CONSTITUTIONAL LAW & ADMINISTRATIVE LAW

CONSTITUTIONAL LAW & ADMINISTRATIVE LAW

CONSTITUTIONAL LAW • Personal Freedom • Civil Rights • Searches • Due Process • Privacy • Equal Protection

US Constitution AMENDMENTS 1ST Amendment: “Congress shall make no law respecting and establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 4th Amendment: “ The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Basic criteria for searches- Basic criteria for searches in schools- 5th Amendment: due process of federal entities, and freedom of self incrimination. 14th Amendment: due process extended form federal entities to state and local agencies and equal protection. Section 1 of 14th Amendment: “…nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Three necessary criteria for guarantee of equal protection: State Actor involved (if not then no constitutional protection promised). Is classification based on disparate treatment (your action disfavors a protected class) If ran is used is it for compelling state interest. Will be judged on it is a violation of fundamental right ( travel state to state, vote, due process before being found guilty and sent to jail) vs. non fundamental right. (Constitutional amendments) For violation of fundamental rights you will be held to a strict scrutiny that must be a compelling state interest. Otherwise you will be held to normal scrutiny (non-fundamental rights – welfare, housing, job, treated equally when applying for a government job) which means your actions must be of state interest.

Sports Law News http://www.sportslawnews.com

When are your rights protected If you are a state actor

Federal Legislation

Hiring, Evaluating and Firing Basic steps

Announcing & Hiring • Job – This is your biggest property interest. Substantive – fairness in selection of person for a job Procedural – evaluation of how the job is being done. • General Management Guidelines: Substantive fairness. Job Selection. (Handout) Advertising Interviewing Hiring Evaluating Firing

Evaluating Employees Performance Programs

Evaluating Employees • The Basis for the Evaluation • Rule 13 of the Civil Service Rules, Memoranda of Understanding, Work Rules state that the county and departments, with input from the Human Resources Director, have the authority to establish specific regulations governing the conduct, appearance and performance of employees. These rules and regulations serve as a guide for managers and supervisors in preparing employee evaluations. • Setting goals, expectations and standards for employees are part of the manager’s and supervisor’s responsibilities. When an employee is hired, it is important to convey expectations and standards of the work to be performed and the appropriate behavior on the job. In addition, determining short and long-term goals establishes the framework for the employee’s performance expectations. Goals should be developed with the employee shortly after hiring. Goals should be specific, job and task related, and relevant to the mission of the department or unit. These goals become a tool for measuring employee performance and writing the performance evaluation.

Evaluating Employees con’t • Continuous feedback of employee performance is an important aspect of the manager’s or supervisor’s job. By providing both positive and negative feedback on a regular basis, the manager or supervisor is giving the employee information about work performance and, if needed, allowing appropriate time to make corrections in performance and/or behavior. Regular feedback avoids blindsiding the employee at evaluation time with a negative report. Positive feedback is just as important, if not more so, than negative feedback. The manager or supervisor should consider how feedback (negative or positive) is to be conveyed to the employee. Feedback should be presented in a constructive manner when addressing problem areas. A manager should include steps for the employee to make improvements when discussing negative behavior or overall work performance. • The written performance evaluation is a summary of the significant events or activities during the performance period. Therefore, it is important for the manager to continuously document work performance. Performance evaluations should be considered a year round job and begins at the point of hire. • After the performance evaluation is completed and reviewed, the manager and employee should establish new goals, expectations and standards for future job performance. New goals, expectations and standards should be based on information documented in the just completed performance evaluation, as well as any professional development activities that are required or desired for the position.

