Sovereign Immunity Bill – Public Hearing – Wednesday, February 12 – 1:00 p.m.

[UPDATE: I was unable to testify at the hearing. Just as I arrived in Montgomery, friends from Birmingham began urging me to return home due to impending sleet and snow. I left the meeting at 2:20. Senator Ward later told me that the bill received a favorable report from the Committee.]

The Senate Judiciary Committee will hold a public hearing on HB64, the Sovereign Immunity bill, on Wednesday, February 12, at 1:00 p.m. I called for the hearing after being offered the opportunity to do so by the Committee Chairman, Senator Cam Ward.

HB64, sponsored by Representative Mike Jones (R-Andalusia), codifies sovereign immunity for public school employees. According to Jones, case law has already been made, and this bill just formally puts it into law. Sounds simple, right?

This bill will effectively shield any and all public school employees from being sued as long as they can claim they were using their professional discretion and had the authority to do so in whatever action they did or did not take.

The way the bill has blown through the legislature, it has begun to raise questions. Some are connecting it to common core. Some are questioning why the Republican supermajority is seeking to lessen accountability, which goes against what “the Republican majorities in both houses of the Legislature are forever talking about”. Some are questioning whether it has anything to do with the state’s new liability insurance program for public school employees. Still others are wondering if it just has to do with winning votes.

Here is Jones discussing the bill on the January 29 episode of Capitol Journal, beginning 11 minutes, 2o seconds into the broadcast:

The House of Representatives’ unanimously (95-0) approved the bill on January 22.

Jones answered a few questions during a phone conversation after the House Judiciary Committee approved the bill on January 15. (For more on the public hearing that wasn’t, read this.)

One of my questions was which parent groups had he contacted about the bill. His answer was none. He claims in the Capitol Journal (CJ) interview that he contacted every group he could think of about the bill. Yet no parent groups were contacted. (This is a larger problem and one that parents and families will have to get organized to address.)

Also in the CJ interview, Jones claims that the bill would “prevent a lawsuit where someone sues for money”. Jones uses an example of where a teacher lays a hand on a student while speaking to the student, the parent finds out and gets upset and files an assault charge against a child. “Those kinds of suits are the types of suits that get filed,” he claims.

Jones adds that if a teacher is doing their normal job, they shouldn’t get sued for it, and if a teacher breaks the law, this does not provide immunity.

What HB64 Says About Immunity

The bill states that immunity will be provided to any education employee who is:

• (1) Formulating plans, policies, or designs;
• (2) Exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
  • a. Making administrative adjudications;
  • b. Allocating resources;
  • c. Negotiating contracts; or
  • d. Hiring, firing, transferring, assigning, or supervising personnel;
• (3) Discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the state agent performs the duties in that manner;
• (4) Exercising judgment in the enforcement of the criminal laws of the state, including, but not limited to, law enforcement officers’ arresting or attempting to arrest persons; or
• (5) Exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.

Number 5 in the list is startling: viewing “releasing prisoners” and “educating students” in the same manner. Just an observation.

Further, the bill states that immunity will not be provided to education employees who act “willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

Just Tell Us More About the Bill, Please

During the CJ interview, Jones shares that he is very proud of his efforts to “work the bill”, educating members on “what the bill does and doesn’t do”. The public, however, has yet to be educated fully.

Jones claims that Alabama is one of five states that hasn’t codified immunity for public school employees, but never mentions which states haven’t codified it.

During our conversation, Jones indicated he had done a lot of research on the issue of sovereign immunity and simply wanted to clean up the Code.

Finding evidence of Jones’ claim is difficult. No one seems to keep records on those lawsuits: how many of them there are and how much they cost boards of education.

On February 2, I sent Jones an email asking very specific questions about his research on the need for the bill, including statistics regarding how many lawsuits he believes this will prevent, which states hadn’t codified sovereign immunity, and how much money has been spent defending these types of lawsuits. To date, I have not received a response.

“Legal fees” overall cost Alabama’s school districts $11.3 million in FY12 (Source: Alabama State Department of Education financial reports). But that number doesn’t tell us how much of that money is related to lawsuits and/or judgments. It doesn’t tell us how much of those legal fees were spent for land deals or bond sales. And it doesn’t tell us anything at all about legal fees that were incurred by public school employees who were sued and not covered by the board of education for whom they worked.

It appears that no one knows why lawsuits are filed against public school employees. Anecdotally, we can all come up with a frivolous lawsuit or two. But where is the data? Where are the numbers? Where are the tables of lawsuits showing how many were filed, for what reason, against whom, and the ultimate disposition of the case? Who has compiled that information?

When Representative Jones didn’t respond to my questions, I requested this information from the Alabama Legislative Reference Service on February 10, hoping that someone there would take the time to answer these questions. To date, I have received no response from anyone in that office.

Is Sovereign Immunity a Good Thing for Children?

Anecdotally, I can tell you multiple horror stories of lawsuits that were never filed because parents and families couldn’t afford attorneys. Evidence exists now that employees of school districts continue to disobey laws that the legislature passed years and years ago. There is no way to force schools to comply with the law other than through a lawsuit, but if damages are not recoverable (one of the questions that remains unanswered), how will parents ever find an attorney willing to take the case without shelling out thousands of dollars in fees?

Aren’t the courts supposed to be the fixer of last resort? Granting sovereign immunity raises the bar to an unreachable level for most claims, as discretion can be interpreted broadly.

Here is a paper on why it’s so difficult to sue public school systems and teachers for failing to prevent physical harm, including bullying, to students. It lists a number of cases in Georgia (which has had sovereign immunity in place for many years) where immunity was provided in cases where teachers failed to properly supervise students.  Read through it. Twice.

Here is a case decided in the last week in Georgia where a judge granted immunity to a teacher who was facing criminal charges for abuse stemming from her disciplinary methods. Make sure you’re seated as you read this.

To be clear, HB64 only pertains to civil lawsuits, but that Georgia case illustrates in gory detail how far immunity can be taken.

From the parent of a child who was allegedly abused by the teacher in Georgia: “I want every parent out there, I want you all to stand, take a stand,” said Hatcher.  “Don’t just drop your child off at a school, because if you drop your child off at a school, this is the end result.”

How are parents and families supposed to trust the adults in charge of educating and supervising our children if there is absolutely no way to hold those adults accountable for their actions?

What are your thoughts on this? Share here or on the Facebook page.

My sincere thanks to Senator Ward for his offer to hold a public hearing. Will report on the results later today.