Topic: School Law
It’s springtime and it’s Texas. Bonds are passing and storms are brewing. Minds are turning to the construction of new projects, but you cannot forget that you still need to protect the old ones. It’s springtime and there’s a lot to do, so let’s get started.
Severe Weather Preparedness
The first rule of spring is to be ready for severe weather. What does a lawyer know about being prepared for hurricanes, hailstorms, and tornadoes? The answer is: “Probably at least enough to help you legally expedite your construction and repair projects so that you don’t compound your problems by violating the law and binding yourself to predatory contractors seeking to capitalize on a vulnerable target.”
If you have a facilities emergency on your hands and your District needs to take rapid action to protect its property from further damage or make a facility safe for school use, the District may need to spend greater than $50,000.00 to accomplish those goals. Normally, any such purchase would require notice and bidding under Section 44.031 et seq. of the Texas Education Code and/or Section 2269 of the Texas Government Code. Advertising for “two weeks” might not be feasible when waiting that amount of time would worsen the condition the District has to repair. Depending on the circumstances, those Codes have exceptions that may be available to you that could shorten the procurement time. It is important to remember, though, that invoking an exception does not except you from all of the construction related laws – just Education Code Section 44.031 and Chapter 2269 of the Texas Government Code.
Specifically, if your facility has been damaged, you may be able to suspend the application of Chapter 44.031 in order to make emergency repairs to protect people and property.
Suspension of the Methods Prescribed by Education Code Section 44.031
After you read this article, you should simply pick up the phone so that your attorney can prepare a resolution for you IN ADVANCE OF ANY EMERGENCY and, if you choose, prepare a draft modification to your Board Policy that would permit the Superintendent to declare an emergency under limited circumstances. If you do not have a policy in place to allow the Superintendent to invoke the emergency exception to Section 44.031, the Board of Trustees must determine that reason to suspend Section 44.031 exists. To accomplish this, the law requires that the Board of Trustees determine:
“[T]hat the delay posed by the contract methods required by this section would prevent or substantially impair the conduct of classes or other essential school activities”
Tex. Educ. Code Ann. § 44.031(h) (West 2016). There are actually two subsection “h”s in the statute, but the process is the same in both. It is important to emphasize that when a statute explicitly specifies that the Board of Trustees is to take an action, such action must be accomplished by the Board itself and the action is not one that can be delegated unless otherwise expressly permitted by statute. That is why having an already-prepared resolution is a time-saving necessity.
To invoke the emergency exception, the Board of Trustees should adopt a resolution reciting the general nature of the damage and that following the requirements of Education Code Section 44.031 and the methods required by Education Code Section 44.031 would “prevent or substantially impair the conduct of classes or other essential school activities.” As an additional recommendation, that delegation should also contain express limits of authority. While there is no explicit language in the statute requiring such a limitation of authority, the exception should be used to make emergency repairs as opposed to undertaking a multi-month or multi-year repair and renovation of the District’s facilities.
Failing to limit the use of the exception can lead to problems with claims recovery as companies charged with paying claims question the value of the repair services since there may be none of the usual competition, and/or record of competition that would exist with a typical procurement. Furthermore, it is doubtful that the emergency exception was written to include projects whose start dates are months away.
The Board Can Delegate Some of Its Authority to Invoke the Emergency Exception
The authority to invoke the emergency exception belongs to the Board of Trustees. That delegation, however, must be done by formal action and, as it pertains to invoking the emergency exception, such a delegation should be reflected in the District’s Board Policy CH(LOCAL).
When a Board of Trustees chooses to do so, it may delegate its authority to invoke the emergency exception to the Superintendent, but it can only do so where the “emergency replacement, construction, or repair is necessary for the health and safety of district students and staff.” Tex. Educ. Code Ann. § 44.0312. A District that wishes to take this step, again, should contact its attorney and ask for a policy amendment that meets the statutory requirements. Additionally, we would recommend that the policy also address the limits of the delegation, whether the limits be stated as a monetary cap, or based on a set of conditions for the repairs such as a limitation based on the type of facility for which the exception can be invoked, or the goals that can be achieved with the authority.
Other Important Laws Still Apply
Finally, there are other laws that the School District must still comply with even when an exception to Section 44.031 has been invoked. The District must still require workers compensation coverage of its contractors, payment and performance bonds will still be needed based on the dollar value of the contracts, engineers and architects will still be required under most circumstances – certainly where structural failure has occurred or may occur, but in many other instances as well, and the prevailing wage rate must be paid unless the state or federal government has somehow taken steps to suspend the requirement. There are more requirements and, again, consult your attorney to make sure you are fully compliant with the law.
One last thing: there is no “insurance proceeds” exception to the procurement laws. That means that if you haven’t invoked the exception to the bidding laws, whether the repairs are made with local funds or insurance funds, Section 44.031 of the Education Code and Chapter 2269 of the Government Code will apply and so will the other construction, engineering, and architectural requirements mentioned above.
Prepare yourself for the spring and summer months by having your attorney draft a boilerplate resolution that you will be able to use in the event of a facility emergency. With that resolution already drafted, the Board can expeditiously consider the resolution and other matters so that the District can legally begin its road to recovery. The Board may also wish to consider a modification to Board Policy CH(LOCAL) to allow a District Superintendent to invoke the exception where the health and safety of District staff and students makes use of the exception a necessity. Both of these solutions will require some advance planning, so get with your attorney before the need arises. Hopefully the policy and resolution will remain in your desk collecting dust for years. If the need arises, however, it will be one less challenge to accomplishing what needs to be done.