School Law Briefing
A Publication of Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C.
Number 5 -- Winter 1997
To view this edition in PDF format, click here.

1997 IASB-IASA-IASBO
Joint Annual Conference Edition
Reflections on Public Service
School Board Workshop:
13 Ways to Improve Board Meetings

Case Notes:
School Buses and Tort Immunity: Private v. Common Carriers
To Award or Not to Award: That Is the Question
Attorney Profiles: Tim Guare and Dean Krone
Looking Back, Looking Forward...
Reflections on Public Service

The Joint Annual Conference is often the first official function attended by newly-elected board members, other than their installation meeting. Recently, Mr. Guare, a partner with our firm, came to the end of his six-year tenure as a member of the Riverside Brookfield High School District 208 Board of Education, when he moved out of the district. We thought we’d share a few glimpses of his experience.

“Be careful what you ask for...”
Part of R|B’s charm is that it’s made up of relatively small villages where citizens’ opinions can have tremendous impact. Prior to moving to the District, I had spent 10 years as a teacher before becoming a labor attorney representing school districts which typically devote 70% of their budgets to personnel costs. Needless to say, I had a bit different perspective on the state of local educational affairs.

I was flattered, and even more surprised, when friends and acquaintances suggested that I run for the Board. I considered all the usual reasons for running for public office: money (none), luxury junkets (even less), and prestige, power and the esteem of your constituency (the least yet). I focused on the two reasons which, for me, seemed to be the strongest motivation: by serving on the Board, I would not only have the opportunity to make a difference, but also I would be earning my perpetually-vested right to gripe.

“The lawyer who represents himself...”
All Illinois local school boards are comprised of citizens of the community, with their own unique talents and interests. I was privileged to serve on a Board that included, among others, a former federal prosecutor, an IRS appeals officer, a CPA and people with prior board experience with other organizations. This group of diverse and talented people blended quite well into a cohesive policy-making body. Not that the group was without dissent. Often the debate was spirited, perhaps even heated, but always sincere and in good faith. Some Board members were natural leaders. Others were skillful consensus builders. All my fellow Board members did an excellent job of filling their individual niches.

For my part, my colleagues seemed to feel that it was only logical that a member/public sector labor attorney should represent them at the bargaining table (honestly, not my decision). My “day” job as labor counsel is to advise clients about their available options and the consequences that may flow from them, and then stay out of the way as the client makes the policy choice. Now I was put in the extraordinary (and scary) position of wearing two “hats”—policy maker and advocate. It was not enough that my day-in, day-out professional tools had to be used to reach the goals sought by the client. Now I was the client and had partial ownership of the objectives of the process. Some of my colleagues had similar opportunities to use their skills and backgrounds by helping the Board develop litigation strategies, long-term financial plans and taxation strategies. Even though these tasks meant extra work, Board members had a stronger proprietary interest in these processes as a result of contributing the skills they knew best.

Our experience taught me that board members should not hesitate to bring their own special talents to the position. Drawing on your personal strengths to help your district attain its goals can increase your effectiveness as well as your enjoyment in the process.

“If it’s not broken, fix it anyway.”
When I was first elected, the major problems facing the District included declining enrollment, deficit budgets and unreasonably high debt service. If our agenda had remained limited to these few but very serious issues, our work would have been over some time ago. Instead, navigating the District into the 21st Century required facing a host of new challenges such as technological changes, tax caps, increased enrollment in the face of a relatively flat EAV, physical plant adaptation for ADA compliance, standardized testing issues, and new needs created by demographic changes in the community, just to name a few. The only constant in life is change, and every school district, including R|B, is as dynamic as the community within its boundaries.

To help us cope with these tides of change, R|B’s administrative team, led by a superb superintendent and principal, provided detailed information and cogent recommendations to assist the Board’s policy-making. The administration constantly pressed us to consider and address forward-thinking issues, rather than merely confronting the current crises. However, they always understood that their role in the partnership was to recommend, implement and execute policy, rather than to make it. This working relationship proved to be a key ingredient in the development of a highly successful agenda for the District’s continued growth.

