Interim Guidance for School Districts – COVID-19

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Yesterday Governor Baker declared a state of emergency in Massachusetts regarding the COVID-19 (“coronavirus”) outbreak which is impacting the United States. Among the many activities being affected by this outbreak is K-12 public education. As school administrators wrestle with the implications of the outbreak for their schools, governmental authorities at the federal and state level are releasing guidance. We are therefore issuing this advisory to our clients. Keep in mind that the public guidance, and our advice, can, and probably will, change quickly as the situation evolves.

The federal Centers for Disease Control and Prevention (“CDC”) has issued its “interim” guidance at: https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/guidance-for-schools.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecific-groups%2Fguidance-for-schools.html

The CDC guidance is broken down into two main categories – (1) guidance for schools that do not yet have COVID-19 identified in the community and (2) guidance for schools that do have identified COVID-19 cases in the community. We urge you to review that guidance. A common thread in both categories is that school districts should work closely with their local health authorities/boards to stay apprised of the community’s status.

The Massachusetts Department of Elementary and Secondary Education (“DESE”) has issued its own guidance at http://www.doe.mass.edu/sfs/emergencyplan/covid19.html.

The DESE guidance is directed at two matters: (1) the process for closing a school or schools for reasons related to COVID-19; and (2) adjusting the 180-school day requirement in Massachusetts. The former includes, again, close coordination with local health authorities. The school-year requirement is broken down into days lost between the beginning of the 2019-2020 school year and March 15, 2020; days lost between March 16, 2020 and June 1, 2020; and days lost after June 1, 2020. We urge you to review this guidance, as well.

We will be updating our advisory as circumstances warrant. This advisory is not legal advice as to how you should address any specific circumstances. Should you need such advice please contact one of our attorneys.

U.S. Department of Education Announces New Title IX Initiative Targeted to K-12 Public Schools

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The United States Department of Education’s Office for Civil Rights (“OCR”) recently announced a new initiative to combat sexual assault in K-12 public school districts.  This new initiative is intended to enhance OCR’s enforcement of Title IX in public schools and strengthen the ability of public school districts to adequately respond to all incidents of sexual harassment and assault.  It also comes on the heels of an increased amount of K-12 sexual harassment and violence complaints filed with OCR. OCR received fifteen times more complaints this past year than it received a decade ago.

OCR’s initiative will include the following activities:

  • Compliance Reviews: OCR will conduct nationwide compliance reviews in schools and districts, examining how sexual assault cases are handled under Title IX, including sexual incidents involving teachers and school staff. OCR will work with school districts to identify and correct compliance concerns.
  • Public Awareness and Support: OCR will focus on raising awareness of the issue of sexual assault in K-12 schools, including making information available to educators, school leaders, parents and families.
  • Data Quality Reviews: OCR will conduct Data Quality Reviews (“DQRs”) of the data on sexual assault/offenses submitted by school districts through the Civil Rights Data Collection (“CRDC”). As a part of conducting DQRs, OCR will partner with the National Center for Education Statistics (“NCES”) and will work with districts to ensure that incidents of sexual assault/sexual offenses are being accurately recorded and reported through the CRDC.
  • Proposed CRDC Data Collection: OCR has proposed, for the 2019-2020 data collection, to collect more detailed data on sexual assault. The proposed data collection includes incidents perpetrated by school staff or school personnel.  If adopted, the inclusion of this data would make the CRDC collection the first universal collection to gather such data systemically by school.

We recommend reviewing District policies and procedures regarding Title IX and discrimination and harassment.  Our office is available to review and revise these policies and procedures, as well as to train District staff on complying with the provisions of Title IX.

This update is provided for informational purposes only and should not be considered legal advice.

Liz Valerio and Nick Dominello to Present at 2020 Massachusetts Association of School Personnel Administrators (“MASPA”) Annual Law Day

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On March 20, 2020 Liz Valerio and Nick Dominello will present at the MASPA Annual Law Day at the Verve Hotel in Natick, MA.

