NBC 5 FOIA REQUEST UPDATE

By John Fester

April 24, 2019

On March 26, many of you received a FOIA request from NBC 5 requesting information about and the location of emergency storm shelters in your buildings.  We sent NBC a request that they withdraw that portion of the FOIA requesting the location(s) where students would congregate in each school due to safety concerns about revealing this information to the general public.  Having not heard back from NBC within the time permitted to respond to the FOIA, we counseled those clients who contacted us for assistance with a response to provide their severe weather procedures, but not the location(s) where students would congregate.

 On Monday, April 22, Ms. Deloian, who issued the FOIA request on behalf of NBC, responded by withdrawing her request for storm shelter location records in recognition of our safety concerns, stating in part, “I completely understand the schools [sic] concerns in revealing where students go for safety purposes, and therefore I am willing to take records that reflect the procedures undertaken in the event of a tornado warning.”  Therefore, for those of you that sent your severe weather procedures, NBC is accepting that response and we do not anticipate any follow up from NBC or the Public Access Counselor.

 If you have any questions regarding this matter, please contact your SHP attorney.

NBC'S FOIA REQUEST

By John Fester

March 27, 2019

On March 26, many of you received this FOIA request from NBC 5:

 This is a request under the Illinois Freedom of Information Act.  I am making this request of more than 350 public school districts in twelve Illinois counties in the greater Chicago area, including Community High School District 128, for a news story we are working on at NBC5 about school tornado preparedness. 

 Please provide me with documents showing which school buildings in your district each have a storm shelter that meets the minimum requirements of the ICC/NSSA Standard for the Design and Construction of Storm Shelters (ICC-500) [published jointly by the International Code Council and the National Storm Shelter Association and available at https://codes.iccsafe.org/content/ICC5002014?site_type=public], including the location of each shelter relative to its assigned school building.

 For those school buildings in Community High School District 128 that do not have a storm shelter that meets the minimum requirements described above, please provide me with documents showing how and where the children in each of those school buildings are to be sheltered, in case of a tornado emergency, including the location of each shelter relative to its assigned school building.

 Please send all material to me at olivia.deloian@nbcchicago.  If for some reason you cannot send these records electronically, please contact me so that I can make other arrangements to get these documents from you.  And if there is any way at all that I can help you gather this material, I would be most happy to do so.

 Because these records are in the public interest, I ask that you waive any reproduction fee.  And if you deny this request, please tell me on what grounds, and to whom I should appeal. 

 If you have any questions concerning this request or need any additional information, please don’t hesitate to contact me.  Thank you so much for your time and consideration in this matter. 

 Sincerely,

 Olivia Deloian

Researcher, NBC5 Investigates

 Today, we sent Ms. Deloian the following email expressing concerns that several clients have raised regarding this FOIA:

 Ms. Deloian:

 My name is John Fester and my law firm represents over 80 school districts in the suburban Chicago area, many of which received a FOIA request from you yesterday seeking records regarding storm shelter availability, or in the absence of a storm shelter, where the students go in the event of severe weather.  For those clients with schools built in 2015 or later, or with schools that have been substantially expanded through additions since 2015, they will be able to send you the records reflecting inclusion of ICC-500 storm shelters in their building plans, since that is when Illinois began requiring them in new construction.

 However, the vast majority of school districts only have buildings built before 2015, and therefore are not required to have ICC-500 storm shelters.  For these schools you have asked for records identifying where the students go in the building during severe weather.  Several clients have raised a concern with revealing to the general public where students would be congregated during a severe weather incident.  The recent school shootings around the country have all school districts paying very close attention to school security.  The concern is that if a gunman wanted to inflict maximum injuries/casualties at a school, knowing when the student body would be assembled in a gymnasium, theater, or other large space would help such a person time an attack.  For that reason, I would like to discuss whether you would accept other records and not request of our clients the location(s) for student assembly in the event of severe weather.

