Rob Cutbirth/Tucker Ellis, LLPOne Market Plaza, Steuart Tower,

7th Floor, SF, CA 94105Telephone: 415-617-2235

Robert.Cutbirth@TuckerEllis.com

Presented by

NORTH BAY SCHOOLS INSURANCE AUTHORITY

&

REDWOOD EMPIRE SCHOOLS INSURANCE

AUTHORITY

This Year, a Different Focus

A

Why The Change? Sites Present the Greatest Exposure

– Auto/Transportation

– Employment/Employee Management

– Students & Parents & Volunteers & Boosters

– Facilities/Safety

– Technology/Privacy

– Career Technical/Work Study Programs

– Plus Every Social Issue Facing the Country in a Few Small Acres of Land

So, We Should Provide Greater Training and Tools

How Did We Develop These Subjects

• Our Claim Experience

• Reported Lawsuits/Claims

• Risk Management Reviews

• Questions Raised During the Year

• New CSBA Board Policies/Admin. Rules

• General Media Reports

And What are we Saving?

ADA

<1000

1,500 to

4,999

5,000 to

9,999

10,000 to

19,999

20,000 and

over

Beginning Teacher

Annual Salary$38,152 $38,920 $41,243 $41,318 $41,761

Midrange Teacher

Annual Salary$55,573 $59,803 $64,893 $65,615 $66,895

Highest Teacher

Annual Salary$71,908 $78,096 $83,507 $84,981 $86,56

We’re Buying (or Protecting) Teachers

Before School Opens

General Physical Safety

– Neighborhoods (Location)

– Buildings (Conditions/Repairs)

– Grounds (Bushes/Shrubs)

– Cameras/Sprinklers

– Automatic External Defibrillators (AEDs) & Fire Extinguishers

– Gates/Fences

– Equipment

– Driveways/Paths of Travel (Limitations on Duties)

– Environmental

– Use of Janitorial Staff

Site Emergency Response

• Site Specific• In the Classroom• Easy to Read/Easy to Follow• Training/Explanation – Teachers,

Students, Volunteers• School Site Councils/Comprehensive• School Safety Plans• Emergency Communications• AEDs

News Media/Emergencies

• Internal Response to External Events

– Calming Responses and Assurances

– Ensure Coordination with District Policy

as well as site-specific issues

• No one Acts Individually

• No one Makes their Own Rules

Site Usage by Third Parties(Civic Center Act)

• Must be under Facilities Use Agreement

– PTA/PTO/Kiwanis/Booster Clubs, etc.

– They don’t come on campus without approval

• They do not use Food Areas (particularly refrigerators and freezers), at least in the absence of a District Food Service Employee

• Must comply with all District Guidelines

• No alcohol (despite new law; doesn’t apply to sites)

From an Online Presentation by Civic Group

Principals

• School principals make the final decision whether teams can use fields.

• To maintain the cleanliness and safety of school grounds, they may disallow teams from using fields.

• But sometimes they deny access without explaining why.

Same Program

School Districts Should Provide Clear Guidelines for Principals on the Civic Center Act.

Community groups should be able to reserve fields unless the fields are in use by school teams.– Normal wear-and-tear on soccer fields is not a sufficient reason

to turn down a team.

– The presence of a CAPS after-school program should not close the fields for the whole evening.

Accountability– Teams/leagues should follow-up and document the reasons why

they were turned down by principals to make sure they are living up to the spirit of the Civic Center Act.

New Disclosure Obligations and Standards

• Better Publicized Nondiscrimination Policy (website and other “prominent locations” (Ed. Code 231.5/AR 5145.7)

• Change in Uniform Complaint Procedures

• Change in LEA professional growth programs for teachers, administrators, paraprofessional educators, classified employees

• Requirement for Classified Staff Training/Confirmation on Mandated Reporter Obligations– 2,500 Teachers Punished for Sexual Misconduct

with Students in the last five (5) years

Technology

• New Requirements on Technology Plans– New CSBA Proposed Technology Use Forms

(ours is better)

• Websites – Website Management– Content Providers & External Sources

• Social Media Sites/Instagram/Twitter

• Need for Current and Complete Acceptable Use Policies– Work/School Purposes Only– No Expectation of Privacy (new policy on passwords)– Teachers/Employees only use District technology (network and e-mail

addresses) to conduct District business

• Personal Devices– Students' personally owned devices shall not be searched except in cases

where there is a reasonable suspicion, based on specific and objective facts, that the search will uncover evidence of a violation of law, district policy, or school rules.

