A little bit about
a number of things...
by Dr. Troyce Fisher, SAI Executive Director
First, and most important, as we get
in the swing of things for a new school year, the SAI staff would
like to thank each and every one of you for the work you do for
kids, day in and day out. Your willingness to lead and to go to
the wall for all students and the adults who serve them is an
inspiration. We feel very fortunate to work for you.
You'll notice a new format in our newsletters this year. We're
hoping to spotlight members' articles, opinions and questions,
and to use the SAI Report as a way to highlight best practices
and keep members informed of current district, state, and national
happenings; research, and issues and trends in linking leadership
and learning. You'll also see lots of connections to the new Iowa
Standards for School Leaders (ISSL) and follow-up to ideas presented
at the August conference.
Last spring your Executive Committee spent a considerable amount
of time rethinking SAI's vision and mission in light of new realities
of accountability, administrator shortages, legislative initiatives,
and expectations tied to the new teacher compensation law. You'll
find both the vision and mission reprinted below, as approved
by the Rep Council at their August meeting. I think they are both
dynamic statements about your professional association's priorities.
Current political realities will also demand a different level
of involvement in our legislative process from all of us. We're
instituting a "feedback loop" between the newly formed
legislative and IPERS committees, Rep Council and you, the members.
A portion of the fall district meetings will be devoted to inviting
you to give your legislative committee feedback on its initial
proposals. Your district officers will bring all of your input
back to the Rep Council meeting in November for further refinement
into our legislative platform. Please plan to attend these district
meetings - we need your ideas.
As you know by now, we had an overwhelmingly positive response
to our request for your involvement in a variety of SAI committees.
Over 260 members will give the staff guidance on our programming.
We're gratified by the level of professional dedication this represents
and excited about the possibilities for this next year and beyond.
At the annual meeting held last month, SAI members were presented
with an initial list of goals for 2001-2002 in five different
categories: Enhancing Our Skills As Leaders of Learning; Recruiting
and Retaining the Best and the Brightest into School Administration;
Advocating for Our Members; Collaborating with a Variety of Educational
Entities; and Managing an Efficient Association. The Executive
Committee will take the input provided at the annual meeting and
refine the goals, which will then be distributed to all of the
members.
Finally, this bit of leadership advice from Mark Twain: "Go
out and do good. It will gratify most people and astonish the
rest!"
Top
Guidance Counselor Liability for
"Negligent Misrepresentation"
by Kathy Lee Collins, J.D., SAI Director of Legal Services
Uh-oh. Another way we can be sued (successfully). The Iowa
Supreme Court decided a case this past spring that is sure to
cause your guidance counselors some concern. Here's what happened:
Bruce Sain, a Cedar Rapids Jefferson graduate, sued the school
district and his guidance counselor in 1999. Sain sued his district
for negligence and sued the guidance counselor for negligent misrepresentation.
The school's attorney filed a motion which, if granted, would
do away with the need for a trial and constitute a decision in
the district's favor. The trial court judge granted the district's
motion as to both counts of the lawsuit, and the former student
appealed to the Iowa Supreme Court.
In April, our highest state court held that the trial judge
was correct in throwing out the count against the district, but
that the suit against the guidance counselor should go forward
to trial. This case thus stands for the proposition that guidance
counselors can be sued (successfully) if they give bad or inaccurate
advice that the student then relies on to his or her financial
detriment. Knowing the facts of the case and prior Iowa case law
helps us understand what Sain v. Cedar Rapids Community School
District means.
Sain played basketball for Jefferson High School and hoped
for an athletic scholarship to a Division I college or university.
The NCAA (National Collegiate Athletic Association, which governs
college athletics) has rules for colleges and universities requiring
that certain academic standards be applied to freshmen on scholarship.
In order to qualify for a scholarship, student-athletes must take
and pass a specific number of core courses in high school. All
high schools must submit their course descriptions to the NCAA's
Clearinghouse and update their curricular list when a new core
course is added to the curriculum (or when an old one is changed,
I assume).
C.R. Jefferson is on the trimester system. Bruce apparently
needed three English courses his senior year to meet his NCAA
English core requirements. He took and passed one English course
first trimester, then started another but wanted out after a short
period of time. He went to his guidance counselor, Larry Bowen,
who suggested that Bruce take "Technical Communications,"
a new course that had just been added to the curriculum. The course
was not on the list of core English courses submitted to the NCAA
the previous spring because it wasn't then fully developed.
The Supreme Court decision states at this point that Bruce
claims his counselor told him the course had been approved for
NCAA requirements. However, the counselor claims no such conversation
took place. Because the case was dismissed before a trial was
held, the Supreme Court was required (by court rules) to assume,
temporarily, that Bruce is right. We will find out who the jury
believes on this point if and when the case goes to trial.
Bruce took the Tech. Communications course and passed it and
another in the third trimester, then accepted an athletic scholarship
offer from the University of Northern Illinois ["UNI"].
He graduated from Jefferson and was then informed by the NCAA
that he had not met core English requirements because "Technical
Communications" had not been submitted to the Clearinghouse
for approval before he took it. Thus, he couldn't play basketball
on scholarship his freshman year. Both Bruce and Jefferson High
School asked the NCAA to rethink its decision but got nowhere.