 Would you be willing to take records that reflect the procedures that would be undertaken in the event of say a tornado warning?  The procedures I have reviewed so far from a few clients identify the actions to be taken (e.g. close any open windows, close shades/blinds to reduce possibility of flying glass, lead students to predetermined area in the building, account for all students, etc.), but stop short of identifying the location(s) of student assembly.  In light of our clients’ desire to give absolutely no help or advantage to anyone seeking to inflict mass harm on their students, I sincerely appreciate your consideration of my request and I am happy to discuss any questions or concerns you might have.  Thank you.

 We are waiting to hear back from Ms. Deloian.  If you would like assistance in responding to this FOIA request, please email your SHP attorney and we will be happy to assist you with an appropriate response to this request.

RECENT STATE SUPREME COURT CASE THAT CAN IMPACT SCHOOL DISTRICTS

By John Fester and Law Clerk Jared Costanzo

 February 22, 2019

 On January 25, 2019, the Illinois Supreme Court held in Rosenbach v. Six Flags Entertainment Corp. that a plaintiff can allege a violation of rights under the state’s Biometric Information Protection Act (BIPA) without tangible harm. This is a departure from prior court precedent, which held that “standing” typically requires a plaintiff to plead actual harm or damage as part of their request for court intervention. For example, in Spokeo, Inc. v. Robins, the US Supreme Court held that bare allegations of statutory violation are not enough to satisfy standing requirements, rather concrete injury-in-fact had to be established.

BIPA was enacted in 2008 for the purpose of regulating the “collection, use, safeguarding, handling, storage, retention, and destruction of biometric identifiers and information.” While BIPA generally covers only private entities, private entities that work with public school districts are subject to the Act. BIPA is enforced through private rights of action, enabling future litigants to sue entities for violating BIPA. Under BIPA, plaintiffs could potentially recover $1,000 or more per violation from entities that negligently violate the Act, or $5,000 per violation for intentional or reckless violations of the Act. Vendor contracts should be reviewed to ensure this potential liability is not shifted to the school district.

In Rosenbach, the plaintiff was fingerprinted in connection with his purchase of a season pass for Six Flags Theme Park. Six Flags sold repeat-entry passes since 2014, and used a fingerprinting process when issuing those passes. The plaintiff alleged that Six Flags had collected her minor son’s fingerprint during a school fieldtrip, without first informing her or her son of the purpose of the collection or the length of time the biometric data would be maintained. Neither the mother or teenage son signed any written release regarding the collection of fingerprints.

Six Flags moved to dismiss the lawsuit, asserting that while the theme park did collect the bio-scan fingerprint, the plaintiff had not suffered an actual or threatened injury and therefore lacked standing to sue. The Illinois Supreme Court held that injury or adverse effect does not need to be alleged for standing purposes. Simply put, the violation of BIPA, in itself, is sufficient to support plaintiff’s statutory cause of action. The plaintiff is not required to suffer from tangible harm to file suit.

The court’s ruling in Rosenbach will likely impact school districts. In Illinois, some schools collect biometric data to enable students to pay for lunch using just their fingerprint. To limit the risk under BIPA, school districts should include in third party contracts language that requires any private entity that intends to collect student biometric data to first obtain written consent and to provide notice to the legal guardians of students. School districts should also note the Illinois school code requires schools to obtain written consent from the student’s parent or guardian prior to the collection of biometric data. Further, all student biometric data must be destroyed upon 30 days after the discontinuation of use.

Should your school district need assistance in dealing with any of these issues, we welcome you to contact your attorney at Scariano, Himes and Petrarca, Chtd.

  Tags:  Students

GRANDFATHERED CONTRACTS TO BE SUBMITTED TO TRS BY MARCH 29, 2019

By Adam Dauksas

February 19, 2019

On June 4, 2018, then-Governor Bruce Rauner signed into law Public Act 100-0587, which reduces the 6% soft cap on end-of-career TRS creditable earnings increases to 3% for any individual employment contracts and collective bargaining agreements entered into on or after that date.  “Grandfathered” contracts and collective bargaining agreements entered into before June 4th are still subject to the old 6% limit.  Also, for employees not covered by a bargaining agreement or an employment contract, TRS will accept employment policies for grandfathering if notice was provided as required by the employment policy prior to June 4, 2018 and payments are made pursuant to the term of the policy prior to June 30, 2022.

