By Sue Curry Jones
The Ava R-I School Board met on Thursday, June 16, with a significant number of spectators in the audience as many were interested in hearing the latest account on student busing and transportation. The large crowd included bus route owners and wives, family members, summer school personnel and staff, and several residents from the community.
Board members attending were Troy Tredway, Bart Ellison, Marsha Aborn, Randy Spurlock, Ron Wallace, Lowell Strong, Vernon Johnson, and student representative, Logan Little.
After approving payment of bills totaling $801,088.63 and executing meeting formalities, President Randy Spurlock introduced Attorney Karen Bates-Crouch to the board. In a prior meeting, Bates-Crouch was chosen to represent the board, and serve as their local attorney, with the directive to establish a contract agreement for student busing and transportation.
Speaking to school board members and administrators, Bates-Crouch noted contracts must be well-defined with finite terms and conditions, and the terms must be enforceable. She advised against “making a contract (addendum) to make a contract, but recommended creating one single document with simple language.”
Bates-Crouch said a contract must be exact in addressing the following items: the responsibilities of Party A and Party B, the timeframe of the agreement, and the terms and how they apply. She noted all facts must be distinct.
She also reported she was unable to find a state statute against buying or selling routes, but more research on the issue was needed. However, she added, if the contract is written as a “contract for service of the route,” this would alleviate that problem. And, noting the board’s request for a renewable contract, Bates-Crouch advised the agreement can be written as “renewable annually for a set number of years.” This type of agreement would be comparable to the type of contract the board currently has with Opaa! Food Services, of St. Louis, Mo.
Troy Tredway advised Bates-Crouch “the board is aware the points submitted for the contract were incomplete, but those suggestions are to be converted into practicable legal terms. That is why we hired you, we need you to put what we want into a binding legal contract.” Tredway noted the list of suggestions she had received was not meant to be a contract, but points relevant to creating the agreement.
Prior to the board meeting, Bart Ellison emailed the Missouri School Boards’ Association (MSBA) to ask MSBA attorneys for clarification on route ownership, and other points suggested for the proposed contract. MSBA Attorney Susan Goldammer, Senior Director, Employment and Labor Relations, responded to Ellison by email, with a five-page opinion. Ellison read the attorney’s point of view out loud in the meeting, but only after a vote of the board was taken to waive the attorney-client privilege. The MSBA email, as sent to Ellison, is found at the end of this article.
Lowell Strong noted the school has been serviced by bus route owners under a contract agreement for years, and the process was successful. He stated he would like for the board to provide a renewable contract, with the right to operate routes and sell back.
Randy Spurlock cited the history of the present student bus service dates back to the 1930s, and through the years, routes were bought and sold, not only by the route owners, but County Superintendents. In the 1950s when rural schools were consolidated many routes were given to the school, and in 1968-69, it is documented that Ava R-I bought and sold routes. The board also bought a route from Fern Huffman in 1982. Spurlock said “the history is written down; I wish I had brought it with me tonight.”
Dr. Nancy Lawler said the school is accountable for transportation, and responsible for efficient routes, with suitable drop-off and pick-up times. Lawler gave Bates-Crouch copies of a current busing contract agreement, and the list of the board’s talking points. She advised an agreement must be finalized within six weeks.
In response, Bates-Crouch said she would draft a contract for review and the proposed text can be discussed and changed accordingly.
Sarah Key, who oversees Ava’s full-day preschool program, read a letter to the board, expressing her opinion about the busing issue and how this on-going battle has been demoralizing to school personnel and the community. Sarah’s complete letter is found on A-6.
Moving on to other agenda items, Dr. Lawler conveyed a school bus backed into a parked vehicle during summer school. She noted it was a minor incident, and no injuries were reported. Lawler also advised school-owned buses were recently inspected by the Missouri State Highway Patrol, and 56.3% were approved in the first round, and 15.6% were declared out of service.
Assistant Superintendent Mike Henry reported Title I funds have decreased as student enrollment declines. Henry reported the Carl D. Perkins federal funds were up a bit, and the high school business program was recently awarded grant money.
In a 7-0 vote, with motions from Ron Wallace and Vernon Johnson, the board amended 2015-16 budget numbers to indicate actual year-end figures, citing a revenue balance of $12,446,324.42 and expenditures of $13,526,514. Also, a transfer from the general fund to the school improvement fund was approved in a 7-0 vote. Motions were by Aborn and Wallace.