Sain claims that he lost his five-year athletic scholarship
with Northern Illinois. The school district disputes this fact.
But if he's right, he lost five years of out-of-state tuition
probably valued around $50,000. That's important.
The district (trial) court dismissed both counts of the lawsuit
believing that they constituted allegations of educational malpractice.
"Malpractice" is just a fancy word for the negligence
of a professional, and although you can sue doctors, lawyers,
architects and engineers for malpractice, a 1986 Iowa Supreme
Court decision pretty much established that public school employees
and districts in Iowa can't be sued for educational malpractice.
It's against public policy. (I'd explain that further, but it
doesn't matter. Suffice it to say, that was a great decision for
our team.)
On Sain's appeal of the dismissal of his lawsuit, the Iowa
Supreme Court agreed with the trial court judge that the case
against the school district for negligence (in failing to notify
the NCAA of the new course and/or failure to get the Technical
Communications course approved by the NCAA Clearinghouse prior
to recommending it to student athletes who may need it to meet
NCAA requirements) should be thrown out because it is clearly
involves an allegation of educational malpractice. That is, if
the school district made a mistake, was "negligent"
in legal terms, it happened in the routine course of its normal
academic, educational day-to-day operations, and thus, would be
a claim of educational malpractice. The school district won that
issue and, thus, there will be no trial against the district.
However, with respect to the claim against the guidance counselor,
the Court changed direction. They said, essentially, IF it's true
that Mr. Bowen told Bruce Sain that the course was NCAA approved
AND he hadn't checked to make sure, that form of negligence is
more "business related" than "academic,"
and thus doesn't fit in with the reasons the Court listed back
in '86 for not allowing educational malpractice suits. The Court
said when a guidance counselor is in the business of giving advice,
and a student relies on that advice, and the advice costs the
student a significant amount of money (such as a 5-year scholarship),
that kind of lawsuit doesn't fall under "educational malpractice."
Rather, the Court said, it's a classic example of "negligent
misrepresentation."
It is of utmost importance to point out two things that keep
this from being as scary a decision for counselors as one might
think. First, Mr. Bowen (and any public school guidance counselor
sued in the future for negligent misrepresentation) is protected
from personal liability by the Iowa Municipal Tort Claims Act.
That's a state law that requires school districts and boards to
"defend, indemnify, and hold harmless" any employee
who is named in a civil suit for an act or omission arising out
of the employee's job. This translates into an obligation on the
part of a school district to provide an attorney (the district's
insurance company generally does this) to "defend" the
employee; pay any damages that are assessed against the employee
("indemnify" him or her); and "hold him or her
harmless" for the "oops" that caused the lawsuit,
which means they can't fire the employee because of the suit.
Be aware that they can fire the employee for intentional acts
because this statute protects employees only from negligence types
of suits. "Willful or wanton acts" on the employee's
part are excluded from this protection because they're not "negligent"
(accidental); they're purposeful or intentional. Also note that
the board's obligation doesn't extend if the employee is sued
in the criminal arena, only if the suit is civil in nature.
Second, the insurance company that covers most if not all Iowa
school districts for tort liability says that counselors sued
for negligent misrepresentation are covered by the district's
general liability coverage; no separate "rider" or coverage
is required for them.
There are always folks I call "Chicken Littles" who
come out of the woodwork after a somewhat surprising decision
like this one, declaring that this is the worst thing in the world
that could happen to schools. ("The sky is falling!")
Even the two judges on the Iowa Supreme Court who dissented in
Sain seem to be predicting that potential "floodgates of
litigation" will now be opened up. Or worse, that guidance
counselors will simply begin refusing to do their jobs out of
fear of being (successfully) sued. That may be a knee-jerk reaction
by some, but we're talking about professionals here. I cannot
imagine any of the counselors with whom I've worked over the years
telling a student, "I don't know. Go find out yourself if
this course has been approved for NCAA Prop. 48!"
But I do agree with the dissent that the ability for students
to sue their counselors successfully isn't limited to students
who get bad advice regarding athletic scholarships. It would apply
equally to "all students, whether talented in music or debate
or academics." I can foresee a number of variations on these
facts, such as telling a student she only needs three years of
foreign language to be accepted into Harvard when in fact she
needs four.
We must not forget that there is one swift and sure way to
change this decision in Iowa, and that is for the legislature
to pass a law next session granting counselors immunity from suits
for negligent misrepresentation. Then our counselors would only
have to really be on their toes for the next 11 months! I'll keep
you posted.
Top
IPERS Preretirement Death Benefits
By Kelly Lovell, Deputy General Counsel, IPERS
The 2000 Second
Session of the Iowa General Assembly made many significant amendments
to Iowa Code chapter 97B, "Iowa Public Employees' Retirement
System" (IPERS). One of the more significant changes relates
to preretirement death benefits.
Previously, IPERS only provided a lump sum preretirement death
benefit, based on a formula. The formula was the sum of two amounts.