 Now, in order to help it administer the new law, TRS has launched a CBA/Contract Collection Portal and is requiring school districts to submit all grandfathered employment contracts and collective bargaining agreements to TRS via this online portal by March 29, 2019.  Employees covered by grandfathered retirement policies also need to be identified through the portal.  According to TRS, “[i]f the required information is not received by TRS, any year-over-year salary increases in the 2018-19 and future years will be subject to the 3 percent threshold.”  Districts can access the portal here.

 To avoid any unforeseen TRS excess cost penalties, we recommend that your district comply with this mandate.  Should you have any questions regarding these new TRS obligations, your attorneys at Scariano, Himes and Petrarca, Chtd. stand ready to assist.

Tags     Personnel; Pensions

COURT DECISION PRESERVES LIMITED DISCIPLINARY RECORD EXEMPTION IN FOIA

By James A. Petrungaro

 

July 5, 2018

             The Illinois Appellate Court has rejected a plaintiff’s attempt to erode the Personnel Records Review Act’s  (“PRRA”) prohibition on publicly disclosing disciplinary records older than four years. At issue in Johnson v. Joliet Police Department  was Johnson’s Freedom of Information Act (“FOIA”) request for a police officer’s “disciplinary history.” The Joliet Police Department (“JPD”) acknowledged that though such records did exist, they could not be disclosed because they were older than four years and the Personnel Records Review Act prohibits the disclosure of such records. That law states: 

An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered to a party in a legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old. 

Thus, the JPD denied the FOIA request. 

            Appealing the JPD’s decision to the Circuit Court and then to the Appellate Court, Johnson argued that the PRRA’s prohibition has no application in the context of a FOIA request because the PRRA also states: “This Act shall not be construed to diminish a right of access to records already otherwise provided by law…” The Appellate Court disagreed with Johnson’s argument, noting that Section 7.5(q) of FOIA specifically exempts from disclosure “information prohibited from being disclosed by the [PRRA].” Therefore, the FOIA did not provide a separate right of access to the disciplinary records. 

            Following Johnson, school districts and other public bodies are free to continue denying FOIA request for disciplinary records older than four years of age. For disciplinary records within four years of a request, Section 7(1)(n) of FOIA – which exempts records “relating to a public body’s adjudication” of disciplinary cases – may be applicable. However, limited application of that exemption has been permitted by the courts and the Public Access Counselor, as it requires a decision by the governing board following a legal process, such as a hearing. 

            If you need assistance navigating the mandatory and permissible exemptions found in FOIA, your attorneys at Scariano, Himes and Petrarca stand ready.

U.S. SUPREME COURT RULES AGAINST FAIR SHARE FEE ARRANGEMENTS

June 27, 2018

 This morning the United States Supreme Court issued its opinion in Janus v. AFSCME and has ruled that requiring a bargaining unit member to pay Fair Share deductions to the union representing the bargaining unit is unconstitutional.  Recall that Fair Share payments are payroll deductions for bargaining unit members who have not elected to join the union as a full member, but who are nevertheless covered by a Fair Share fee requirement in a collective bargaining agreement.  If you have Fair Share fee payers in your district, you now must immediately cease deductions of Fair Share amounts and cease remittance of those fees to the union.  If you have a payroll being processed this week, make sure your payroll department knows to eliminate Fair Share deductions from any person who has been assessed such deductions this year.

 This decision DOES NOT affect union member voluntary dues deductions.  Payroll deductions for employees who are voluntary members of the union MUST continue.  This ruling only applies to employees covered by a Fair Share provision who have not elected to join the union as full members.

 Please contact your SHP attorney to discuss any questions or concerns you may have.

