GOVERNANCE

Handgun Policy

CAN SCHOOL BOARDS AUTHORIZE THE CARRYING OF CONCEALED HANDGUNS?

Case citation:  Tex. Att’y Gen. Op. GA-1051 (2014).

Summary:  The Chair of the Texas House Committee on Homeland Security and Public Safety recently asked the Attorney General whether a school district may authorize an employee or trustee to carry a concealed handgun at any meeting of a governmental entity or on the premises of school property where a sporting event or interscholastic event is taking place.

The Attorney General observed that several school district boards of trustees have adopted policies allowing designated employees to carry handguns on school premises pursuant to Penal Code § 46.03(a)(1), which prohibits possession of a handgun on school premises “unless pursuant to written regulations or written authorization of the institution.”  A typical policy, commonly known as a “Guardian Plan,” requires the designated employee to be properly licensed.

However, Penal Code § 46.035 prohibits a person to carry a handgun “on the premises where a high school . . . sporting event or interscholastic event is taking place” or “at any meeting of a governmental entity.”  The main issue before the Attorney General was whether a board of trustees’ written authorizations to allow a properly licensed trustee or employee to carry a handgun on school premises under Penal Code § 46.03(a)(1) overrides Penal Code § 46.035’s prohibition to carry handguns at board meetings or other interscholastic events.

Ruling:  The Attorney General held that Penal Code § 46.035(b) and (c) are not violated by a person who is lawfully carrying a handgun pursuant to a school board of trustees’ written regulations and authorization under Penal Code § 46.03(a)(1).  The Attorney General noted that Education Code § 11.151 provides the board of trustees with exclusive power to govern and oversee the management of the public schools in the district.  In addition, a board may promulgate written regulations as provided by Penal Code § 46.03(a)(1).  According to the Attorney General, an appointed “Guardian” under a school district “Guardian Plan,” is acting according to school board regulations and authorization and, thus, would likely be acting within the scope of official duties.

The Attorney General also was asked whether a school district could appoint one person to serve as a school marshal, under House Bill 1009, and another person to serve as a “Guardian.” House Bill 1009 authorizes a school district to appoint a licensed, trained employee as a school marshal and affirmatively authorizes a school marshal to carry a concealed handgun on school premises according to district policy.  No provision within House Bill 1009 conflicts with Penal Code § 46.03(a)(1). Thus, the Attorney General concluded that a school board may appoint one person to serve as a school marshal under § 37.0811 of the Education Code and authorize another person to serve under the district’s regulations and authorization under Penal Code § 46.03(a)(1).

Comments: This opinion will be welcome news to many school districts. The statute that authorizes school marshals also includes a lot of restrictions. If the marshal is a teacher, or any other person whose “primary duty” involves “regular, direct contact with students” then the marshal cannot actually carry the gun, but can have it in a “locked and secured safe within the marshal’s immediate reach.”  School districts that want to appoint a person to carry a gun without designating them as a “marshal” should consult legal counsel to work out the details.

Open Meetings Act

DID THE NOTICE OF THE BOARD MEETING RENDER THE PRINCIPAL’S TERMINATION VOID?

Case citation:  Rivera v. La Pryor ISD, Dkt. No. 032-R2-01-2014 (Comm’r Educ. Feb. 12, 2014).

Summary:  David Rivera worked as a principal for La Pryor Independent School District during the 2013-14 school year under a probationary contract.  On August 6, 2013, the board of trustees held a meeting, during which it voted to propose the termination of Rivera’s contract.  The notice of the board meeting listed the following item on the agenda:  “14.  Adjourn to Closed Session Pursuant to Texas Government Code Section 551.074 (Personnel, to deliberate regarding the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee; or to hear a complaint or charge against an officer or employee, and/or Texas Government Code Section 551.071 (Consultation with Attorney), specifically to discuss: A. Consider information and possible contract implications regarding Principal D. Rivera . . .  15.  Reconvene from Closed Session for possible action relevant to items covered during closed session.”

Rivera requested a hearing before an independent hearing examiner.  Following the hearing, the parties agreed to extend the time the hearing examiner had to issue a recommendation to December 2, 2013.  However, the hearing examiner did not issue her recommendation until December 3, 2013.  The district ultimately terminated Rivera’s probationary contract, and Rivera appealed to the Commissioner of Education.  Rivera argued that the notice of the board meeting did not comply with the Texas Open Meetings Act and the hearing examiner did not issue the recommendation timely.

Ruling:  The Commissioner upheld the termination of Rivera’s probationary contract.  The Commissioner rejected Rivera’s argument that the notice of the board meeting was not specific enough under the Open Meetings Act.  According to the Commissioner, when a topic is of special interest to the public, the description in the notice must be detailed enough to provide “reasonable specificity of the subject matter to be considered.”  Texas courts have held that it is a matter of public interest when school boards consider the employment of superintendents and principals, so the notice of the meeting must be more specific than merely stating “personnel” or “employment of personnel” without any mention of the position involved.

For matters of public interest, like the employment of a principal, a notice is sufficient if “it states the individual’s position, name, and the fact that the Board is considering employment action, even if the notice does not include terms like ‘disciplinary action’ or ‘termination.’”  Here, the notice was sufficient because, not only did it include Rivera’s position, but it also included his name, and a statement that the board would be considering and possibly taking action on his contract.  According to the Commissioner, therefore, the notice complied with the Open Meetings Act.

The Commissioner also held that the hearing examiner’s decision, issued one day late, did not render the decision to terminate the contract void.  The deadline for an independent hearing examiner to deliver a recommendation to a school board is not jurisdictional. Procedural irregularities or errors of a hearing examiner will not nullify the actions of the board unless the error was likely to have led to an erroneous decision.  Failing to meet the deadline, in this case, was not likely to have led to an erroneous decision and, thus, it did not render the board’s decision void.