Meeting the February 8th Deadline

The Industrial Relations Act requires the board and teachers

association to submit to mandatory mediation or factfinding as ordered by

the Commission of Industrial Relations if the board and association have not

reached agreement by February 8 th , unless the parties mutually agree in

writing to forgo them.

Failure to Conclude Negotiations by February 8 th . If the parties

have not reached agreement by February 8 th , they must engage in fact

finding and mediation with a “resolution officer” if one of them files a petition

with the Commission of Industrial Relations requesting it. However, they are

not required to engage in fact finding if both agree in writing to forego it.

We recommend that you consult with your school district’s attorney before

February 8 th if it appears that you will not be able to settle negotiations.

Fact Finding Process. The fact finding process can be a complex

endeavor compressed into a very short period of time. The “resolution

officer” will be in charge of the process. Among other things, he or she will:

1. determine whether the issues are ready for adjudication;

2. identify the terms and conditions of employment that were in

dispute and negotiated in good faith but not resolved;

3. choose the offer that he/she believes was the most reasonable

final offer on each issue in dispute; and

4. issue a decision and recommendations by March 25 th .

Time Flies. Time flies, especially from February 8 th through March

25 th . The board and association have slightly more than 6 weeks to

assemble their records and data, perform a comparability study (this is not

required, but it is advisable), present the information and arguments, and

give the resolution officer enough time to review it and issue a decision and

recommendations.

Conclude Fact Finding by March 25 th . The resolution officer must

conclude the fact finding process and issue a decision and recommendations

by March 25 th or within 25 days after the certification of state aid for the

contract year in question, whichever occurs later. If the parties have not

reached agreement on or before the deadline for fact finding to conclude,

either one may file a petition with the Commission within 14 days asking it

to resolve the industrial dispute.

Commission of Industrial Relations Decision. The Commission

will limit its consideration to those issues which the resolution officer

determined that the parties negotiated in good faith but could not agree

upon. The Commission will decide the case based on its traditional criteria of

comparability and prevalence, not on the resolution officer’s standard of the

“most reasonable final offer.” It must issue its decision for the contract year

by September 15 th .

If you are a KSB client and you believe that you will not reach an

agreement, please let us know immediately. If you have questions, we

recommend that you consult with your school district’s attorney or call

Karen, Steve or Bobby.

School Board Recognition Week: Thank God for Idiots

If you google “quotes about school boards” the first several hits are a

variation of this statement by Mark Twain:

“In the first place, God made idiots. That was for practice. Then he made school boards.”

— Mark Twain

As attorneys who dedicate our professional lives to representing school

districts and boards of education, we have always been irritated by this

witticism. It validates the misconceptions held by members of the public

who really have no idea what the school board does or how difficult it can

be. However, the more we think about it, the more we think that Mark Twain is on to something. School board members just might be one step

beyond idiocy. Consider:

1. Only an idiot would run for a position where you have to give up hours

of evening and weekend time away from your family to dedicate

yourself to (boring) meetings where no one cares about what you

do—until you make a decision that they don’t like and then the whole

town shows up to yell at you. School board members run anyway.

2. Only an idiot would agree to work on a school budget: at church on

Sunday the person to the left of you is a farmer who is mad because

his taxes are too high, and to the right of you is a teacher who is mad

at you because her salary is too low. School board members work

anyway.

3. Only an idiot would answer the phone when you know there is a good

chance that the caller is (a) some parent who is upset that his kid got

kicked out of National Honor Society for cheating on a test; (b) some

bus driver upset that she got suspended from her job because she got

a DUI; (c) a school board member from a neighboring district who is

mad because of what your school’s student section chanted at last

night’s game; (d) a Saturday morning quarterback who knows that

you would have won Friday night if coach would just run the ball and

blitz more—probably time to “fire” that coach; or (e) all of the above.

School board members answer anyway.

4. Only an idiot would serve in a position that places you in charge of a

school, when “local control” really means you are the one who gets

blamed for implementing the rules of the Nebraska Department of

Education, the statutes of the Unicameral, the regulations of the U.S.

