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SEE YOU IN COURT! - October 2014

CABE Journal

October 2014

Prissy Principal was pleased finally to get the promotion she had been seeking for several years.  As an assistant principal, she was infamous for being a neat freak, and Mr. Superintendent had been concerned that her rigidity would be a problem in handling the demands of an elementary school.  But after her lawyer sent him a doctor’s note to the effect that Ms. Principal’s OCD would not prevent her from doing the essential job functions of a principal, Mr. Superintendent decided to give her a chance, and he recommended her for the vacancy at Acorn Elementary School.

As the new principal of Acorn Elementary School, Ms. Principal was appalled at how disorganized her school was, and she promptly assigned her head custodian Joe Broom to conduct a complete inventory of all school property, on his own time if need be.  Joe grumbled a bit, but he immediately set about creating the inventory, and even he was surprised.  He found forty serviceable but outdated computers, 100 unused desks and, in the boiler room, a WPA mural that was done in the 1930s.  Given her abhorrence of clutter, Ms. Principal decided that this unused property must go.

As she surveyed the surplus property, Ms. Principal wracked her brain as to what to do.  Certainly the property was still worth something, and she was reluctant to throw it out.  Quickly, Ms. Principal realized that a tag sale would be a win-win situation, providing some needed cash to the school while cutting down on the clutter.  Ms. Principal then placed ads online as well as in the local newspaper, and she spent the next day tagging the items for sale.  She puzzled over the WPA mural -- the mural was large and colorful, but had a little damage in one corner.  What the heck, she thought, and she tagged it for $500.

The sale was a big success.  A new charter school bought all of the desks, and it even bought the old computers.  The WPA mural, however, had not yet been purchased when Joe Broom started to clean up at the end of the sale.  But just as Ms. Principal was thinking that she would be stuck with the mural, a stranger came up to her, pointed out the damage, and offered her $400 cash.  Ms. Principal could hardly believe her good fortune.  She took the cash, got his name and issued a receipt, and even helped the man carry the mural to his truck.

Ms. Principal was quite proud of herself, and she was therefore surprised to be called down to Mr. Superintendent’s office for a “little chat” the following Tuesday with him, Mr. Board Attorney and Mayor Megillah.  Ms. Principal promptly asked if she should have representation from the Nutmeg Administrators Group, but Mr. Superintendent told her no.  He explained that he, the Mayor and the Board Attorney just wanted some answers.  Discipline, if any, would come later.

“So,” began Mayor Megillah.  “Where are my desks, computers and mural?  That is all Town property, you know.”

Ms. Principal gulped.  “But all that stuff was in my school and not being used, so I sold it.  I have all the money in an envelope in my office.  Do you want it?”

Mr. Superintendent interrupted.  “We have a problem here.  You better get the property back pronto, and then we will sort all of this out.  Understood?”

Should Ms. Principal try to get the property back?  Will she be able to?

*              *             *

Yes and yes.  School boards and their employees do not own property used for school purposes.  The statutes provide that property dedicated to use for school purposes is under the control and jurisdiction of the board of education, control that is then delegated to the superintendent and other school employees.  However, the town, acting as school district, owns such property, both real and personal (other than regional school districts, which by statute actually do independently own the property).

Given that fact, Ms. Principal overstepped badly when she purported to sell school property.  The question of surplus property is a legitimate concern, and boards of education should have procedures for disposing of such property.  Those procedures, however, should involve a two-step process.  First, the board of education should decide whether and when property is no longer being used for school purposes.  The superintendent and the administrative staff should provide guidance, but by statute the board of education has control of such property and should make the decision.  Once the board has decided that property is no longer to be used for school property, control automatically reverts to the municipality.  The town should be notified of the board’s decision, and the town, not the board of education, should then decide what to do with the property – sell it, throw it out, keep it, or use it.

Getting the property back may be a bit tricky.  The buyers purchased it in good faith, likely presuming that Ms. Principal had the authority to sell it.  However, since the property was not Ms. Principal’s to sell, the buyers should turn the property back to the town and receive their money back.  If they don’t cooperate (and the fellow who purchased a WPA mural for $400 may well be inclined to hold on to it), the courts would likely side with Nutmeg on this one and order the school property returned.

When Ms. Principal asked for union representation, Mr. Superintendent should have granted her request.  As with any other union employees, Ms. Principal has a right to union representation in any meeting in which she is questioned and she may reasonably fear disciplinary action.  Mr. Superintendent was mistaken in telling Ms. Principal that she didn’t need union representation.  That mistake may well complicate any future disciplinary action against Ms. Principal for the tag sale.

Mr. Superintendent also should have been more proactive as to Ms. Principal’s claim of OCD (obsessive compulsive disorder).   If an employee raises an issue of potential disability, the employer must deal with it.  Here unfortunately, the situation was left ambiguous.  Mr. Superintendent should have sat down with Ms. Principal to discuss the doctor’s note.  In the interactive dialog required by the Americans with Disabilities Act in such situations, they should have then discussed whether Ms. Principal has a disability.  The district could even require an independent medical examination to find out.  If it is determined that she does in fact have a disability, school officials must meet with Ms. Principal to discuss whether and how she can perform the essential duties of the position, with or without accommodation.

Finally, Ms. Principal needs to learn about labor law as well.  It was inappropriate to tell the head custodian to finish the inventory on his own time if necessary.  As a non-exempt employee subject to the wage payment statutes, Joe was entitled to be paid for all time that he is directed to or permitted to work.

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