ILLINOIS LEGISLATURE AND GOVERNOR CONTINUE TO SHIFT PENSION LIABILITY TO SCHOOL DISTRICTS

By James Petrungaro

 

June 1, 2018

 

            The 2018 budget passed by the Legislature on May 31st includes a new piece of pension liability cost-shift buried some 700 pages within that is sure to have a significant impact on school districts. Once House Bill 3342, which passed both chambers, is signed by Governor Rauner, the 6% soft cap on end-of-career salary increases for teachers will sharply decrease to 3%.

             Under the current Pension Code, school districts have been able to give teachers (and administrators) end-of-career creditable earning increases of up to 6% over the prior year’s earnings. Any increases beyond 6% given in the years used to determine the teacher’s pension (typically the final four years) would result in the school district paying a penalty to TRS. That penalty was equal to the actuarial value of the increase beyond 6% upon in the teacher’s annuity. Unless Governor Rauner vetoes House Bill 3342 (which he is not expected to do), that 6% limit drops to 3% for any contracts and collective bargaining agreements authorized after Governor Rauner signs the bill. Any contracts authorized before the Governor’s signing are grandfathered in – and the 6% cap would apply. For those contracts authorized after the Governor signs the budget legislation, school districts will pay contributions to TRS for end-of-career creditable earnings increases exceeding 3% per year.  

            This new form of pension cost-shift joins last year’s legislation, which shifted some TRS contributions from the State to school districts for employees earning more than the Governor (typically limited to administrators). This latest legislative effort, however, will no doubt have a large impact at the bargaining table, as school districts must be careful to understand the added financial exposure. We stand ready to assist you in through that process.

 

APPELLATE COURT DECISION DEALS BLOW TO FOIA FISHING EXPEDTIONS

By John Fester and James Petrungaro

April 16, 2018

In 2016, the Illinois Appellate Court ruled in Hites v. Waubonsee Valley Community College that electronic databases maintained by public bodies are “public records” under the Freedom of Information Act (“FOIA”) and thus can be the basis of a FOIA request. Parsing between general “searches” of databases and the request for records from existing database “fields,” the Appellate Court in Hites ruled that electronic records in databases must be disclosed (absent a qualifying exemption or undue burden upon the School District) unless the request results in the creation of a “record” not previously maintained. For example, under the reasoning in Hites, a school district payroll database including a “field” containing the salary of every administrator would be subject to disclosure if so requested; however, a request for “the number of administrators earning more than $100,000” would not be subject to disclosure under FOIA if that particular database field does not already exist. Thus, even though the requested information/data could be derived from a search of the database, it was not subject to mandatory disclosure under FOIA because it requires the creation of a new record.

A recent decision from the Appellate Court follows the court’s reasoning in Hites and provides additional guidance for responding to FOIA requests that do not identify specific records or database fields. In Martinez v. Cook County State’s Attorney’s Office, issued on March 12, 2018, the Court once again distinguishes between database queries that produce already existing public records and queries that are tantamount to “research” of public records and which produce newly created public records.

Initial Request 

 The FOIA dispute began with Martinez’s request for records from the State’s Attorney’s Office (SAO) relating to criminal prosecutions involving the use cell site simulators. These devices help law enforcement to locate, pinpoint and sometimes interfere with cellular communications. Martinez first requested records “for each instance in which information [was] obtained using [stingray] equipment in a criminal prosecution,” including the case identifier, criminal charges at issue, case outcome, stingray evidence used, and certain other information.” (Emphasis added.) The SAO denied the request, first noting that it does not maintain a record identifying which of its thousands of criminal cases specifically relied upon stingray evidence. The SAO also denied the request on the grounds that a search for such instances would be unduly burdensome.

