You Are Not Getting The Insurance Coverage You Expect When Named An Additional Insured Unless You Have A Contract That Specifies That The Additional Coverage Is Primary

January 22, 2010

By: Alan Mullins

School districts often require third parties to name them as additional insureds on the third parties' insurance policies. This occurs when a school district awards a bid to a contractor, allows a community group to use its facilities or enters into an intergovernmental agreement with another governmental entity. School districts require third parties to name them as additional insureds so that in the event of an injury, they will not have to submit claims to their insurance companies and risk having their premiums increased or policies cancelled. According to a recent appellate court case, in most instances, school districts are not getting the insurance protection they expect when named as additional insureds.

In River Village I, LLC v. Central Insurance Companies, a contractor required a subcontractor to name it as an additional insured on the sub‐contractor’s insurance policy with Central Insurance. The sub‐contractor’s policy included language stating that the policy was an excess policy over any other insurance policy that covered an additional insured unless a contract required that the policy be the primary policy. This is a common clause in insurance policies and requires the additional named insured to exhaust the limits of its policy before it can submit a claim to the third party’s insurer.  A worker on the job site was injured and sued the contractor. The contractor submitted the claim to Central Insurance who denied the claim because the limits of the contractor’s insurance policy had not been exceeded. The contractor sued Central Insurance and argued it should have been allowed to choose between its policy and the sub‐contractor’s policy.

The River Village court ruled in favor of Central Insurance because the insurance policy clearly stated that it was excess over any policy that covered the contractor and the contract between the contractor and sub‐contractor did not require the subcontractor’s policy to be the primary policy. Central Insurance did not have to pay anything on behalf of the contractor until the limits of the contractor’s insurance policy were exceeded.

The lesson from River Village is that a school district should not assume that it can avoid submitting claims to its insurance carrier because it has been named as an additional insured on a third party’s insurance policy. Always have a written contract with a third party that provides the school district with insurance coverage. Make sure that the bid documents and/or the contract specify that the policy to which the school district is named as an additional insured is the primary policy for the school district. In addition, closely read the insurance binder from the third party’s insurance company to ensure that the school district is an additional insured and that the additional coverage is the primary coverage. If it is not clear from the binder that the coverage provided is primary, send it to the school district’s insurance agent or advisor and have them confirm it. Better yet, get a copy of the third party’s insurance policy and review it. As River Village demonstrates, you may be surprised at what you find. We are available to assist you in determining whether the school district has received the insurance coverage it expected.

Changes Coming to FOIA and Teacher Evaluations

 January 13, 2010

Senate Bill 315

By the time you read this, Senate Bill 315 may have been passed by both houses on its way to Governor Quinn.  The bill clarifies the Freedom of Information Act (FOIA) with respect to the disclosure of performance evaluations and makes substantive changes to the requirements of teacher and principal evaluations under the School Code.  It is expected to be quickly signed into law to help the State’s application for Race to the Top funds.

FOIA

Under recent changes to FOIA, personnel file documents, including performance evaluations, are no longer shielded from disclosure.  In response to concerns from teachers and administrators over the potential negative ramifications of releasing performance evaluations, Senate Bill 315 adds a new Article 24A-7.1 to the School Code.  The new Article states that disclosure of teacher, principal and superintendent performance evaluations is prohibited, unless otherwise authorized by the School Code.  This addition will allow school districts to invoke §7(1)(a) of FOIA (exempting information specifically prohibited from disclosure under federal or state law) in response to FOIA requests for teacher, principal, or superintendent evaluations.

Please  note  that  the  prohibition,  on  its  face,  relates  only  to  teacher,  principal  and  superintendent evaluations.  Unless contrary guidance is issued by the Attorney General’s office, it appears that the performance evaluations of other administrators and non-certificated employees remain subject to release under FOIA.

