Legal Issues Update
Presented by:
Cory Kirby
Harben, Hartley & Hawkins, LLP
Wachovia Center, Suite 750
340 Jesse Jewell Parkway
Gainesville, Georgia 30501
Telephone: (770) 534-7341; Facsimile: (770) 532-0399
ckirby@hhhlawyers.com
2011-12 Work
and Pay Scale
Calendar
SBOE shall establish a schedule of minimum salaries for
services rendered which shall be on a ten-month basis….
The minimum salary schedule shall provide a minimum
salary base for each classification of professional
personnel required to be certificated; shall provide for
increment increases above the minimum salary
base…based upon individual experience and length of
satisfactory service…. The minimum salary base for
certificated professional personnel with bachelor’s
degrees and no experience, when annualized from a tenmonth basis to a 12-month basis, shall be comparable to
the beginning salaries of the recent graduates of the
University System of Georgia….
3
The General Assembly shall annually appropriate
funds to implement a salary schedule for certificated
professional personnel. For each state fiscal year, the
state board shall adopt the salary schedule for which
funding has been appropriated by the General
Assembly. A LUA shall not pay to any full-time
certificated professional employee a salary less than
that prescribed by the schedule of minimum
salaries…; nor shall a LUA pay to any part-time
certificated professional employee less than a pro
rata portion of the respective salary prescribed by
the schedule of minimum salaries….
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6
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10
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For Grades K–12, the LBOE shall schedule the school year for
students as a minimum of 180 school days or its equivalent.
Beyond the school year for students, the LBOE shall adopt
policies and procedures identifying the number of days to be
utilized for professional learning for all employees.
 What
Rules Apply to PreK Teachers?
• Statutes – O.C.G.A. § 20-1a v. O.C.G.A. § 20-2
• Entity – Department of Early Care and Learning
(DECAL) v. State Board of Education
• Rules v. Guidelines
 What
Options Exist for Current Pre-K
Teachers?
• Reduction in Force
• Moving Teachers into K-12 slot
• Remain in Pre-K
 What
Options Exist? What Should School
Districts Do?
• Consider Implementing a New Contract
Pursuant to the terms, conditions
and agreements set forth below,
which are mutually acknowledged
to be of good and sufficient
consideration, the Employer has
offered and the Employee has
accepted employment as a
member of the Pre-K staff of the
________ Pre-K Program for the
2011/2012 program year.
The Employee shall be paid a salary
equal to the minimum required to be
paid to such an employee for the
minimum number of days required
under rules, regulations, guidelines
and work calendars applicable to the
2011-2012 work year established by
the Department of Early Care and
Learning and set by the Employer in
accordance with all applicable state
guidelines
The salary will be decreased
based on any decrease in the
state minimum salary required
by state guidelines. [Any salary
greater than the minimum
salary required by state
guidelines is conditioned upon
the continued availability of any
and all funds available at the
time of this contact, with all
salaries subject to downward
adjustment according to
decreases in such funding from
the level anticipated at the time
this contract is signed.]
(4) The Employee
agrees to teach the
curriculum and
standards, perform the
duties of the position,
and obey the rules and
regulations of the
Employer, the
Department of Early
Childcare and Learning,
and, if applicable, the
Professional Standards
Commission in effect at
the time of the execution
of this contract or
hereafter enacted or
amended.
Main Purpose: Fix criminal background problem
– allows both PSC and District to do criminal
background checks
 Eliminates temporary 200 day employment
contracts (new employment contracts)
 Now, can employ for 20 days without a contract
and without a clearance certificate
 Apply for clearance certificate after running
background check and after deciding to hire
employee
 Clearance certificate use PSC standards as to
criminal charges and no ethics violations