In reviewing whether the SAO complied with FOIA in denying the request, the Appellate Court first ruled that Martinez had not “reasonably described a record.” The court noted that FOIA requires a requester to “reasonably identify” the record being sought and may not simply seek “data, information and statistics” that must be “gleaned generally” or otherwise “extracted” from records maintained for other purposes. Thus, while it was undisputed that the SAO possessed records containing the data Martinez generally sought in his request, because the SAO does not specifically maintain records already cataloged or organized in a form specifically responsive to the request, the SAO was permitted to deny the request. In other words, the Appellate Court determined that querying and compiling the information responsive to Martinez’s request would have required the creation of a new record – a task not required by FOIA.

Second Request

 After the initial request was denied, Martinez attempted to revise and/or narrow his request. Concerning stingray records used in criminal prosecutions related to narcotics and terrorism cases, he requested that the SAO:

  1. “Send an email to every attorney in the SAO and ask each to identify, based on memory, any cases in which evidence was obtained using a stingray.”

  2. Conduct a server-side centralized search of e-mails for “stingray,” “IMSI catcher,” and “cell site simulator” and produce any non-exempt records.

    The SAO once again denied the request as unduly burdensome. In reviewing the denial, the Appellate Court quickly dispatched the notion that FOIA requires any polling, questioning or other query of the memories of SAO attorneys to identify specific cases that would have responsive records. Such a request for a “search” and not a “public record” itself, the court held, was not required by FOIA. 

    Concerning the request for a server-search of emails containing specific keywords, the Appellate Court considered such asearch to be the search of a database. The Court first noted that an electronic search of a public body’s electronic database is the electronic equivalent of “copying” public records. The Appellate Court found that generally, databases and their aggregate data are public records that must be disclosed unless some exemption permits their withholding. The court, however, then held that the request for a search of the database for a particular subset of information that is not otherwise already specifically cataloged by the public body in specific data fields, including general keyword searches, results in the production of a new record that is not required by the FOIA, stating: “A request for a listing or index of a database’s contents that seeks information about those contents, as opposed to the contents themselves, requests a new record.” 

     It is noteworthy, however, that Appellate Court acknowledged in its opinion that the distinction between a “search” of a database and the production of existing “public records” within a database is a “muddled” gray area. The Court recognizes that the use of databases creates a “tension” between the “well-settled prohibition” on requiring public bodies to create new records and the requirement to make electronic databases available under FOIA. We expect that this area of law will continue to evolve and that until a bright-line rule is established, public bodies are safest leaning towards disclosure instead of withholding.

     As both public bodies and the general public become more technologically sophisticated, the frequency of FOIA requests that involve database records will continue to increase. While an analysis of the specific wording of a FOIA request is necessary in every case to determine whether FOIA will require disclosure of the records sought, we provide the following general takeaways from the Appellate Court’s guidance in Hites and Martinez:

  1. FOIA requests must “reasonably describe” a specific public record sought to be disclosed. Requests for all records “showing that…” or requests for information (e.g., “the number of …”) and other similar fishing expedition-type requests should be particularly scrutinized. A request for the results of a search or for general data, information and statistics does not seek a “public record” and thus is not subject to FOIA.

  2. The production of data from existing database fields is the equivalent of copying individual paper records from a cumulative file. Thus, data from electronic databases generally are subject to disclosure under FOIA.  However, the request must seek  data in a form that already exists pursuant to the business of the public body. The data sought must already be organized in a “field” or other defined data-set, or the search must be one ordinarily performed by the public body. A request to “search” a database or a request seeking all database records containing certain keywords that are not already cataloged is not required by the FOIA.

  3. A District email server is a database. A requester can legitimately seek all emails between John Doe and Jane Roe from a certain timeframe, or already cataloged in a specific folder, or concerning a particular matter identified in the “subject” field. These kinds of requests seek records in a catalog format that is already maintained by the District’s email system (e.g., date, subject matter and username fields). A request for a search of emails containing certain “keywords” in the body, on the other hand, calls for an impermissible search and not a particular public record.

  4. In some cases, the search of a database for a result or answer may be less burdensome (often much less burdensome) than producing actual public records that are sought. It acceptable to the requester, public bodies possess the discretion to offer that option, though it is not required by FOIA.

