Legal Issues Update - Georgia Association of School Business

Legal Issues Update
November 7, 2013
Presented by: Cory Kirby
Harben, Hartley & Hawkins, LLP
 2014-15 must use evaluation system approved by SBOE
 Prior written notice required
 “[M]ultiple, rigorous and transparent measures,”
 “[G]rowth in student achievement shall count at least
50%” - state assessments, SLOs, multiple additional
 Statute mandates number of meetings, notice of
annual evaluation within 5 days, right to request
conference with timelines
 Four new ratings:
 Exemplary
 Proficient
 Needs Development
 Ineffective
 S / U / NA no longer used
Except as otherwise provided in Code Section 20-2-948,
local school systems shall base decisions regarding
retention, promotion, compensation, dismissals, and
other staffing decisions, including transfers,
placements, and preferences in the event of reductions
in force, primarily on the results of the evaluations
developed as required by this subsection.
O.C.G.A. § 20-2-212 on salary: …a teacher shall not
receive credit for any year of experience in which the
teacher received an unsatisfactory or ineffective annual
summative performance evaluation or for the second
year in which a teacher receives two consecutive
annual summative needs development ratings
pursuant to Code Section 20-2-210.
May 15th is permanent
If two insufficient, Ineffective or
Needs Development ratings (or
any combo) within the past 5
years = no renewal certificate
until deficit is addressed
March 1, 2013 = No more annual Ad Valorem
or Sales and Use Tax
NOW = A one-time tax based on value
"(11) For the period of time
beginning July 1, 2013, and
ending June 30, 2015, sales of
motor fuel to public school
systems in this state for the
exclusive use of the school
system in operating school buses
when the motor fuel is purchased
and paid for by the school
 Constitutional amendment to create new 1%
sales and use tax
 For 5-10 years
 Can expend for:
1. M&O for educational purposes
2. Capital outlay for educational purposes
3. Previously incurred debt
i. Must reduce property tax
4. Any combination of the above
Not subject to “any sales and use tax
exemption with respect to the sale or
use of food or beverage.”
“The General Assembly shall provide for a
reduction of ad valorem taxes on tangible property
within the school district or districts with
populations of more than 50,000 persons
according to the most recent US decennial census
implementing such LOST for general educational
purposes in each year in which such tax is effective
in an amount equal to at least 30 percent of the
amount collected from such tax the preceding
Lack of previous experience with job of same size no longer
necessary to disqualify IF:
(1) The bid or proposal is not more than 30 percent greater in
scope or cost from the bidder's previous experience in jobs;
(2) The bidder has experience in performing the work for
which bids or proposals are sought; and
(3) The bidder is capable of being bonded by a surety which
meets the qualifications of the bid documents for a bid
bond, a performance bond, and a payment bond as
required for the scope of the work for which the bid or
proposal is being sought."
Cannot include in documents requirements:
a) That offerors enter into prehire agreements with
specific companies; or
b)That discriminate because offerors wouldn’t enter
into such agreements.
Can exempt from this process for imminent threat to
public health or safety
- must hold hearing
"(e) When the state invites competitive sealed proposals
for a public works construction project and the request
for proposals for such project states that price or
project cost will not be a selection or evaluation factor,
no bid bond shall be required unless the state
provides for a bid bond in the request for proposals
and specifies the amount of such bond."
Public works construction contracts may include both
liquidated damages provisions for late construction
project completion and incentive provisions for early
construction project completion when the project
schedule is deemed to have value. The terms of the
liquidated damages provisions and the incentive
provisions shall be established in advance as a part of
the construction contract and included within the
terms of the bid or proposal."
Requires a Concussion Management and Return to Play
- Information sheet to parents about nature and risk of
- Insist athlete be removed form competition and
evaluated if showing symptoms
- Can’t return to play until obtain clearance from health
care provider
(e) This Code section shall not create any liability for, or
create a cause of action against, a local board of education,
the governing body of a nonpublic school, the governing
body of a charter school, or a public recreation facility or
the officers, employees, volunteers, or other designated
personnel of any such entities for any act or omission to act
related to the removal or nonremoval of a youth athlete
from a game, competition, tryout, or practice pursuant to
this Code section; provided, however, that for purposes of
this subsection, other designated personnel shall not
include health care providers unless they are acting in a
volunteer capacity."
