All of KSB’s guidance, sample documents, and links to key agency guidance can be found here, at our dedicated COVID-19 page: ksbschoollaw.com/covid19
We’ve had many requests for the webinar recording, which you can access directly from our COVID-19 site, or by following this link: KSB COVID-19 WEBINAR
During KSB’s impromptu COVID-19 webinar on Friday, March 13, 2020, we proposed to circulate a sample resolution which would give the superintendent the authority to take non-discretionary actions in the event of a possible disclosure. There is also an optional provision attempting to account for the staff leave and payment issues we discussed. You can access that resolution here, and as always, you should consult with your school district’s attorney and receive advice prior to adopting a resolution.
Your board may also want to consider a variety of additional issues in anticipation of a possible school closure. We have tried to come up with a list of the key COVID-19-related issues your board may also want to consider. Where we have already provided guidance on these issues, we linked it below. As always, you should consult your school district’s attorney on each issue, because your existing policies, contracts and other unique situations will require customization of these resolutions for your district:
Leave considerations for certificated staff covered by the negotiated agreement. As you know, the NSEA proposed an addendum to modify your negotiated agreement. KSB has also posted a modified version which requires staff to use leave provided by your negotiated agreement. Here is our update about both addendums, your options, and other considerations.
Leave considerations for classified staff and certificated staff not covered by the negotiated agreement. Upon request, KSB or your school’s attorney can work with you on documents you may need to provide any necessary pre-closure leave and post-closure continuation of pay and benefits to employees not paid by law. The board could consider a motion or resolution authorizing the superintendent to sign these agreements, provide paid administrative leave, or implement additional leave.
Authority to suspend, cancel or reschedule certain events, such as prom, graduation, and school trips. Although we believe that the superintendent has the authority to take these steps without formal board action, it may be helpful politically if the superintendent has formal board authority to take these steps since they will likely be unpopular with at least some members of your community. Here is guidance provided by Nebraska DHHS regarding closures. It specifically suggests not to hold events with an expected attendance of 250 or more people prior to community transmissions and to limit gatherings to 20 or fewer after community transmissions have begun.
Authority to pay other non-discretionary claims. In the event of a prolonged closure, the board may want to give the superintendent authority to make certain payments even if the board cannot or does not meet—for example service payments on a bond or payments to food vendors who are still providing items for the school’s food program. The more specific this grant of authority is from the board, the less likely you will be to face a challenge from a disgruntled patron in the future.
Authority to assign staff as needed prior to a closure, during a closure, and after a closure. Again, although superintendents already have the authority to assign staff as needed, this may be politically useful and will signal that staff assignments will be both unpredictable and may change without much notice. This could include assigning staff to perform certain duties at home (although be mindful that such an assignment will almost certainly convert the employee’s leave day to a duty day.)
Authority to hire additional classified staff or contract for sanitation and other services as needed. Many administrators have asked about authority to hire staff or contract for services in the event deep cleaning or other services are needed due to COVID-19. Most districts already have a policy conferring classified staff hiring authority to the superintendent or his or her designee, and a policy outlining the superintendent’s ability to contract for services. However, a resolution specifying this may be appreciated by your administrators.
Waiver of doctor's note requirements for student absences related to illness. Many schools require a note from a physician after student absences last for "X" number of days. Given the testing limitations for COVID-19 and the public policy desire for anyone sick to stay home, your board and administration should consider suspending those types of requirements under your mandatory attendance policies for the remainder of the year. A simple motion vote could accomplish this if it is on your board's agenda.
There are certain duties which we believe that the board cannot simply delegate to the superintendent. Our quick, non-inclusive list of those items includes the following:
Authority to hire and/or discharge certificated staff. By statute the board must take these actions. This includes entering into a contract with administrators.
Authority to waive or change credit hour requirements for graduation. Again, this is a statutory function of your board. Although we believe you will eventually be called upon to allow your seniors to graduate with a truncated set of credits and classes, the board will be the one required to take that action.
Authority to open and select bids, initiate a bond or override election, or amend the district’s budget. These are core board functions that, by statute, cannot be delegated by the board of education.
Authority to modify your negotiated agreement. The board must approve negotiated agreements, so although the board can approve an addendum regarding leave, it cannot delegate to the superintendent the authority to modify the negotiated agreement without board approval.
We hope these considerations are helpful. If you have any questions, please contact Karen, Steve, Bobby, Coady, or Jordan, or contact your school district’s attorney.