Starting the Day

• Managing Transportation– Busses/Drop Offs/Crossing Guards

• Before School Programs– Whose Student/Ability or Duty to Control– New Requirements on Reporting attendance and

related information (SB 1224/2014)– Outreach/Requirements for Homeless & Foster

Students– New Requirements on Staff Qualifications– New Rights to Exchange Information– New Written Admissions Requirements

The Morning Routine

• Email - Unhappy Parent

– Off-Campus “bullying”

• Limitations on the Scope of Involvement

• Appropriate Investigations

• Must have a direct Relationship

to attendance and/or participation

• Call-In/Absences/Late Arrivals

– Who is at the front desk/on the phones

– How is information kept

First Period - Science

• Curriculum

– Deviations and Safety Risks

• Bombs

• Rockets

• Chemicals

• Labs

• Books and Homework

• Reporting of Grades

So, when Jennifer and Johnny blow up the science lab …

Incidents and Reporting– Each significant event should be documented, and

potentially documented by two employees, based on injury, observations, and nature of other circumstances

– The reports are confidential; the are not to be shared with parents or others without consent from the Superintendent or senior management; consult with Claims Team at Risk Pool

– The same is true for Video– For special education incidents, special care and attention

is needed.– Incident reports may be the beginning, not the end, of

the review.

And, When it Gets All of the Attention

• Student records, anything identifying the student (name, picture, student ID, etc.), are governed by FERPA and must be protected from disclosure by:

– Student volunteers in school offices (access to documents/conversations)

– Teachers and volunteer parents on social media sites

– Teachers filing “restraining orders” or civil complaints

– Videotapes/Photographs posted without authorization (custody disputes)

• Dealing with separated/divorced parents

– Upon “notice” of a separation/divorce, when appropriate, confirm (i) who has legal custody and (ii) authority to make educational/health care decisions

– Also confirm time periods for governing orders (preliminary/temporary) and obtain copies of documents (don’t assume a representation is accurate)

– The Non-custodial parent (if there is one) has no right to notice or to be included in educational issues absent the consent of the custodial parent

And Then There are Drones

Americans with Disabilities Act (“ADA”)

Civil Code Sections 52.1 and 54

Section 504/Individuals withDisabilities in Education Act (“IDEA”)

“Free and Appropriate Public Education”

Government Code 11135 (Nondiscrimination in Public Programs)

Equitable Relief, plus …

Education Code 220

No person shall be subjected to discrimination on the basis of

disability … in any program or activity conducted by an educational

institution that receives, or benefits from, state financial assistance…

Education Code 201

All pupils have the right to participate fully in the educational

process free from discrimination and harassment

“Deliberate Indifference” or Knowledge and Inaction

Special Education – Much More than IEP

2015 Special Education

• Task Force Report Issued:

– Early Intervention

– Reduction in Segregated Locations

– Changes in Student Transportation

– Evidence-based school and classroom practices

AN IEP IS NOT REQUIRED BEFORE SUPPLEMENTAL SERVICES ARE PROVIDED

The Department of Education’s Office of Civil Rights:

4. What services are available for students with disabilities

under Section 504?

Section 504 requires recipients to provide to students with disabilities appropriate educational services designed to meet the individual needs of such students to the same extent as the needs of students without disabilities are met. An appropriate education for a student with a disability under the Section 504 regulations could consist of education in regular classrooms, education in regular classes with supplementary services, and/or special education and related services.

• Upon notice (from any source), the school should affirmatively seek to determine if a student needs special services.