Teacher Evaluations

Senate Bill 315 makes several changes to teacher and principal evaluations.  Some of those changes, such as incorporating student growth measures into evaluation plans, are contingent on receipt of Race to the Top funding, or on the state providing adequate funding if Race to the Top funds are not awarded to Illinois. However, the following changes are mandatory regardless of Race to the Top or state funding:

  •  Changing evaluation ratings to “Excellent”, “Proficient”, “Needs Improvement” and “Unsatisfactory”;
  •  Allowing peer evaluation, subject to union agreement;
  • Providing professional development plans for teachers rated “Needs Improvement”;
  •  Providing for remediation periods of shorter than 90 days, if permitted by a collective bargaining agreement;
  • During remediation, replacing evaluations every 30 school days with one midpoint evaluation and one final evaluation; and,
  •  Dismissal if following remediation the teacher does not achieve a rating of “Proficient” or “Excellent”.

The bill also provides changes to the evaluation system for principals.  One notable change is that the due date for principal evaluations is pushed back from February 1 to March 1.  These changes must be made in the evaluation process by September 1, 2012.   Senate Bill 315 will be effective immediately upon becoming law.  Please contact us with any questions or concerns you may have about this, or any other, pending legislation.

Freedom of Information Act

 December 18, 2009

The amended Illinois Freedom of Information Act (FOIA) becomes effective January 1, 2010.  The amended FOIA significantly alters the procedures employed by a public body in responding to FOIA requests and makes numerous changes to the exemptions to FOIA.  It is imperative that school districts be familiar with the changes to the amended FOIA, and be prepared to take immediate action to implement the Act.

To this end, Scariano, Himes and Petrarca, Chtd. has prepared a FOIA policy, implementing procedures, and sample FOIA forms that address the requirements of the amended FOIA.  To further assist school districts in implementing the amended FOIA, we have also prepared a comprehensive “Frequently Asked Questions and Answers” document.  Please do not hesitate to contact Darcee C. Williams (ext. 247) or Jessica M. Bargnes (ext. 254) if you would like a copy of those documents.

Because the January 1, 2010 effective date of the amended FOIA is fast approaching, school districts must be prepared to  immediately take the following actions:

  • The Board of Education should adopt an amended FOIA policy and procedures.  If your next opportunity to do so is at the January Board meeting, please do so at that meeting.

 

  • The amended FOIA requires school districts to appoint at least one FOIA officer to handle all FOIA requests.   We recommend that the Board of Education appoint two FOIA officers to ensure that one FOIA officer is available in the other’s absence.  Again, if this cannot be done until the first January meeting, please do so at that meeting.
  • The amended FOIA requires that the following documents be posted on a school district’s website:
  • A block diagram of the school district’s functional subdivisions;
  • The total of the school district’s operating budget;
  • The number and location of all of the school district’s separate offices;
  • The approximate number of the school district’s full and part-time employees;
  • The identification and membership of all boards, commissions and committees which operate in an advisory capacity to the operation of the school district, or which exercise control over the school district’s policies or procedures, or to which the school district is required to report and be answerable for school district operations;
  • A description of the methods whereby the public may request information and public records;
  • A directory identifying the FOIA officers;
  • The address where requests for information should be directed; and
  • A schedule of fees permitted under FOIA.

By taking action on these issues prior to January 1, 2010, the effective date of the amended FOIA, the school district will ensure that it is in compliance with the Act.

Please do not hesitate to contact Scariano, Himes and Petrarca, Chtd. to discuss your school district’s implementation of the amended FOIA.  The Firm offers, five hours of inservice each year as a complimentary service to its clients. We encourage our clients to use that time to review the changes to FOIA, and we invite you and your Board members to attend our annual client seminar on February 6, 2010, where we will present, in greater depth, on the amended FOIA.

Scariano, Himes and Petrarca, Chtd. has also compiled a number of documents to assist in the implementation of the amended FOIA on its newly updated website located at  www.edlawyer.com.

RACE TO THE TOP

 December 10, 2009

School districts should be aware that the Illinois State Board of Education (“ISBE”) is applying to the federal government for “Race to the Top” (“RT3”) funds.  RT3 is a federally funded program offering competitive grant money for which states can apply.  In order for a state to receive the grant money, school district involvement is required.  ISBE will seek $400 million in grant funds.  Participating school districts are entitled to directly receive a portion of the grant funds awarded to Illinois, if, in fact, Illinois receives an award. It is unknown at this time how the grant money will be divided among the participating school districts.

