Underwood Shareholders Present at the High Ground of Texas’ Redi Training

On Wednesday, April 24, 2013, Underwood attorneys Slater Elza and John Atkins participated in the High Ground of Texas’ Rural Economic Development Initiatives training session, presenting on economic development contracts, policies, and other legal issues to representatives from cities and economic development corporations from throughout the Texas panhandle.  Slater and John lent their vast economic development expertise, outlining the required terms and provisions in EDC grant contracts, preferred policies and procedures for EDCs, and best practices in the industry.




Transitioning the Small or Family Business Seminar – Plan Early, Plan Wisely

Whether you’re looking to hand down the family business to the next generation or consider marketing it for sale when it is time to retire and spoil the grandkids, business succession planning is an integral part of maximizing value and insuring a smooth transition.  Take a good look at the state of your business structure and map out a plan for its future with the help of capable professionals, like:

  • Underwood Lawyers – providing estate planning, business transaction, and corporate guidance
  • Brown Graham & Co. Accountants – providing tax and financial advice
  • ANB Bankers – sources of credit and the inside knowledge that 5 generations of bank ownership provides
  • Scott Sticksel, Business Succession Expert – Scott will be on hand lending his immense knowledge and expertise

This group of experts will focus on the top questions business owners wish they would have asked years before they had to or wanted to transition ownership of their small or family business.

Planning for the future is key in any business operation, and as Ben Franklin put it, an ounce of prevention is worth a pound of cure.

Please join us for happy hour following the seminar, courtesy of the Amarillo National Bank. 

ANB Plaza 1, 16th floor

Tuesday, May 7, 2013 from 1:15 pm to 5:30 pm

To register online for this complimentary Seminar, click here

Thanks to our seminar sponsors:

 




Teachers Packing Heat on Campus?

On December 14, 2012, a disturbed gunman shot his way into Sandy Hook Elementary School in Newtown, Connecticut, and systematically murdered 20 defenseless 6 and 7 year old students and 6 adult staff members.  Because the recently installed, state of the art security measures that Sandy Hook Elementary had implemented failed to prevent the unauthorized entry of the shooter into the school, schools across the country began a debate regarding the effectiveness of relying solely on such passive security measures to thwart armed intruders at their schools.  Among the active security options currently being examined by Texas school districts are increasing the number of armed security personnel on school grounds and/or permitting certain educators employed by the districts to carry concealed weapons at school and school sponsored activities during the performance of their education-related duties.  This article will address, generally, the legal issues relating to allowing educators to carry concealed weapons on Texas school premises.

Are Guns Allowed on School Campuses by Law?

Any examination of this topic must begin with the question, “Are guns allowed on school campuses?”  The general answer to that question is, “No, they are not.”  Like in the case of many legal prohibitions, however, there are exceptions to this general prohibition against firearms in and around schools.  There are two primary statutes that address firearms on school grounds.  One of the statutes is a federal law, and the other one is a state law.  The federal statute, 18 U.S.C. § 921, also known as “The Gun Free Schools Act,” states the following:

“It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place the individual knows, or has reasonable cause to believe, is a school zone.”

The Gun Free Schools Act defines a “school zone” as an area that is in, or on the grounds of, or within 1,000 feet from the grounds of a public, parochial or private school.”[1]  The Act, of course, provides several exemptions to this general prohibition against carrying firearms in a school zone, including the following:

“if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license.”[2]

Thus, if an educator is properly licensed by the state of Texas to carry a concealed firearm, it is not a violation of the federal law for that individual to carry the weapon within the “school zone,” however; there are state laws that must be navigated as well before a properly licensed concealed handgun carrier may bring a firearm into a Texas school building.

The primary state statute prohibiting concealed handgun license holders from bringing their firearms on school grounds is Texas Penal Code § 46.03.  Specifically, Texas Penal Code § 46.03(a)(1) makes it a criminal offense for  person to intentionally, knowingly, or recklessly possess or go with a firearm on the premises of a school or any school grounds or building where a school activity where a school activity is taking place, unless pursuant to written regulations or written authorization of the institution.  The statute further states that it is not a defense to prosecution under the statute that the actor was licensed to carry a concealed handgun.[3] Moreover, for purposes of the prohibition, the term “premises” in the statute means “a building or portion of a building,” but it specifically excludes any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.[4] Therefore, a concealed handgun holder may store his or her weapon in a locked vehicle in the parking lot of the school, unless they are a school employee and the school district has specifically prohibited them from doing so, which a school district is permitted to do to its employees under Texas law.[5]

Similarly to the federal law prohibition against bringing firearms into a school zone, Texas state law also provides an exception to the prohibition against bringing firearms onto school premises.  That exception states that a person may bring a firearm onto school premises “pursuant to written regulations or written authorization of the institution.”  Thus, if a school district wanted to permit certain employees who were properly licensed by the state of Texas to carry concealed firearms in its buildings, it could do so through written regulations or through written authorization of the school district.