The board approved the proposed salary schedule for the 2016-17 budget year, which includes a $250 increase at the base, and the addition of one step to the salary ladder. According to Lawler, the $250 increase will raise base pay to $29,946. Motions to adopt were by Wallace and Tredway, the vote was 7-0.
Prior to adopting the 2016-17 budget, Dr. Lawler answered several questions from Lowell Strong. Strong’s inquiries focused on school loans, interest rates and payment schedules associated with debts on the Performing Arts Center, HVAC purchases and installations, and improvements to the football field.
Motions to adopt the budget were by Wallace and Ellison, the vote was 7-0.
With unanimous votes, the board okayed keeping breakfast and lunch fees at the same rate and 40¢ for an extra carton of milk. Motions to adopt were by Aborn and Tredway, and Aborn and Strong, respectively.
Dr. Nancy Lawler said multiple requests for board documents have been submitted by an individual, and under the Sunshine Law, the school has the right to charge for time, labor and materials. Fees are assessed according to the time it takes to fulfill the request, as well as costs associated with copying materials. Lawler stated the individual is asking for several different records, and the request spans multiple years. She said the requests have been on-going since March 1. Lawler said the party is asking for charges to be waived, as release of the documents is in public interest.
Tredway asked if the fees are fair, and Lawler stated it was 10¢ per copy, plus an hourly rate for staff time. Wallace said the fees should remain, and the board concurred.
During closed session, Dr. Lawler reported Jorie Garrett was hired as a paraprofessional in the middle school for the 2016-17 school year. On the issue, the board’s decision was split with four board members voting in favor of the hire, and two against.
Lawler also stated voting action took place during closed session on Monday, June 13. The action dealt with a personnel issue.
Principal Clint Hall reported daily summer school enrollment in the elementary is 155 students a day.
Principal Marcella Swatosh said summer school enrollment in the middle school is 118 students, and curriculum includes geo-caching, hunter safety, and field trips.
In high school, Principal Teresa Nash noted student enrollment for summer school was 191 students.
Board members were asked to review committee assignments, and contact the administration office if there were changes for next year.
The next regular session of the board is scheduled for Thursday, July 21, at 6:30 p.m., in the board of education room. Meetings are open to the public.
Email Sent to Bart Ellison from the MSBA Attorney
June 15, 2016
Bart J. Ellison
Ava R-1 School District
I am writing this letter in response to your e-mail requesting advice. MSBA attorneys represent the district and only the Board can waive the district’s attorney-client privilege and decide to make this communication public. Therefore I do not have the authority to consent to your request to read this letter to the public. However, if the Board votes to do so, I do not object.
Can the Board Sell a Bus Route?
I have not found any legal authority that recognizes a bus route itself as property that can be sold, even if a school district wanted to do so. I believe the legal opinion on this subject issued by the district’s attorney, Virginia Fry, to Richard Ashe in November, 2015 is clear and accurate. I encourage the district to review her opinion again.
Bus drivers acting as independent contractors can have a property interest in a service contract during the term of the contract. However, that property interest ends when the contract ends. A service contract does not create permanent property.
Even if the district could sell a bus route, I would strongly advise against doing so. District enrollments change and therefore the district’s transportation needs and bus routes change as well. The Department of Elementary and Secondary Education (DESE) regulations require school boards to vote on bus routes twice a year for this very reason. 5 CSR 30-261.010(1)(B) DESE regulations specifically require routes to be “safe and cost efficient” and they must meet or exceed the State Board of Education’s minimum requirements. Some of those requirements include a prohibition against deadheading, a requirement that a single bus should be used on multiple routes when possible, and all school buses should be loaded at or near capacity. 5 CSR 30-161.010(4)(B)3. If a bus route was owned or perceived to be owned, the Board’s vote to approve the bus routes would be superfluous. The district would also have difficulty complying with state law that requires that bus routes are run efficiently.