 Written agreement between the governing authority of
a school and a private entity authorizing such entity to
access the facilities of a school under the governing
authority's jurisdiction for the purposes of conducting
or engaging in recreational, physical, or performing
arts activity.
 Agreement must include terms and conditions for use,
hold-harmless provision, allow governing authority to
revoke at any time, $1 million in liability insurance,
and citation to code section.
Schools authorized to “acquire and stock a supply of autoinjectable epinephrine” with prescription
Schools may designate trained “employee or agent ” to be
responsible for storage, maintenance, and distribution of
stocked epi-pens
Employee can administer or give to student for selfadministration, even without student prescription
School personnel who in good faith administer or choose
not to administer are immune from civil liability for any act
or omission to act, unless misconduct is willful or wanton.
• O.C.G.A. 20-2-84.3: By June 30, 2015, each local
school system must either:
• Notify SDOE of its intent to request flexibility pursuant to an
IE2 (Investing in Educational Excellence) contract with SBOE,
• Comply with O.C.G.A. § 20-2-80(b)- (status quo)
• O.C.G.A. § 20-2-84.5: IE2 legislation does not apply to
charter systems or those in the charter system
application process.
 Tiered flexibility based on CCRPI ratings- state
would focus its efforts on struggling schools and
systems, while allowing successful ones to “continue
their efforts unfettered by state oversight.”
 School systems would be categorized as Category
1, 2, or 3;
 Category 3-charter systems, which continue as currently
 Category 2-high performers with certain scores will be free
of most state regulations
 Category 1-all other districts, who remain under all laws
and regulations or apply for waivers aligned with strategic
plan; subject to strong oversight from SDOE
(3)(A) “Public benefit” means a
federal benefit as defined in 8 U.S.C.
Section 1611, a state or local benefit as
defined in 8 U.S.C. Section 1621, a
benefit identified as a public benefit
by the Attorney General of Georgia,
or a public benefit which shall
include the following:
(c) ‘‘State or local public benefit’’ defined
(1) Except as provided in paragraphs (2) and
(3), for purposes of this subchapter the term
‘‘State or local public benefit’’ means—
(A) any grant, contract, loan, professional license, or
commercial license provided by an
agency of a State or local government or by
appropriated funds of a State or local government; and
(4)(A) ‘Public benefit means a federal benefit as defined
in 8 U.S.C. Section 1611, a state or local benefit as defined
in 8 U.S.C. Section 1621, a benefit identified as a public
(i)(A) Adult education;
(ii)(B) Authorization to conduct a commercial enterprise or business;
(iii)(C) Business certificate, license, or registration;
(iv)(D) Business loan;
(v)(E) Cash allowance;
(vi)(F) Disability assistance or insurance;
(vii)(G) Down payment assistance;
(viii)(H) Energy assistance;
(ix)(I) Food stamps;
(x)(J) Gaming license;
(K) Grants;
(xi)(L) Health benefits;
(xii)(M) Housing allowance, grant, guarantee, or loan;
(xiii)(N) Loan guarantee;
(xiv)(O) Professional license;
(R) Retirement Benefits;
(xix)(V) State grant or loan;
(xx)(W) State issued driver’s license and identification card;
(xxi)(X) Tax certificate required to conduct a commercial business;
(xxii)(Y) Temporary assistance for needy families (TANF);
(xxiii)(Z) Unemployment insurance; and
(xxiv)(AA) Welfare to work.