  5. Databases and their subsets of data in narrowed fields may be public records subject to the FOIA, but the data may nonetheless be exempt pursuant to specified exemptions in the FOIA.

     

PREPARATION FOR THE POSSIBLE END OF FAIR SHARE FEE ARRANGEMENTS

APRIL 4, 2018

We are aware that most if not all of our school district clients recently received a joint email from the leaders of IASA, IASBO, the IFT and the IEA regarding the possible end of Fair Share fee deductions.  These are payroll deductions for bargaining unit members who have not elected to join the union as a full member, but who are nevertheless covered by a Fair Share fee requirement in a collective bargaining agreement.  The U.S. Supreme Court will likely rule before June 30 on whether such Fair Share deductions are unconstitutional.  As stated in the joint email, if you have Fair Share fee payers in your district, you may need to immediately cease deductions of Fair Share fees and cease remittance of those fees to the IEA or IFT as soon as the date the Court issues its decision.

Since each school district has different payroll schedules, and different lead time requirements for processing payroll, the timing of the Supreme Court’s opinion may or may not give your district time to halt Fair Share deductions before the next payroll is processed.  Because of the differences in each school district’s payroll procedures, different payroll lead time requirements, and differences in remittance practices, we cannot provide a uniform recommendation for how to prepare for this decision.  However, we can work with your Business Office to prepare or review individualized procedures to increase the likelihood that you will be able to promptly comply with the Court’s decision.

Please contact John Fester, James Petrungaro, or your primary contact attorney to discuss any questions or concerns you may have.

PREPARING FOR POTENTIAL STUDENT ACTIONS ON MARCH 14

By John Fester

 

March 6, 2018

            In response to the recent mass-shooting in Parkland, Florida, there have been national calls for students to engage in some sort of activity on March 14 to protest gun violence in schools.  The activity most frequently referenced, and the one that requires forethought from the school district, is a student walkout.  We have advised many of our clients on their specific plans and responses to student walkouts, but as March 14 approaches, we offer the following points to help our clients walk the line between allowing students a means of expression, while maintaining student safety and the ability to regulate campus speech.

 Walkouts during class time are different than black armbands.  Many people commenting on student walkouts speak of the students’ “right” to protest by walking out of class.  However, the Supreme Court has made clear that non-disruptive protest speech by students during the school day is protected by the First Amendment.  The Court has never held that primary and secondary school students have a right to leave class to assemble for protest activities.  Unlike the black armbands that became famous from the Tinker v. Des Moines case, student walkouts during class time can be regulated.

 Encourage alternative activities, alternative times, or alternative locations.  It is entirely understandable that students want to take this opportunity to let it be known that they are concerned about gun violence.  However, walking out of class is far from the only way to express that concern.  Several of our clients have been meeting (mostly at the middle- and high school levels) with student leaders to discuss what options for student activity would be most impactful, and least disruptive.  Remember that students generally have the right to peaceably assemble before and after school for expressive purposes.  If an assembly is what is desired, the school district could encourage moving the time of assembly so walking out of class is unnecessary.  A school could also run a modified class schedule on March 14 to allow a brief period of time (many student groups are looking at 17 minutes to honor the 17 Parkland victims) for assembly within the school day. 

 Many school districts have expressed concern with the outdoor aspect of any walkout.  There are many concerns associated with students milling about outside on March 14, including copycat actions, keeping students on campus, regulating parents and others who may want to enter campus before or during any walkout, etc.  To that end, some clients are encouraging students intent on walking out of class to assemble in a gymnasium or other area for safety purposes.  If an outdoor assembly seems inevitable, school districts should coordinate security with local law enforcement and have a plan for deploying administrators, teachers and other staff members to keep students from leaving a pre-determined assembly area.

