WASA New Superintendent Workshop: Legal Issues Facing the Superintendent

Transcription

1 WASA New Superintendent Workshop: Legal Issues Facing the Superintendent Lorraine Wilson, J.D. Olympia, Washington July 27, 2015 (206)

2 Session Overview Knowing which Attorney to Call Key Statutes Conflict of Interest, Chapter RCW Open Public Meetings Act (OPMA), Chapter RCW Public Records Act (PRA), Chapter RCW

3 Which Attorney: General Legal Issues Property transactions Policy development or review Student discipline Employee relations and management Contract development or review General compliance issues: bidding, public records, open meetings, conflicts of interest, etc.

4 Which Attorney: Insured Events Injuries to students, patrons or others: bus accidents, sports injuries, slips and falls, etc. Allegations of employee misconduct that implicate injuries to students or staff: improper restraint, sexual abuse, discrimination, etc. Employee challenges to discipline or discharge that allege retaliation or discrimination Note: It is never wrong to call the insurance provider first if you are not sure if there is coverage

5 Which Attorney: Professional Issues Questions that implicate the employment or contractual relationship between the District and the Superintendent need to be addressed with an attorney who represents the Superintendent. Allegations of misconduct against the Superintendent (may also be covered by District s insurance) Contract enforcement and issues of breach

6 You and the District s Attorney(s) For general legal issues you or one of your administrative team will be the direct contact with the District s attorney. You will: Direct the attorney s work Make strategic and tactical legal decisions The same is generally true of insurance related issues. If there are allegations against you, the insurance company may also provide you with an attorney As regards your employment, the District s attorney represents the Board. You will need your own attorney.

7 Who You Gonna Call? A Quiz During open gym time at lunch on a rainy day three middle school boys decide to run touch football pass plays. One of the boys, wearing slide sandals, trips or is touched, falls, and breaks his arm. Parents file a tort claim.

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9 Who You Gonna Call? A Quiz The transportation manager executes a five-year contract with a uniform supply company for mechanics coveralls and laundry service. The contract is never processed through the business office or Board. The manager leaves, the new manager is unhappy with the service and price, and finds a new, better vendor. Liquidated damages for cancelling the contract could run $20,000 or more.

10 Washington State Council of School Attorneys: (800) (WSSDA), 20and%20Legal/Council%20of%20School%20Attorne ys/2015%20cosa%20membership%20roster.pdf

11 Who You Gonna Call? A Quiz Not recognizing the utility of snapchat, a school counselor sends pictures of his genitals to a colleague in a regular text. The colleague files a sexual harassment complaint.

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13 Who You Gonna Call? A Quiz Your initial contract as Superintendent is approved 5-0. Seventeen months later at the election, one sitting Board member is defeated. Another six months later a Board member resigns to care for an elderly parent. Eighteen months after that a second Board member is defeated for re-election by a candidate backed by the education association. In early January the Board president asks to meet with you

14 John Dekker, WASA Assistant Executive Director (360)

15 Key Statutes: Conflicts of Interest Citation: Chapter RCW Coverage: Elected Board members and superintendents Main holding: No municipal officer shall be beneficially interested, directly or indirectly, in any contract which may be made by, through or under the supervision of such officer... RCW

16 Key Statutes: Conflicts of Interest Exceptions: Utilities provided by a municipality Banking services Unskilled day labor < $200 per month Other contracts (not employment) < $1,500 per month Conflicted official may not vote on contract and interest must be disclosed to the Board and reported in the minutes

17 Key Statutes: Conflicts of Interest School District Exceptions: Employment as a bus driver (2 nd class districts) Employment as teacher or para substitute (< 200 students, must have sub shortage) Employment of spouse as substitute teacher (must have sub shortage) Renewing existing employment of spouse after director or superintendent takes office

18 Key Statutes: Conflicts of Interest Remote interests: Nonsalaried officer of a non-profit corporation Employee with fixed wages of entity contracting with District Landlord or tenant of a contracting party < 1% of shares of a contracting corporation Officer with a remote interest may not vote or influence District s decision to contract, interest must be disclosed and recorded in Board minutes

19 Key Statutes: Conflicts of Interest Consequences for violation: Any contract made in violation of the provisions of this chapter is void and the performance thereof, in full or in part, by a contracting party shall not be the basis of any claim against the municipality. Any officer violating the provisions of this chapter is liable to the municipality of which he or she is an officer for a penalty in the amount of five hundred dollars, in addition to such other civil or criminal liability or penalty as may otherwise be imposed upon the officer by law. In addition to all other penalties, civil or criminal, the violation by any officer of the provisions of this chapter may be grounds for forfeiture of his or her office.

