2013 GAINS Conference

May 2, 2013

Legal Issues Update

Presented by: Cory O. KirbyHarben, Hartley & Hawkins, LLPGainesville, Georgia

LEGISLATIVE ISSUES FROM THE GENERAL ASSEMBLY

3

HB 244-Evaluation

No later than 14-15, each local system and charter school shall implement evaluation system adopted by SBOE for teachers of record, assistant principals, and principals

Must use “multiple, rigorous and transparent measures,” Written notice required in “advance of the school year of

the measures and indicators to be used” “growth in student achievement shall count at least

50%” - state assessments, SLOs, multiple additional measures

Statute mandates number of meetings, notice of annual evaluation within 5 days, right to request conference with timelines

4

HB 244 – Evaluation

Every teacher of record, principal, A.P. to be rated: › Exemplary› Proficient› Needs Development› Ineffective

“Ineffective” rating is evidence of incompetency under Fair Dismissal Act

5

HB 244-Evaluation cont’d

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.

6

HB 244-Other Changes

O.C.G.A. § 20-2-211: Contract issuance deadline is May 15 permanently.

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.

7

HB 244-Other ChangesO.C.G.A. § 20-2-200, on PSC certification (c) An individual who has received any combination of

two unsatisfactory, ineffective, or needs development annual summative performance evaluations in the previous five-year period pursuant to Code Section 20-2-210 shall not be entitled to a renewable certificate prior to demonstrating that such performance deficiency has been satisfactorily addressed, but such individual may apply to the commission for a nonrenewable certificate, as defined by the commission. Each local school system and charter school shall report all unsatisfactory, ineffective, and needs development ratings of all performance evaluations as provided in Code Section 20-2-210 for certificated personnel in their employ in a manner, format, and frequency determined by the commission.

HB 386 – Ad Valorem Tax

March 1, 2013 = No more annual Ad Valorem or Sales and Use Tax

NOW = A one-time tax based on value

HB 211 – Motor Fuel Excise Tax

"(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

14 system."

SB 168/179 – Competitive Processes

13-10-4.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."

SB 168/179 Competitive Processes

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

SB 168/179 Competitive Process

"(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."

SB 168/179 Competitive Process

13-10-70.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."

HB 284 - Concussion

Requires a Concussion Management and Return to Play policy

- Information sheet to parents about nature and risk of concussion

- Insist athlete be removed form competition and evaluated if showing symptoms

- Can’t return to play until obtain clearance from health care provider

HB 284 – Concussion

(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."

16

HB 337: Epi-pens Again• Schools authorized to “acquire and stock a supply

of auto-injectable epinephrine” with prescription• Schools may designate trained “employee or

agent ” to be responsible for storage, maintenance, and distribution

• Employee can administer or give to student for self-administration, 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.

17

How Not to Waive Official Immunity?

Avoid mandates in policy and procedures

Provide discretion to those in charge

Use the right words

18

HB 382: Recreational Joint-Use Agreements

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.

19

HB 382 cont’d

Governing authority shall not be deemed to have waived its sovereign immunity as to damages arising out of joint-use agreement.

O.C.G.A. § 51-12-33 shall not apply to claims of civil damages arising from use of school’s facilities pursuant to agreement.

Applies to causes of action on or after July 1, 2013.

And Now the BIG MESS

SAVE

E-VERIFY

E-VERIFY

E-VERIFY

SAVE

SAVESAVE

E-VERIFYSAVE

E-VERIFY

Title 13 (2011)

(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.

SAVE Affidavit

O.C.G.A. § 50-36-1 (2009)

(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:

[attorney general letter]

8 U.S.C. § 1621

(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 anagency of a State or local government or byappropriated funds of a State or local government; and

TH

AT W

AS

TH

EN

….

This is…

Purpose of Act

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.

Definition of “Physical Performance of Services Has Changed

(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.

O.C.G.A. § 50-36-1 (2012)

(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;

SAVE Checklist

SB 160

Definition of Public Benefit…

(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

…which shall include the following:

(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:

SB 160

SB 160

SB 160

SB 160

Title 26 & 43 Exempt from E-Verify

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

Title 43• Accountant• Architects• Athlete Agents • Ga. Athletic & Entertainment Commission• Athletic Trainers• Auctioneers• Barbers• Professional Counselors, Social Workers, and Marriage

and Family Therapists; Psychologists• Operators of Billiard Rooms• Professional Boxing• State Board of Cemeterians• Chiropractors• Cosmetologists• Dentists and Dental Hygienists• Disabled Veterans and Blind Persons Engaging in

Peddling, Operating Businesses or Practicing Professions• Ignition Interlock Device Providers• Instructors in Driver Training and Operators of Driver

Training Schools• Electrical contractors, Plumbers, Conditioned Air

Contractors, Low-Voltage Contractors, & Utility Contractors

• Professional Engineers & Land Surveyors• Firearm Dealers• Charitable Solicitations• Funeral Directors & Establishments, Embalmers &

Crematories• Geologists • Hearing Aid Dealers & Dispensers• Registration of Immigration Assistance Act• Operators of Hotels, Inns & Roadhouses• Industrial Hygiene, Health Physics, & Safety Profession

Recognition & Title Protection • Junk Dealers

• Landscape Architects• Librarians• Massage Therapists• Operators of Motor Vehicle Racetracks• Music Therapy• Nurses• Nursing Home Administrators• Occupational & Physical Therapists;

Speech/Language Pathologist s & Audiologists• Dispensing Opticians• Optometrists• Pecan Dealers & Processors• Peddlers & Itinerant Traders• Physicians, Acupuncture, Physician Assistants,

Cancer and Glaucoma Treatment, Respiratory Care, Clinical Perfusionists, and Orthotics and Prosthetics Practice

• Podiatry• Dealers in Precious Metals & Gems• Operators of Private Detective Businesses and Private

Security Businesses• Real Estate Appraisers, Brokers & Salespersons• 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

An Even BIGGER mess…

Patient Protection and Affordable Care

Act

Patient Protection and Affordable Care Act

Intent is to increase healthcare coverage for all full-time workers

January 2, 2013 IRS issued PROPOSED rules:› Tries to Define:

Large employer Full-time employee Variable-hour employee

A Large Employer is subject to an assessment payment (penalty) if it fails to offer it’s full-time employee’s enrollment opportunities in healthcare coverage (minimum essential coverage)

What is a Large Employer?

“… an employer that employed on average of at least 50 full-time employees … during the preceding calendar year.”

How does an employer determine which employees are “full-time” under the regs?

An employee who is employed on average at least 30 hours of service per week› 30 hours of service/week … when?› The dreaded “Look-Back” period› Not less than 3 nor more than 12 consecutive

months› Look-back period up to employer› If employee averaged 30 hours of service per

week in look-back = treat as full-time during subsequent period (stability period) “regardless of the employee’s hours of service… so long as he or she recommended an employee.”

Variable Hour Employee

Substitutes of all kinds Used on an as needed basis Problematic – hours are unpredictable

and not guaranteed

Other Issues

Temporary employee vs. variable hour employee

Restricting weekly hours of employee

Questions?