School districts are not required to participate in the RT3 program, but may choose to do so.  In order to be a “participating” school district, a school district must agree to implement the State educational goals and objectives as set forth in a Memorandum of Understanding (“MOU”), drafted by ISBE and attached to the RT3 application. The educational goals and objectives must implement a systemic approach to each of the educational reform areas specified in the American Reinvestment and Recovery Act (the “stimulus act”). Those reform areas are:

1.   Making progress toward rigorous college- and career- ready standards and high-quality assessments that are valid and reliable for all students, including English language learners and students with disabilities;

2.   Establishing pre-K – to - college and career data systems that track progress and foster continuous improvement;

3.   Making improvements in teacher effectiveness and in the equitable distribution of qualified teachers for all students, particularly students who are most in need; and

4.   Providing intensive support and effective interventions for the lowest-performing schools.

If a school district chooses to comply with the requirements of the MOU, it may be entitled to receive RT3 grant money directly from the federal government, and is also entitled to receive grant money from ISBE.

If a school district is unable to comply with the requirements of the MOU, it may become an “involved” school district, whereby it agrees to assist the state in statewide reform implementations, and through such cooperation, may be entitled to receive funding.

ISBE is finalizing its proposed goals and is working to complete the MOU that it intends to submit with its application for RT3 funds. The MOU was to be released for review this week.  You may find it on ISBE’s website when it is released.

Scariano, Himes and Petrarca, Chtd., recommends that all of its  school district clients review the MOU to determine whether they are able to comply with the requirements and can work toward the goals therein.  If so, it may be of benefit to the school district and to the State’s overall application to sign the MOU.  School districts only have a short time to decide whether they will participate in RT3; the application is due to the U.S. Department of Education on January 19, 2010. Thus, ISBE asks that all school districts that wish to participate sign the MOU and return it to ISBE on or before January 11, 2010.

Please do not hesitate to contact Scariano, Himes and Petrarca, Chtd., with any additional questions about RT3.

Cook County Debt Disclosure Ordinance

 November 3, 2009

In September 2009, the Cook County Board approved the Taxing District Debt Disclosure Ordinance.  This ordinance requires each and every taxing district in Cook County, including all school districts, to provide its most recent audited financial statement to the Office of the Cook County Treasurer.  The statement must be provided in electronic format on or before the last Tuesday in December (December 29, 2009).  The statement should include the disclosure of the following:  (i) current debt; (ii) current liabilities; (iii) long term debt; (iv) long term liabilities; (v) sum total of all debts and liabilities from the audited financial statements; (vi) sum total of gross tax levy for the most recent tax year; and (vii) gross operating budget revenue for the most recent fiscal year.  The statements will be stored by the Cook County Treasurer and a website will be created to allow electronic access to the statements by taxpayers and other interested parties.

Like much of the legislation enacted this year, the ordinance was passed with the goal of enhancing governmental transparency and taxpayer access to governmental information, here, the financial information of taxing districts.  While this report may seem like excessive disclosure, please bear in mind that the majority of the information requested is currently published on school district websites.  The current requirement that all contracts over $25,000 be posted on a school district’s website provides the public with information regarding current school district debt and liabilities. Furthermore, the publication of a school district’s Annual Statement of Affairs reveals information about long term debts and liabilities, taxes and the school district’s operating budget.

Regardless of the already pronounced taxpayer accessibility to information regarding school district finances, school districts must comply with the ordinance.  It is insufficient under the ordinance for a school district to refer to its website in lieu of publication.  It is also insufficient to turn over a school district’s Annual Financial Report despite its inclusion of the sought after information.  The Cook County Treasurer’s office has stated that the phrase “audited financial statements” is interpreted to mean the most recent audited financial statement and a separate statement of the taxing district’s sum total of all debts and liabilities, and the most recent year’s gross tax levy and gross operating budget revenue.

Please do not hesitate to contact your attorney at Scariano, Himes and Petrarca, Chtd. to discuss your compliance with this ordinance.  We look forward to assisting you.