The Proposed Document
I have serious concerns about the document you have asked me to review and I sincerely hope that the district shares this alleged contract with Virginia Fry prior to discussing or executing it. Here are a few of my concerns:
I have no idea what kind of document this is and I am unclear as to what it is supposed to do. It seems to try and sell a “transferable and renewable contract.” However, there is no evidence that such a contract exists that can be sold. It is unclear what the terms of this alleged contract are or whether the terms of the contract itself would allow it to be transferred.
This document also attempts to be the contract it is trying to sell, and sets out some terms of the contract, particularly the conditions for termination. The last sentence of this document also indicates this could be an employment contract, as it refers to “other employees” as if the bus driver is an employee.
All contractual documents should be clearly written so that all parties understand what is being agreed to. It is difficult to evaluate the legality of this document because it is not clear what is actually happening and the related “renewable contract” was not provided and perhaps does not yet exist.
I encourage the district to clarify who the parties are to this alleged agreement. The term “contractor,” “New Contractor” and “buyer” are all used.
I have concerns about the term “right of contract” as it is used in this document. Contracts themselves can be sold or transferred, assuming that the contract itself does not prohibit the sale or transfer. However, this term does not make sense when discussion a “renewable” contract. That very term implies that the contract is not indefinite, but has a length and that the contract itself must be renewed. Because binding contracts required consent on both parties and that consent must be voluntary, how is this a right of contract? Once again, it is very unclear what exactly is being transferred between the parties in this document.
The document states, “Any conditional met reason for early termination of this contract will result in buyer receiving remaining compensation of base pay left in contract and a refund of rights of contract purchase price.”
I do not know what is meant by a “conditional met reason,” but I assume that this refers to the conditions at the bottom of the document. Is this correct? Likewise the term “base pay” is not defined. Because this language impacts the district’s financial obligations, clarity is important.
Further, the term “termination” seems to be misused. If the bus contractor receives everything he or she is otherwise owed and even a refund of what they paid under this document, how was the contract terminated?
There is a section that seems to address when the conditional, transferable and renewable contract can be transferred to another bus contractor. This entire section needs to be clarified. In particular, the following sentence needs revision: “New Contractor must be informed what the refundable amount for said route is before new approved contractor can purchase the right of contract.”
I am not sure what is being transferred in this section. If the transfer is of the “conditional, transferable and renewable contract,” then there is no refund available. The refund right only comes from this document being reviewed. Is the bus contractor transferring this document as well as the “conditional, transferable and renewable contract”? The first paragraph of this document states that a refund will be received if there is a “termination of this contract,” not the other contract referenced.
Further, who is supposed to inform the New Contractor of this amount?
The final section of this document seems to state reasons that the district can terminate the renewable contract that is referenced many times in this document. Of course, I have not seen that document so I cannot accurately determine if these are the only reasons that document may be terminated. I can only analyze the language presented. The language presented needs clarification.
The document states that the renewable contract can be terminated when “[n]ew Federal or State regulations are imposed making it mandatory that the Ava R1School District terminate this contract at which time the contractor would receive the remaining compensation of base pay from the contract and the refundable right of contract amount.”
Once again, it is unclear whether this references the renewable contract or not because this sentence uses the phrase “this contract” and “the contract.” Is this language referring to the renewable contract, which I have not seen, or this document I am reviewing? Once again, the term “base pay” is also not defined. Because the district is obligating to pay the “base pay” amount, it would be wise for this term to be defined.
I also have concerns about how this sentence is phrased. I seriously doubt the legislature will ever pass a law that states that a school district must terminate a contract. However, laws are frequently passed that negatively impact the district’s funding sources or impose new transportation requirements that might not be considered in this contract. Those need to be addressed.
For example, if a new law was passed requiring seatbelts to be used on school buses and the bus contractor did not have a bus with seatbelts, the law itself does not mandate that the contract is terminated. However, the reality is that the district could no longer use the bus contractor’s services unless the bus contractor purchases a new bus. Would this section apply in that situation?
In addition, this sentence conflicts with the very next paragraph. This sentence states that if the law mandates that the district terminate the contract, the contractor will receive the remaining base pay plus the refundable right of contract amount. The very next paragraph states that if the district is mandates by law to terminate the contract, the contractor will only receive the refundable amount and will lose their ability to transfer the route. Worse yet, the first paragraph of the document states that the “buyer” (presume contractor) will receive a refund and the remainder of the “base pay” whenever there is a “conditional met reason” for early termination. Which is it?
