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The forms on the following pages are provided to assist the School in processing employee grievances.

Exhibit A:         Employee Grievance Form — Level One

Exhibit B:         Response to Level One Grievance

Exhibit C:         Level Two Appeal Notice

Exhibit D:         Response to Level Two Appeal

Exhibit E:         Level Three Appeal Notice

Exhibit F:         Response to Level Three Appeal

Exhibit G:        Level Four Appeal Notice

PUBLIC SERVANTS

All School employees are "public servants" and therefore subject to Title VIII of the Penal Code, regarding offenses against public administration, including bribery and corrupt influence (Chapter 36), perjury and other falsification (Chapter 37), obstructing governmental operation (Chapter 38), and abuse of office (Chapter 39).  Penal Code 1.07(41), Title VIII  [See DBD and BBFA]

Educator ethics

Educators shall comply with standard practices and ethical conduct toward students, professional colleagues, school officials, parents, and members of the community and shall safeguard academic freedom.

The State Board for Educator Certification (SBEC) shall provide for the adoption, amendment, and enforcement of an educator’s code of ethics [see DH (EXHIBIT)].  SBEC is solely responsible for enforcing the ethics code for purposes related to certification disciplinary proceedings.

Education Code 21.041(b)(8); 19 TAC 247.1(b), (c)

electronic communication policy

“Electronic communication” means any communication facilitated by the use of any electronic device, including a telephone, cellular telephone, computer, computer network, personal data assistant, or pager.  The term includes e-mails, text messages, instant messages, and any communications made through a website, including a social media website or a social networking website.

TSBVI shall adopt a written policy concerning electronic communications between a school employee and a student enrolled in the School.

The policy adopted under this section must:

  1. Include provisions designed to prevent improper electronic communications between a school employee and a student;
  2. Allow a school employee to elect to not disclose to students the employee’s personal telephone number or e-mail address; and
  3. Include provisions instructing a school employee about the proper method for notifying appropriate local administrators about an incident in which a student engages in improper communications with the school employee.

Education Code 38.027

DRUG ABUSE PREVENTION

In compliance with Workers' Compensation Commission rules, the School shall provide a written copy of the local drug abuse policy to each employee:

  1. On or before the first day of employment; or
  2. Within 30 days after the date the local policy is adopted by the Board.

28 TAC 169.1(b)

TOBACCO USE and e-cigarettes PROHIBITED

The Board shall prohibit smoking, using tobacco products, or using e-cigarettes at a School-related or School-sanctioned activity on or off School property.

Enforcement

The Board shall ensure that School personnel enforce the policies at a School-related or School-sanctioned event on or off School property.

Education Code 38.006(1)(3) [See also FNCD and GKA]

IMMUNITY FROM INDIVIDUAL LIABILITY

The statutory immunity detailed below is in addition to and does not preempt the common law doctrine of official and governmental immunity.

Education Code 22.051(b)

“Professional Employees”

A professional school employee district is not personally liable for any act that is incident to or within the scope of the duties of the employee's position of employment and that involves the exercise of judgment or discretion, except in circumstances where, in disciplining a student, the employee uses excessive force or his or her negligence results in bodily injury to the student.

"Professional school employee " includes a superintendent; principal; teacher, including a substitute teacher or a teacher employed by a company that contracts with TSBVI to provide the teacher's services to the School; a supervisor; social worker; counselor; nurse; teacher's aide; a student in an education preparation program participating in a field experience or internship; a DPS-certified school bus driver, and any other person whose employment requires certification and the exercise of discretion.

TSBVI Employees

In addition to any other federal and state statutes limiting the liability of employees at the School, Sections 22.0511, 22.0512, 22.052, and 22.053, respectively, apply to professional employees and volunteers of the school.

Education Code 30.024(c)

Motor Vehicle Exception

Education Code Section 22.0511 does not apply to the operation, use, or maintenance of any motor vehicle.