Having first determined that an exception to the federal Gun Free Schools Act allows properly licensed concealed handgun carriers to bring their firearms into a school zone, and, secondly, determined that an exception to the state of Texas Penal Code prohibition against bringing a firearm onto school premises allows individuals to bring firearms into school buildings if they are doing so in accordance with the written regulations or authorization of the school, the next analysis for schools wanting to allow firearms on their campuses is to examine how the written regulation or authorization allowing the practice should be accomplished.

What Written Measures Should be Taken?

The two school board policies addressing firearms on school premises are GKA(LOCAL),  COMMUNITY RELATIONS – CONDUCT ON SCHOOL PROPERTY, and CKC(LOCAL), SAFETY PROGRAM/RISK MANAGEMENT – EMERGENCY PLANS.  A district’s GKA(LOCAL) policy typically states the following

WEAPONS PROHIBITED:   The District prohibits the use, possession, or display of any firearm, illegal knife, club, or prohibited weapon, as defined at FNCG, on all District property at all times.

EXCEPTION:   No violation of this policy occurs when the use, possession, or display of an otherwise prohibited weapon takes place as part of a District-approved activity supervised by proper authorities.

Should a school district opt to allow certain properly licensed employees to carry their concealed weapons on school premises, policy GKA(LOCAL) will need to be amended to add to the listed “exceptions” at least one, if not two, additional exceptions.  The first additional exception should be a reference to those employees who are authorized in writing to carry weapons under policy CKC(LOCAL), and a possible second exception would be to specifically allow employees who are concealed carry license holders to store their weapons in their locked vehicles in the parking lots of the schools.

The modifications to the CKC(LOCAL) policy would be far more extensive than those made to the GKA(LOCAL) policy.  In the CKC(LOCAL) policy, the school district’s overall program should be generally outlined for implementation by the administration.  Those modifications should include, at a minimum, adding language to the policy as follows:

  • That the Board will, from time to time, authorize, in writing, specific employees who may carry concealed weapons on school premises, upon certification by the superintendent that they have completed district training requirements that are in addition to their basic concealed carry license training requirements;
  • That participation in such a program is strictly voluntary on the part of the employee and is not a requirement for any particular position;
  • That those employees who are licensed by the state to carry concealed handguns but are not authorized in writing to do      so on school premises by the school board may not possess them on school grounds, except as provided for in GKA(LOCAL); and
  • That the superintendent may withdraw the board’s authorization from an employee at any time and at his or her sole      discretion.

In addition to the modifications to policies GKA(LOCAL) and CKC(LOCAL), a school district contemplating allowing certain employees to carry firearms on school premises needs to develop a written document, for board adoption, that identifies the individual employee or employees authorized to do so under the program. That written document should likely be in the form of a resolution and should be protected as confidential as much as legally possible.

School board deliberations about the identity of who should be permitted to carry firearms may be discussed in closed session under Texas Open Meetings Act section 551.076, which states, “This chapter does not require a governmental body to conduct an open meeting to deliberate the deployment, or specific occasions for implementation, of security personnel or devices.”[6]  Arguably, the “personnel exception” to the Open Meeting Act may also permit the deliberation in closed session.  That exception to the requirement that all deliberations of a quorum of a governmental body occur in open session states, “This chapter does not require a governmental body to conduct an open meeting to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee.”[7] Action by the board, however, to adopt the resolution must occur in open session.

The final two documents that should be included in a program that allows properly licensed and trained employees to carry firearms on school grounds are: (1) the regulation that set forth the additional training requirements; and (2) protocol for those employees to follow when they carry, store, and exhibit the weapon.  The regulation setting forth the training requirements should be developed in consultation with law enforcement personnel in order to incorporate their input regarding what types of trainings would best equip a non-law enforcement person to engage an armed intruder in a potentially crowded environment and to prepare that person for the physical and psychological effects of such an encounter.

Development of the written protocol will need to be tailored to the exact purposes of the district.  Some districts may be comfortable granting a great deal of discretion to the identified employees who are carrying firearms, other districts may want to limit the circumstances under which the employee may use their weapon.  The use of deadly force by a school district employee will inevitably lead to inquiries by several authorities, including law enforcement authorities, concerning exactly how and why such deadly force was used.  Legal action by persons affected by the use of deadly force will also likely be an inevitable result of its use.  Therefore, much thought and follow-through should be given to the development and maintenance of the protocol.  Matters such as what type of weapons are acceptable, how the weapons are obtained, what kind of ammunition is used, and what type of holsters, e.g., locking holsters versus non-locking holsters, are permissible while the employee is carrying on school premises, and under what sorts of circumstances may an authorized employee use deadly force are starting points for items to be described in the protocol document.

