ARMS (Alabama Risk Management for Schools)

1. ARMS(Alabama Risk Management for Schools) SSA New Superintendent Program November 17, 2011 Dwight A. Hester, Ph.D., 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 Structure • ARMS – a self-insured trust or risk management cooperative • ARMS – not an insurance company

4. 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

5. 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)

6. ARMS AL Claims 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 • Within 15 days

7. ARMS GL/EO Claims 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)

8. 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

9. 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 Hale County Bd. of Educ., 14 So.3d 844 (Ala. 2009) • Ex parte Monroe County Bd. of Educ., 48 So.3d 621 (Ala. 2010) • Ex parte Phoenix City Bd. of Educ., 2011 WL 118254 (Ala. 2011)

10. 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)

11. 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

12. Course and Scope • While acting in official capacity within the course and scope of official board of education duties • Immunity • ARMS Liability Coverage

13. 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

14. 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

15. 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).

16. 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

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

18. 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

19. 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

20. Fair Labor Standards Act • Enacted in 1938 (29 U.S.C. 201, et seq.) • Administered and enforced by the U.S. Department of Labor, Wage and Hour Division • Establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments, including Alabama boards of education • Any worker deemed to be covered and not exempt from the FLSA is entitled to minimum wage of not less than $7.25 per hour and overtime pay at a rate of not less than one and one-half times the regular rate of pay after 40 hours of work in a workweek.

21. Fair Labor Standards Act • If an employer requires or permits a covered non-exempt employee to work (which includes requiring the employee to be on premises or on duty, whether or not work is performed) in excess of 40 hours during the workweek then the employer is generally required to pay the employee overtime compensation. • The right to overtime compensation may not be waived by agreement and an employer’s proclamation that overtime work is not permitted does not impair an employee’s right to overtime compensation. • FLSA requires maintenance of contemporaneously prepared time records. Records are required to defend against claims of overtime. MAINTAIN RECORDS!!!

22. Fair Labor Standards Act • Common Issues or Problems • Employee vs. Independent Contractor • Classification of Employee (Exempt or Non-Exempt) • Failure to Maintain Proper Records • Dual Employment Positions • Use of Volunteers • Lump Sum Payments • Recommendations • Properly classify individuals • When possible have one employee perform one job only • Train supervisory staff of FLSA compliance issues • Determine permissibility of non-exempt employees volunteering • Keep track of time and monitor time records regularly • Monitor employee classifications regularly

23. Problem Exposures • 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