Evaluating Employees con’t • Common Pitfalls in Writing Performance Evaluations • Following are pointers for the evaluator to be aware of when preparing to write the performance evaluation. • The “Halo effect” is the tendency to rate the employee based on the overall impression of the work, but avoiding or ignoring smaller problem areas that need attention. Continuous documentation over the course of the evaluation period can assist the supervisor in writing the evaluation. • The “pitch fork” effect is the tendency to rate the employee based on a recent event, either positive or negative. Evaluations are for the entire time period indicated and continuous documentation of performance can help the evaluator avoid focusing on a recent event. • Stereotyping is a preconceived perception of the employee. Supervisors need to be aware of their perceptions and biases, and avoid those when preparing a written evaluation. • Comparing is when supervisors tend to compare one employee’s performance with another without considering the differences of each Human Resources Division Performance Evaluation Guidelines 2002 3 individual. One way to avoid this is to write evaluations for employees at separate times, which will allow the supervisor to focus on the individual rather than a group of employees. • Mirroring. People have a tendency to favor people much like themselves. This tendency carries over into the workplace and during the performance rating period. Supervisors may have difficulty evaluating and appreciating the differences that others bring to the workplace. Supervisors may rate the employee most like themselves higher than those who are different. It is important for the supervisor to consider the individual work performance of each employee and avoid favoritism.

Evaluating Employees con’t • Managers and supervisors want to avoid being the bad guy. They avoid writing negative evaluations because they fear it will reflect badly on themselves as supervisors if an employee is not performing to expectations, or they prefer not to upset the employee with negative feedback. The effect of this tendency is that employees will not know where they may need to improve their work performance or behaviors. By providing this information in a constructive, written evaluation, the supervisor is helping the person become a better employee. Of course, identifying problem areas requires identifying solutions, and providing guidance and resources to resolve the problem areas. This is the responsibility of a supervisor.

Evaluating Employees con’t • THE PERFORMANCE EVALUATION Managers and supervisors who prepare performance evaluations should develop reports that are reasonable, consistent, valid and objective. The following are guidelines for the writing of the Employee Performance Report. Frequency - annual. Preparation - by immediate supervisor. signature of the employee does not necessarily indicate agreement with the rating. Reports become part of official personnel record of employee. Uses: raises, leave of absences, promotion, transfer, disciplinary action, termination.

Completing the Evaluation • Rating: Satisfactory or Unsatisfactory. • Special Recognition Sections: Highlights work where employee is performing well or performing exceptional work. • Improvement needed: Describes where employee can improve work performance or describes where employee’s work does not meet the minimal standards for that classification. Plans for Employee Development: Of job related skills Career advancement Organizational skills Short and long term goals and methods to achieve them

Completing Unsatisfactory Reports Outlinesspecific steps to correct poor performance. Usually this document must be submitted with performance evaluation. • Include an employee Development Plan if rating is “Unsatisfactory” Usually a follow-up meeting with the employee to review progress is mandatory. Employee meeting to discuss performance report: Employee have right to submit written comments of evaluation. These comments are filed with final report. • Document and keep records. • Evaluations are not final until review is completed and signatures obtained. • If employee refuses to sign evaluation supervisor documents this on the evaluation and submits evaluation to Human Resources • Supervisor retains copy, gives copy to employee. • Original report forwarded to Human Resources.

Record Keeping Retain a copy for your files Give a copy to employee Original report and attachments go to Human Resources

The Performance Evaluation Job Relatedness • The performance evaluation is developed on job related factors only. Job related factors include but are not limited to the following: • Class specification and/or informal job description. • Job standards, procedures and regulations. • Established goals, objectives and expectations. • Knowledge and abilities to perform the job. • Job relationships required for successful performance, i.e., supervisors, coworkers, county employees and the public. • Training received during the performance evaluation period and the application of the training in relation to job performance. What the employee does on the job: • Quality of work, including the nature and consequences of errors made during the evaluation period. • Production rate, if applicable. • Commendations awarded relative to employee performance. • Complaints received relative to employee performance. • Use of job skills and efforts to enhance skills. • Ability to work with others. • Attendance, use of sick leave, punctuality.

Performance Evaluation con’t Questions to consider when preparing to write the performance report: • Did the employee meet or exceed quantity and quality standards? • Does the employee have the skills to perform the job? If so, are the skills used effectively? • Has the employee increased skill level and established value to the organization? • If corrective action was instituted due to errors and/or complaints that damaged the efficiency of organizational operations, was it effective? • Has the employee demonstrated job related efficiency through special efforts and capabilities? • Does the employee follow organizational rules and standards of the county and the department? • Does the employee utilize supervisory guidance?