Preparing for Flu Season

 September 3, 2009

After the emergence of the H1N1 virus last spring, many are concerned about the impending flu season.  The Center for Disease Control (“CDC”) has produced excellent resources to assist schools in preparing for and responding to influenza during the 2009-2010 school year.  The CDC’s “Guidance for State  and  Local  Public  Health  Officials  and  SchoolAdministrators  for  School  (K-12)  Responses  to Influenza During the 2009-2010 School Year” provides instruction on non-medical ways to decrease the spread of infectious diseases, recommends actions to take this school year and suggests additional responses for conditions of increased influenza severity.  This document is available at http://www.cdc.gov/h1n1flu/schools/schoolguidance.htm.

The CDC has also published “Preparing for the Flu (Including 2009 H1N1 Flu): A Communication Toolkit for Schools (Grades K-12),” which includes questions and answers about the CDC’s response guide, fact sheets for school, officials, teachers and parents, and template letters for schools to send to parents.  This publication is available at http://www.cdc.gov/h1n1flu/schools/toolkit/pdf/schoolflutoolkit.pdf.  The CDC has also made flu prevention posters available on its website at http://www.cdc.gov/germstopper/materials.htm.

The emergence of the H1N1 virus also brought about a great deal of discussion about addressing pandemic illness outbreaks.  To prepare your staff, we recommend adopting policies and procedures for handling a pandemic.  If your district already has such a policy, the start of the school year is a good time to review it with staff to make sure all personnel are working together to minimize the chance of an outbreak.

In developing or reviewing a pandemic policy, school districts need to consider all of the ways a pandemic would affect its operations and policies. For instance, a pandemic policy should:

1.   Address coordination with local and state health departments;

2.   Delineate accountability and responsibility;

3.   Establish a succession plan in case board members or administrators are unable to fulfill their duties;

4.   Provide guidelines for preventing the spread of disease;

5.   Set forth an action plan for all stages of an outbreak (e.g., before, during and after an outbreak);

6.   Address school closure procedures and the impact of closure on wages, hours and terms and conditions of employment during a pandemic;

7.   Develop strategies for remote learning and providing necessary student services (e.g., free and reduced lunch) during school closures;

8.   Establish procedure for identification, segregation, treatment and transportation of sick students and staff;

9.   Encourage early treatment for high-risk individuals;

10. Address central office a operations during a pandemic (e.g., payroll and communication with the school community); and

11. Set forth policies unique to a pandemic for staff and student absences (e.g., use of sick leave during a pandemic and return-to-work policies).

Please  do  not  hesitate to contact your  attorney  at Scariano, Himes  and Petrarca,  Chtd. to develop or review a pandemic policy or to seek counsel regarding response options in the event an outbreak of flu or other illness occurs in your schools.  We also take this time to wish your Board of Education, the Administration and Staff a successful 2009-2010 school year and look forward to assisting you along the way.

ANNUAL NOTICES TO PARENTS

 August 9, 2009

Numerous federal and state laws require that certain notices be provided to parents and students at the start of each school year. To assist you in complying with the litany of notice requirements, Scariano, Himes and Petrarca, Chtd., has created the following list of notices to be given to parents and students at the start of the school year.

•    The No Child Left Behind Act requires notice of numerous statutory requirements to parents, including: annual report cards; progress reviews; schools identified for school improvement, corrective action or restructuring; eligibility for public school choice; parental involvement policies; state education agency complaint procedures; teacher and paraprofessional qualifications; non-highly qualified teachers' student achievement information; an informational meeting on Title I, Part A; and the status of English Language Learners.

•    The Family Educational Rights and Privacy Act and the Illinois School Student Records Act, require that school districts provide to parents and adult students annual notice of their rights to inspect, review, amend, and consent to the disclosure of their child's (or their) educational records.

•    The Protection of Pupil Rights Amendment requires notice of policies regarding surveys, instructional materials, physical examinations, and student personal information that may be used for marketing.

•    School districts that participate in the National School Lunch Program, School Breakfast program, or Special Milk Program must provide notice as to the eligibility requirements for free or reduced price meals or milk.

• The McKinney-Vento Homeless Assistance Act requires notice of the education rights of homeless students.

•    The Asbestos Hazard Emergency Response Act requires notices to parents, teachers, and employee organizations of the availability of the asbestos management plan, inspections, and any actions to be taken.

