Judges: RICHARD P. IEYOUB
Filed Date: 7/19/2004
Status: Precedential
Modified Date: 7/5/2016
Dear Senator Holden:
I am in receipt of your request for an Attorney General's opinion regarding the state and local authority under which the East Baton Rouge School Board may contract with private providers for services such as cafeteria, custodial, maintenance and student transportation. You also seek an opinion as to whether entry into such contracts is subject to the Public Bid Law.
The Louisiana Constitution provides for the creation of parish school boards in Article VIII § 9(A), which states "[t]he legislature shall create parish school boards and provide for the election of their members." School boards are "subject to control and supervision by the State Board of Elementary and Secondary Education and the power of the legislature to enact laws affecting them." La. Const. Art.
In addition to the general powers outlined in La.R.S.
Parish and city school boards may also employ janitors, custodians, and maintenance employees as said boards may deem desirable for the proper and efficient conduct of their respective school system at such salaries, unless otherwise prescribed by law, and with such qualifications and duties as the board may deem advisable.
School boards' responsibilities and powers in reference to transportation are found in La.R.S.
For such purposes, any parish or city school board may employ school bus operators as hereinafter defined in R.S.
17:491 . However, nothing in this Section shall prohibit a parish or city school from entering into contracts or mutual agreements for providing school bus transportation.
School boards are also given the authority to maintain and operate school lunch departments. La.R.S.
The parish school boards throughout the state may maintain and operate lunch departments on a non-profit basis to provide meals for school children attending the public schools within their respective jurisdictions.
The employees in these departments shall not be entitled to tenure rights under any of the tenure laws of the public school system.
School board authority to administer a school lunch program is found in La.R.S.
The school boards, in order to provide for the operation of school lunch programs in schools under their jurisdiction, may enter into contracts with respect to food, services, supplies, equipment, and facilities for the operation of such programs and may use therefor funds disbursed to them under the provisions of this Sub-part any federal funds, commodities, gifts, and any other funds that may be received for school lunches under this program.
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State funds reimbursed to school boards shall be used for the purchase of food only. Provided, that any surplus of funds, after the payment for food purchased, may be used for preparation or serving the school lunches. School boards shall be required to purchase food wholesale at the lowest prices quoted for good quality products or at prices no greater than the wholesale rate for the same item.
In addition to the express powers granted by the legislature in the above cited provisions, a school board possesses additional implied powers that are necessary to implement its policies and fulfill its duties. Many prior cases and Attorney General Opinions have recognized these additional implied powers. See Louisiana Association of GeneralContractors v. Calcasieu PSB,
La.R.S.
Based on the absence of a requirement to employ such staff and the express and implied authority granted to school boards in La.R.S.
. . . no state funds shall be disbursed for the support of any school lunch program which shall be used by any private person, enterprise, concern or other entity for profit, regardless of any authority in federal or state law for contracting with such a private supplier or provider of school lunch programs.
The above discussion addresses a school board's general authority to enter into contracts with private providers for custodial, maintenance, student transportation and cafeteria services; however, additional issues are raised when a school system that employs individuals to perform the services in question enters into contracts with private providers to perform the services. As indicated above, as to its employment practices, a school board is limited by statutes that regulate its actions. The classes of employees in question may be dismissed through a reduction in force or dismissed independently if all statutory and school board policy requirements are met.
School boards have the authority to dismiss employees pursuant to a reduction in force. La.R.S.
A. Not later than January 1st, 1984, each city and parish school board shall develop and adopt rules and policies which it shall use in dismissing teachers at any time a reduction in force is instituted by such school board. Such rules and policies shall be made available for inspection by teachers, other school employees and the general public within ten days after final adoption.
B. Not later than January 1st, 1986, each city and parish school board shall develop and adopt rules and policies which it shall use in dismissing any full-time secretary, teacher's aide, school clerk, or custodian at any time a reduction in force is instituted by that school board. These rules and policies shall be made available for inspection, by any full-time secretary, teacher's aide, school clerk, or custodian, and the general public within ten days after their final adoption.