• Conduct complete and appropriate testing, when needed, while preventing:– A “Steering” of parents away from “costly” evaluations– Evaluating and Implementing accommodations only to the “lowest”

level, triggering disputes and exposures– Using “testing” as a delaying mechanism

• Accommodations obligations – that do not require an IEP -- may include:

– Taking all tests orally -- Receipt of physical tools to help navigate the classroom (at District expense) -- Limiting in-class/homework assignments – Special Resource support

• Even when an IEP is unnecessary/not legally required, you should still:

– Develop and implement “agreed” measures with the parents

– Document successes/review needs on a proactive basis

IEP Meetings

• Procedural Safeguards

• Advocates

• All Attendees (Prepared)

• Drafting of Goals – Common Core

• Medication

• Transportation

2nd Period - Literature

• Reading Materials

• Common Core

• Field Trip to the Library– Not all Field Trips are receiving Board Approval

– Payments for Field Trips (Free Education Issues)

– Medical Payments for Injuries

– No Volunteer Requirement for

Parents

Field Trip v. Curricular Class

Medication &Emergency “Opt Out”

• Medication Form

– Meets new/updated legal standards

– Ensures compliance with all prerequisites

• Training/Dispensing/Management/

• What can be possessed by student (change in disciplinary law)

– Trained “Volunteers” can also administer insulin

• Emergency Opt-Out

– Addresses both “religious” and non-religious reasons

– Is available on request

• Vaccinations

• Classroom/Field Trip Issues

• The Real Challenge – Practical

Management in Real Life Setting

Transportation

• Volunteers– Using their Own Vehicles– Should not be driving District vehicles

• Parent Permission/Emergency Forms

• Students– Using their Own Vehicles

• Sports/Extra-Curricular Activities• ROP/Vocational Classes or Internships*** Two Forms – General Approval from District

Special Approval form Supervisor/Coach• Check-in/Check-out Sheets

– Used by Coaches/Teachers to account for each student being transported from school to off-site field trip/game/event

3rd Period - PE

• Time Spent in P.E.

• Activities/Safety

• Special Education Students/Physical Issues

• Locker Rooms/Bullying– Transgender/Gay-Lesbian/Disabled

• Volunteers– New Standards for TB Protocol “Risk

Assessment”)

– Sex Offenders

Contracts

• Site Limitations on Contracts

– Certain Supplies, ordered through Central Office Contract

– Kayaks

– Microwaves

– Van Rentals/Car Rentals

• Lead Time/Need/Signatures/Approvals

Search and Seizure

• Actions by District Employees:– May briefly detain and question a student regarding a specific potential

violation of law or school district policy, if the interview (detention) is not arbitrary, capricious, or performed in a harassing manner.

– May conduct searches of student property if there is a “reasonable suspicion” that the student currently possesses illegal or prohibited property, evidence of a crime, or breach of school district policy.

Problem (“illegal”) Areas:– Threatening students, particularly victims or witnesses– Extended interviews (begins to impede 4th Amendment)– Fishing Expeditions

• Actions by Police/Social Service) for non-District Reasons– No interviews absent (a) exigent safety circumstances, (b)

parental permission, or (c) court order. Form to be filled out by officer/worker confirming status.

– District has duty to protect students’ rights from third parties

Lunch

• In-House Management v. External Contractors and Food Programs

• Foods

– Food Allergies/Training On Emergency Response

– Specialized Foods (Vegetarian/Religious)

• Identified need

– Safer/Additional Storage Space

• Altercations

Lunch Activities

Education Code Section 49475 applies to all CIF, intramural/club sport, and other “athletic activities” sponsored by school districts, whether in high school, middle school, or elementary school.

The only exception is for-credit physical education classes.

The new law requires all athletes and parents to sign a Concussion and Head Injury Sheet. The standardized form addresses: (a) legal requirements, (b) information about what happens in the case of a suspected head injury during an athletic event, and (c) describes potential symptoms of concern, and (d) identifies return-to-play requirements.

School Site Councils

• Open Meeting Requirements

• What is actually within their jurisdiction

– The following actions are required of the school site council:

– Measure effectiveness of improvement strategies at the school

– Seek input from school advisory committees

– Reaffirm or revise school goals

– Revise improvement strategies and expenditures

– Recommend the approved SPSA to the governing board

– Monitor implementation of the SPSA

• Effective Relationships

• Consequences of noncompliance

5th Period – Career Technical

• Career Technical/Vocational Education/Workability, Etc.– Nursing/Home Health Veterinary Technician– Fork Lift ?????

Transportation – W/C – Safety - PrivacyWHO IS SPONSORING/ADMITTING/MANAGING

• All Students And Parents Need To Execute Participation Waivers (These Are Usually "Risky" Activities)– Students In "In Classroom" Programs May Not Be Covered By

Workers‘ Compensation — Liability Considerations Apply– Students In "Practical" Work Settings Likely Covered By

Workers‘ Compensations — General W/C Compensability Standards And Liability Shields Should Apply

Interns/Career Technical

• Internships/Externships

– Who is the Sponsor?