20 Key Statutes: OPMA Citation: Chapter RCW Main holding: All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter. RCW

21 Key Statutes: OPMA Key Definitions: "Action" means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. "Meeting" means meetings at which action is taken.

22 Key Statutes: OPMA No conditions on attendance of the public Procedures for dealing with interruptions Actions taken at an improper meeting are void, and no secret voting is permitted Must have regular meetings established (> one per month for school boards) Notice requirements are suspended in emergencies Governing body may travel or gather outside a meeting, if no action is taken

23 Key Statutes: OPMA Regular meeting agendas must be posted online at least 24 hours ahead of the meeting (may be amended) Special meetings may be called with 24 hours notice (which includes the agenda, which cannot be amended): Notice to each Board member Notice to media having requested notice Posted physically and on the District web site

24 Key Statutes: OPMA Executive (closed) sessions: Issues impacting national security Sale or purchase of real estate Review negotiations on performance of bid contracts when public knowledge would likely increase costs Receive and evaluate complaints or charges brought against a public officer or employee (unless officer or employee requests an open meeting)

25 Key Statutes: OPMA Executive (closed) sessions: Evaluate the qualifications of a job applicant or review the performance of a public employee (general discussions of salary policy and final actions on salary, discipline or discharge must be public) Evaluate the qualifications of a candidate for appointment to the Board. Interviews of such candidates and final action appointing a candidate must be public

26 Key Statutes: OPMA Executive (closed) sessions: Discuss with legal counsel matters relating to agency enforcement actions Discuss with legal counsel litigation or potential litigation, when public knowledge regarding the discussion is likely to result in an adverse legal or financial consequence to the agency

27 Key Statutes: OPMA Executive (closed) session procedures: Before convening in executive session, the presiding officer of a governing body shall publicly announce the purpose for excluding the public from the meeting place, and the time when the executive session will be concluded. The executive session may be extended to a stated later time by announcement of the presiding officer.

28 Key Statutes: OPMA Non- meetings (no notice required): The portion of a meeting of a quasi-judicial body relating to a quasi-judicial matter between named parties (student appeals) Collective bargaining sessions The portion of a meeting developing or adopting strategies or positions for collective bargaining, professional negotiations, mediation or grievances, or reviewing proposals

29 Key Statutes: OPMA Consequences for violation $100 personal fine for a Board member knowingly attending a meeting in violation of the act Attorney fees may be awarded Training required Within 90 days of taking office Every four years while in office Remote training OK (offered by AG and WSSDA)

30 Key Statutes: PRA Citation: Chapter RCW Main holding: Each agency, in accordance with published rules, shall make available for public inspection and copying all public records RCW (1).

31 Key Definitions: Key Statutes: PRA "Public record" includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics

32 Key Definitions: Key Statutes: PRA "Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.

33 Key Definitions: Key Statutes: PRA Invasion of Privacy: Disclosure of material that (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public

34 Key Statutes: PRA No liability or cause of action for damages caused by the good faith disclosure of records under the act May redact personally identifiable information if disclosure is an invasion of privacy and if redaction is explained in writing

35 Key Statutes: PRA Records must be provided promptly Within 5 business days of receiving a request the District must: Provide the record, Provide the web address of the record (unless the requester has no Internet access), Provide an estimate of the extra time needed to respond to the request, or Deny the request (and provide the reason)

36 Key Statutes: PRA Acceptable reasons to take extra time to provide the records: Clarify the intent of the request: if the requester does not clarify a request, no further response is required Locate and assemble the information Notify third persons affected by the request Determine whether any of the information requested is exempt

37 Key Statutes: PRA Districts or persons named in records may seek court protection of records, if disclosure is not in the public interest and would substantially and irreparably damage: Any person A vital governmental function

38 Key Statutes: PRA Courts will review denials of access to records, or estimates of time required to gather records. Burden of proof that the denial or time estimate are appropriate is on the District. Successful requesters can be awarded attorney fees and up to $100 per day per record that a record was improperly withheld. Claims must be brought within one year.