The first amount was the member's accumulated contributions and
interest. The second amount was the member's highest year of wages
multiplied by a fraction. The numerator of the fraction was the
member's years of service and, for regular class members, the
denominator was 30.
Many members were extremely dissatisfied with this formula,
because of the size of the lump sum amount it produced, and because
a beneficiary could not receive a lifetime annuity. The 2000 legislation,
amending Iowa Code section 97B.52(1), made changes in both areas.
First, the new preretirement death benefit formula provides
that the lump sum amount now is either the old formula amount
or the actuarial present value of the member's accrued benefit
as of the date of death, whichever is greater. (In some cases,
the old formula, particularly for younger members, will provide
the better lump sum amount.)
Second, regardless of the method used to determine the new
lump sum amount, that amount may be converted to a lifetime monthly
benefit by sole beneficiaries, if a timely election is received.
As revised, IPERS provides a preretirement death benefit to
beneficiaries of members who (1) have an IPERS account, and (2)
die before retiring or taking a refund.* Eligibility, the amount
of the death benefit, and the form in which it can be paid, will
depend on the date of the death, the date the claim is made, and
certain other factors. One of the most important, and complex,
things to understand about the new death benefit is the distinction
between "window period beneficiaries" and "post
window period beneficiaries."
"Window period beneficiaries" are beneficiaries of
members who died on or after January 1, 1999, but before Jan.
1, 2001. "Post-window period beneficiaries" are beneficiaries
of members who died on or after Jan. 1, 2001.
The main difference between the two groups is that window period
beneficiaries must claim their benefits by Dec. 31, 2001, or they
will forfeit any right to the new preretirement death benefits.
The claims period for post-window period beneficiaries is 1 year
if they wish to receive an annuity, or 5 years for the lump sum.
(Special rules may apply to surviving spouses permitting longer
claims periods.)
The statutory change is somewhat unusual in that, even though
a window period beneficiary previously was paid a lump sum preretirement
death benefit under the old formula, that beneficiary can, if
they make a timely claim, also profit from the statutory change.
For eligible beneficiaries who already received a lump sum
preretirement death benefit payment, there are several options
to consider. For example, they can receive a lump sum equal to
the difference between the prior lump sum payment and the new
lump sum amount, or sole beneficiaries can receive a lifetime
annuity. The annuity can be based on the amount of the increase,
or on the entire lump sum payable under the new formula. If they
choose the latter, monthly annuity payment will be withheld until
the prior lump sum payment is recovered.
The payment of the actuarial present value of the member's
death, as a lump sum or an annuity, has relieved some of the prior
pressure on members with health problems to retire early in order
to preserve lifetime death benefits under one of the IPERS retirement
options. However, it is very important for members (and beneficiaries)
discussing retirement decisions with IPERS' staff to remember
that the assumptions provided to and used by IPERS' staff in preparing
estimates such as possible retirement dates, possible eligibility
for Social Security disability, and so forth, make a big difference
in the information provided. Each situation is unique, and each
member should discuss his or her situation in detail with an IPERS
retirement officer to understand their choices and to determine
the best choice for them.
If you have any questions, please contact Jan Selzer at 515-281-0026,
or the writer at 515-281-0089.
*Please note that, although increased monthly death benefit
amounts or lump sums may be available under the option already
selected by a reemployed retiree, the preretirement death benefits
described in this article are not available to reemployed retirees.
SUNSHINE ADVISORY
A Bulletin on Iowa Open Meetings and Public Records Laws
By Attorney General Tom Miller
Personally Examining Records - Giving a "Free Peek"
Do you know what obligations public offices have when a citizen
asks to see a public record? Personal examination of records is
just one of the ways citizens may have access to public records.
When a person visits a public office and asks to see a public
record, several principles apply:
1. Every person has the right to personally examine public records
at the physical location where the records are kept, unless a
specific provision of law requires confidentiality or provides
grounds to withhold the record from public scrutiny.
2. The office cannot charge a person to personally examine a public
record while it is in the office's physical possession, unless
a specific provision of law grants the office the right to charge
a fee. The office may charge a person the actual cost for retrieving
the record and for making any copies of the record that are requested
- but not for personally examining the record.
3. If records are kept at a separate location, the public office
may need to retrieve the record in order to make it available
to the public for personal examination.
4. The right to personally examine public records does not extend
to certain computer data bases or data processing software. Public
offices are not required to provide direct access to their computers.
When public offices understand the right of every person to come
to an office and personally examine public records, it helps assure
that access to public records is provided in compliance with the
law - and it helps forge a good relationship between public offices
and the citizens they serve.
This is the first "Sunshine Advisory" issued by the
Attorney General's Office. The Advisories are designed to give
information on Iowa's public records and open meetings laws -
our "Sunshine Laws." Local officials should obtain legal
advice from their counsel, such as the city or county attorney.
Citizens who have inquiries or complaints may call the Iowa Citizens'
Aide/Ombudsman Office - toll-free at 888-IA-OMBUD (888-426-6283).
Iowa Attorney General's Office: Hoover Building, Des Moines,
Iowa 50319.
Sunshine Advisories are a general resource for government officials
and citizens. Local officials should obtain legal advice from
their counsel, such as the city or county attorney.