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Open Meetings Act

CAN THE BOARD OF AN OPEN-ENROLLMENT CHARTER SCHOOL MEET BY VIDEOCONFERENCE?

Case citation:  Tex. Att’y Gen. Op. GA-1079 (Sept. 12, 2014).

Summary:  The Commissioner of Education recently asked the Texas Attorney General to consider whether an open-enrollment charter school’s governing board could meet by videoconference call and still be in compliance with the Texas Open Meetings Act. The Commissioner also asked whether an open-enrollment charter school’s board may conduct a meeting outside of the geographic service area of the charter school.

Ruling:  The Attorney General could not conclude, as a matter of law, that a charter school’s board could hold an in-person meeting outside its geographical boundaries; but held that a meeting by videoconference could comply with the Open Meetings Act. Open-enrollment charter schools must comply with the Open Meetings Act.  The Attorney General previously concluded that the Act’s requirements that meetings must be open to the public necessarily means that a governmental body’s meetings must be held at a location that is accessible to the public.  Because accessibility depends on particular facts, the Attorney General could not conclude that an open-enrollment charter school’s governing board may conduct a meeting in compliance with the Act beyond its geographic service area.

An open-enrollment charter school’s governing board may conduct an open meeting by videoconference call as provided by the Open Meetings Act, Texas Government Code § 551.127. Provided that the member of the board of the open-enrollment charter school presiding over the meeting is present at a physical location open to the public in or within a reasonable distance of the charter school’s geographic territory, other members of the board may participate in a videoconference call meeting from remote locations outside of the geographic service area, including areas outside of the state.

Comments: New videoconferencing technology makes it easier these days to gather people from many locations at once.  The Open Meetings Act does have some flexibility in this regard, so long as the use of this technology doesn’t circumvent the original purpose of the Act to provide open government.

 

Grievances

INFORMAL GRIEVANCE PROCEDURES CAN TOLL THE GRIEVANCE DEADLINES

Case citation:   Anzaldua v. Valley View ISD, Dkt. No. 023-R10-11-2013 (Comm’r Educ. August 15, 2014).

Summary:  Melissa Anzaldua worked as a teacher for the Valley View Independent School District, when she was notified that the district’s board of trustees had implemented a salary freeze. The salary freeze was effective for the 2011-12 and 2012-13 school years.  In May of 2013, Anzaldua met with the district’s human resources specialist to better understand the salary freeze. The human resources specialist told Anzaldua that, based on Anzaldua’s years of teaching experience, it appeared that the district should have paid her at a higher level on the district’s salary schedule.  The human resources specialist told Anzaldua that the human resources department would have to investigate the matter further, to determine when the pay discrepancy began. Anzaldua attempted to follow up several times, but was told that the investigation was ongoing.

By June of 2013, after the district still had not resolved the salary discrepancy, Anzaldua filed a formal grievance, requesting an explanation, documentation showing what she had been paid, and back pay for income to which she was entitled under the district’s salary schedule.   In October of 2013, the district acknowledged in writing that Anzaldua had been underpaid for the 2013-14 school year, and increased her pay level for that school year.  On October 17, 2013, however, the district’s board of trustees denied Anzaldua’s grievance as untimely, on the grounds that, under its grievance policy DGBA(LOCAL), Level One complaints should be filed within 15 days of the date the employee “first knew, or with reasonable diligence should have known, of the decision or action giving rise to the complaint or grievance . . .”  Anzaldua appealed the board’s decision to the Commissioner of Education.

Ruling:  The Commissioner granted Anzaldua’s appeal, holding that the grievance was timely because the informal grievance process that Anzaldua tried tolled the 15-day deadline.    According to the Commissioner, the district’s local grievance policy encouraged employees to have “informal conferences with their supervisor, principal, or other appropriate administrator” prior to filing a formal grievance.  Anzaldua believed that her conversations with staff of the human resources department constituted informal conferences under the policy. The Commissioner agreed.

The informal grievance process included Anzaldua’s efforts to resolve the matter with the human resources department.  The human resources specialist informed her that an investigation would be conducted.   The Commissioner stated:   “In light of the outcome of this meeting, it was reasonable for Petitioner to believe that the appropriate department of Respondent’s administration was aware of underpayment and was working diligently to understand and rectify the situation.  Under Respondent’s local policy, no further action by Petitioner was necessary at that point to maintain her grievance.”

The Commissioner rejected the district’s argument that the human resources specialist was not an “appropriate administrator” to address an informal grievance under the local grievance policy. According to the Commissioner, it would not be reasonable or efficient to require an employee to demand a meeting with the Director of Human Resources under these circumstances in order to engage in the informal grievance process.   Here, Anzaldua went to the appropriate “administrative department” to address her concerns.  Further, the informal grievance process could have continued until the district gave her a final answer as to whether she had been underpaid, by how much, and for how long.  The record showed that the district did not complete its investigation and formally acknowledge the underpayment to Anzaldua in writing until October 8, 2013.  Thus, the formal Level One grievance filed in June of 2013, about four months earlier, was timely.

The Commissioner, thus, held that under the district’s DGBA(LOCAL) grievance policy, a teacher can initiate the informal grievance process by meeting with a supervisor, principal, or a staff member from the appropriate administrative department to discuss the problem.  The informal grievance process continues until the teacher receives a final response from the person or department with whom the teacher met.  Until the informal process is complete, the deadline to file a formal grievance is tolled.  The Commissioner returned the case to the district to consider the merits of Anzaldua’s grievance.

Comments: This is must-reading for all school district personnel who may be faced with an informal grievance conference. The Commissioner’s decision constitutes an abrupt change from how districts have analyzed the timeliness of grievances.  Look for more on this in this month’s Web Exclusive.  Policy updates are also already in the works to address this decision, so stay tuned for those as well.