C. Not later than January 1, 1987, each city and parish school board shall develop and adopt rules and policies which it shall use in dismissing school employees other than those for which provision is made in Subsections (A) and (B), at any time a reduction in force is instituted by the school board. Such rules and policies shall be made available for inspection by any such school employee and the general public within ten days after their final adoption.
D. Not later than January 1, 1996, all reduction in force policies of the city and parish school boards and special schools as provided in this Section shall include but not be limited to the following minimum standards:
(1) Certification, if applicable.
(2) Seniority in the system.
(3) Tenure of employees.
(4) Academic preparation, if applicable, within the employee's field.
(5)(a) The right of an employee notified of an action which results from implementation of a reduction in force policy to request in writing a review of such action and to receive notice of the results of such review.
(b) The right of an employee to pursue the matter through the school board's adopted grievance procedure.
La.R.S.
The dismissal of employees who are not the subject of a reduction in force is governed by other statutory provisions and school board policies. La.R.S.
Not later than January 1, 1998, each city and parish school board shall develop and adopt rules and policies which it shall use in dismissing school employees who have not attained tenure in accordance with applicable provisions of law and whose dismissal is not a result of a reduction in force, as provided for in R.S.17:81.4 . The school board shall provide a procedure by which any employee, whose dismissal is governed by this Section, may participate in the development of the rules and policies. Such rules and policies shall be made available for public inspection within ten days after they are finally adopted.
School lunch department employees and custodial and maintenance employees cannot, by law, attain tenure. La.R.S.
Unlike lunch department, custodial and maintenance employees, school bus operators can attain tenure. The statutory provisions relative to school bus operators are found in La.R.S.
Each school bus operator shall serve a probationary term of three years reckoned from the date of his first employment in the parish in which the operator is serving his probation. During the probationary term the parish school board may dismiss or discharge any operator upon the written recommendation of the parish superintendent of schools accompanied by valid reasons therefor.Any school bus operator found unsatisfactory by the parish school board at the expiration of the probationary term shall be notified in writing by the board that he has been discharged or dismissed; in the absence of such notification such probationary school bus operator shall automatically become a regular and permanent operator in the employ of the school board of the parish in which he has successfully served his probationary term;
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The removal of permanent school bus operators is governed by La.R.S.
A. A permanent school bus operator shall not be removed from his position except upon written and signed charges of willful neglect of duty, or incompetence, or immorality, or drunkenness while on duty, or physical disability to perform his duties, or failure to keep his transfer equipment in a safe, comfortable, and practical operating condition, or of being a member of or contributing to any group, organization, movement, or corporation that is prohibited by law or injunction from operating in the state, and then only if found guilty after a hearing by the school board of the parish or city in which the school bus operator is employed. An additional ground for the removal from office of any permanent school bus operator shall be the abolition, discontinuance, or consolidation of routes, but then only if it is found as a fact, after a hearing by the school board of the parish or city, that it is in the best interests of the school system to abolish, discontinue, or consolidate said route or routes.B. All hearings hereunder shall be private or public, at the option of the operator affected thereby. At least twenty days in advance of the date of the hearing the superintendent, with approval of the school board, shall furnish the affected operator a copy of the written grounds on which said abolition, discontinuance, or consolidation of routes is sought. The operator affected shall have the right to appear before the board with witnesses in his behalf and with counsel of his selection, all of whom shall be heard by the board at said hearing. For the purpose of conducting hearings hereunder, the board shall have the power to issue subpoenas to compel the attendance of all witnesses on behalf of the operator. Nothing herein contained shall impair the right of appeal to a court of competent jurisdiction.
C. If a permanent school bus operator is found guilty by a school board, after due and legal hearing as provided herein, on charges of willful neglect of duty, or of incompetency, or immorality, or drunkenness while on duty, or physical disability to perform his duties, or failure to keep his transfer equipment in a safe, comfortable, and practical operating condition, or of being a member of or contributing to any group, organization, movement, or corporation that is prohibited by law or injunction from operating in the state, and ordered removed from office, or disciplined by the board, the superintendent with approval of the board shall furnish to the school bus operator a written statement of recommendation of removal or discipline, which shall include but not be limited to the exact reason, offense, or instance upon which the recommendation is based. Such operator may, not more than one year from the date of the said finding, petition a court of competent jurisdiction for a full hearing to review the action of the school board, and the court shall have jurisdiction to affirm or reverse the action of the school board in the matter. If the finding of the school board is reversed by the court and the operator is ordered reinstated and restored to duty, the operator shall be entitled to full pay for any loss of time or salary he may have sustained by reason of the action of the said school board.
