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2017 Education Legislation Summary

In its 2017 regular session, the General Assembly made a number of changes in the statutes affecting public education in Connecticut. This summary is intended to give you a brief overview of some of the more significant changes that were made this year in the area of education.

Note: At the time of publication, the General Assembly had not passed a biennial budget. Upon passage of the budget, related legislation implementing the budget will likely further impact laws affecting public schools. Once this legislation is passed, we will supplement this legislative summary and distribute a comprehensive summary of laws from the regular and special sessions.

Click to download our 2017 Education Legislation Summary.

Connecticut Independent Schools Employment Law: Background Check Requirements

On August 22, 2017, Shipman & Goodwin attorneys Julie C. Fay, Laura A. Fisher and Henry J. Zaccardi will present the program, “Connecticut Independent Schools Employment Law: Background Check Requirements” for the Connecticut Association of Independent Schools (CAIS).

In 2016, Connecticut passed legislation that significantly expanded the scope of background check requirements for public schools when hiring new employees. That law, colloquially referred to as the “Pass the Trash” bill, was intended to make it harder for a school employee to quietly resign amidst allegations of abuse, neglect or sexual misconduct, only to be hired by another school unaware of the employee’s prior history. On June 27, 2017, Governor Malloy signed into law Public Act 17- 68 which extends the background check requirements applicable to public schools to any “nonpublic school” in Connecticut. Further, this new legislation reverses the applicability to independent schools of Connecticut’s “ban the box” legislation, which became effective earlier this year. The new requirements became effective July 1, 2017. This program will provide a complete overview and Q&A about the new law.  For additional information and to register for this program, visit the CAIS website

For additional information about this topic, see our July 5, 2017 post: Connecticut Independent Schools Required to Perform Background Checks on Potential Employees Effective July 1, 2017.

Webinar: A Legal Primer – Tax and Charitable Giving for Independent Schools

Join Shipman & Goodwin tax and trusts and estates attorneys Ray Casella and Danielle Ferrucci on September 13, 2017 for this complimentary webinar for independent schools. Presenters will discuss tax issues specific to private educational institutions, including:

  • Golden piggy bank with grad cap and calculator on woodproperty tax exemptions for housing for Heads of Schools and other faculty members
  • compensation issues
  • employee tuition remission programs
  • summer sports camps
  • activities that create taxable income

The presenters will also provide an overview of charitable giving techniques and issues, including an overview of current estate and gift tax laws.

When: September 13, 2017  12:00 PM – 1:00 PM EDT
Where: Webinar

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Connecticut Supreme Court Issues Decision in Munn v. Hotchkiss

On Friday, the Connecticut Supreme Court issued its long-awaited ruling in Munn v. Hotchkiss School, the case involving a private school student who contracted tick-borne encephalitis on a school-sponsored trip to China.  In its ruling, the Supreme Court found unanimously that 1) the state’s public policy supports imposing an affirmative duty on schools to warn about and protect against the risk of insect-borne diseases and 2) an award of $41.5 million for the breach of that duty fell within the limits of just compensation.

Cara Munn was a 15-year-old student who participated in a school-sponsored trip to China in 2007.  The itinerary for this trip included a visit to Mount Pan, located in a forested region of northeast China.  Upon descending the mountain on foot, the student suffered several insect bites, and ten days later, began to experience symptoms of tick-borne encephalitis.  Though her condition subsequently stabilized, the student suffered permanent brain damage and has lost the ability to speak and has limited control of her facial muscles.  The student and her family sued the school for negligence. Following a 2013 jury trial, a federal district court in Bridgeport found the school negligent for failing to warn the student and her parents about the remote possibility of insect-borne diseases and ordered the school to pay $41.5 million in damages—$31.5 million of which was for non-economic damages such as pain and suffering.  The school appealed.  In August 2015, the Second Circuit found that the student’s injuries were foreseeable; however, the court requested guidance from the Connecticut Supreme Court on two specific issues:  1) whether state public policy imposed a legal duty on schools “to warn or protect against the foreseeable risk of a serious insect-borne disease when organizing a trip abroad and, if so, 2) whether the jury’s damages award, particularly the noneconomic portion, warranted [vacation of or reduction in the jury’s damages award].” Continue Reading

CAS Legal Mailbag Question of the Week – 8/2/2017

Originally appeared in the CAS Weekly Newsletter
Written by Attorney Thomas B. Mooney.