Education Code 22.0511(a)-(b), 22.051; Hopkins v. Spring ISD, 756 S.W.2d 617 (Tex. 1987); Barr v. Bernhard, 562 S.W.2d 844 (Tex. 1978)

“Individuals”

In addition to the immunity described above [at Professional Employees], and under other provisions of state law, an individual is entitled to any immunity and any other protections afforded under the Paul D. Coverdell Teacher Protection Act of 2001 (20 U.S.C. Section 6731 et seq.), as amended. [See TEACHERS, below] Nothing in Education Code 22.0511(c) shall be construed to limit or abridge any immunity or protection afforded an individual under state law.  Education Code 22.0511(c)

“Teachers” (The Paul T. Coverdell Teacher Protection Act of 2001)

Except as provided in 20 U.S.C. Section 6736(b), no "teacher" in a school shall be liable for harm caused by an act or omission of the teacher on behalf of the school if:

  1. The teacher was acting within the scope of the teacher's employment or responsibilities to a school or governmental entity;
  2. The actions of the teacher were carried out in conformity with federal, state, and local laws (including rules and regulations) in furtherance of efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school;
  3. If appropriate or required, the teacher was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice involved in the state in which the harm occurred, where the activities were or practice was undertaken within the scope of the teacher's responsibilities;
  4. The harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the teacher; and
  5. The harm was not caused by the teacher operating a motor vehicle, vessel, aircraft, or other vehicle for which the state requires the operator or the owner of the vehicle, craft, or vessel to:
    1. Possess an operator's license; or
    2. Maintain insurance.

"Teacher" means:

  1. A teacher, instructor, principal, or administrator;
  2. Another educational professional who works in a school;
  3. An individual member of a school board (as distinct from the board); or
  4. A professional or nonprofessional employee who works in a school, and:
    1. In the employee's job, maintains discipline or ensures safety; or
    2. In an emergency, is called on to maintain discipline or ensure safety.

20 U.S.C. Section 6733, 6736(a)

DRUG AND ALCOHOL ABUSE PROGRAM

A board shall prohibit the use of alcoholic beverages at school related or school-sanctioned activities on or off school property.  Education Code 38.007(a)

Federal Drug-Free Workplace Act

The School receives federal grants and must agree to provide a drug-free workplace by:

  1. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the School’s workplace and specifying the actions that will be taken against employees for violations of the prohibition;
  2. Establishing a drug-free awareness program to inform employees about:
    1. The dangers of drug abuse in the workplace;
    2. TSBVI’s policy of maintaining a drug-free workplace;
    3. Available drug counseling, rehabilitation, and employee assistance programs; and
    4. The penalties that may be imposed on employees for drug abuse violations;
  3. Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the required statement;
  4. Notifying the employee in the required statement that as a condition of employment in the grant the employee will:
    1. Abide by the terms of the statement; and
    2. Notify the School of any criminal drug statute conviction for a violation occurring in the workplace no later than 5 days after the conviction;
  5. Notifying the granting agency within 10 days after receiving notice from an employee or otherwise receiving actual notice of a conviction;
  6. Imposing a sanction on, or requiring the satisfactory participation in a drug abuse assistance or rehabilitation program by, any employee who is convicted, as required by 41 U.S.C. section 81.04; and
  7. Making good faith effort to continue to maintain a drug-free workplace through implementation of the above requirements.

41 U.S.C. 8103(a)(1)

REPORT OF DRUG OFFENSES

A teacher, administrator, or other School employee is not liable in civil damages for reporting to a school administrator or governmental authority, in the exercise of professional judgment within the scope of the teacher's, administrator's, or employee's duties, a student whom the teacher suspects of using, passing, or selling, on school property any of the following substances:

  1. Marijuana or a controlled substance, as defined by the Texas Controlled Substances Act.
  2. A dangerous drug, as defined by the Texas Dangerous Drug Act.
  3. An abusable glue or aerosol paint, as defined by Health and Safety Code Chapter 485, or a volatile chemical, if the substance is used or sold for the purpose of inhaling its fumes or vapors.
  4. An alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code.

