HPF ATTORNEYS JAMES PETRUNGARO AND ADAM DAUKSAS
TO PRESENT ON STRATEGIES TO COMBAT EMPLOYEE LEAVE ABUSE
December 3, 2020
Attention IASB members: On December 10, 2020 at 1:00 p.m., HPF partners James Petrungaro and Adam Dauksas will be guest presenters for the Illinois Association of School Boards in a webinar addressing strategies school districts can use to combat employee leave abuse. IASB members can register for this event here. The presentation will focus on traditional forms of leave (e.g. sick, personal, vacation and FMLA), and will not cover the temporary leave benefits available under the Families First Coronavirus Relief Act.
AS A NEW WAVE OF COVID-19 HITS, TIER 2 MITIGATION EFFORTS ARE LIKELY TO FORCE BOARD MEETINGS TO VIRTUAL FORMATS
As Illinois endures a new and troubling wave of COVID-19 transmission, the State is imposing mitigation efforts on a region-by-region basis. Though no region has regressed to Phase 3 yet, multiple regions (including DuPage, Kane, Kankakee and Will Counties) have been assessed Tier 2 Resurgence Mitigation. Under Tier 2, gathering capacities are limited to 10 persons, including business meetings. While schools are exempt from Tier 2 mitigation efforts for student instructional purposes, there is no known exemption for business meetings of the school board.
If your district’s region moves into Tier 2 mitigation, board meetings will be subject to the 10-person capacity. Most likely, that will make meeting in-person unfeasible or impractical. If an in-person meeting is to be held, each board will have to ensure that overflow rooms are available and a means of public comment is provided to accommodate crowds larger than 10. If your board will move meetings to a virtual/remote means (e.g., via Zoom), compliance with the recent amendment to the Open Meetings Act for remote meetings during the pandemic is still required.
Please contact your attorney to discuss any questions you have on Tier 2 mitigation and its impact on your board meetings.
“CLOSE CONTACT” FOR COVID-19 EXPOSURE REDEFINED"
October 22, 2020
As has become the norm during the COVID-19 pandemic, another shift in guidance is sure to impact how school districts evaluate their ability to provide in-person instruction. The U.S. Center for Disease Control (“CDC”) previously defined “close contact” for purposes of contract tracing after a COVID-19 exposure as anyone who was within 6 feet of an infected person for at least 15 minutes. Then in September 2020, the Illinois Department of Public Health released a FAQ guidance document for schools, which expanded the definition of “close contact” as “anyone (with or without a face covering) who was within 6 feet of a confirmed case of COVID-19 (with or without a face covering), for at least 15 minutes throughout the course of a day.”
Most recently on October 21, 2020, the CDC further expanded the definition of “close contact” as anyone who was “within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period, starting from 2 days before illness onset.” Under the new CDC definition, for example, an individual exposed to COVID-19 for only 5 minutes but three different times within a 24-hour period (perhaps spanning two school days) now falls under the definition of a “close contact.”
The expansion of the definition of “close contact” could significantly impact schools, particularly when applying determining who to exclude following a confirmed-positive COVID-19 individual. Schools will likely see an increase in the number of “close contacts” as the new definition aggregates exposure within a 24-hour period, not just a “day.”
If you have questions about the new definition of “close contact” or other COVID-19 related questions, please contact your HP&F attorneys.
Tags – OPERATIONS: Health; STUDENTS: Safety
TITLE IX TRAINING VIDEO AND PACKET AVAILABLE FROM HPF
We were thrilled to see over 130 school administrators, board members and staff join us for our Title IX Training webinar on September 24th. If you were unable attend and would like to view the presentation, please contact Ellen McNulty (firstname.lastname@example.org) for a streaming link and copy of the training materials.
If your District has not yet purchased the packet of over 20 notices, forms and guidance materials created by HPF for use when conducting a Title IX investigation, please contact Ellen by email at email@example.com to request the Title IX packet if interested. That packet includes the following for a package price of $2,000 which will be applied to your monthly invoice:
Notice to Complainant of Informal Report & Supportive Measures
Template for Formal Complaint
Notice to Parties of Formal Complaint
Notice to Witnesses
Notice to Extend Time for Good Cause
Notice of Interview/Meetings
Notice of Informal Resolution Process
Template for Informal Resolution Consent Form
Template for Informal Resolution Agreement
Notice of Dismissal of Formal Complaint and Rights of Appeal
Notice of Opportunity to Submit Written Responses to Evidence
Template for Investigative Report
Notice of Investigative Report
Notice of Written Q&A Process
Notice of Party Questions for Response
Notice of Answers and Limited, Follow-Up Question Process
Notice of Party Follow-Up Questions for Response
Notice of Answers to Follow-Up Questions
Notice of Party Excluded Questions
Template for Initial Decision-Maker’s Report
Notice of Appeal Filed
Template for Appellate Decision Report
Investigator Best Practices
Title IX Flow Charts
Overview of Process
If you have any questions about the new Title IX regulations, new PRESS policies regarding Title IX, the HPF packet of Title IX forms, templates and notices, or the webinar, please do not hesitate to contact your attorney at HPF.
