Presented By: John L. Selzer.

Transcription

1 Presented By: John L. Selzer

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3 *Zebras & Elephants (PTO = Vacation Leave) *Dillon s Rule vs. expressio unius est exclusio alterius (Indemnification & Expenditures) *Look both ways before... (Student Searches)

4 *Fisher v. PayFlex Systems, USA, Inc., 285 Neb. 808 (2013) *PayFlex gave its employees PTO which could be used for vacation, sick leave, or any other purpose. *Policy: PTO will NOT be paid out upon separation of employment. *WPCA: Paid leave, other than earned but unused vacation leave, provided as a fringe benefit by the employer shall not be included in the wages due and payable at the time of separation.... Neb. Rev. Stat (4)

5 *PayFlex: Hybrid benefit Vacation *Employees: PTO = Non-contingent Benefit = Vacation

6 *Supreme Court 4-3 Decision: *Majority: *Because the employees could use PTO for any purpose, the PTO constituted vacation leave. *An employer cannot circumvent the WPCA by using the name PTO rather than vacation leave.

7 *Dissent: *PayFlex is not circumventing any legal obligation to pay unused vacation leave because it has no legal obligation to provide vacation leave. *A herd of elephants cannot be fairly characterized as a herd of zebras simply because one zebra is traveling with the elephants.

8 *Take Home Point: *Be careful about how you administer your non-vacation leave. If you have a practice of letting employees use, for example, sick leave for vacation purposes, it may be seen as a noncontingent benefit.

9 expressio unius est exclusio alterius *Dillon s Rule: A school district possesses and can exercise only: (1) Those powers granted in express terms; (2) those necessarily or fairly implied in, or incident to, the powers expressly granted; and (3) those essential to the declared objects and purposes of the school district, not merely convenient, but indispensable. *expressio unius est exclusio alterius (the expression of one thing is the exclusion of others)

10 * Mid-Plains Community College Case (Pending in Nebraska Court of Appeals) * Issue: Did Mid-Plains have the authority to agree to indemnify Union Pacific Railroad * Contractual Indemnification: Shifting liability for a loss from one person legally responsible to another person. * Community Colleges have express power to contract. * Dillon s Rule: A community college possesses and can exercise only: (1) Those powers granted in express terms; (2) those necessarily or fairly implied in, or incident to, the powers expressly granted; and (3) those essential to the declared objects and purposes of the community college, not merely convenient, but indispensable.

11 * District Court: Mid-Plain s authority to Indemnify is incident to Mid- Plain s express authority to contract. * Insurance Company: * Community Colleges have express authority to indemnify board members, officers, employees, and agents. NEB. REV. STAT * expressio unius est exclusio alterius (the expression of one thing is the exclusion of others) * Because the Legislature expressly granted Community Colleges the authority to indemnify board members, officers, employees, and agents, one must assume that a Community College does not have the implied authority to indemnify anybody else.

12 *There is a similar express statute allowing School Districts to indemnify board members, officers, employees and agents. NEB. REV. STAT

13 *Local Government Miscellaneous Expenditure Act; (Neb. Rev. Stat et seq.) *Delineation of Expenses, in addition to other expenditures authorized by law... * Actual and Necessary Expenses incurred at workshops, conferences, meetings, etc. * Except meals of paid members of governing body at a public meeting, unless it is a joint public meeting. * Non-alcoholic beverages at public meetings * Non-alcoholic beverages and meals for * Emergency relief * Volunteer work * One recognition dinner per year

14 * The expenditure of public funds for plaques, certificates of achievement, or items of value awarded... *State Auditor Letter (August 2, 2013) *Purchase of Memorial Flowers ($33.00) *School argued: * General Corporate Powers * Role Model for Students (Supported by Case Law)

15 *State Auditor: * Specifically designates without any ambiguity whatsoever, the precise types of expenditures permitted by the governing bodies of local governments among which school districts and school boards are explicitly included... Flower purchases, regardless of the reason or occasion, are not found among that select statutory list of allowable expenditures...

16 *State Auditor (continued): * Clearly applicable here is the legal principle of expressio unius est exclusio alterius... Because does not expressly include the purchase of flowers among possible expenditures listed, such purchase must be considered disallowed... *Legal Objections? *Will the decision in Mid-Plains case have some bearing on this issue by defining the extent of the implicit/incidental powers used in Dillon s Rule?

17 * J.P. v. Millard Public Schools, 285 Neb. 890 (2013) * J.P. drove truck to school, parked across the street * During school day, tried to leave building * Stopped by hall monitor, left anyway * Stopped by parking lot security, followed J.P. to truck * J.P. retrieved sweatshirt and wallet and returned to school * Hall monitor saw them return, said security officer gave them permission * Principal investigated, J.P. maintained he had permission to leave * Principal searched J.P., found nothing * Searched vehicle, without consent and found zigzag papers, drug pipe, cigarettes, lighters.

18 *Suspended for 19 days *Appeal *3 Opinions

19 *Opinion #1 * In this time of heightened school security due to the effects that prohibited items have had in schools, this search was not only justified, but required. Students believing that they are outside school jurisdiction by simply parking off school property and still keeping prohibited items in their cars are engaging in unrealistic expectations. If tolerated, not only does this provide ready access to these items during the school day, it also increases the potential for significant personal injury and creates a significant potential for the disruption of the learning environment.

20 *Opinion #2 * The District cannot create the authority to search where none has been given by statute. Section makes a clear distinction between conduct that occurs on school grounds and conduct that occurs off school grounds... For the search of J.P. s truck to be reasonable, the District must have authority to conduct the search. The District s authority is based upon the Student Discipline Act, which does not authorize the District to search J.P. s truck off school grounds unassociated with a school activity or athletic event.

21 * Opinion #3 * During all relevant and material times, the school maintained control over J.P. As J.P. exited the school without authorization to access his vehicle and then returned to the school, the school was responsible for J.P. s safety and maintained the ability to discipline J.P. This is so because J.P. s conduct occurred at the ultimate school-sponsored activity attending school during regular school hours... J.P. associated his vehicle with the unauthorized exit and reentrance into the school. In turn, J.P. changed the status of privacy rights he had in his off-campus vehicle by associating it with a school sponsored activity...

22 *Opinion #1 Hearing Officer *Opinion #2 Supreme Court Majority *Opinion #3 Chief Justice Heavican Dissent

23 *Supreme Court Reasoning * Fourth Amendment: Probable cause required before search * T.L.O.: U.S. Supreme Court recognized a relaxed standard for school searches: Search must be (1) justified at inception and (2) reasonably related in its scope to the circumstances which justified the interference in the first place * To be reasonable, School must have authority to search * The authority to search is implied from the right to discipline * Because only authorizes discipline on school grounds there is no authority to search off school grounds

24 *But what about... * : School may take actions regarding student behavior, other than those specifically provided in the Student Discipline Act, which are reasonably necessary to aid the student, further school purposes, or prevent interference with educational process. * : Short-term suspension for any other violation of rules and standards of behavior.

25 *expressio unius est exclusio alterius * Does the specific on school grounds requirement in imply the absence if such requirement for other forms of discipline? * If so, school has authority to impose discipline for conduct off school grounds and thus, authority to conduct searches off school grounds as long as T.L.O. standard is met. *Would the result of J.P. be different if a short-term suspension or catch all discipline case? *Can the case be interpreted as inapplicable for shortterm suspension or catch all discipline cases?

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