 Communicate with Parents

 Once you have a plan for regulating student walkouts or other mass actions, make sure parents understand the approach and the rationale.  For example, if you intend to close the campus during a student walkout, make sure parents are aware so they do not arrive only to be turned away.  Also communicate how any walkout will be addressed.  We are not hearing too many clients interested in disciplining students for a brief walkout, but some school districts will be directing teachers to continue teaching during any walkout and will be recording an unexcused absence for students who do walkout.  Recording the unexcused absence is primarily to avoid setting a precedent that students may walk out of class without consequence.  Remember that the next time a mass walkout occurs, the school district may disagree that the issue was worthy of such action.  An alternative might be to establish a “one walkout” rule that excuses a student’s first walkout, but gives consequences for subsequent actions.  Make sure that parents and students are told ahead of time what to expect if a student walks out during class time.  Your websites, automated message systems and PTO’s are good vehicles for getting the word out.

 Avoid Viewpoint Discrimination and Remember Staff are not Students

 Some people view the planned walkouts as favoring gun regulation, as opposed to simply protesting gun violence.  As a result, some students may use the walkout to assemble in favor of gun rights or the Second Amendment.  School districts should avoid “taking sides” by showing favoritism to one student assembly over another.  Assuming the student groups are following school rules, are not violent or otherwise disruptive, school officials should be neutral in terms of supervising students who choose to walk out.

 Finally, some clients have heard teachers expressing an intent to participate in any student walkout.  Your staff should be reminded that during working hours, they are being paid to instruct, supervise and otherwise support students consistent with their professional duties.  In advance of March 14, school districts should clearly communicate expectations to staff members in terms of the performance of their duties before, during and after any walkout or other protest activity.  Staff members should not be promoting any students walking out of class.  If staff members wish to engage in expressive activity, we recommend school officials meet with the appropriate union officials to discuss options for staff to have their voices heard on this issue.

 This is intended to be a general overview of issues associated with student walkouts and is not intended to address every issue that may arise.  If you have specific questions regarding student protests, please call your attorney at Scariano, Himes and Petrarca.

 

SCHOOL DISTRICTS MUST ADOPT SPECIFIC SEXUAL HARASSMENT POLICIES BY JANUARY 15, 2018

By Anthony Scariano III and James Petrungaro

 December 1, 2017 

            Recently, the news media have been rife with reports of sexual harassment that has occurred in many of our nation’s most valued and well-known institutions. Noticing this trend, and increased amounts of complaints from its own members, the Illinois General Assembly has acted with legislation.  

Public Act 100-0554, in relevant part, amends the State Officials and Employees Ethics Act so that “governmental units,” which include school districts, must adopt a resolution to establish a policy prohibiting sexual harassment with the following requirements: (1) the policy must prohibit sexual harassment; (2) the policy must include details on how an individual can report an allegations of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, or the Illinois Department of Human Rights; (3) the policy must include a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under the State Officials and Employees Ethics Act, the Illinois Whistleblower Act, and the Illinois Human Rights Act; and (4) the policy must include the consequences of a violation of the prohibition on sexual harassment and the consequences for knowingly making a false report. 

            For school districts that subscribe to the Illinois Association of School Board’s Policy Reference Education Subscription Service (“PRESS”) and have adopted the model Policy 5:20, your policy likely already substantially complies. The PRESS model policy needs modification to clarify the process for filing harassment claims and to expand the recitation of available laws providing whistleblower protections.  

            PRESS is expected to release modifications to Policy 5:20 sometime in January 2018. The mandated policy must be adopted by school districts no later than January 15, 2018. The attorneys of Scariano, Himes and Petrarca, Chtd. stand ready to assist your Board with complying with this new legislative requirement. Should your District wish to modify its policy before PRESS releases its expected update in January 2018, or if your District does not participate in PRESS and you need assistance, do not hesitate to contact us.

 

RESPONSE TIMEFRAME FOR STUDENT RECORDS REQUESTS ALTERED

By Anthony Scariano III 

November 13, 2017 

            Recently, the General Assembly amended the Illinois School Student Records Act to alter the timeline for responding to records requests. For those of you familiar with responding to requests under the Freedom of Information Act, you will recognize some striking similarities.

