ARMS (Alabama Risk Management for Schools)

1. ARMS(Alabama Risk Management for Schools) SSA New Superintendent Program November 14, 2012 Dwight A. Hester, Ph.D., J.D. Lucy Hester Sellers, J.D.

2. ARMS History • 1976 AASB Liability Program • 1982 ASBIT Workers’ Comp Fund • 1985 ASBIT General Liability / Errors and Omissions Fund • 1986 ASBIT Automobile Liability Fund • 1987 ABSIT Workers’ Comp Fund Terminated • 1999 ASBIT name changed to ARMS

3. ARMS Governance • ARMS is governed by 7 trustees appointed by the AASB board of directors • ARMS trustees include 5 board members, 1 superintendent and 1 school business official

4. ARMS Superintendent Trustees • Dr. Tom Ingram (former) • Dr. Joe Morton (former) • Dr. Bob Clemmons (former) • Mr. Lynn Smith (former) • Mr. Donny Breaseale (former) • Dr. Suzanne Freeman (former) • Dr. Martha Rizzuto (former) • Mr. John Heard (current)

5. ARMS Structure • ARMS – a self-insured trust or risk management cooperative • ARMS – not an insurance company • ARMS is not a part of nor affiliated with the State of Alabama Department of Finance Division of Risk Management

6. ARMS Renewal Process • ALL communication by e-mail • GL/EO • Renewal Invoice and Agreement to Participate • AL • Request for updated vehicle list • Renewal Invoice and Agreement to Participate • Renewal Notices • First Notice: Superintendent, CSFO, and other selected staff members • Second Notice: Superintendent, CSFO, and other selected staff members • Third Notice: Superintendent, CSFO, other selected staff members, and Board members • Coverage Agreement and Executed Agreement to Participate

7. ARMS Cost • Exposure Units (students or vehicles) • Number and cost of claims for all ARMS members • Number and cost of claims for each ARMS member

8. ARMS Claim Trends

9. ARMS AL Claim Reporting • To Lucy Hester Sellers, JD • Via E-Mail: lhs@hestersellers.com • Via USPS Mail: 2512 Lurleen B. Wallace Blvd, Northport, Alabama 35476 • Telephone: (205) 454-6052 • Website: www.hestersellers.com\ALNoticeofClaim.html • Accident Reporting Form submitted by Board within 7 days of accident • Claim for Property Damage or Personal Injury completed by claimant within 15 days (of receipt by Board from claimant)

10. ARMS GL/EO Claim Reporting • To Dwight Hester, PhD, JD • Via E-Mail: dah@dwighthester.com • Via USPS Mail: 2512 Lurleen B. Wallace Blvd., Northport, Alabama 35476 • Telephone: (205) 333-9090 • Website: www.dwighthester.com/GLEONoticeofClaim.html • Claim = Lawsuit • Within 15 days (Submit Copy of Complaint)

11. ARMS Certificate of Coverage • Written Request • Via E-mail: wpm@dwighthester.com • Via Website: www.dwighthester.com/CertificateofCoverage.html • From Superintendent or Risk Management Coordinator • Allow 3 Days to Process

12. Immunity: Board of Education • “That the state of Alabama shall never be made a defendant in any court of law or equity.” • Ala. Const. art. I, § 14 (1901) • Boards of education are local agencies of the State • Ex parte Jackson Co. Bd. of Educ., 4 So. 2d 1099 (Ala. 2008) • Ex parte Hale Co. Bd. of Educ., 14 So.3d 844 (Ala. 2009) • Ex parte Monroe Co. Bd. of Educ., 48 So.3d 621 (Ala. 2010) • Ex parte Phenix City Bd. of Educ., 67 So.3d 56 (Ala. 2011) • Ex parte Boaz City Bd. of Educ., 82 So.3d 660 (Ala. 2011) • Ex parte Montgomery Co. Bd. of Educ., 88 So.3d 837 (Ala. 2012) • Ex parte Phenix City Bd. of Educ., Ala. Sup. Ct. 1111303 (October 19, 2012)

13. Immunity: State Agent / Discretionary • “[5] exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound minds, or educating students.” • Ex parte Cranman, 792 So.2d 392 (Ala. 2000) (emphasis added)

14. Follow Policy or Lose Immunity • Ex parte Yancey, 2008 WL 4757049 (Ala. 2008) • Giambrone v. Douglas, 874 So.2d 1046 (Ala. 2003) • Bayles v. Marriott, 816 So.2d 38 (Ala. Civ. App. 2001) • Policies - few and follow

15. Board of Adjustment • Ala. Code 41-9-60 et seq. • Created in 1935 • To act when no court has jurisdiction, but when a state agency has created a moral obligation which should be discharged as a public duty. • Property Damage / Personal Injury Claim Form: http://bdadj.alabama.gov/downloads/BOAClaimDamagesInjury09-02-10.pdf

16. Alabama Tort Claims Act • Ala. Code 11-93-1 et seq. • Boards of education when not operating as “…functions of the State of Alabama.” • Limits $100,000 / $300,000 Bodily Injury $100,000 Property Damage

17. Automobile Liability • Boards of education shall provide vehicle liability coverage for any employee required to transport pupils. • Ala. Code 16-27-7

18. The Volunteer Service Act • Ala. Code 6-5-336 • Adopted 1991 • Immunity granted to any volunteer acting in good faith and within official functions and duties for a school district or other agency of any state (board of education).

19. Workers’ Compensation • Workers’ compensation insurance not mandated for boards of education until funded from the education trust fund. • Ala. Code 25-5-50 • ARMS Defends Employee Injury Lawsuits

20. Board of Education Contracts • Superintendent shall approve in writing all contracts of whatever kind entered into by the board. • Ala. Code 16-12-7 (city), 16-9-18 (county) • School or Campus Level Contracts • Indemnity Agreements

21. Employment / Termination • Boards of education may employ or terminate persons upon the written recommendation of the superintendent. • Ala. Code 16-11-17 (city), 16-8-23 (county), 16-24-1 et seq., 36-26-102 • Vacancy Posting (Ala. Code 16-22-15) • Open Meetings Act (Ala. Code 36-25A-1 et seq.) • School Hiring / Termination

22. ARMS Definition of Employee • “Employee means a person duly elected as a superintendent of the Member board, employed by the Member board as a superintendent, employed by the Member board as a chief school financial officer, or whose employment, pursuant to the Code of Alabama, was recommended in writing by the superintendent and approval, thereof, by the Member board recorded in its minutes. The person must also meet the Internal Revenue Service definition of employee. An independent contractor as defined by the IRS is not an employee.” • Substitutes

23. Problem Exposures • FLSA • Sexual Harassment / Abuse / Molestation • Title IX • Access to Facilities • Corporal Punishment • Field Trips

24. Never Exposures • Student Cruises • Strip Searches • Fire Batons • Students Operating Tractors, Golf Carts, ATVs

25. Questions Dwight A. Hester, PhD, JD 2512 Lurleen B. Wallace Blvd Northport, Alabama 35476 (205) 333-9090 dah@dwighthester.com www.dwighthester.com Lucy Hester Sellers, JD 523 Greenbrier Way Hoover, Alabama 35244 (205) 454-6052 lhs@hestersellers.com www.hestersellers.com