Education Code 37.016

REPORT TO LOCAL LAW ENFORCEMENT

The Principal or person designated by the Principal is not liable in civil damages for making a good faith report, as required by law [see GRA] to the Austin Police Department when the Principal has reasonable grounds to believe that any of the following activities occur in School, on School property, or at a School-sponsored or School-related activity on or off school property, without regard to whether the activity is investigated by School security officers:

  1. Conduct that may constitute an offense listed in Section 508.149, Government Code; deadly conduct, as described by Penal Code 22.05; or a terroristic threat, as described by Penal Code 22.07.
  2. The use, sale, or possession of a controlled substance, drug paraphernalia, or marijuana, as defined by Chapter 481, Health and Safety Code.
  3. The possession of any of the weapons or devices listed in Penal Code 46.01(1)-(14) or (16) [see FNCG].
  4. Conduct that may constitute a criminal offense under Penal Code 71.02, Engaging in Organized Criminal Activity.
  5. Conduct that may constitute a criminal offense for which a student may be expelled under Section 37.007(a), (d), or (e).

Education Code 37.015

REPORT TO SBEC OF EDUCATOR MISCONDUCT

The Superintendent shall promptly notify in writing the State Board for Educator Certification (SBEC) by filing a report with SBEC not later than the seventh day after the Superintendent first learns about a criminal record or an alleged incident of misconduct, as described at DF, involving a certified educator.

Education Code 21.006; 19 TAC 249.14

DIETARY SUPPLEMENTS

Except as provided at Education Code 38.011(b), a School employee may not:

  1. Knowingly sell, market, or distribute a dietary supplement that contains performance-enhancing compounds to a primary or secondary education student with whom the employee has contact as part of the employee's duties; or
  2. Knowingly endorse or suggest the ingestion, intranasal application, or inhalation of a dietary supplement that contains performance-enhancing compounds by a primary or secondary student with whom the employee has contact as part of the employee's duties.

An employee who violates items 1 or 2, above, commits a Class C misdemeanor offense.

Education Code 38.011

Low-THC Cannabis

The School may not enact, adopt, or enforce a rule, ordinance, order, resolution, or other regulation that prohibits the possession of low-THC cannabis, as authorized by Health and Safety Code Chapter 487.  Health and Safety Code 487.201

Adopted:         3/7/80

Amended:       11/13/81, 9/10/82, 9/9/83, 7/17/87, 11/12/87, 1/26/90, 5/30/91, 1/29/93, 5/26/94, 9/29/95, 1/26/96, 9/24/99, 1/31/03, 3/26/04, 1/28/05, 5/25/05, 1/31/14, 5/31/19

Reviewed:

EDUCATORS’ CODE OF ETHICS

The Texas educator shall comply with standard practices and ethical conduct toward students, professional colleagues, school officials, parents, and members of the community and shall safeguard academic freedom.  The Texas educator, in maintaining the dignity of the profession, shall respect and obey the law, demonstrate personal integrity, and exemplify honesty.  The Texas educator, in exemplifying ethical relations with colleagues, shall extend just and equitable treatment to all members of the profession.  The Texas educator, in accepting a position of public trust, shall measure success by the progress of each student toward realization of his or her potential as an effective citizen.  The Texas educator, in fulfilling responsibilities in the community, shall cooperate with parents and others to improve the public schools of the community.  19 TAC 247.1

  1. Professional Ethical Conduct, Practices, and Performance.

    Standard 1.1 The educator shall not intentionally, knowingly, or recklessly engage in deceptive practices regarding official policies of the school district, educational institution, educator preparation program, the Texas Education Agency, or the State Board for Educator Certification (SBEC) and its certification process.

    Standard 1.2 The educator shall not knowingly misappropriate, divert, or use monies, personnel, property, or equipment committed to his or her charge for personal gain or advantage.

    Standard 1.3 The educator shall not submit fraudulent requests for reimbursement, expenses, or pay.

    Standard 1.4 The educator shall not use institutional or professional privileges for personal or partisan advantage.

    Standard 1.5 The educator shall neither accept nor offer gratuities, gifts, or favors that impair professional judgment or to obtain special advantage. This standard shall not restrict the acceptance of gifts or tokens offered and accepted openly from students, parents, or other persons or organizations in recognition or appreciation of service.

    Standard 1.6 The educator shall not falsify records, or direct or coerce others to do so.

    Standard 1.7 The educator shall comply with state regulations, written local school board policies, and other applicable state and federal laws.

    Standard 1.8 The educator shall apply for, accept, offer, or assign a position or a responsibility on the basis of professional qualifications.

    Standard 1.9 The educator shall not make threats of violence against school district employees, school board members, students, or parents of students.

