LEGAL ISSUES FOR NEW SUPERINTENDENTS MASA NEW SUPERINTENDENTS’ CONFERENCE GRAND TRAVERSE RESORT TRAVERSE CITY, MICHIGAN

1. LEGAL ISSUES FOR NEW SUPERINTENDENTSMASA NEW SUPERINTENDENTS’ CONFERENCEGRAND TRAVERSE RESORTTRAVERSE CITY, MICHIGANSeptember 26, 2006 Presented by Roy H. Henley

4. Governmental Immunity from Tort Liability Who:Governmental entities, officers, employees, and volunteers When:Tort litigation Why:Protect governmental workers

5. Tort • “Tortus”Latin for “twisted” French for “wrong” • What:A civil wrong, act, or omission producing injury to another • Why: “make an injured personwhole” ($$$)

6. General Tort Elements • Duty • Breach • Proximate cause • Injury

7. Legal Duty Generally, a duty exists when the relationship between the two peopleis either: • Contractual • Assumed • Common sense • Statutory

8. Negligence Standard“Reasonable Person” Under All the Circumstances Experience Oversight Conditions Others Emotions

9. Types of Torts • Negligence (malpractice) • Defamation (libel and slander) • Intentional infliction of emotional distress • False imprisonment • Assault • Battery • Invasion of privacy • Wrongful death

10. Tort Immunity Requirements • School engaged in governmental function • Individual acts or reasonably believes to be acting within scope of authority • Conduct is not grossly negligent • Willful and wanton misconduct • Reckless disregard of an injury

11. BUT WAIT! (There’s Exceptions to Immunity…) • Individual liability for intentional torts • Motor Vehicle Exception • Public Building Exception

12. MOTOR VEHICLE EXCEPTION • Negligent “operation” of a motor vehicle. • Motor vehicle owned by government agency. • Motor vehicle “operated” by a governmental officer, agent, or employee.

13. PUBLIC BUILDING EXCEPTION • Dangerous or defective condition • Of a public building • In area open for use by members of the general public • Actual or constructive knowledge of the defect • Failure to reasonably remedy the defect • Notice by injured party of defect and injury

14. BUT WAIT! (You Get More Immunity than Mere Mortals…) Executive Immunity • Elective or highest appointive executive official • Acting within the scope of his or her elective or executive authority

15. BUT WAIT! (There’s Still Limits…) • Interference with other governmental functions • Physical violence (sometimes)

16. Teachers’ Tenure Act

17. Purpose • Prevent arbitrary and capricious discipline/discharge to otherwise qualified and competent teachers • Provide process to constructively identify and address deficiencies

18. Probationary Teacher

19. Probationary IDPs • Each probationary teacher shall receive IDP • No specified format/contents • Developed by appropriate administrators • Consulted with individual teacher • Individualized • Also follow any CBA mandates

20. Interpretations • VanGessel v Lakewood (Mich App, 1996) • IDP not required for first year teacher • Can’t be “individualized” • Cummings v Center Line (STC 98-18) • “Consultation” • Meet with teacher on IDP input • District must seek, not heed, teacher’s input

21. Interpretations • Garcia v Eaton Rapids (STC 99-13) • 60-day evaluation interval met in the aggregate • School Code, not Tenure Act, requires mentor • Korri v Norway Vulcan (STC 01-6) • Year-end evaluation • Must be within “reasonable” time of May 1 nonrenewal deadline • January 23 evaluation not “year-end”

22. Probationary Teachers • At least annual year-end evaluation • Assess progress in meeting IDP goals • Based on at least 2 classroom observations held at least 60 days apart • May agree to different timelines • Failure to comply is “conclusive evidence” of satisfactory performance for that school year

23. Probationary Nonrenewals • Follow evaluation process (CBA) • Board resolution to discontinue teacher • Deliver resolution/rights notice • Timeline (60 days before end of school) • June 30 • Or “anniversary date” • STC review limited to procedures, not substance

24. Tenured Teachers • Evaluation once every 3 years based on • At least 2 classroom observations • No 60-day interval • IDP required if “less than satisfactory” evaluation • If IDP in place, evaluation must assess progress in meeting goals • Failure to comply is “conclusive evidence” of satisfactory performance

25. Attainment of Tenure • Dependent upon teacher’s certification status • Dependent upon satisfactory fulfillment of probationary period

26. Teachers’ Tenure Act AmendmentsPublic Acts 124 and 136 of 2005

27. Salary Discontinuance • “Demotion” definition: “Does not include discontinuance of salary” • Upon conviction date teacher’s salary: • May be discontinued upon conviction of any felony and certain misdemeanors • Shall be discontinued upon conviction of a listed offense MCL 38.74 and 38.103

28. Modifies Substantive Protections • Tenured teacher’s right “subject to” • SC 1230d(4): Failure to disclose charge or conviction of certain crimes • SC 1535a(4): Must discontinue compensation until SPI makes final determination • SC 1535a(5): No certificate reinstatement for listed offense

29. Conviction of Crimes inSchool Code 1230d or 1535a(1) “[I]s considered to be reasonably and adversely related to the ability of a person ability to serve in an elementary or secondary school and is sufficient grounds to support the discharge or demotion of a teacher on continuing tenure." Creates rebuttable presumption of unfitness

30. FREEDOM OF INFORMATION ACTSPEED ROUND

31. FOIA • Pro-disclosure interpretation • Exemptions treated very narrowly • Public body has burden of proof • Not trumped by policy or CBA language • Alert FOIA coordinator to all policy or CBA “notice” requirements

32. FOIA Exemptions • Information of a “personal nature” if disclosure causes “clearly unwarranted invasion” of privacy • Records exempted by statute • Information subject to privilege • Attorney-client • Physician-patient • Medical, counseling, or psychological facts “if the individual’s identity” would be revealed • Social security number

33. Bradley v Saranac (1997) • Privacy exemption applies only to information that “reveals intimate or embarrassing details of an individual’s private life” • Does not automatically apply to • Evaluations • Complaints • Discipline

34. Bullard-Plawecki ERKA“4-Year” Rule “An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered in a legal action or arbitration to a party in that legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old.”

35. FOIA Disclosure of MDE Report • 15 business-day exemption from date District receives MDE report • “Inaccurate” info is permanently exempt • Only accurate, felony conviction, or misdemeanor conviction involving sexual or physical abuse disclosable • MDE must disclose all other convictions without “personal identifying information”

36. Using the School Attorney • Representation provided • Attorney/Advocate • Attorney/Advisor

37. It depends... Am I liable?

38. Considerations • Legal Standards • Local Standards • Common Sense

39. Using the School Attorney • Authority • Facts • Local Documents • Policy/Regulation • Contract • Handbook • Assess Standards • Analyze Risk/Benefit

40. Good Luck!