– What is the Program (Credit/Non-Credit)

– Supervision

• Volunteer

• Background Check

• Safe Working Environment

• Student Information Privacy

6th Period – Arts and Crafts

• Free Education– Unless it is statutorily authorized, there can be

no required payment of fee (or retribution)

– Donations can be “requested,” but no “coerced” donations or “threats” … You cannot say “donate, or else …

• Summer/Spring Break Trips

– Not District Sponsored/Must be Carefully Managed

– No W/C – No Liability – No Forms -

• Parent Complaint About Teacher– Classroom

“speech”/dress/behavior/standards

WorkplaceManagement

• Employee Reviews and Evaluations• Too nice• Incomplete• Not based on Essential/Expected Functions• Do not provide required standards of improvement

– Counseling Sessions that are• Delayed until it’s too late• Fail to provide post-session check-ins to monitor changes• Based on “emotions” because the situation has escalated

too far• Are not documented/too little documentation• Taken outside of proper “boundaries”

• Drug/Alcohol– Suspicion and Testing– Removal and Proceedings

• Disability Management (and protections)– W/C Notification– W/C Return to Work (Disability Accommodation)– Reasonable Accommodations

• Therapy Dogs/Animals• Parking Spots• In-Classroom aids (but not aides)

– Interactive Process (Bottom Line, call HR, and get guidance)

Harassment/Retaliation

• New Regulations focusing on workplace protections and notifications

• Where do we see issues (outside student/teacher)

– Principal and ….

– Teacher/Coach and Volunteer

• Why

– Not Taking the Concern “off campus”

– Changes in Administration (“improving” a campus)

– Hiring of “Friends”

Facebook/Social Media Leads To Terminations

Bad Behaviors … and

7th Period – Sports and Stuff

• Extracurricular Activities– Supervisors

• Sports Coaches – new standards and expectations

• Activities Coaches – Ensure Clearance

– Communications• Must Ensure Compliance

– Safety• Physical

• Personal

– Transportation

Updated Athletic Handbook

• Hiring/Supervision/Requirements

• Participation Forms

• Fund Raising (Boosters)

• Sports Physicals/Concussions– Must get complete forms/signed by right medical

care provider

– Concussion Management• New Standards for Avoidance/Return to Play

– Physical Injuries

Booster Clubs/PTOs/PTAs

• These May be Separate Legal Entities or our Volunteers

• They are not “Us” unless they are our true volunteers, following our rules, under our supervision

• Their fundraising misconduct could likely be your fundraising misconduct

– With all of the Ramifications

• And yet, we still have budget issues and accounting for funds

Fundraising

• From CSBA/GAMUT– Note: Generally, booster and parent clubs are

separate legal entities from the district and thus are not under the control or the responsibility of district personnel. However, Education Code 51521 requires that any fund-raising activity by a school-connected organization, designed to raise money to benefit a school or its students, receive approval from the Governing Board. Thus, it is recommended that districts create an internal control procedure to help ensure district compliance with law.

• PTA/PTO/Before and After School Programs

And Now you Go Home And Deal With

• Public Records Act Requests• Complaints

– Universal Complaints• A written complaint alleging discrimination, harassment, a

violation of a federal/state law, or a violation of adopted BPs/ARs. Administrative or Remedial Relief Only – No “damages” -- 60 days to complete an investigation and provide a written decision to the person filing the complaint.

– Williams Act/Williams Act Complaints• UC regarding instructional materials, emergency or urgent

facilities, conditions that pose a threat to the health and safety of pupils and teacher vacancy or misassignment.

– General Administrative Complaints• Addressing all other issues

Available Training:

ADA/FEHA for HR Directors ADA/FEHA for Principals Asbestos Awareness Athletic Liability Campus Monitor Training Confined Space Training Customer Service Training DOT Reasonable Suspicion Training Gang Awareness Training Indoor Air Quality Training Lab Safety Training LGBTQ Diversity Training Personal and Confidential

Information Training (HIPPA) SASH Training Sexual Harassment Awareness for

Supervisors Active Shooter Training Vulnerable Educator Training