(B) Each year before August 1, the Attorney General shall prepare a detailed report indicating
any ‘public benefit’ that may be administered in this state as defined in 8 U.S.C. Sections
1611 and 1621 and whether such benefit is subject to SAVE verification pursuant to this Code
section. Such report shall provide the description of the benefit and shall be updated
annually and distributed to the members of the General Assembly and be posted to the
Attorney General’s website:
(4) (A) "Public benefit" means a federal benefit as
defined in 8 U.S.C. Section 1611, a state or local benefit
as defined in 8 U.S.C. Section 1621, a benefit identified
as a public benefit by the Attorney General of Georgia,
or a public benefit which shall include the following:
(i) Adult education;
(ii) Authorization to conduct a commercial
enterprise or business;
(iii) Business certificate, license, or registration;
(iv) Business loan;
(v) Cash allowance;
(vi) Disability assistance or insurance;
(vii) Down payment assistance;
(viii) Energy assistance;
(ix) Food stamps;
(4) “Physical performance of
services” means the building,
altering, repairing, improving, or
demolishing of any public structure
or building or other public
improvements of any kind to public
real property within this state,
including the construction,
reconstruction, or maintenance of all
or part of a public road; or any other
performance of labor for a public
employer within this state under a
contract or other bidding process.
It is the intent of the General Assembly that all public
employers and contractors at every tier and level use the
federal work authorization program on all projects, jobs,
and work resulting from any bid or contract and that
every public employer and contractor working for a public
employer take all possible steps to ensure that a legal and
eligible workforce is utilized in accordance with federal
immigration and employment.
(4) ‘Physical performance of services’ means the building,
altering, repairing, improving, or demolishing of any public
structure or building or other public improvements of any
kind to public real property within this state, including the
construction, reconstruction, or maintenance of all or part of
a public road, or any other performance of labor or services
for a public employer within this state under a contract or
other using a bidding process or by contract wherein the
labor or services exceed $2,499.99; provided however, that
such term shall not include any contract between a public
employer and an individual who is licensed pursuant to Title
26 or Title 43 or by the state Bar of Georgia and is in good
standing when such contract is for services to rendered by
such individual.
Title 26:
 Food – meat, poultry, dairy, eggs, bread, grains,
fish/seafood & soft drinks
 Drugs and cosmetics/pharmacists at pharmacies
 Drug abuse treatment and education programs
Athlete Agents
Ga. Athletic & Entertainment Commission
Athletic Trainers
Professional Counselors, Social Workers, and Marriage and Family Therapists;
Operators of Billiard Rooms
Professional Boxing
State Board of Cemeterians
Landscape Architects
Massage Therapists
Operators of Motor Vehicle Racetracks
Music Therapy
Nursing Home Administrators
Occupational & Physical Therapists; Speech/Language Pathologist s &
Dispensing Opticians
Pecan Dealers & Processors
Peddlers & Itinerant Traders
Physicians, Acupuncture, Physician Assistants, Cancer and Glaucoma
Treatment, Respiratory Care, Clinical Perfusionists, and Orthotics and
Prosthetics Practice
Dentists and Dental Hygienists
Disabled Veterans and Blind Persons Engaging in Peddling, Operating
Businesses or Practicing Professions
Dealers in Precious Metals & Gems
Ignition Interlock Device Providers
Operators of Private Detective Businesses and Private Security Businesses
Instructors in Driver Training and Operators of Driver Training Schools
Real Estate Appraisers, Brokers & Salespersons
Electrical contractors, Plumbers, Conditioned Air Contractors, Low-Voltage
Contractors, & Utility Contractors
Residential & General Contractors
Scrap Metal Processors
Snow Skiing Safety
Persons Engaged in Structural Pest Control
Transient Merchants
Used Motor Vehicle & Used Motor Vehicle Parts Dealers
Dealers in Used Watches
Veterinarians & Vet Technicians
Water and Wastewater Treatment Plant Operators and Laboratory Analysts
Professional Engineers & Land Surveyors
Firearm Dealers
Charitable Solicitations
Funeral Directors & Establishments, Embalmers & Crematories
Hearing Aid Dealers & Dispensers
Registration of Immigration Assistance Act
Operators of Hotels, Inns & Roadhouses
Industrial Hygiene, Health Physics, & Safety Profession Recognition & Title
Junk Dealers
Many Americans confused about health-care
law, poll finds
Washington Post - By Sandhya Somashekhar and Peyton M. Craighill, September 20,
Important Notice to All Senate Members, Officers and Employees:
The Patient Protection and Affordable Care Act (ACA) contains
a provision
(Section 1312(d)(3)(D)) that affects the health care coverage of many Senate
employees’ beginning in 2014. On August 8, 2013, the Office of Personnel
Management (OPM) proposed regulations (which are not final and may be
changed) to implement this requirement and establish procedures for affected
employees’ enrollment in health insurance plans through the health insurance
exchange (the “Marketplace Plans”) under the ACA. The OPM proposed
regulations may be found at:!documentDetail;D=OPM-2013-0016-0001.