Liz and Nick will be discussing the following topics: the Americans with Disabilities Act and reasonable accommodations including service and emotional support animals in the workplace; state ethics law and public school employees; and collective bargaining issues including strike threats and strike preparation.

Liz Valerio and Nick Dominello to Present at 2020 MMA Annual Meeting & Trade Show

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On January 24, 2020 Liz Valerio and Nick Dominello will present at the Massachusetts Municipal Association’s Annual Meeting & Trade Show at the Hynes Convention Center in Boston, MA.

Liz and Nick will be panelists on an MMA workshop panel entitled, “Social Media: Policies, Ethics and the Law Workshop.”

The MMA has described the panel as follows,

Many municipalities have adopted policies and standards for employees and officials participating on social media platforms, but how do policy makers respond to posts from the public that crosses the line of legitimate criticism? What can local officials do in response to unfounded personal attacks and accusations and to protect employees who become targets? What tools are available for addressing inappropriate content? This session will address these questions and more in an area that continues to be a vital part of any municipality’s communications strategy.

Be sure to stop by Room 201, 2nd floor, Hynes Convention Center on Friday, January 24th from 2:00 to 3:30 PM to see Liz and Nick.

Please see the following link to the MMA’s listing of all available workshops at the 2020 Meeting & Trade Show,

https://www.mma.org/mma-annual-meeting-and-trade-show/workshops/annual-meeting-workshops-friday-first-session/

Liz Valerio Receives Life Membership in the MASC

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Valerio Dominello and Hillman congratulates Liz Valerio who received Life Membership in the Massachusetts Association of School Committees (MASC) on November 8, 2019.  Liz was recognized for her involvement in and commitment to MASC, as well as her advocacy for the children of Massachusetts through her years of assistance to MASC and her membership on the Wrentham School Committee.

Liz is pictured here with MASC’s Executive Director Glenn Koocher.

Liz Valerio to Present at COSCAP Fall Conference

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On November 8, 2019 Liz Valerio will present at the Council of School Committee Administrative Personnel’s 2019 fall conference at the Resort and Conference Center at Hyannis.  Liz will be presenting on personnel files and “everything you want to know about school committee meetings.”

Liz Valerio and Elizabeth Paris to Present at MMHR Annual Labor Relations Seminar

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On November 1, 2019 Liz Valerio and Elizabeth Paris will present at the Massachusetts Municipal Human Resources Association’s annual labor relations seminar at the Devens Common Center in Devens, MA. Liz and Elizabeth will be presenting on 2019’s major labor law cases.

Four VDH Attorneys Named 2019 Massachusetts Super Lawyers and Rising Stars

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Robert D. Hillman and John Foskett have been named Massachusetts Super Lawyers for 2019 and Nicholas J. Dominello and Jennifer F. King have been named Massachusetts Rising Stars.  Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement.  This selection process includes independent research, peer nominations and peer evaluations.  Rising Stars are chosen by their peers as being among the top up-and-coming lawyers and must be 40 years old or younger, or in practice 10 years or less.

Ethics Commission Disposition Addresses Tour Company Rewards to Teachers for Organizing School-Sponsored Student Travel

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There is a widespread practice in Massachusetts in which teachers organize school-sponsored trips overseas for students through tour companies such as EF Tours. These companies offer rewards programs in which teachers who organize tours through those companies can earn stipends and points towards products and free travel for themselves. In a disposition agreement recently issued on the Massachusetts Ethics Commission has concluded that this rewards program violates the Conflict of Interest Law, G.L. c. 268A, in several respects.

In Disposition Agreement in the Matter of Stephanie Viens, Docket No. 19-0009 (September 25, 2019), a teacher for the South Hadley Public Schools had organized several school-sponsored trips through EF Tours in her capacity as Culture Club Advisor. Over a 5-year period the teacher earned $5,530 in stipends and 4,516 travel points from the EF Tours rewards program for organizing several school trips to Europe, including recruiting students, parents, and chaperones. She redeemed the travel points for airline tickets and a European vacation.