Dear Legal Mailbag:

I hope that you are having a nice summer. As a new principal of a big elementary school, I was enjoying mine, but now I need your help. What happened was that three weeks ago, a big shipment of books and supplies came in unexpectedly. The new business manager is a bit of a pain about inventory, so I figured that I had better log in exactly what we received. The problem was that I was planning to take some well-deserved vacation the following week.

I called my secretary and asked her to come in for a few days to help. She gave me a little attitude because she doesn’t usually work in the summer, so I used my negotiating skills. I don’t have any money in my budget to pay her, but I offered her two days of comp time during the school year for every day she helped out, a total of six days. In addition, I told her that we could get the job done if she worked for only five hours on each of the three days. By the end of the conversation, she said OK, and I thought she even sounded enthusiastic for this opportunity to earn some time off during the school year.

You can imagine my surprise and frustration when I received a grievance the week after she came in to help, claiming that I had violated the contract by “ordering her in to work outside the negotiated work year.” Fit to be tied, I called her right up to ask what on earth was going on. A deal is a deal, I told her, and I complained that I would find it hard to trust her going forward. Then, the Union filed an unfair labor practice against me the very next day, alleging that I had interfered with her “protected rights,” whatever that means. This is ridiculous! What can I do about this harassment?

Thank you,
Indignant Ignoramus

Dear Indignant:

My first recommendation is that, when you are in a hole, you should stop digging. Here, you have dug yourself a big hole by your impressive ignorance of the statutory rights of your secretary.

Let’s start with your brainstorm to provide comp time later in the school year in lieu of paying your secretary her regular pay. Non-certified employees of a school district are “non-exempt” employees, i.e., they are not exempt from the wage and hour statutes, which require that they be paid for all hours worked. Indeed, non-exempt employees are even entitled to pay when you “permit” them to work. The underlying public policy is that we can never be sure if an employee has truly volunteered to work, and thus we must presume that any work done by a non-exempt employee was required. Strike One.

In addition, you sought to strike a deal individually with a union employee. You can’t do that. When a union has been recognized as the exclusive bargaining agent for a group of employees, you must go through the union if you want to modify working conditions for a member of the bargaining unit. Here, you asked the employee to come in over the summer. Absent a past practice that establishes summer call-ins as a working condition, you (and the school district more generally) must reach out to the union with the request. You have to try to work it out with the union, not with the individual employee, who may well feel coerced when her boss calls and asks for help. Strike Two.

But you couldn’t leave it there. You went ahead and called the employee and essentially threatened her for filing a grievance. As a union employee, however, the secretary had every right to file a grievance. To be sure, some grievances are without merit, but irrespective of the merit of a grievance, filing a grievance is a basic element of the right of a union member to engage in concerted, protected activity. Expressing your concern, especially by saying that her filing the grievance will now affect your ability to trust her, can certainly be seen as interference with her rights as a union employee, which is indeed an unfair labor practice. Strike Three.

I am sure that you are a good principal in some ways, but you have a lot to learn about labor relations. You better get busy.

Leander Dolphin Honored by Nat’l Bar Assoc with “40 Under 40” Award

Shipman & Goodwin attorney Leander A. Dolphin is among the recipients of the National Bar Association’s (NBA) 2017 “40 Under 40 Nation’s Best Advocates” award. As the nation’s oldest and largest national network of predominantly African-American attorneys and judges, the NBA strives to improve the administration of justice, preserve the independence of the judiciary and uphold the honor and integrity of the legal profession. At the Awards Gala during the NBA’s 92nd Annual Convention in Toronto, Canada, recipients were recognized for their display of advocacy, innovation, vision, leadership, and overall legal and community involvement.

As a partner in the firm’s School Law Practice Group, Ms. Dolphin represents public school districts, independent schools, colleges and universities in education and employment matters, and counsels private, public and non-profit employers on employment issues. She is a frequently requested speaker, and an Adjunct Professor of Education Law at Quinnipiac University School of Law.

Ms. Dolphin is highly engaged in advancing diversity and inclusion in the legal profession. She is Co-Chair of Shipman & Goodwin’s Committee on Diversity and Inclusion, which promotes understanding, empowerment and advancement of diverse professionals and sponsors organizations that raise awareness of diversity. She previously served as Secretary and a member of the Board of Directors of the George W. Crawford Black Bar Association, a statewide affiliate of NBA. She was a member of the Lawyers Collaborative for Diversity’s Associates Advisory Committee.