Evaluating Employees con’t Establishing objectivity in written performance evaluations by avoiding vague subjective terminology • Use specific job related terms and clearly define intent of comments. For example, instead of saying an employee does a good job, specify what is good. • Rather than saying attendance is poor, specify the number of days absent, sick leave used, patterns of use, and the effect the absences have had on job performance. • Avoid the use of personal traits such as integrity, loyalty, honesty, initiative, etc. Measure employee performance against the job specifications. For example, rather than stating the employee demonstrates initiative, state the employee starts new work without being reminded; improves job skills through training or courses, or; learns other job tasks in the office to enhance agency effectiveness.

Firing Employees The three “I”s under which you can let people go with concern of litigation. Immorality Incompetence Insubordination General Management Guidelines: Procedural fairness. To assure due process 1. Notifyof violation 2. Identify punishment to be implemented • Give accused the opportunity to reply. If “RAN” is questioned then two types of scrutiny will be applied. Normal = State interest Strict = Compelling state interest.

Equal Pay Act Discrimination: Applies only to sex discrimination. Strict scrutiny is used…“RAN” to avoid these. …In which you treat people differently according to Race, Alienation, Nationality in both hiring, evaluation and firing. You must identify a comparator employee – someone of the opposite sex who has a higher salary.

OSHA Occupational Safety & Health Act Safe working environment: Training and “The Right to Know” MSDS: Material Safety Data Sheet http://www.ilpi.com/msds/faq/parta.html - what is

Americans with Disabilities Act 11th Amendment: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States Citizens of another State, or by Citizens or Subjects of any Foreign State.” ( This amendment means states are immune from being sued for money damages for violating federal laws). Immunity is limited to states and excludes local, city, or county governments and their agencies. To be protected you must have a disability (physical or mental) that substantially limits one or more major life activities. It must be a permanent disability. Mental disorders must be diagnosed. Standard – If the person can adequately and safely perform with reasonable accommodation …you must give Minimum accommodation as an employer.

ADA Implications for Sport

Statistics • 22 million Americans have hearing impairments • 2 million have epilepsy • 16.4 million have heart disease • 1.2 million are partly or completely paralyzed • 6 million have missing extremities • 18.4 million have orthopedic impairments • 645,000 use wheelchairs • 18.3 M disabled Americans between 16-64. • 12.2 M of those are not working. • 8.2 M WANTED to work

Americans with Disabilities Act • Protects individuals with disabilities from being discriminated against. • Employment • Public Services and Transportation • Public Accommodations • Telecommunications • Disability: • physical or mental impairment that severely limits one or more major life activities • a record of having such an impairment • or being regarded as having an impairment

ADA • Christy, a six year old who uses a wheelchair, wants to play in a county-sponsored baseball league. The county has a challenger division that has been specially designed for children with disabilities. However, Christy wants to play with her peers who she sees every day at school. Should she be allowed?

Americans with Disabilities Act • ADA states: -Reasonable Accommodationthat an organization must make a reasonable accommodation to the physical or mental limitations of an individual with a disability who is otherwise qualified unless it would pose an undue hardship. -Otherwise Qualified • You do not have to make accommodations to make an unqualified person qualified. • example

ADA -Undue Burden • is the action unduly costly • is it unduly substantial or disruptive • will it fundamentally alter the nature of the program -You do not have to make a reasonable accommodation if: • the employee does not request it • applicant does not meet the required qualifications • the employee asks for a personal use item • doing so would be an undue burden

ADA -ADA and employee selection: • pre-requisite tests • medical examinations -Employees with drug/alcohol problems -ADA excludes individuals who pose a direct threat to their health and safety or that of others. In order for this to apply: • the threat must be real, not speculative • the threat must be based upon objective information • if real risks are found, the attempts must be made to reduce or eliminate the risk

Title VII Quid pro quo – Am exchange of services. Hostile environment – intimidating, ridicule, insult, abusive. Frequency is a key component.

