Fred Stormer presented information Tax Rollback Elections at TASBO’s regional meeting

Posted 05/23/2012

Fred Stormer presented on “Tax Rollback Elections (TREs)” at TASBO’s ESC 16 regional affiliate’s meeting in Canyon, Texas on May 17th.   For more information on TASBO, click here




The Attorney General Provides Guidance Regarding Non-Attorneys at Special Education Due Process Hearings … Sort of

Posted 05/22/2012 by Ronn Garcia

On May 21, 2012, the Texas Attorney General (“AG”) released an opinion regarding whether non-attorneys may represent parties at special education due process hearings conducted by the Texas Education Agency.  See Tex. Att’y Gen. Op. No. GA-0936 (2012).

Generally, Texas law limits the practice of law to licensed attorneys. See Tex. Gov’t Code § 81.102(a).  The Individuals with Disabilities Education Act (“IDEA”) allows any party to present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” 20 U.S.C. § 1415(b)(6)(A), 34 C.F.R. § 300.507(a). In due process hearings, the parties have a right to “[b]e accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities, except that whether parties have a right to be represented by non-attorneys at due process hearings is determined under State law.” 34 C.F.R. § 300.512(a)(1); see also 20 U.S.C. § 1415(h)(1) (emphasis added).

In determining whether non-attorneys may represent parties at special education due process hearings, the AG reviewed Texas statutes and certain legal proceedings that specifically allow for legal representation by non-attorneys. In its analysis, the AG considered the absence of such a statute in the special education due process hearing context. See Op. No. GA-0936 (2012) (citing generally Tex. Educ. Code §§ 29.001-.018).  Relying on the principle of statutory construction, the AG opined that “the state’s general prohibition against the practice of law by non-attorneys applies to the due process hearings,” and concluded that “a non-attorney may not practice law at a special education due process hearing.”  The AG did not, however, determine whether “particular conduct of an individual” who is not an attorney at a special education due process hearing “constitutes the practice of law” under subsection 81.102(a) of the Texas Government Code.

While the AG clearly declared that non-attorneys may not practice law in a special education due process hearing, the AG provided no guidance as to what “the practice of law” is in such an arena.  This leaves some lingering questions.  Can a non-attorney come to a special education due process hearing as an advocate and not be engaged in the practice of law?  Will a court have to decide this issue? School districts may be “back to the drawing board” for now.    

For more information about this Opinion, please contact Ronn P. Garcia with the Underwood Law Firm, Public Education Section. 

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.




EEOC Charges Alleging Retaliation Led the Increase in Charge Filings Last Year

Posted 05/22/2012 by Mike Loftin

It isn’t surprising that retaliation claims are increasing more rapidly than other types of employment discrimination claims.  Virtually every statute forbidding discrimination in the workplace makes it unlawful to retaliate against an employee who complains of discrimination.  Employees are protected from retaliation not only when they lodge formal or informal, written or unwritten, complaints of discrimination, but also when they support in some way complaints of discrimination lodged by co-workers. 

By way of example, giving a statement to your employer which is consistent with an allegation of discrimination lodged by a co-worker would be supporting the co-worker’s claim of discrimination.  Speaking up at a meeting with supervisory personnel to vouch for a co-worker’s claim of discrimination would likely be supporting the co-worker’s claim of discrimination.  So bear in mind that potential retaliation claimants include not only those who lodge complaints of discrimination, but also those who support in some way complaints of discrimination lodged by co-workers.  Another type of retaliation claim which is growing in popularity with trial lawyers who represent employees is a claim based on alleged retaliation against a whistle blower.

Every trial lawyer with significant experience representing employees knows that it is easier to convince a jury that an employer retaliated than it is to convince a jury that an employer unlawfully discriminated.  Jurors understand that it is human nature to retaliate against a person who accuses you of wrongdoing.  If you are innocent of wrongdoing, you are offended by the accusation and angry with your accuser.  If, on the other hand, the accusation of wrongdoing is wholly or partially accurate, you may retaliate in the hope of preventing co-workers from supporting the accusation.  Also, bear in mind that an employee can prevail on a retaliation claim without proving that his or her complaint of discrimination was well-founded. 

So what common-sense measures can employers take to protect themselves?  Here are a couple of suggestions.  First, when an employee lodges a complaint of discrimination or makes a whistle blower report, the employer should inform only those supervisors who need to know of the complaint or report.  To prove retaliation by a supervisor or manager, the employee has to show that the supervisor or manager who allegedly retaliated against the employee was aware of the complaint or report by the employee.  Consequently, the first and best defense is that the supervisor or manager who allegedly retaliated wasn’t even aware of the complaint or report.

Second, when an employee has recently lodged a complaint of discrimination or made a whistle blower report, carefully review your documentation before disciplining or terminating the employee.  If documentation developed before the complaint or report supports the decision to discipline or terminate, the employer must still be prepared to explain why the decision to discipline or terminate was made shortly after the complaint or report by the employee.  If the documentation supporting the discipline or termination begins after the complaint or report by the employee, and is made by supervisors with knowledge of the complaint or report, then it will be difficult to convince a jury that retaliation didn’t play a role in the discipline or termination.  Similarly, if there is no documentation of subpar performance before or after the decision to discipline or terminate, then the jury may be inclined to give credence to the employee’s claim of retaliation. Fear of a retaliation claim shouldn’t keep an employer from making appropriate decisions concerning its employees, but caution is warranted when an employer considers taking an adverse action against an employee who just recently lodged a complaint of discrimination or made a whistle blower report. 

Finally, remember that a TWC telephone hearing is recorded and can be used by the employee’s lawyer to develop information to support a retaliation claim.  The employee has no obligation to notify the employer before the hearing begins that he or she will be represented by counsel at the hearing.  The employer’s witnesses will be testifying under oath and they will be subject to cross-examination under oath.  If an employer has any reason to suspect that the former employee may be considering a retaliation claim, the employer should carefully consider whether to participate in a TWC telephone hearing.  An employer’s decision not to contest a former employee’s claim for unemployment benefits is not admissible into evidence in a lawsuit brought by the employee alleging discrimination.  On the other hand, testimony given by an employer’s representatives during a TWC telephone hearing can be used to impeach and discredit the representative when they offer testimony during the trial of the employee lawsuit.      

Contact Mike Loftin at (806) 376-5613 for additional information or assistance.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.

 




Underwood Cook Team Supports All Rise America

On Sunday, May 6, 2012, the All Rise America National Relay for Recovery passed through Amarillo, Texas during its cross-country tour. All Rise America is part of the National Association of Drug Court Professionals and is designed to support the push by several jurisdictions to help fight drug use amongst citizens by offering individuals that have been charged with drug-related crimes the opportunity to avoid jail time and get their lives back on the right track. The program offers a plan that involves the court system and local law enforcement and allows individuals to get treatment to help solve their drug problem instead of merely serving time in jail.

The All Rise America National Relay for Recovery is a cross-country relay, spanning from Santa Ana, California to Washington, D.C., in which participants in the relay carry the All Rise Gavel across the country to raise awareness about the drug court program. Local District Judge John Board, of the 181st District Court, hosted the All Rise America travelers for a cookout at Tripp’s Harley Davidson on May 6, 2012. Underwood lawyer Slater Elza cooked lunch for the travelers, which consisted of drug court graduates, drug court professionals, veterans, and concerned citizens.

For more information about drug courts or about All Rise America, please visit www.nadcp.org.