•    Title VI, Title IX, Section 504, the Age Discrimination and Employment Act, and Title II of the Americans with Disabilities Act require notice of non-discrimination based on race, color, national origin, sex, disability, and age. One notice of non-discrimination will meet the purposes of all of the above-referenced statutes. School districts should ensure that the notice of non-discrimination that is presented to parents includes the name of a coordinator that can be contacted in the event of discrimination.

•    The Individuals with Disabilities Education Act requires notice to parents of a child with a disability of the procedural safeguards found within the law.

•    The Illinois School Code requires school districts to provide notice of certain required policies each year, including the eligibility for waiver of certain school fees, student discipline, and the administration of medication.

•    If your district maintains a 403(b) plan, employees should be given notice of eligibility to participate in the plan. If you do not have a third party administrator contracted to provide this notice, it should be provided by the district.

School districts should be aware that this list is not exhaustive and that additional notices may be required in certain circumstances For example, the parents of those students enrolled in a sexual education class are entitled to notice of their child's enrollment in a sexual education class.

School districts should also bear in mind that, in addition to required notices set forth above, federal and state law also mandate that school districts enact certain policies which should also be distributed to parents at the start of each year. By clearly communicating school district policies to parents at the start of the year, a school district can avoid due process arguments from parents/students who claim to have lacked notice of official school policy.

Please do not hesitate to contact your attorney at Scariano, Himes and Petrarca, Chtd. to discuss requisite notices and policies. We look forward to assisting you in any way we can to ensure a successful start to the new school year.

Freedom of Information Act ("FOIA") request for records from CBS 2

July 31, 2009

TO: SCHOOL DISTRICTS

RE: CBS 2 FREEDOM OF INFORMATION ACT REQUEST

By now, many school districts across the Chicago metropolitan area have received a Freedom of Information Act ("FOIA") request for records from CBS 2

WBBM-TV. The request seeks, among other things, records pertaining to corporal punishment administered to students, the use of time-out rooms, and complaints relating to both. Much of the information sought is exempt from disclosure under the FOIA since it involves confidential student record information. Nonetheless, the FOIA requires the school district, as a public body, to respond to a FOIA request within seven (7) working days of receipt of the request. Your response must indicate what information is exempt, what information will be furnished, and how that information will be made available.

We have prepared a draft response to the request which can be personalized to address the recordsl/information your district has which are relevant to the

CBS request. If you desire assistance in responding to the CBS FOIA request, please contact the attorney with whom you normally work.

Freedom of Information Act

 May 29, 2009

The Freedom of Information Act (FOIA) is undergoing a dramatic revision in Illinois - both in the judiciary and legislative systems. Both the judicial and legislative branches are calling for increased transparency in the government, and are taking steps to ensure that the policy of the state is clearly one of openness and accountability.

RECENT  SUPREME  COURT DECISION

On May 21, 2009, the Illinois Supreme Court affirmed an appellate court decision which held that: (1) disclosure of a superintendent's employment contract did not constitute an invasion of person privacy for purposes of exemption from the Act's disclosure requirements; and (2) a superintendent's employment contract does not fall into FOIA's exemption for personnel files. Stern v. Wheaton-Warrenville Community Unit School District 200, 2009 WL 1416105.

This case at issue arose when Mark Stem, a resident of Wheaton-Warrenville Community Unit School District 200, filed a FOIA request for the superintendent's contract. School District 200 denied the request on the basis that, because the contract is contained in the personnel file, it is exempt from disclosure. After involving the Illinois Attorney General, and appealing the denial of his request to the Board of Education, Stem filed a complaint in the Circuit Court of DuPage County seeking disclosure of the contract under FOIA. The Circuit Court held in favor of the school district, finding that a superintendent's contract should reasonably be found in a personnel file, and that a personnel file is exempt from disclosure under FOIA.

Stern appealed to the Appellate Court, which reversed the Circuit Court's decision on grounds that a superintendent's contract would bear upon his or her public duties and was thus subject to disclosure under FOIA.

The Supreme Court affirmed the Appellate Court's decision and held that: (1) the Superintendent's contract bore upon his public duties, thus subjecting it to disclosure under FOIA; and (2) the physical location of a document bears no relation to whether it must be disclosed. The Court recognized that one purpose of FOIA is to allow access to documents that bear upon an employee's public duties, while the intent of the personnel files exemption is to protect an employee's personal privacy. In this instance, the superintendent's contract bore upon public duties, and its disclosure would most likely not affect his privacy. The court stated that private information that may be in the contract, such as a social security number or a bank account number, could be redacted before the document was disclosed in response to a FOIA request.