Conclusion

The development of policies and regulations permitting specific employees to carry concealed weapons on school grounds is one viable option to actively attempt to avoid the type of tragedy that occurred at Sandy Hook Elementary School.  This option, however, should be exercised very carefully and deliberately.  Districts contemplating such preventative measures are well advised to do so in close consultation with their legal counsel.  If you would like to discuss this topic further, Underwood lawyers are prepared to assist you in navigating the legal issues that must be addressed in this extremely important matter.

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.


[1] See 18 U.S.C. § 921(a)(25).

[2] See 18 USC § 922 (q)(2)(B)(ii).

[3] See Tex. Penal Code § 46.035(f).

[4] See Tex. Penal Code § 46.035(f)(3).

[5] See Tex. Labor Code §§ 52.061 and 062(a)(2)(B).

[6] See Tex. Gov’t Code § 551.076(1).

[7] See Tex. Gov’t Code § 551.074(a)(1).




2013 Annual Employment Law Seminar

The Underwood Law Firm is proud to announce the upcoming 4th Annual Employment Law Seminar, “The Good The Bad and The Ugly.”

The seminar will be held on May 21, 2013 in Amarillo.  For more information click here for the brochure and to register online, click here.




Employer’s Authority to Limit the Right of an Employee to Carry a Concealed Weapon at Work

In light of recent mass-shootings around the country, the right to carry concealed weapons has become a hot topic for individuals and employers.

Employers are not immune from having to evaluate their policies and procedures for allowing or curtailing the right of their individual employees to carry weapons at work.  Texas law generally recognizes an employer’s property right to maintain control of their private business. This means that a private-sector employer may generally institute policies and procedures that limit their employees’ ability to carry guns while at the work place.  However, there is an important exception to the employer’s authority to limit concealed weapons on their premises. The Texas Legislature passed a law in 2011 prohibiting employers from setting restrictions on an employee’s right to keep and store firearms in a private employee’s locked car.

The statute applies to any parking garage or other parking area that the employer provides for its employees. The statute does not apply to cars that are owned or leased by the employer, and the statute does not apply to most school districts, chemical manufacturers, and oil/gas refiners.  And while most employers cannot prohibit its employees from keeping and storing firearms in their car, the statute makes it clear that employers are protected from civil liability for damages arising out of incidents involving such guns or ammunition stored in such employees’ cars except in cases of gross negligence.

By giving employees the right to transport and store firearms in their privately-owned cars, Texas has taken significant steps in recognizing the individual’s right to keep and bear arms. They have done so while also recognizing that private employers have a right to maintain a work environment of their choosing.

Should you have any questions about your employee’s rights regarding firearms, or any other employment related issues, please do not hesitate to contact a member of Underwood’s Employment Law 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.




Fifth Circuit Grants Rehearing in a Same-Sex Harassment Case

The Fifth Circuit announced that it will rehear a same-sex harassment case en banc—meaning all the justices will hear the case. The case, EEOC v. Boh Brothers Construction Co., deals with whether a plaintiff can establish gender discrimination based solely on sexual stereotyping. The complainant, Kerry Woods (by and through the EEOC), alleged that he was subjected to harassment by a crew superintendent during his job as an ironworker for Boh Brothers. The superintendent in question, Chuck Wolfe, called Woods names such as “f*****” and “princess.” It was further alleged that Wolfe would approach Woods from behind and simulate sexual intercourse with him while Woods was bent over to perform job duties.

In its original decision, the panel of 5th Circuit justices determined that Wolfe had not harassed Woods based upon “nonconformance to gender stereotypes,” but, rather, the banter and foul humor were simply part of life on a construction crew. The 5th Circuit reviewed the facts and determined that there was insufficient evidence to show that Woods failed to conform to gender stereotypes—a/k/a there was insufficient evidence that he acted feminine. The only evidence, according to the court, was that Woods used Wet Ones instead of toilet paper. Accordingly, the court held that there was insufficient evidence that Wolfe “acted on the basis of gender” in his treatment of Woods.

Now that the 5th Circuit has agreed to revisit the decision en banc, the court will again evaluate when “sexual stereotyping” can provide an actionable claim under Title VII. This “sexual stereotyping” theory stems from the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which a female plaintiff succeeded in arguing that she had been discriminated against because she failed to conform to female gender stereotypes. At the rehearing, Woods must point to sufficient evidence to show that Wolfe’s actions were focused on him because he did not conform to male stereotypes.

This case could have important implications for gender discrimination cases in the 5th Circuit’s geographical area (which includes Texas). The EEOC has shown that it intends to fight on behalf of homosexuals, transsexuals, and others who fail to conform to gender stereotypes. This case will likely provide some information on the limits of the EEOC’s power in this regard.

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.