The next paragraph is highly inadvisable. If a bus contractor or hired driver violates school policies or federal, or state law, the bus contractor will still receive a refund under this document. I strongly recommend that the district reconsider this policy. A bus contractor could act recklessly or even criminally, seriously hurt or kill someone, and the district will still be forced to write them a check under this document. This is a reckless expenditure of district funds and I doubt the public would be happy if this occurred in such a tragic scenario.
Please note that this paragraph also conflicts with the first paragraph of the document. This paragraph states that the contractor will receive the refundable amount, but that they would lose the remainder of the “base pay” and the ability to transfer the contract. However, the first paragraph of this document states that the “buyer” (presume contractor) will receive both a refund and the remainder of the base pay whenever a contract is terminated early.
The next paragraph is simply not clear. Which party gets to decide whether an “unforeseen, extreme and detrimental” circumstance “affects the viability” of the district? Does the district literally need to be facing bankruptcy? Or is it enough that the district simply cannot afford so many bus routes?
Once again, this section seems to imply that in this circumstance the contractor will only receive the refund because the remainder of the “base pay” is not mentioned. However, the first paragraph of the document states that the “buyer” will both receive a refund and the remainder of the “base pay” when the conditions for early termination are met.
The final paragraph of this document is also problematic. Once again, it does not mention payment so one could assume that if a bus contractor simply refused to drive a route the district would not have to compensate that person. However, in the first paragraph of this document it states that the buyer or bus contractor will receive both a refund and the remainder of the base pay when a contract is terminated early.
I am also concerned about the last sentence, “Fair and reasonable compensation should be comparable to past contracts with yearly raises being no more than other school employees.” First of all, are these bus contractors employees or independent contractors? The term “other employees” seems to imply that they are district employees.
This language needs clarification. Does this mean that the “renewable contract” must include annual increases? If the district does not provide increases or the increases provided are not as high as the district’s employees, does that mean that the district cannot terminate a contract with a bus contractor even if that contractor flat out refuses to drive a route?
I strongly recommend that the district reconsider this language. This essentially allows the bus contractors to hold the district hostage if they do not think that the district is paying them enough. This language is essentially authorizing a bus contractor to strike when even the district’s own employees are not allowed by law to do so. See §105.530, RSMo.
I am also concerned that this section could cause the district to issue contracts in violation of the Missouri Constitution. In the first paragraph this document states that the “renewable contract” will be for two consecutive years. However, the district can only decide employee compensation on an annual basis because it is unclear how much state funding will be available until the state sets a budget. This last paragraph of the document states that the renewable contract can only be terminated if the bus contractor has received at least the same “yearly raises” that “other school employees” have received. The Missouri Constitution prohibits contractors from receiving increases in compensation once performance has begun on a contract. Mo. Const, Art. III, Sec. 39(3).
How exactly is the district supposed to legally give bus contractors “yearly raises” when the contract the district is to enter into with them is for two years?
This document is incredibly one-sided. At the beginning of the document the bus driver appears to pay for the conditional, transferable and renewable contract. However, the terms of this document indicate that the bus driver will receive a refund of the purchase price in almost any circumstance that could occur, including situations where the bus driver violates state or federal laws or simply refuses to operate the route. So, the drivers really are not out any money at all, but the district is restricted in setting its own bus routes, making those routes efficient so that the district can receive maximum state aid, and is obligated to not only pay contracted amounts but to also give increases. What exactly does the district get out of this alleged contract other than overpriced and inflexible busing services?
What is most disturbing to me about this document and the issue of bus contractors in the Ava R-1 School District is that the safety and care of the students are not mentioned at all. There is no requirement in this document for adequate insurance, fingerprint-based criminal background checks for the bus drivers, random drug and alcohol testing, adequate supervision of students, or appropriate and continuing training for the drivers of the buses. There is no mention of or requirement for safety devices such as GPS, advanced braking systems, low-emissions, school bus cameras, adequate communication systems between the buses and the school, and child-check devices that ensure that students are not accidentally left on the bus. Are these bus contractors required to accommodate disabled students? Are any of the buses equipped with chair lifts or seatbelts? Are the bus drivers running emergency evacuation drills for the students, as required in state law?
Please let me know if you need additional information.