1.
2.
3.
4.
5.
No more 200 day (new employee) contract
Work/paid as a substitute until clearance
certificate issued
PSC standard and District’s standard may
not be the same as criminal record
Even if employee has a clearance
certificate, STILL need to check for past
certification issues
Even if there is a clearance certificate
STILL need to run a background check
 State
Education Finance Study
Committee created to evaluate QBE
formula
• Composed of 20 members, including
superintendent, principal or other administrator,
a teacher, member of LBOE, member of State
Board, representative from University System,
Technical College System, PSC, School Finance
Officer, business representative, State School
Superintendent, Chief Finance Office from DOE
and legislators
 Moves
back the deadline from June 30,
2013 to June 30, 2015.
 Decision to request increased flexibility
option
 Maintains, extends from last year
authority for districts to qualify for
middle school funding even though the
grades are not in the same building.



Provides a definition of contractor and sub-subcontractor
If BOE does not maintain website, must provide employer
federally issued user identification number and date of
authorization to Carl Vinson Institute of Government of UGA
Before a bid for any physical performance of service is
considered by BOE, the bid shall include a signed, notarized
affidavit from the contractor attesting to:
• Affiant has registered with, is authorized to use, and uses the federal
•
•
•
•
work authorization program
User identification number and date of authorization for affiant; affiant
will continue to use e-verify throughout the contract period and affiant
will contract for the physical performance of services only with
subcontracts who present an affidavit to the contractor with the same
information
Subcontractor and sub-subcontract must comply with statute
Contractor must submit affidavits, driver’s licenses and other required
information to BOE within 5 business days of receipt
By August 1, 2011, Department of Audits shall create and post on
website form affidavits

No later than 12/31 of each year, the BOE must submit
compliance report to auditor certifying compliance.



Compliance report must contain BOE federal work
authorization program verification user number, date of
authorization, legal name, address, federal work authorization
program user number of contractor and date of contract
between contractor and BOE
Subject to available funds, auditor is to conduct an annual
compliance audit on at least half of the reporting agencies
If BOE is found in violation, it shall have a 30-day cure
period. If deficiencies are not cured within 30 days,
BOE shall be excluded from list of “qualified local
governments”

Can seek administrative relief through OSAH
 BOE
shall not be held civilly or criminally
liable or responsible for “unknowingly or
unintentionally” accepting a bid from
contractor, subcontractor or subsubcontractor who acted in violation of
statute
 Proposer/Bidder
– By providing a
proposal or bid, proposer/bidder
certifies that he/she is in compliance with
O.C.G.A. § 13-10-90, et seq. No proposal
or bid will be considered by the BOE
unless it is accompanied with a signed,
notarized affidavit from the
proposer/bidder attesting to the
following:
(a) The affiant has registered with and is authorized to
use and uses the federal work authorization
program
(b) The user identification number and date of
authorization for the affiant; and’
(c) The affiant will continue to use the federal work
authorization program throughout the contract
period; and
(d) The affiant will contract for the physical
performance of services in satisfaction of such
contract only with subcontractors who present an
affidavit to the contractor with the same
information required in subparagraphs (a), (b) and
© of this paragraph.
 School
district may receive and store
prescription epi pen onsite on behalf of
student who is not able to self-administer
the medication due to age or other reason
• Provide that….
 Written statement from physician detailing name of
medication, method, amount and time schedule for
medication to be taken, and
 Written statement from parent authorizing school nurse
(other designated school individual) to consult with
physician and releasing district and employees from civil
liability
• Provides immunity from civil liability to school
personnel who “in good faith” administers or doesn’t
administer epi pen
 Amended
to index the $50 million tax
credit cap to inflation rate of CPI
 Limits the amount an organization can
give to the average of state and local
funding per pupil as determined by DOE
United States Supreme Court decision
addressing Arizona tuition tax credit
scheme similar to Georgia’s
Challenge is based on the First A.
establishment clause, but Court never
gets there
Instead, finds that taxpayer has no standing
since a tax credit never is the
Government’s money
 Why
worry about vouchers if you can
have tax credits?
 Expansion of current program, see HB
325
 50 million dollars will grow every year
 Private schools, virtual private schools?
 What about the Georgia Constitution?
 Creates
civil monetary
penalty if driver of
vehicle failed to stop
when school bus has
stop sign out
• As evidenced by recorded
images
• Graduated fine schedule –
1st: $300, 2nd: $750, 3rd +:
$1,000 (in five year
period)
 Will
we see seatbelts on school buses?
 If so, who pays?
 Whereas, the
rapidly rising health
insurance premiums are impacting state
budgets, and the state’s fiscal pressures
are leading the need to encourage
proposals to change funding and cost
sharing
 Whereas, there is a general trend toward
greater cost sharing for all plan types
 Stay tuned….
 SB
184: seniority is bad; what about the
evaluation of teachers
 HOPE: valedictorians and salutatorians
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 By
8/1/11, LBOE policy with specified elements
 Bullying prohibition must be in codes of
conduct for ALL schools
 Alternative school assignment for grades 6-12
after tribunal finding of 3rd bullying offense
 Notification of parents of bully and victim