    Standard 1.10 The educator shall be of good moral character and be worthy to instruct or supervise the youth of this state.

    Standard 1.11 The educator shall not intentionally or knowingly misrepresent his or her employment history, criminal history, and/or disciplinary record when applying for subsequent employment.

    Standard 1.12 The educator shall refrain from the illegal use or distribution of controlled substances and/or abuse of prescription drugs and toxic inhalants.

    Standard 1.13 The educator shall not be under the influence of alcohol or consume alcoholic beverages on school property or during school activities when students are present.

    Standard 1.14 The educator shall not assist another educator, school employee, contractor, or agent in obtaining a new job as an educator or in a school, apart from the routine transmission of administrative and personnel files, if the educator knows or has probable cause to believe that such person engaged in sexual misconduct regarding a minor or student in violation of the law.

  2. Ethical Conduct Toward Professional Colleague

    Standard 2.1 The educator shall not reveal confidential health or personnel information concerning colleagues unless disclosure serves lawful professional purposes or is required by law.

    Standard 2.2 The educator shall not harm others by knowingly making false statements about a colleague or the school system.

    Standard 2.3 The educator shall adhere to written local school board policies and state and federal laws regarding the hiring, evaluation, and dismissal of personnel.

    Standard 2.4 The educator shall not interfere with a colleague’s exercise of political, professional, or citizenship rights and responsibilities.

    Standard 2.5 The educator shall not discriminate against or coerce a colleague on the basis of race, color, religion, national origin, age, gender, disability, family status, or sexual orientation.

    Standard 2.6 The educator shall not use coercive means or promise of special treatment in order to influence professional decisions or colleagues.

    Standard 2.7 The educator shall not retaliate against any individual who has filed a complaint with the SBEC or who provides information for a disciplinary investigation or proceeding under this chapter.

  3. Ethical Conduct Toward Students.

    Standard 3.1 The educator shall not reveal confidential information concerning students unless disclosure serves lawful professional purposes or is required by law.

    Standard 3.2 The educator shall not intentionally, knowingly, or recklessly treat a student or minor in manner that adversely affects or endangers the learning, physical health, mental health, or safety of the student or minor.

    Standard 3.3 The educator shall not intentionally, knowingly, or recklessly misrepresent facts regarding a student.

    Standard 3.4 The educator shall not exclude a student from participation in a program, deny benefits to a student, or grant an advantage to a student on the basis of race, color, gender, disability, religion, national origin, age, sex, disability, family status or sexual orientation.

    Standard 3.5 The educator shall not intentionally, knowingly, or recklessly engage in physical mistreatment, neglect, or abuse of a student or minor.

    Standard 3.6 The educator shall not solicit or engage in sexual conduct or a romantic relationship with a student or minor.

    Standard 3.7 The educator shall not furnish alcohol or illegal/unauthorized drugs to any person under 21 years of age unless the educator is a parent or guardian of that child or knowingly allow any person under 21 years of age unless the educator is a parent or guardian of that child to consume alcohol or illegal/unauthorized drugs in the presence of the educator.

    Standard 3.8 The educator shall maintain appropriate professional educator-student relationships and boundaries based on a reasonably prudent educator standard.

    Standard 3.9 The educator shall refrain from inappropriate communication with a student or minor, including, but not limited to, electronic communication such as cell phone, text messaging, e-mail, instant messaging, blogging, or other social networking communication. Factors may be considered in assessing whether the communication in inappropriate include, but are not limited to:

    1. The nature, purpose, timing, and amount of the communication;
    2. The subject matter of the communication;
    3. Whether the communication was made openly or the educator attempted to conceal the communication;
    4. Whether the communication could be reasonably interpreted as soliciting sexual contact or a romantic relationship;
    5. Whether the communication was sexually explicit; and
    6. Whether the communication involved discussion(s) of the physical or sexual attractiveness or the sexual history, activities, preferences, or fantasies of either the educator or the student.