GENERAL ASSEMBLY EXTENDS TWO INTERFUND TRANSFER RULES
June 18, 2020
We discussed in a previous e-Blackboard two flexible fund transfer mechanisms currently available in the School Code that were set to expire on June 30, 2020. On June 18, 2020, Governor Pritzker signed Senate Bill 1569 into law, thereby extending the two interfund transfer rules. Therefore, the ability to make a transfer of surplus Safety Fund assets to the Education, Operations & Maintenance fund will continue to June 30, 2021, and the waiver that allows districts to ignore the “one-time, non-recurring expense” requirement for Operating Fund transfers is extended to June 30, 2021.
If you would like assistance with making these transfers, your HPF attorneys are ready to work with you.
TWO INTERFUND TRANSFER RULES ARE SET TO EXPIRE ON JUNE 30, 2020, POTENTIALLY LIMITING FINANCIAL FLEXIBILITY AT THE WORST POSSIBLE TIME
May 11, 2020
As Fiscal Year 2020 (FY20) winds down and school districts begin forecasting and modeling financial projections for FY21 during a time of incredible fiscal uncertainty, we highlight two flexible fund transfer mechanisms currently available in the School Code that are set to expire on June 30, 2020. With the Illinois Legislature not currently in session, and a timetable for reconvening unknown, it is very possible that these transfer mechanisms may sunset with a significant passing of time before they are brought back…even if there is a political appetite to bring them back.
Operating Fund Transfers
Under Section 17-2A of the School Code, districts are allowed to transfer assets between the Education, Operations & Maintenance (O & M), and Transportation funds, and also from the Tort fund to the O & M fund, provided certain procedural steps are honored. Those steps include: (1) a published notice of hearing at least seven days and no more than 30 days before a public hearing; (2) that public hearing taking place; and (3) a formal board resolution authorizing the transfer to the fund the Board determines is most in need. Until June 30, 2020 there is no requirement that the transfer meet any kind of substantive condition thanks to a long running legislative waiver that allows school districts to ignore the following rule: that these transfers be made “solely for the purpose of meeting one-time, non-recurring expenses.”
The waiver that allows districts to ignore the “one-time, non-recurring expense” requirement has been typically extended by the Legislature in two or three-year increments. With that waiver set to expire next month, it remains to be seen if and when the Legislature will extend the waiver. Because the Legislature is not currently meeting due to the COVID-19 shutdown, it is becoming a real possibility that the waiver sunset will not be extended in time for the start of FY21.
Fire Prevention and Safety Fund Transfer
A similar transfer flexibility rule in Section 17-2.11 of the School Code is also set to expire on June 30, 2020 without legislative action. Currently, Section 17-2.11 allows the transfer of “surplus” monies in the Fire Prevention and Safety Fund (“Safety Fund”) to the O & M fund for building repair work, provided similar procedural steps are taken, including: (1) notice of a public hearing concerning the transfer published and posted between seven and 30 days prior to the hearing; (2) a public hearing; and (3) an authorizing board resolution. If not extended by legislative action, the ability to make a transfer of such surplus Safety Fund assets to the O & M Fund will lapse.
Uncertain Revenue and Cost Forecast for FY21 May Necessitate Action Now
With the economic downturn delivered by the COVID-19 pandemic, many financial experts are forecasting revenue shortfalls for the State of Illinois in FY21. With Illinois having precarious financial footing long before the challenges brought on by the pandemic, we may see one or more of the following adverse economic scenarios for school districts soon happening: (1) reductions in evidence-based funding (“EBF”) due to insufficient appropriations; (2) decreased property values; (3) flat or near-flat CPI, limiting levy increases in PTELL counties; (4) a drop in property tax collections; (5) a property tax freeze to bring relief to struggling taxpayers; and/or (6) the long-looming teachers’ pension cost shift to school districts. On top of these potential budget wreckers, school districts may also have to allocate funds for atypical expenditures brought on by the pandemic, including possible contingency plans for re-opening schools in the fall or continuing with remote learning.
Even if the Legislature re-convenes within the coming weeks, there is no guarantee that the June 30 sunsets in Sections 17-2A and 17-2.11 of the School Code will be extended. In fact, the only bill pending on these issues at the time of the mid-March State shutdown, HB1627, would put the transfer restrictions back in place beginning July 1, 2020. With the possibility that the fund transfer options explained above may lapse come June 30, 2020, school business officials may want to review the prudence of possibly making such transfers before the end of FY20. If you would like assistance with making these transfers, we will be ready to work with you.
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.
Scariano Himes and Petrarca