SDOE model already issued
40
 Reporting
requirement – may be
anonymous, required for staff, must
be investigation, immunity provided,
no retaliation
 Applies to bullying, harassment,
intimidation and retaliation
 Definitions much broader than state
statute
 Model policy not mandated, how do
you decide?
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We are suggesting
that local boards not
necessarily adopt the
model policy.
 Consider all issues
carefully, and consult
with your attorneys.
 You have to decide
what conduct you
want your policy to
cover.

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 Statutes
involved include:
• Title VI of the 1964 Civil Rights Act
• Title IX of the Education Amendments
of 1972
• Section 504 of the Rehabilitation Act of
1973
• Title II of the Americans with
Disabilities Act
On October 26, 2010, USDOE Office of Civil
Rights put out a “Dear Colleague” letter
addressing bullying and harassment.
 The OCR letter praised the current efforts at
the state and local level to combat bullying,
but had as its principal purpose to remind
that bullying activity may also trigger
responsibilities under federal
antidiscrimination laws.
 Those responsibilities broader than standard
set by the courts for monetary liability

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 “School
districts may violate these
civil rights statutes and the
Department’s implementing
regulations when peer harassment
based on race, color, national origin,
sex or disability is sufficiently serious
that it creates a hostile environment
and such harassment is encouraged,
tolerated, not adequately addressed,
or ignored by school employees.”
45
 DOE
has come up with a definition for
“harassment and intimidation” centering on
the motive for the actions, which may include
“electronic communication” without regard to
its origins.
 Motives are based on “any actual or perceived
characteristic including race, color, ethnicity,
religion, gender, sexual orientation, ancestry,
national origin, physical attributes,
socioeconomic status, physical or mental
ability or disability, or by any other
distinguishing characteristic.”
46
 May
want to have uniform procedures in
place at each school on how reports of
bullying and harassment are reported,
investigated and documented.
 Documentation or investigation,
discipline and remedial steps
 Response to the victim just as important
as punishment
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 Having
a complaints
procedure
 Having a
Coordinator
appointed
 Determine that the
conduct is
harassment that
would be under the
purview of OCR
 Conduct an
immediate
 Take
prompt and
effective steps
reasonably
calculated to end
harassment
 Eliminate any
hostile environment
and its effects
 Prevent the
harassment from
recurring
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1.
2.
3.
4.
5.
Who determines if it’s bullying or
harassment or nothing?
Are the investigations for bullying vs.
harassment different? Do they have to
be documented differently?
How to follow the appropriate
procedures to meet both the State and
Federal requirements.
How to coordinate the documentation
and investigation throughout the
District.
How to train staff and parents?
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 Sending
them to SBOE
 Sending them to Georgia’s AG for
preclearance by US AG
 What if we Didn’t?
 How to Do it?
 Enforcement in the Future