           First, the deadline for responding to a student, parent, or designated representative’s request for records was reduced from 15 school days to 10 business days. Second, the amendments allow a school district to extend the time to respond up to five business days from the original due date for any of the following reasons:

  1. The requested records are stored in whole or in part at other locations than the office having charge of the requested records; 

  2. The request requires the collection of a substantial number of specified records; 

  3. The request is couched in categorical terms and requires an extensive search for the records responsive to it; 

  4. The requested records have not been located in the course of routine search and additional efforts are being made to locate them; 

  5. The request for records cannot be complied with by the school district within 10 business days without unduly burdening or interfering with the operations of the school district; or 

  6. There is a need for consultation, which shall be conducted with all practicable speed, with another public body or school district or among 2 or more components of a public body or school district having a substantial interest in the determination or in the subject matter of the request. 

           Finally, the amendments allow school districts to agree in writing with a student, parent, or designated representative on a separate timeframe for responding to the request, if the request cannot be completed within the timeframe set forth in the law. 

            If you need assistance in responding to a records request, we welcome you to contact your attorney at Scariano, Himes and Petrarca.   

7th Circuit Court of Appeals Clarifies the Limits of Unpaid Leave as a Reasonable Accommodation Under the ADA

By Adam Dauksas

September 22, 2017

             On Wednesday, the 7th Circuit Court of Appeals, which is the federal appellate court that has jurisdiction over Illinois, again made clear that a long-term, multiple month unpaid leave of absence is not a reasonable accommodation under the Americans with Disabilities Act.  This decision, rendered in Severson v. Heartland Woodcraft, Inc., is particularly important for school districts and other employers subject to the ADA’s requirements, as employees who have exhausted their available sick, personal and FMLA leave time often try to turn to the ADA as a last resort to keep their jobs despite not being able to perform their essential job functions.

             In Severson, that exact scenario was at issue after Raymond Severson took a 12-week FMLA leave to deal with his own serious back pain.  On the last day of his FMLA leave, he had back surgery, which would require him to remain off of work for another two or three months.  As a result, Severson asked his employer to continue his medical leave as an accommodation under the ADA, but the company denied his request and terminated his employment.  Severson then sued his former employer under the ADA, claiming that the company had discriminated against him by not providing him a reasonable accommodation (i.e. an additional three-month leave of absence following his 12-week FMLA leave). Severson’s arguments were supported by the Equal Employment Opportunity Commission (“EEOC”).

             The Court of Appeals, affirming a lower federal district court’s order and relying on one of its own decisions from 2003, rejected Severson’s ADA claim.  In holding that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement,” the Court focused its analysis on who is a “qualified individual” with a disability entitled to protection under the law.  Since that term is defined as a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position,” the court reasoned that an employee who needs long-term medical leave cannot work (i.e. cannot perform the essential functions of the job) and thus is not a “qualified individual” under the ADA.  According to the Court, “[s]imply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.”

             It is important to note as well that in reaching this conclusion, the Court expressly rejected the EEOC’s arguments made in support of Severson’s position.  In particular, the EEOC claimed that a long-term medical leave of absence should qualify as a reasonable accommodation unless the employer can show that it works an undue hardship on the employer’s operations.  While the court acknowledged that “[i]ntermittent time off or a short leave of absence – say, a couple of days or even a couple of weeks – may, in appropriate circumstances,” serve as a reasonable accommodation, it made clear that a medical leave spanning multiple months, like the one Severson was seeking, does not permit an employee to perform the essential functions of their job.

             While the 7th Circuit’s decision in Severson provides further clarification as to when an unpaid leave of absence is a reasonable accommodation under the ADA, the interplay between the ADA and an employee’s sick, personal and FMLA leave is often a challenge for employers to navigate.  Should your school district need assistance in dealing with any of these issues, please do not hesitate to contact Scariano, Himes and Petrarca, Chtd.   

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.