In Part I and Part II of the series, Language School Contracts Should Contain, I covered “Cancellation for Conflict of Interest,” “Retention of Records,” “Nondiscrimination,” and “Worker Eligibility Clauses.” In this final part of the series, I’ll cover three areas that may or may not be important depending upon the facts of the particular IGA, MOA or other form of contract: payment beyond the fiscal year, fingerprinting, and worker’s compensation.
If a contract extends beyond one fiscal year, it is important to add a provision reminding those contracting that if the school district budget won’t cover the contract in the next fiscal year, the school district can either get out of the contract or renegotiate the exchange of services and compensation to something the district can afford. The provision reads something like this, “Pursuant to A.R.S. § 41-2546, the District is not legally liable for any payment beyond the current fiscal year unless and until funds are made available through the annual budget by the District for performance of this Agreement. The District will make reasonable efforts to secure such funds. If sufficient funding is not made available to allow the District to continue meeting its contractual obligations, the District shall so notify [the other party]. The District may cancel this Agreement and have no further obligation to [the other party] or, with [the other party’s] written consent, modify the Agreement to reduce the level of compensation, services or other consideration provided.” Now, this is not a “get out of jail free” card. If the District does not budget to fund the agreement, the District cannot then get the product or service elsewhere.
If the agreement requires the other party to work on the District’s campus where the other party or its contractors or subcontractors may be in contact with students, the District should probably add a provision requiring that the other party, its contractors or subcontractors be fingerprinted. The statutory provision in question is A.R.S. 15-512 (H), which provides, “A contractor, subcontractor or vendor or any employee of a contractor, subcontractor or vendor who is contracted to provide services on a regular basis at an individual school shall obtain a valid fingerprint clearance card ….. A school district governing board shall adopt policies to exempt a person from the requirements of this subsection if the person’s normal job duties are not likely to result in independent access to or unsupervised contact with pupils.” If it seems likely that the other party’s employees, contractors or subcontractors might be using school restrooms while school is in session or otherwise be around students when not being supervised, I’d recommend going ahead and requiring the party to be proactive in requiring its employees to have fingerprint clearance.
Finally, if the District’s employees will be working at the other party’s location or if the other party will be having employees working on the District property, the agreement should deal with the issue of worker’s compensation. If the District is entering into an IGA with another public school district or governmental entity or an MOU with a charter school, A.R.S. §23-1022 divides the responsibility for the coverage of the employees. The IGA or MOU provision says, “An employee of either Party shall be deemed to be an “employee” of both public agencies while performing pursuant to this IGA, for purposes of A.R.S. § 23-1022 and the Arizona Workers’ Compensation laws. The primary employer shall be solely liable for any worker’s compensation benefits which may accrue. Each Party shall post a notice pursuant to the provisions of A.R.S. § 23-906 in substantially the following form:
‘All employees are hereby further notified that they may be required to work under the jurisdiction or control or within the jurisdictional boundaries of another public agency pursuant to an intergovernmental agreement or contract, and under such circumstances they are deemed by the laws of Arizona to be employees of both public agencies for the purposes of workers’ compensation.’”
While other provisions make the contract easier, for instance, allowing the parties to sign in counterparts or provide a fail-safe in stating that the rest of the contract will be valid, even if one provision or another is found to be illegal, the provisions listed are ones which should be considered in every District contract.
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, Part III, 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.