In committing her time and experience to the community, Ms. Dolphin seeks to align her service with organizations focusing on education, diversity and youth development. Since 2012, she has served as a Board Member of The Governor’s Prevention Partnership. She is a member of the Board of Trustees of the Ethel Walker School and a former Trustee of The Hartt School (which is the performing arts conservatory of the University of Hartford). Ms. Dolphin previously served as Vice President, General Counsel of the Girl Scouts of Connecticut. She has been recognized as a Fellow of the American Bar Foundation, a James W. Cooper Fellow of the Connecticut Bar Foundation, a Connecticut Law Tribune “New Leader in the Law” and one of the “100 Women of Color” in the Greater Hartford area.

SEE YOU IN COURT! – July/August

It was a tough budget season in Nutmeg, and the Board of Education was forced to make difficult cuts just to start the new year with a balanced budget.  To make matters worse, Town officials are whispering about possibly clawing back part of the appropriation to the Board if and when the General Assembly ever adopts a budget.  These are difficult and uncertain times.

Veteran Board member Bob Bombast has been concerned that the Board will need some help getting through the coming year.  After reading about how private donations saved the July 4th Celebration in Nutmeg this year, Bob had one of his infamous brainstorms: the Nutmeg Public Schools should seek private donations to supplement the meager sums appropriated for the public schools in Nutmeg.

Bob eagerly brought his ideas to the next meeting of the Nutmeg Board of Education.  When the Board got to its standing agenda item, “New Business,” Bob raised his hand to be recognized.  “Mr. Chairperson, I have some great new ideas to solve the Board’s financial problems,” Bob announced grandly.  He didn’t notice the sighs and rolling of the eyes from his colleagues, and he blithely launched into his presentation.  “Our problem is that we are not entrepreneurial and creative.  We sit here with our hands outstretched waiting for the Town to provide us funds.  We need the Town’s money, of course, but we need more.”

“Where, pray tell, are we going to get these additional funds,” fellow Board member Mal Content asked.  “We are a public agency reliant on taxpayer funds.”

“We need to go out and find the money through private donations,” Bob answered.  “In fact, I move that we spend $10,000 on a fundraising company now with the hope that we will garner $100,000, $200,000 or more later in private donations.”

Penny Pincher, Bob’s ally on the Board, promptly seconded, and without further discussion, the Board approved the hiring of a company to target companies and wealthy residents for charitable donations to help support the Nutmeg Public Schools.

Surprisingly, the fundraising was quite successful.  For example, the Nutmeg Football Friends offered $10,000 for new uniforms for the football team, and the League of Women’s Voters dug deep and promised $80,000 to fund a new Civics teaching position.  One local dot.com magnate pledged to contribute $200,000 to provide every student at his son’s elementary school with a new MacBook.  Another family offered $20,000 to restore the boys’ wrestling team, a sport that the Board had cut some years before.  For once, a bright idea from Bob has paid off.

Bob could not hide his glee when he was able to report on these and other donations offered by the public.  He was shocked, therefore, when instead of simply accepting these gifts with gratitude, the other Board members started talking about whether to accept these gifts.

“Don’t look a gift horse in the mouth,” Bob urged.  “Just accept these gifts now before the donors get annoyed with our equivocation and change their minds!”

Should the Board think twice before accepting these gifts?

Continue Reading

New Legislation Revises Physical Restraint and Seclusion Training Requirements

This is an updated version of the original post, Legislature Revises Physical Restraint and Seclusion Training Requirements, published on June 28, 2017.

Earlier this month, the Governor signed Public Act 17-220 (House Bill 7276), which contains a number of provisions aimed at providing “mandate relief” to boards of education. Section 5 of Public Act 17-220, effective July 1, 2017, makes significant changes to the physical restraint and seclusion training requirements that were enacted as part of Public Act 15-141 (now codified at Conn. Gen. Stat. § 10-236b). We recommend that school districts consider these revisions as they plan for staff professional development.

Public Act 15-141 required boards of education to train all school professionals, paraprofessional staff members and administrators in physical restraint and seclusion. Specifically, Public Act 15-141 required (1) all school professionals, paraprofessional staff members and administrators to receive an annual overview of relevant laws and regulations regarding the use of physical restraint and seclusion on students provided by the State Department of Education; and (2) boards of education to develop a plan for training all school professionals, paraprofessional staff members and administrators regarding both the prevention and implementation of physical restraint and seclusion of a student, with such plans being implementing over a three-year period beginning no later than July 1, 2017 and concluding no later than the July 1, 2019. Public Act 15-141 also required boards of education to establish a crisis intervention team at each school consisting of school professionals, paraprofessional staff and administrators to respond to incidents in which physical restraint or seclusion may be necessary.