Assuming that our situation was not unique, I think it’s fair to suggest that, if a board member ever feels satisfied that all the work in the district is done, it’s probably the appropriate time for that board member to step down. When an elected official believes that all goals are met and there are no new ones, it’s time to make way for someone with new thoughts, new energies, and a sense of direction which reflects the community, and identifies and serves its future needs.

“No good deed goes unpunished.”
Anyone who seeks election to a school board for the accolades and appreciation of the community is in for some major disappointment. More often than not, public service is a thankless job. You will undoubtedly hear from senior citizens who don’t want their taxes raised by a school district from which they receive no immediate benefit. You will be confronted by parents who want special programs that serve their child’s unique needs. You will receive more than enough unsolicited advice on the appropriate starting lineup for this week’s basketball game (i.e., their kid). At each and every point of diverging views, there is the potential for conflict. The loudest critical voices will frequently base their opinions on a very selective review of the relevant facts. And always, no matter what decision you make, you can plan on hearing from the persons whose “ox” was “gored,” but rarely a gesture of gratitude from the beneficiaries of the same decision. Ah, the glory of public service!

“Does it feel good when it stops?”
The end of my tenure as board member did not come by choice, but rather by legislative fiat when I moved out of the district. If I had it to do all over again, and knowing now about public service what I did not know then, would I make the same decision to serve?

I now have my Tuesday nights back, and my Wednesday mornings are relatively Visine-free. I know my telephone rings far less frequently, and that I have much less to read on a weekly basis. I’ve lost the constant feeling of the Dutch boy with his finger in the dike. It always seemed that we just couldn’t respond to problems fast enough to outrun them or to find a time of relative repose for the District.

However, like most other school board members, I served because I wanted to give back to my community and because I hoped I could make a difference. Looking back, I can see that District 208 is a different place. The crises that faced the District in 1991 no longer hang over the school’s head like a sword of Damocles. True, new problems have arisen, but somehow they seem less serious than those that lay on the District’s horizon six years ago.

All in all, the changes in the District have been consistent with the board’s policy-making efforts, and the administration’s tireless efforts to implement those decisions. If we had a magic wand, other goals would have been met as well. Nevertheless, once I got past the frustration of those tasks that couldn’t get done before my departure, I found the overall experience to be satisfying, rewarding and even exhilarating. For that reason, I heartily endorsed the recent successful effort of my partner, Dean Krone, to run for a seat on his District’s board (see Profiles, page 8).

So, yes, even knowing now what I didn’t know then, I believe I would choose to do it again. To those of you who are just starting your term of service, how “good you feel when it stops” will no doubt be measured by the energy and care you invest in your tenure. Good luck, and I hope you all will be able to say you got good returns on your investment!

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School Board Workshop:
13 Ways to Improve Board Meetings

Do your district’s meetings currently end after the date has changed on your watch? Is public commentary out of hand? Are you weary of talking and talking about issues and taking no action? Here are excerpts from suggestions by Stewart H. Diamond on how to help make your meetings more efficient and effective.

1. Prepare an Agenda for All Meetings
Since January 1, 1995, both regular and special meetings of governmental bodies are required to have agendas. Prior to that time, only special meetings were required to have agendas. One person should be designated in advance to prepare agendas. At regular meetings, items can be added to an agenda under whatever rules of procedure the board has adopted. For special meetings (as opposed to regular meetings), the convening authority establishes the agenda, and only those items set forth in the notice of the meeting can be discussed.

2. Don’t Clutter up an Agenda with Items That Are Not Ready to Be Discussed or That Have Been Discussed to Death
Matters which have appeared on an agenda which are not ready to be discussed because some item of information is missing should be tabled until the date when that report is ready or that piece of information is available. Since the public has a right to follow that particular matter from date-to-date, any motion to table should be to a specific date. If all the needed material is not ready when that date arrives, the matter should be continued again to a definite date. If a matter of controversy has been finally decided, and there is a desire to prevent the issue from being raised again in its same form, a motion can be made to reconsider the matter by someone on the prevailing side. If the motion to reconsider fails, then under most rules of order, that item cannot come before the legislative body again in its same form or without any change of circumstances. Democratic principles can be followed and minority rights protected without turning every matter of controversy into a never-ending story.