Department of Education and the baffling laws of the United States

Congress. School board members serve anyway.

5. Only an idiot would accept a position that demands grueling hours,

stress, constant criticism and a state statute that says a single “board

appreciation dinner” is more than enough recognition for your

service...oh, and be sure your spouse’s dinner is not included. School

board members accept anyway.

So we suppose you could say that school board members ARE really one

step beyond idiots. And we thank God He made them anyway.

Service Animal Requests in Your School

Neither the IDEA nor Section 504 specifically address whether students with disabilities have the right to be accompanied by services animals on school grounds. However, the 2010 amendments to the Title II regulations implementing the ADA clarify some of the requirements for service animals.  Although the regulations became effective on March 15, 2011, the 2014-15 school year is the first in which schools nationwide are reporting a significant number of service animal requests.  If staff members are not prepared to handle those requests, the school district can face potential legal liability for violating the Americans with Disabilities Act or the Individuals with Disabilities in Education Act.  

The United States Department of Justice recently sued a school district in New Jersey over a family’s request that student be allowed to bring a service dog to school.  The case was ultimately settled $10,000, and the district agreed to increase training and improve its policies.  See Settlement Agreement Under the Americans with Disabilities Act Between the United States of American and Delran Township School District (DJ# 204-48-284).

In the New Jersey case, the family asked that their child be allowed to bring his service dog to school.  Although the IEP team did not believe the service dog was necessary to allow the child to receive FAPE, the family asserted their right to bring the service animal to school under the Americans with Disabilities Act.  The school district responded by asking the family to provide documentation of the animal’s training and for medical confirmation that the student’s disability required the presence of the animal.  Ultimately, after six months of delay, the school district denied the request prompting the family to complain to the Department of Justice.

While there are not concrete answers on how to handle these types of requests, it appears that a six month delay would be considered unreasonable.  Schools should respond to requests for service animal access as quickly as possible.  Schools are not permitted to demand copies of the animal’s training certification, copies of veterinary records and the like.  If your school or ESU has reason to question the necessity or authenticity of a service animal, the school should contact legal counsel immediately. Schools are allowed to conduct a quick investigation into allergies of other students and a determination of what accommodations if any would need to be made should a student need to bring a service animal in the building.  

No matter how a district decides to approach service animal requests it is important to keep that approach consistent in all cases.  It could be that all requests are filled out using the same form, and the same person handles all the requests.  Further, schools should ask questions along the lines of, "Is the dog required because of a disability? And, what work or tasks has the dog been trained to perform?"  Having a clear procedure to gather all of the information can help alleviate issues of asking the parents for unnecessary information and prolonging the process, risking a lawsuit alleging an IDEA violation.  

If you have questions, we recommend that you consult with your school district’s attorney or call Karen, Steve or Bobby.

Update on Superintendent Pay Transparency Act

       Last year the Nebraska Unicameral passed the Superintendent Pay Transparency Act.  The Act requires school districts to publicize publish both the superintendent’s contract and a "reasonable estimates and descriptions of all current and future costs."  Most districts and ESUs have just added another tab or link on the homepage of their website under which the superintendent’s contract and a copy of “Schedule C” from the state auditor can be found.    

Now, as school boards are renewing superintendents’ contracts, many schools have questions about how to comply with the Act as part of the renewal process.  When the board is preparing to renew a superintendent’s contract the board must:

1. Post a Notice of the proposed contract and related costs 3 days before the board meeting at which the contract will be approved or amended;

1. Publish a copy of the contract and the related costs within 2 days after the meeting at which the contract is approved;

1. Publish updated data any time the contract is amended; and

1. Provide a copy of the contract and any subsequent amendments to the NDE by August 1st following the adoption or amendment of the contract.

Any new contract, changes to an existing contract, or automatic renewals should comply with the posting requirements discussed above.  For example, if the board and superintendent agree to amend the superintendent's contract in January of 2014, the district should post Notice 3 days before the meeting, update the posting on the website within 2 days after the meeting, and send a copy of the newly-amended contract to the NDE.

If you have questions, we recommend that you consult with your school district’s attorney or call Karen, Steve or Bobby.