39 Key Statutes: PRA Records may be provided on a partial or installment basis, if a large request Requests cannot be denied as overbroad May not distinguish between requesters unless permitted by law (may deny requests for commercial purposes ) Must make facilities available for copying, unless disruptive

40 Key Statutes: PRA Must respond to requests arriving by mail (quaint, unless the requester is incarcerated) District records must be available for review and copying during customary business hours, and customary business hours must be publicized on the district web site Districts can have rules limiting direct review of records to protect the records and avoid interference with district operations, but the rules shall provide the fullest assistance to inquirers and the most timely possible action on requests for information

41 Key Statutes: PRA May charge 15 per page, or actual cost of supplies and labor directly attributable to copying and mailing records (but not finding, analyzing or redacting records, or making them available electronically) May require a 10% deposit on copying and mailing costs, and may require payment for each installment If fulfilling a request in installments and an installment is not claimed, need not produce subsequent installments

42 Key Statutes: PRA Responses withholding or redacting any record shall include a statement of the specific exemption and a brief explanation of how the exemption applies to the record The Superior Court can overrule the District s decision to redact or withhold a record

43 Key Statutes: PRA Incarcerated requesters have limited rights under the PRA: Will only receive penalties for withheld documents if the district acted in bad faith May be enjoined from receiving records If the request was intended to harass or intimidate the district or district employees Fulfilling the request threatens the safety of a person Fulfilling the request might aid a criminal activity

44 Key Statutes: PRA Elected officials (Board members) must take a PRA training within 30 days of taking office and once every four years while in office Public Records Officers (district employees) Must have training within 90 days of taking role and every four years thereafter Must be publicly identified (each district must have one) Remote training OK (offered by AG and WSSDA)

45 Exceptions: Key Statutes: PRA Personal information in any files maintained for students in public schools Personal information in files maintained for employees, appointees, or elected officials to the extent disclosure would violate their privacy Credit card numbers, debit card numbers, electronic check numbers, card expiration dates, or bank or other financial account numbers

46 Key Statutes: PRA Exceptions: Test questions, scoring keys, and other examination data used to administer an employment or academic examination All applications for public employment, including the names of applicants, resumes, and other related materials submitted with respect to an applicant (does it apply once hired?)

47 Key Statutes: PRA Exceptions: Residential addresses, residential and personal wireless telephone numbers, personal addresses, social security numbers, driver's license numbers, identicard numbers, and emergency contact information of employees or volunteers Same for dependents of employees and also names and dates of birth

48 Key Statutes: PRA Exceptions: Investigative records compiled by an employing agency conducting an active and ongoing investigation of discrimination in employment under federal, state or local law Real estate appraisals relative to the acquisition or sale of property, until the project or prospective sale is abandoned, or all of the property has been acquired or sold, or three years after the appraisal

49 Key Statutes: PRA Exceptions: Valuable formulae, designs, drawings, computer source code or object code, and research data < 5 years in district s possession and when disclosure would produce private gain and public loss Preliminary drafts, notes, recommendations, and intra-district memoranda unless cited in District action

50 Key Statutes: PRA Exceptions: Annual home-school declarations Information compiled in the development of comprehensive safe school plans, to the extent that it identifies specific vulnerabilities of school districts and each individual school Information regarding the infrastructure and security of computer and telecommunications networks

51 Key Statutes: PRA Exceptions: Materials that would not be available in litigation discovery if litigation is ongoing Privileged mediation records Compliance with other statutes which exempt or prohibit disclosure of specific information or records (records that are privileged or attorney work-product, but not entire attorney invoices)

52 Key Statutes: PRA Districts are required to notify persons if there is a breach of security and personal information is acquired by an unauthorized person.

53 Questions and Discussion Thank You!