3. Make Substantial Use of a Consent (“Omnibus”) Agenda
Illinois law contains a wonderful parliamentary device known as the “consent agenda.” By using that device, a group of diverse items, including simple motions, motions to authorize the expenditure of funds, motions to pass ordinances or resolutions, motions to receive or accept documents, and all other varieties of governmental actions, can be approved through a single action which has two parts. First, by unanimous action, the governmental body must agree what items are to be acted upon under the consent agenda. A single vote is then taken on the acceptance or rejection of all items on the consent agenda. A board member may agree on a list of consent agenda items and then vote “no” on the passage of the entire consent agenda. The establishment of the consent agenda can be accomplished without debate or with debate, provided elected officials are given an opportunity to ask questions about motions prior to the vote. Sometimes, a simple answer or two from a colleague or an administrator may permit the item to be placed on the consent agenda. The use of this device avoids the need for meaningless or pro forma debate on matters which require no debate, or where enough debate has taken place on previous occasions. All items which are placed on the consent agenda must, by law, be briefly explained to the public or press in attendance. The explanation can be short and straight forward.

4. Limit Meeting Length
Governmental business debates late into the evening are probably not in the best interests of the public or board members unless the board is composed of lounge singers or insomniacs. It is also probably unfair to the public to take up matters of importance at a time when most citizens are asleep. School boards which consistently meet beyond 11:00 p.m. should consider starting meetings earlier or establishing a “curfew.” If there is an important and unique matter before the board, a curfew can be waived by an extraordinary majority vote. Absent such a vote, which should come infrequently, a curfew should, over time, teach the board discipline and allow elected officials to occasionally see their families.

5. Consider the Use of Intergovernmental Agreements
Many times, school boards spend much time discussing the goals and intentions of other governmental bodies. What are the thoughts of a municipality which is considering a tax increment financing district? Accordingly, time can be wasted attempting to predict the actions of other governmental bodies. Sometimes boards are tempted to go into an improper closed session to evaluate rumors about the action of another governmental body. Often the only way to determine the actual views of another governmental body is to hold a joint meeting at which a quorum of both governments are in attendance. Portions of such meetings may be held in closed session if, for example, they involve litigation by a third party or the acquisition of property. Such meetings are perfectly legal under Illinois law, provided that adequate public notice is given. If common views are reached at these meetings, the parties can enter into an intergovernmental agreement. Such agreements allow for an expansion of powers because governmental bodies can agree to anything that is not prohibited by State law or by local ordinance.

6. Limit or Control Public Comment
Under Illinois law, most meetings must be open. Open meetings, however, are not the same thing as “free for alls” between the board and its opponents. Meetings must be open to the public, but the public has no specific right to participate other than in those situations in which a public hearing is required. Therefore, the board may limit the role of the public to that of observers.

Most school districts allow the public to speak at their meetings. The time and manner in which such public participation is allowed is entirely within the discretion of the board. No single member of the legislative body has the right, absent some rule to that effect, to authorize audience involvement in a board meeting. Even the board president cannot do so if there is a procedural rule, passed by the board, which forbids or restricts that practice.

In many districts, public comment at specific times, or even in the middle of board meetings is not disruptive and does not unduly extend those meetings. Unfortunately, in some districts, the experience is different. In those districts, the board should take action to prevent the disruption or undue extension of meetings as a result of public participation.

7. Use Consultants Wisely
Consultants are not performers and should not be encouraged to protract meetings through the presentation of lengthy and erudite reports. Your lawyer or engineer should be told that he or she is not paid by the word or the drawing. The submission of written reports in advance of board meetings should be encouraged. Further, board members should always be encouraged to ask questions of the consultants before board meetings. Consultants or staff members should not be allowed to muse over a problem at length at a meeting when a correct and short answer, perhaps even in writing, could have been submitted prior to the meeting. Matters on a consent agenda, especially those which have previously been fully discussed at a board meeting, should not be presented to the board anew by a consultant or a staff member. Succinct answers and reports should be encouraged.

8. Limit Board Debate
Every board president has a different style. Some run their meetings like drill sergeants, while others run their meetings like psychiatrists. Each approach is valid as long as it does not interfere with the full discussion of public issues or turn such discussion into epic poems. A president who allows unlimited discussion of all matters should re-think that philosophy if meeting lengths extend beyond the board’s endurance level. Where a board president is unwilling to limit debate, a board majority may do so. A rule can also prevent a board member from retaking the floor until all other board members who wish to speak have had an opportunity to do so. In addition, a board member can be limited in the total number of times that he or she is permitted to speak on a particular matter. As long as rules of this nature are applied fairly and uniformly, the process of debate should not suffer.