Under Section 5 of Public Act 17-220, boards of education will only be required to provide the required training to members of the crisis intervention team for each school within the district. In addition to the mandatory training for members of the crisis intervention team, however, the law provides that boards of education may elect to provide such training to any teacher, administrator, paraprofessional or other school employee designated by the principal and who has direct contact with students. Boards of education must provide the required training during the 2017-2018 school year and then annually thereafter. Importantly, the substantive training requirements have not changed; the significant change is that boards are now only required to train members of the crisis intervention teams. The training requirements continue to include:

  • An annual overview of the laws and regulations regarding the use of physical restraint and seclusion provided by the State Department of Education, and
  • The creation of plans to train relevant staff in the prevention and implementation of physical restraint and seclusion of a student.

Under the new law, boards of education must begin to provide the annual overview by the State Department of Education during the 2017-2018 school year and they must implement the training plans by July 1, 2018.

Finally, Section 5 of Public Act 17-220 clarifies that the membership of a crisis intervention team may include any teacher, administrator, school paraprofessional or other school employee designated by the principal and who has direct contact with students. Moreover, boards of education must maintain a list of the members of the crisis intervention team for each school.

Questions or Assistance:

If you have any questions about the revisions to the physical restraint and seclusion training requirements under Public Act 17-220, please contact Peter J. Maher at pmaher@goodwin.com or 860-251-5507 or Gwen J. Zittoun at 860-251-5523 or gzittoun@goodwin.com.

Court Finds Public Owners Responsible for Evaluating Surety as well as Surety Bonds

Mechanic’s liens provide security for nonpayment to subcontractors and suppliers on private projects. Because mechanic’s liens are not valid against property that is owned by the state or a municipality, the Little Miller Act (C.G.S §49-41 et seq.) was implemented to provide subcontractors and suppliers working on public works projects with a similar level of security.

Pursuant to the Little Miller Act, any contractor entering into a construction contract exceeding $100,000 for a public works project must provide the public owner with a payment bond “with a surety or sureties satisfactory to the officer awarding the contract.” If the public owner fails to receive such a bond, the statute provides that the public owner may be liable to unpaid subcontractors in accordance with C.G.S §49-42.

In a series of recent lower court decisions that involved multiple subcontractor claims in connection with the same project, the Connecticut Superior Court considered the level of investigation a public owner must perform on the surety company in order to find the surety to be “satisfactory” under the Little Miller Act. The court considered whether the public owner’s contracting officer fulfilled his obligation under the Act by merely confirming that a signed bond form was provided by the contractor. The contracting officer was unaware that the surety that issued the bond was not authorized/licensed to do insurance business in the State of Connecticut and that there were irregularities on the face of the bond and its attached power of attorney.

The courts concluded that finding a surety “satisfactory” requires more than a simple review of the bond as to form. The court determined that compliance with the Act by a public owner requires a focus on the surety issuing the bond and a consideration of substantive issues including:

  • whether the surety company actually exists;
  • whether the surety company is authorized or prohibited to do business in Connecticut; and
  • whether the public owner has actual knowledge of facts that might or should preclude characterizing the surety as satisfactory.

To comply with the Little Miller Act (and protect itself from liability), a public owner should perform a substantive review of the bond instrument and the bonding company to determine that the surety meets the conditions identified by the court. We recommend that this review include, at a minimum, a search of the records of the Connecticut Secretary of the State under the name of the surety and an inquiry of the Connecticut Insurance Commissioner to determine whether the company legally exists and is authorized/licensed to issue surety bonds in the state of Connecticut.

Connecticut State Department of Education Releases Lists of Due Process Hearing Officers and Mediators and New Process for Mediations

After an extensive interview and hiring process, the Connecticut State Department of Education (“CSDE”), Bureau of Special Education, released last week the list of new mediators and current due process hearing officers.  The hiring of new mediators was prompted by a directive from the Office of Special Education Programs (“OSEP”) that mediators used pursuant to the procedures required by the Individuals with Disabilities Education Act (“IDEA”) not be employees of the CSDE.  Thus, the list of mediators includes ten individuals, all of whom are independent contractors with the CSDE and new to the role of special education mediator.  The new mediators have been transitioning into their roles during the summer months; as of September 1, 2017, CSDE employees will no longer be conducting mediations. Continue Reading