Accordingly, school districts should be aware that employees' contracts will be subject to disclosure under FOIA, so long as the contract bears upon that employee's public duties, subject only to the redaction of information that if disclosed would clearly violate an employee's personal privacy rights. This holds true regardless of the physical location of the document.

LEGISLATIVE ACTION

In the wake of this Supreme Court decision, which clarifies FOIA's call for governmental transparency, the Illinois General Assembly rushed Senate Bill 189 through both Houses; it is a dramatic re-write of portions of the Open Meetings Act and FOIA. As of Thursday, May 28, 2009, both houses had unanimously passed Senate Bill 189 and it was sent to Governor Quinn. If Governor Quinn signs Senate Bill 189, it will become law.

Senate Bill 189 clearly states that there is a presumption that all records in the custody of a public body are presumed to be open to inspection or copying. If a public body asserts that a document is exempt from disclosure, the public body must be able to prove as much by clear and convincing evidence.

The new legislation would also amend FOIA by clarifying that all public documents and related communications, including email messages among officials and employees, will be subject to disclosure pursuant to FOIA. Additionally, under Senate Bill 189, the timelines for complying with FOIA will be shortened, and if a public body fails to respond to a request within the designated timeline, the public body is prohibited from charging for copies. Further, if a public body denies a request, and such denial is subsequently overturned, costs will be borne by the public body, and penalties for non-compliance will be imposed.

The new legislation would create a Public Access Counselor, a position that will be a part of the Illinois Attorney General's office, and will be charged with training and regulating state employees in the distribution of public information, as well as issuing binding opinions as to whether documents requested are exempt under FOIA. Those decisions may be appealed to the circuit court pursuant to the Administrative Review Act.

Finally, Senate Bill 189 requires each public body to appoint Freedom of Infonnation Officers, which will have special duties under the Act with regard to compiling and disclosing documents.

If you have any questions regarding the impact of the Supreme Court's ruling, please contact our offices. As the legislative process comes to a close with respect to amendments to the Act, we will provide you additional updates regarding your obligations when faced with a FOIA request.

ILLINOIS POLICY INSTITUTE FREEDOM OF INFORMATION ACT REQUEST

IMMEDIATE ATTENTION REQUIRED

September 9, 2008

By now, many school districts across the Chicago metropolitan area have received a Freedom of Information Act ("FOIA") request for records from the Illinois Policy Institute. The request seeks, among other things, records pertaining to private providers of various services to the school district. Much of the information sought is exempt from disclosure under the FOIA since it involves the creation of a new record. Nonetheless, the FOIA requires the school district, as a public body, to respond to a FOIA request within seven (7) working days of receipt of the request. Your response must indicate what information is exempt, what information will be furnished, and how that information will be made available. Additionally, if the District denies the request, the response must indicate the basis for that denial.

We have prepared a draft response to the request which can be personalized to address the records information your district has which are relevant to the Illinois Policy Institute request. If you desire assistance in responding to the Illinois Policy Institute FOIA request, please contact the attorney with whom you normally work.

 

CBS 2 FREEDOM OF INFORMATION ACT REQUEST

MEMORANDUM IMMEDIATE ATTENTION REQUIRED

JULY 31, 2008

By now, many school districts across the Chicago metropolitan area have received a Freedom of Information Act ("FOIA") request for records from CBS 2 WBBM-TV. The request seeks, among other things, records pertaining to corporal punishment administered to students, the use of time-out rooms, and complaints relating to both. Much of the information sought is exempt from disclosure under the FOIA since it involves confidential student record information. Nonetheless, the FOIA requires the school district, as a public body, to respond to a FOIA request within seven (7) working days of receipt of the request. Your response must indicate what information is exempt, what information will be furnished, and how that information will be made available.

We have prepared a draft response to the request which can be personalized to address the recordsl/information your district has which are relevant to the CBS request. If you desire assistance in responding to the CBS FOIA request, please contact the attorney with whom you normally work.