9. Observe Timeliness
Public meetings should start on time. Meetings should begin at the appointed hour if a quorum is present. Except in unusual circumstances, matters should not be deferred until a “full board” is present. Where a matter is to be put over until all members interested in this crucial item can be present, everyone interested in discussing this matter should be informed in advance of the meeting. This will not only prevent double discussion, but will discourage members of the public from appearing to discuss a matter which will not be acted upon at that meeting. It will also save parties with hired consultants from the cost of bringing them to meetings only to discover that the matter will be continued to a later date.

10. Utilize Legally Noticed “Pre-meeting Sessions”
Some boards have found that the formalities of board meetings prevent members from asking questions and stating views in a more informal setting. Prior to the passage of the Open Meetings Act, some districts held “pre-board meetings” at which discussions took place about agenda items. Such meetings are still possible under Illinois law, so long as they are advertised as either committee of the whole meetings or reflect a starting time earlier than the normal school board meeting. For example, a board which normally meets at 8:00 p.m. can give public notice of an open “pre-meeting” session at 7:30 p.m.

At that “pre-board” meeting, the president may go over the agenda and answer any questions which board members feel more comfortable raising in this informal setting. Sometimes at that meeting, board members can agree that certain items should be deferred to a later time, or that additional specific reports should be submitted before the board is ready to act. If one combines this process with the use of a “consent agenda,” the board meeting can principally address only those matters which need to be actively debated in a full public forum. Members of the press should be encouraged to attend this “pre-board meeting.” They can be invited to address questions to the board at that time. Even if they are not allowed to participate, the information which the members of the press learn can help them to better understand and interpret the matters which are discussed at the board meeting.

11. Hold Retreats
Board retreats are effective both for districts which are experiencing strife and for those which are not. The retreats must be noticed as special board meetings under the Open Meetings Act. However, if the meeting is noticed for purposes of board self-assessment and a facilitator such as a representative of the IASB is present, the meeting can be held in executive session. Such meetings can be relatively informal, or they can be highly organized. There are persons trained in industrial psychology who can provide great help to a district in such sessions. Such individuals normally keep the discussion on constructive matters and force troublesome issues to be raised when the parties may be too polite to do so. Districts in which the elected officials hold similar views can use these sessions for strategic planning and to raise issues which do not immediately arise out of day-to-day governmental operations. These sessions are equally or more useful for districts in which trust has broken down between parties or where definite factions exist. Although not all problems can be solved in those situations, the warring parties may be able to establish a relative truce so that not every issue becomes highly politicized. It is, however, asking too much from such sessions if they take place under the shadow of a political campaign.

12. Prepare Full Agenda Packets
One of the great advantages of the employment of superintendents is their commitment to submitting a full packet of materials explaining the agenda items to the board well in advance of the board meetings. Such a packet of material should include the following:

a. Copies of all resolutions on which the board will be asked to act at the meeting. Although it may sometimes be difficult to get all the material to the board in the packet, great efforts should be taken to do so.

b. Copies of any reports which recommend that the board take specific action.

c. Copies of letters or correspondence. The advent of the Xerox machine should make it unnecessary to read any of these letters at board meetings.

d. Tabulations of bid openings and any recommendations regarding the lowest responsible bidder.

e. Copies of any significant contracts the board will be asked to approve.

There is no clear rule as to the period of time during which elected officials need to review these documents. Certainly, if a meeting is to take place early in the week, the elected board members should have the great bulk of the materials by Friday of the prior week. Some districts have a rule that no matter will be placed upon the agenda for which the requisite materials are not submitted to board members at least four or five days in advance of the meeting.

13. Conduct Training Sessions for Elected Officials
Often, long and less effective board meetings are caused by the actions of newly-elected officials who lack knowledge about the job they have undertaken. In recent years, a growing percentage of public officials are elected to the board without prior service on boards or committees. These people are frequently elected on a platform of mistrust for government and a pledge to “shake things up.” Sometimes, while trying to “shake things up,” they unnecessarily “slow things down.” Newly-elected officials should be given help in overcoming their difficulties. The district should be prepared to pay the tuition, and, if necessary, travel costs, for newly-elected officials to attend conferences of the Illinois Association of School Boards and regional associations. The officials should be encouraged to attend and be provided with other aids which discuss the way in which school board meetings can work most effectively.

