When school attorneys are asked to look at a contract–whether it is an intergovernmental agreement, a memorandum of understanding or agreement, or a contract by any other name, one of the things they will do is see if certain required paragraphs are included. Some are mandated to appear in the contract; others are required to be performed by the parties, so including them in the contract up front may prevent future arguments about whether or not they really needed to be done. These contract provisions are, in no particular order: cancellation for conflict of interest, retention of records, nondiscrimination, employee work eligibility, fingerprinting, and payment beyond the fiscal year. In this “Language Schools Contacts Should Contain” blog, I’ll begin the discussion by covering two of these pesky provisions…what I call “the usual suspects.”
The first of these is the paragraph called “Cancellation for Conflict of Interest.” It refers to A.R.S. § 38-511, which quite helpfully includes a paragraph that actually states, “Notice of this section shall be included in every contract to which the state, its political subdivisions, or any of the departments or agencies of either is a party.” This paragraph allows a state agency, including a school district, to cancel a contract within three years of entering into the contract if “any person significantly involved in initiating, negotiating, securing, drafting or creating the contract on behalf of the state, its political subdivisions or any of the departments or agencies of either is, at any time while the contract or any extension of the contract is in effect, an employee or agent of any other party to the contract in any capacity or a consultant to any other party of the contract with respect to the subject matter of the contract.” This often appears in shorthand stating that the contract may be canceled pursuant to A.R.S. §38-511, and then states that the terms of the statute are incorporated by reference, meaning that the statute has become part of the contract without having to be rewritten into the document.
Record retention is the second of the provisions that should be included. Obviously the school needs to maintain its own records under the public records statutes and as required by the state archives. This, however, is a little different. Records created by the party contracting with the school also need to be maintained and made available to the school so that the school can review them and, if necessary, audit them. Retention and inspection of records by the contractor and any subcontractor, in other words, the other party to the contract, is required by both R7-2-1083 and by A.R.S. §§35-214 and 35-215. R7-2-1083 refers to the school district procurement code. The school procurement code differs from the procurement code for the rest of the state agencies and its political subdivisions who follow Title 35. The main difference is that those contracting with schools only need to maintain records for three years while those contracting with other state agencies and political subdivisions of the state need to maintain the records for five years. Since many times the school is contracting with a political subdivision of the state, the school may find itself following the five year requirement.
In future blogs I will cover the rest of the “usual suspect” contract provisions that should be included in all school contracts.
 Yes, a nod to the great Bogart movie, “Casablanca.”
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Language School Contracts Should Contain, or other Education Law matters, please feel free to contact Candyce B. Pardee at 800.863.6718, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona with a branch office in Yuma, Arizona, and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.
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