Title IX Discrimination: Women Only – • Elements to determine – Gender discrimination Educational program Federal funds

Title IX: Definition “ No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Title IX of the Education Amendments of 197220 U.S.C. ｧ1681 etseq. NSF’STitle IX Regulations at 45 C.F.R. Part 618 NSF’STitle VI Regulations at 45 C.F.R Part 611

Federal Financial Assistance 11/04/05Under regulations implementing Title VI, federal financial assistance includes, but is not limited to: 1. Grants and loans 2. Grant or donation of federal property and interests in property 3. The detail of federal personnel 4. The sale and lease of, and the permission to use (on other than a casual or transient basis) federal property at little or no cost • Any other federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance NSF’S Title VI at 45 C.F.R. Part 611 11/04/05

Dissemination of Title IX Policy At a minimum, the notification of the Title IX policy must state: • Title IX and the Title IX regulations apply to employment and admissions. • Inquiries regarding Title IX and its regulations can be referred to the Title IX Coordinator. Notification must be done by: • Publishing in newspapers and magazines operated by the recipient. • Publishing in memoranda or other written communications distributed to every student or employee of the recipient.

Title IX Compliance Framework Components Component 1: Sports Offerings Component II: Athletic Scholarships Component III: Other Athletic Benefits “Playing Fair”

Component I: Sports Offerings • The Three Prong Test: 1. Substantial Proportionality Ratio of female athletic participation must be “substantially proportional” to the ratio of female enrollment. 2. History of Continuing Practice of Program Expansion. OCR focuses on very recent history (last three years) 3. Full and Effective Accommodation of Athletic Interests and Abilities. Surveys to show that all sports interests of female students have been “fully” and “effectively” satisfied. *if: #1 is met then the OCR will not look any further for compliance.

Playing Fair P:Protective Athletic Equipment and Supplies • Quality Athletic Equipment Suitability of Athletic Equipment • Amount of Athletic Equipment Maintenance of Athletic Equipment Availability of Athletic Equipment

Playing Fair L:Locker Rooms and Practice/Competition • Facilities and Playing Fields Quality and Availability of Facilities • Exclusivity of Use of Facilities Event Preparation in Facilities Maintenance and Repair of Facilities • Locker Room Quality Locker Room Availability

Playing Fair A:Allocation of Travel/Transportation Modes of Transportation Housing During Overnight Travel Length of Stay Before/After Events Meal Allowances Dining Arrangements

Playing Fair Y:Years of Experience, Quality Compensation and Assignment of Coaches Availability of Coaches Assignment of Coaches Compensation of Coaches Volunteer Coaches

Playing Fair I:Institutional Housing and Dining Facilities (Boarding Schools) Housing Quality and Arrangements Dining Quality and Arrangements Special Services Related to Housing and Dining Arrangements

Playing Fair N:Nature of Sports Publicity/Marketing/Media Services Sports Information Personnel Sports Program Related Publications Other Publicity Resources for Your Interscholastic Athletic Program

Playing Fair G:Game and Practice Times/Scheduling Number of Competitive Events Time of Day Events are Scheduled Number/Length of Practice Opportunities Time of Day Practices are Scheduled

Playing Fair F:Facilities For and Access to Athletic Training and Medical Services Availability of Medical Personnel Availability of Athletic Trainers Availability of Weight/Training Facilities Availability of Conditioning Facilities Health/Accident/Injury Insurance

Playing Fair A:Academic Tutoring Services for Student-Athletes Opportunity to Receive Tutoring Assignment of Tutors Compensation of Tutors

Playing Fair I:Institutional Support Services for Athletic Programs Secretarial and Clerical Assistance

Playing Fair R:Recruiting Resources for Athletic Programs (For Collegiate Only)

CONSTITUTIONAL LAW & ADMINISTRATIVE LAW