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Case Notes:

School Buses and Tort Immunity:
Private v. Common Carriers
Since the tragic bus/train accident involving Fox River Grove School District 155, in which several students were killed, school bus safety has gained heightened attention. Our law firm is currently defending several governmental entities in litigation that has resulted from school bus accidents, including the Fox River Grove case. An important factor that often comes into play when defending these cases is whether the school bus was being operated as a “common carrier” or a “private carrier.”
If the school bus is operating as a common carrier, the standard of care owed is “the highest degree of care.” The application of this standard would make it very difficult for school districts to escape liability because this common law standard makes common carriers virtual insurers for their commercial passengers. In addition, the immunities and defenses contained in the Tort Immunity Act are not available to common carriers. On the other hand, if a school bus is operating as a private carrier, the applicable standard of care would be “ordinary and reasonable care,” which is the same standard that applies to private passenger vehicles. Tort Immunity Act defenses are available when the district’s actions meet this lower burden.

Recently, the Appellate Court addressed this issue in the case of Doe v. Rockdale School District No. 84, 679 N.E.2d 771 (3rd Dist. 1997). The court found that the school bus in question was not a common carrier, allowing the school district to assert immunities under the Tort Immunity Act. By implication, the court found that the standard of care applicable was that of “reasonable care.”

In its opinion, the Rockdale court defined “common carrier” as “one who undertakes for the public to transport from place to place such persons or goods of such as choose to employ him for hire.” The court concluded that the definitive test was “whether the carrier serves all the public alike.” In Rockdale, school bus transportation was available only to students who attended schools within the District. Therefore, the court ruled that the school bus was operating as a private carrier. The fact that the School District contracted with a private company to provide school bus transportation services had no impact on the ruling.

Darcy L. Proctor of our office was recently successful in getting a case dismissed for one of our firm’s school district clients, relying on Rockdale. The primary issue involved what standard of care was owed by the district to a student who was injured when she stepped into a pothole while boarding a school bus. The district employed the bus driver and provided transportation for its students to and from school. Darcy argued that the district’s conduct should be governed by the standard of reasonable care instead of the highest degree of care because the district was not a common carrier. The court agreed and ruled that the school bus was being operated as a private carrier, and that the standard of reasonable care applied. The case was ultimately dismissed because the evidence showed that the district had not violated this standard. We will be sure to keep our clients and friends informed as the state of the law clarifies this very important issue.

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To Award or Not to Award: That Is the Question
Public officials often ask whether there is any flexibility in awarding a public works contract to a company that is not the lowest responsible bidder. Occasionally, this question is answered by the courts. The Fourth District Appellate Court recently concluded that the Quincy Public School District No. 172 School Board violated the competitive bidding statute by selecting as its contractor for a school boiler replacement project a company that was not the lowest responsible bidder. Despite the District’s disappointment, something useful can be learned from this unfavorable ruling.

The controversy began when the Quincy School Board prepared bid specifications for its project to replace boilers in the Quincy Junior High School and advertised for bids in the local paper. Five firms submitted bids. Doyle Plumbing was the lowest of the five, followed closely by Wand. Although the Board did not question the quality of the product to be supplied by Doyle or Doyle’s competence to complete the tasks required in the bid specifications, the Board members did express concern about the travel time between Doyle’s company in Jacksonville and Quincy. Based upon this concern, the Board selected Wand, a local company, assuming Wand could provide faster maintenance and repair service to the boiler. While this may seem like a reasonable basis for the contract award, it made Doyle’s blood boil and Doyle drove to the nearest courthouse to file suit against the School District.

In the lawsuit, Doyle claimed that it should have received the contract because it was the lowest bidder and demonstrated its ability to meet the specifications. In its defense, the Quincy School Board relied upon Section 10-20.21 of the School Code which allows school districts to consider “conformity with specifications, terms of delivery, quality and serviceability” in reviewing bid submittals and awarding contracts. The School District argued that “serviceability” means the ability of the bidder to provide repair service to the product and that the company’s availability was therefore a relevant factor. The court rejected this interpretation, looking instead to the dictionary definitions of “serviceability” as well as how this term has been construed by other courts.

