, something that OCR declared that the district had the financial ability to do.

While this OCR opinion is technically binding on only the district involved, it likely forecasts how OCR will come down on a similar matter.  Courts across the country, however, have not uniformly followed OCR, resulting in court opinions that come down on either side.  The Firm will be monitoring this issue and will keep you informed of any important developments.

Should you face a similar issue, we urge you to contact an attorney at the Firm so we may help guide you through this novel area of the law.

ILLINOIS SUPREME COURT RULES THAT SCHOOL DISTRICT PROPERTY IS SUBJECT TO LOCAL ZONING

 September 29, 2015

 By James A. Petrungaro and Parker R. Himes

            Last week, the Illinois Supreme Court, in Jeff Gurba, et al. v. Community High School District No. 155, at al., declared that school district land-use and stormwater issues are subject to municipal zoning and stormwater management.

            The dispute arose from the construction of a set of $1.2 million bleachers at the football field of Crystal Lake South High School.  Built in 2013, the approximately 40-foot-tall bleachers and press box replaced a smaller set of bleachers which previously sat on the opposite side of the field and had failed a structural inspection.  Prior to building the second set of bleachers, the McHenry County Regional Superintendent approved and issued a building permit for the project, which heightened the bleachers and moved them closer to property lines.  The district then began building the bleachers, proceeding without zoning approval from the City of Crystal Lake. After construction began, the City disapproved of the project and declared that the district should have obtained municipal zoning variances and special use and stormwater permits prior to construction.

The school district nonetheless continued construction, claiming that school property used for school purposes was not subject to local zoning laws.  Neighboring property owners then sued the district, claiming that the bleachers decreased their property values and were too large and too close to residential property lines.  The district subsequently sued Crystal Lake, seeking a ruling on whether a city could impose zoning and stormwater authority over school property, which the district contended was under the exclusive jurisdiction of the Health Life Safety Code and the regional superintendent concerning building regulations.

           The Court found that school property, even when used exclusively for school purposes, is subject to municipal zoning and stormwater authority.  While the General Assembly has placed some limits on cities’ local zoning power, no restrictions exist for a municipality’s ability to regulate zoning or stormwater management on school property.  The Court’s unanimous opinion reiterates those of the lower courts and points specifically to a provision in the School Codegranting districts the right to seek local zoning changes.  That provision would be superfluous, according to the Court, had the General Assembly not intended school property to be subject to local zoning ordinances.

           The district argued that being subject to local zoning ordinances would hinder education by interference from the municipal government.  The Court rejected this argument, stating that only those areas that directly affect education, such as curriculum, should be protected from municipal interference. 

           Under different facts, such as a scenario where the zoning regulation directly inhibits the school district’s delivery of curricular services, the Court might have reached a different conclusion.   After Gurba, however, school districts must generally comply with municipal zoning and stormwater management regulations, from which they may still receive reasonable variances.  Further, although the zoning and stormwater management regulations apply to school districts, the Court did not hold that municipal building codes apply to school districts.   At a minimum, issues related to land-use, such as set-backs and height requirements, and stormwater retention that affect the greater community are within the purview of a municipality’s authority to regulate zoning and stormwater management.