D. In the event that one or more school bus operators must be removed due to the abolition, discontinuance, or consolidation of routes, the principle of seniority shall apply, so that the last school bus operator hired to serve within the school system to be affected shall be the first to be removed.
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La.R.S.
(A)(1) Except as provided by Subsection H of this Section and in accordance with the requirements of Subsection F of this Section, each parish and city school board shall provide free transportation for any student attending a school of suitable grade approved by the State Board of Elementary and Secondary Education within the jurisdictional boundaries of the parish or school board if the student resides more than one mile from such school.
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(4) For such purposes, any parish or city school board may employ school bus operators as hereinafter defined in R.S.17:491 . However, nothing in this Section shall prohibit a parish or city school from entering into contracts or mutual agreements for providing school bus transportation.B. If a parish or city school board determines transportation by school bus is impractical or is not available or that other existing conditions warrant it, the board may make arrangements for the use of common carriers in accordance with uniform standards established by the state superintendent of education and at a cost based upon the actual costs of such transportation.
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La.R.S.
[i]t is clear from a reading of this statute that school boards are granted a vast amount of discretion in fashioning transportation policies. They may employ bus drivers, as under Livingston parish's former policy, or they may contract with them as independent contractors, as the new Livingston policy attempts to do. They may even forego the use of school buses entirely if ``other existing conditions warrant it,' and arrange for student use of commercial carrier lines, such as Greyhound or Trailways.Morgan,
The First Circuit held that the Livingston Parish School Board had the authority to implement its proposed plan for gradually changing to privately owned buses for student transportation on a contract basis, including the requirement that drivers purchase their own buses, notwithstanding the tenure rights of bus operators. Id. at 179. However, the court further found that in implementing its plan, the school board "must comply with all procedural requirements applicable under LSA-R.S.
Based on the foregoing, it is the opinion of this office that, although a school board has the authority to enter into contracts with private providers for cafeteria, custodial, maintenance and student transportation services, it must comply with all procedural requirements set forth in statute, rule or policy regarding the dismissal and removal of employees who are no longer needed to perform those functions. The dismissal may be carried out pursuant to a reduction in force policy adopted in compliance with La.R.S.
In addition to the authority of the East Baton Rouge Parish School Board to enter into contracts with private providers, you also seek an opinion as to whether entry into such contracts is subject to the Public Bid Law. As a "public entity," as defined in La.R.S.
The Public Bid Law also applies to certain purchases of materials and supplies. Contracts for the purchase of materials and supplies exceeding $20,000 must be advertised and let by contract to the lowest responsible and responsive bidder. La.R.S.
Purchases of materials and supplies made by a School Food Authority in the operation of a school lunch program, as defined in La.R.S.
While school boards are subject to the Public Bid Law when contracting for public works and the Public Bid Law or Louisiana Administrative Code when making certain purchases of materials or supplies, our courts have held that contracts for services are not subject to the requirements of the Public Bid Law. See Wallace Stevens v. Lafourche Parish HospitalDistrict No. 1,
To the extent that a school board is making direct purchases of materials and supplies which relate to contracts for custodial, maintenance or student transportation services, such purchases must be made in compliance with the Public Bid Law. See La.R.S.
If a contract has a substantial materials and supplies component compared to its services component, it is our opinion that the Public Bid Law would be applicable. If the predominant or substantial component of the contract in question is for the services provided, it is our opinion that the contract would be characterized as one for services and would not be subject to the requirements of the Public Bid Law.
I hope this opinion has sufficiently answered your inquiries. If I can be of further assistance to you, please let me know.
Very truly yours,
CHARLES C. FOTI, JR. ATTORNEY GENERALBy: ______________________________ Katherine M. Whitney Assistant Attorney General
CCF, Jr.:KMW:lrs
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Cowart v. Lee , 626 So. 2d 93 ( 1993 )
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