According to the court, the ordinary meaning of “serviceability” is “fitness to give service: usefulness for a purpose: wearing quality: durability, serviceableness.” Consistent with other statutory references and the underlying purpose of Section 10-20.21, serviceability is intended to refer to the product itself or the supplies, materials or work rather than the bidder. Interpreting “serviceability” in this manner will promote the purpose of the statute, which is to encourage competition, whereas relating the term to the bidder’s ability to provide maintenance on the supplies, materials or work when the contract makes no reference to service would allow the “shield” of serviceability to be raised in defense of any contract awarded to a local bidder who is obviously closer geographically to the project than a non-local company.

The School District’s downfall may have been caused by the absence of any reference in the bid specifications to the desired response time for repairing and maintaining the boiler. It is possible that the decision may have been different or the lawsuit might never have occurred if those documents stated that the bidder would have to demonstrate its capacity to respond in a timely manner in the event of an emergency affecting the operation of the boiler. Because a boiler must heat an entire school filled with students and faculty, it makes good sense to expect the company that installed the boiler to be able to get to the site quickly to render emergency service in the event of a failure or malfunction. Unfortunately, the bid documents were silent in this regard.

The court found that the Board members acted in good faith and not on the basis of favoritism in awarding the bid to the second lowest bidder. Again unfortunately, their fine intentions did not prevent the court from ruling that the Board violated the statutory mandate to award the contract to the lowest responsible bidder.

A lesson to be learned or possibly reiterated is that all important qualifications and factors germane to the particular project being advertised must be clearly spelled out in the bid documents. In this way, the government entity can reject the lowest responsible bidder if that company fails to demonstrate its ability to comply with the stated specifications. (Doyle Plumbing and Heating Company v. Board of Education, Quincy Public School District No. 172, 225 Ill.Dec. 362 (4th Dist. 1997).)

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Attorney Profiles
We at Ancel, Glink are proud to have attorneys in our ranks who have served as elected officials for various units of local government, including school districts. Several of the firm’s partners have served on school boards and bring their practical experience to our representation of school districts. In addition to those profiled below, partner Robert W. Rolek has served as a member and President of the Board of Lake Bluff School District 65.

Tim Guare
Timothy E. Guare recently concluded six years of service as a school board member in Riverside Brookfield High School District 208, when he moved out of the District. Tim concentrates his practice in labor and employment matters for all types of units of local government, including school districts. Tim’s experiences as a school board member and a former teacher allow him to bring a unique perspective to the bargaining table. Tim serves as the labor and personnel counsel for a number of our school district clients. Tim frequently speaks on employment and personnel issues before several state public employer organizations, including the IASB. In addition, Tim has served as an author of chapters on labor law in IICLE’s Practice Handbooks on School Law and Municipal Law. Tim and his wife, Cami, live in Grayslake, Illinois. In his spare time, Tim enjoys biking and golfing and continues to be active with high school bands and related competitive youth activities as a judge and program consultant.

Dean Krone
Dean W. Krone concentrates his practice with Ancel Glink in the corporate representation of governmental clients, including school districts. Dean has represented school districts in daily administration matters, as well as issues involving special education, disconnection and annexation, and tort defense. Having served as a math teacher for several years before practicing law, Dean brings first-hand knowledge to school law problem solving. He has spoken to school district organizations on a variety of topics. This November, the voters of Park Ridge-Niles Consolidated Community School District 64 elected Dean to serve as a member of the Board of Education. Dean and his wife, Sharon, live in Park Ridge, where they spend their free time enjoying activities with their nine-year old son, David, and their four-year old twins, Lauren and Daniel.

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School Law Briefing is published periodically by Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., as a service to our public education clients and friends. It is intended to provide timely information of interest, but it is not a substitute for legal advice. Be sure to consult with an attorney before taking action based on the contents. We welcome comments and questions. Permission to reproduce is granted provided credit is given to Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C. School Law Briefing.

Editor: Timothy E. Guare; Design: Douglas M. Doty



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