As the OPM Regulations are not final and we are awaiting further
information,Members and staff are advised that they should delay
enrolling in health insurance plans until we are able to offer further
guidance as to how they should enroll in these insurance plans for
2014. Premature enrollment could adversely impact eligibility for the employer
premium contribution.
As soon as we have additional information, we will provide that to you. In the
interim, you are welcome to call the Senate Disbursing Office
 Next Major Deadline is January 1, 2015
 But, does this really mean open enrollment 2014?
 Substitutes – the 30 hour rule?
 Can we pay employees to go elsewhere for insurance?
 Beware the FLSA
From Department of Community Health
Yes, if you are confident that you can do so in
compliance with the DOL’s electronic disclosure safe
harbor regulation. Electronic delivery is sufficient
when regular access to a computer is an integral part
of an employee’s duties. Alternatively, electronic
notice may be sufficient if you have an agreement on
file with employees in which they have consented to
receiving benefit information electronically. Keep in
mind that you may meet the requirements for certain
groups of employees, but not others. In all cases,
ensure you can demonstrate the employee actually
received the information. If in doubt, distribute paper
copies. See, for further guidance.
The ACA requires employees to offer
healthcare coverage to all full-time employees
defined as anyone that works a weekly average
of 30 hours in any month. Look-back and
stability periods refer to a more practical
method for identifying full-time employees
other than month to month calculations. The
look-back measurement period allows you to
look backwards at the average weekly hours
actually paid to employees to determine if they
should be considered full-time and offered
healthcare during a future Stability period.
No. Assuming that all salaried employees are already
eligible for healthcare coverage, the ACA only impacts
healthcare eligibility for a subset of the State’s hourly
wage earners. Many agencies hold work hours for these
employees below the 29-hour threshold as matter of
routine business, and many have already taken steps to
eliminate the variable nature of hours worked by these
employees to keep the average below 30 hours a week.
The decision not to mandate a 29-hour workweek means
that compliance with the ACA will n ot be centrally
controlled, but the responsibility of each state employer.
Specifically, HR leaders will be called upon to manage
working hours of non-benefit eligible staff.
Since the Oct. 1 rollout of the Affordable Care Act’s health care insurance exchanges, the
number of problems facing the experiment in offering health insurance to the uninsured
has only increased. Among the latest includes news that employer-based insurance plan
cancellations currently outnumber new enrollments in the exchanges’ plans. In addition,
the number of companies that opted out of employer-paid health insurance due to
increasing cost — including Home Depot, UPS, Trader Joe’s and IBM — has increased.
Yes. The standard look-back period will be 12
months. A 12-month look-back period helps to
minimize the administrative burden associated
with repeated calculation of full-time status;
helps to limit enrollment activity; and provides
cushion to adjust hours of employees coming
close to the weekly average before the
measurement period ends. The State’ standard
look-back period will be October 16 to October
15 the following year.
Possibly, but it is a risk you must manage. There
remain many questions surrounding the
implementation of the ACA, and specifically
related to the impact on temporary staffing
agencies. The ACA does not directly address the
matter, but it appears that staffing agencies
themselves will likely be subject to Play or Pay
penalties if they have more than 50 full-time
equivalent employees. Traditionally the State has
considered employees from different staffing
agencies as “leased” labor, and employees of
the temporary agency.
A number of recent DOL investigations involving
employer use of leased staffing have deemed the
employer and agency as joint employers resulting in
costly back pay settlements. Therefore, agencies should
be cautious with this approach and confer with your
normal legal advisor to manage this risk if you choose to
supplement your workforce using leased employees. As
a minimum precaution ensure the temporary staffing
agency has agreed to contract to comply with the
minimum wage and overtime provisions of the Fair Labor
Standards Act, and the ACA provisions to the extent that
you, rather than the temporary staffing agency, believe
the ACA applies. These considerations have been
addressed during the procurement process to secure a
new statewide vendor for leased labor.

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