The Commission concluded that the teacher had received gifts in excess of the allowed $50 ceiling for performing official duties in connection with organizing these trips, in violation of G.L. c. 268A, § 3(b). It also concluded that she had received compensation from EF Tours for performing her official duties in a matter in which the school district had a direct and substantial interest, in violation of G.L. c. 268A, § 17(a). Finally, the Commission determined that the teacher had participated in a particular matter in which she had a financial interest, in violation of G.L. c. 268A, § 19.

The Commission agreed that the matter should be resolved by the teacher paying a civil penalty of $7,000.

We recommend that school districts advise faculty who organize these trips through EF Tours or through similar student travel companies that they must opt out of any rewards program in connection with trips they are involved with in order to avoid a violation of chapter 268A. We also recommend that districts advise teachers against redeeming points and rewards they already have earned for the same reason.

If you have questions or concerns about this issue, or about school law generally, please contact any of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.

Supreme Judicial Court Sustains Decision Regarding Managerial Authority

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On October 7, 2019, the Supreme Judicial Court addressed the inherent managerial authority of a public employer to take unilateral employment actions by examining the distinction between “broad” and “narrow” statutory authority in Board of Higher Education v. Commonwealth Employment Relations Board, SJC-12621. Specifically, the SJC held that a statute granting the state employer the right to “appoint, transfer, dismiss, promote and award tenure to all personnel” involved a broad statutory authority, and the employer was therefore required to bargain over the violation of a hiring cap in the parties’ CBA.

In this case, the Board of Higher Education (“BHE”) is the statutory employer of state college faculty members under M.G.L. c. 150E. The BHE and the faculty members’ union are parties to a CBA in which the parties had agreed to a “part-time” faculty hiring cap.  Despite this provision the state colleges continued to ignore it by hiring part-time faculty members in excess of the agreed-upon cap. The union filed a charge of prohibited practice with the Department of Labor Relations (“DLR”), arguing that the BHE failed to bargain in good faith and repudiated the provision. The BHE contended in response that this provision infringed on its nondelegable power under M.G.L. c. 15A, §22 to “appoint, transfer, dismiss, promote and award tenure to all personnel…” The DLR ruled for the union and the BHE appealed.

The SJC, citing City of Lynn v. Labor Relations Commission, 43 Mass. App. Ct. 172 (1997), affirmed that the scope of a public employer’s nondelegable authority depends on “the explicitness of the statutory authorization under which [that] employer acts.” In City of Lynn, the Appeals Court had determined the scope of an employer’s managerial authority under M.G.L. c. 150E, §7(d) and held that public employers may act in two ways: under broad statutory authority or under narrow statutory authority.

When a public employer acts under broad, or general, statutory authority, the court examines “whether the ingredient of public policy in the issue subject to dispute is so comparatively heavy that collective bargaining, and even voluntary arbitration, on the subject is, as a matter of law, to be denied effect.” Unless public policy precludes bargaining. the employer’s decision is subject to a collective bargaining requirement.

On the other hand, if the employer acts under narrow statutory authority, or “under authority of a statute or law authorizing the employer to perform a specific, narrow function or, alternatively, acts with reference to a statute specific in purpose that would be undermined if the employer’s freedom of action were compromised by the collective bargaining process,” the court will not enforce a conflicting provision in the CBA. Rather, the statute or law takes precedence.

In the BHE case the SJC held that the statutory grant of management authority was broad and general as “nothing in the language of [the CBA] explicitly prohibits the BHE from bargaining over the hiring of part-time faculty.” Therefore, the SJC held that the CBA provision was enforceable as it does not directly conflict with the statutory grant of authority.

As always, application of this ruling will depend on the specific facts of the situation and the character of the specific authority being exercised. If you have any questions or concerns about this decision, or labor law in general, please contact any of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.