19 TAC 247.2

Adopted: 3/7/80
Amended: 6/1/89, 3/30/99, 3/26/04, 1/26/18
Reviewed: 11/17/95

EMPLOYEE-STUDENT RELATIONS

A TSBVI employee has the responsibility to maintain high professional standards in relationships with students. While an employee is encouraged to establish and maintain a positive rapport and interest in the students, an employee must maintain a professional relationship with students.  An employee may not develop inappropriate personal relationships with students or relate to or interact with students in ways that are incompatible with the employee’s job responsibilities.  Inappropriate fraternization, dating, inappropriate physical contact, borrowing or loaning money or belongings, buying or selling items (except for school approved fund raising projects), disclosing sensitive personal or confidential information about self, other staff, or students, is prohibited.

A TSBVI employee may not have contact with students after the employee’s regularly scheduled work hours, including but not limited to visits in homes, going out to eat, attendance at community functions, and shopping trips, unless the date and time of each specific activity or regularly scheduled activity, is approved by the student's parent, the Principal and the Superintendent.

Students may not reside in the home of a TSBVI employee unless approved by the Superintendent, Principal, parent, and local school district.

ELECTRONIC COMMUNICATION WITH STUDENTS

Permitted Electronic Communications

Teachers and other approved staff members may communicate with students through the use of electronic media within the scope of the individual’s professional responsibilities.  For example, a teacher may set up a social networking page for his or her class that has information related to class work, homework, and tests.  Parents will always be permitted to join or become a member of such a page.  A staff member may also contact a student individually through electronic media to communicate about items such as homework or upcoming tests and copy the parent or principal.

Prohibited Electronic Communications

Staff members may not communicate electronically with students outside the scope of the staff member’s professional responsibilities.  Examples of communications may include text messages, email, phone calls, and social networking (e.g. Facebook).  In addition, staff members may not post information about students, including photographs, on non-school Internet sites.  (e.g. a personal Facebook page)

Parent Choice

Parents may submit a written request to the Principal if they prefer that their child not receive any one-to-one electronic communications from a staff member.  In this case, this information will be included on a student’s one-page Student Information Summary.

EMPLOYEE-FAMILY RELATIONS

An employee is prohibited from performing paid or unpaid work for a student’s parent or guardian unless the performance of the work has been approved in writing by the Superintendent and the Principal. The Superintendent and the Principal will approve such work only when, in their sole judgment, the TSBVI employment responsibilities of the employee will not conflict with the employee's responsibilities to the student’s parent or guardian. The Superintendent or the Principal may withdraw approval for such work at any time after determining that a conflict is likely to or has occurred. 

A TSBVI employee must maintain a professional relationship with families of TSBVI students at all times. While an employee is encouraged to establish and maintain a professional rapport and interest in the families of TSBVI students, employees shall avoid developing personal relationships with family members that extend beyond educational issues.

STAFF TRAINING

The Superintendent shall ensure that each employee receives a copy of this policy at the beginning of each school year and that each new employee receives training concerning this policy as a part of New Employee Orientation.

Adopted:         7/31/79
Amended:        3/7/80, 5/25/88, 11/15/96, 3/21/97, 11/22/02, 11/9/12, 9/20/13, 1/26/18
Reviewed:

SEARCHES - GENERAL RULE

Citizens, including School employees, have a right to be free from unreasonable searches and seizures. U. S. Const. Fourth Amendment; Tex. Const. Fourth Amendment; Tex. Const. Art. I, Sec. 9

The Superintendent may authorize the search of an employee or an employee's property if:

  1. There are reasonable grounds to believe that the search will turn up evidence that the employee is guilty of work-related misconduct; and
  2. The search is reasonably related in scope to the circumstances that justified the interference in the first place.

O'Connor v. Ortega, 480 U.S. 709,107 S. Ct. 1492 (1987); New Jersey v. T. L. O., 469 U.S. 325 (1985)

In addition, the Superintendent may authorize a search of an employee's workplace for non-investigatory, work-related purposes, or if there are reasonable grounds to believe that the search will turn up evidence that the employee is guilty of work-related misconduct.  O'Connor v. Ortega, 480 U.S. 709 (1987)

The Superintendent shall develop procedures under which an employee, an employee's property or an employee's workplace may be searched.  (See Procedure A.2.4.4 – Procedure for Employee Searches)

Drug/Alcohol Testing

Blood, urine, and breath tests of public employees to determine drug use are searches under the Fourth Amendment of the U.S. Constitution.  Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602 (1989)

Random Drug Testing

The School may conduct drug tests, without a warrant and without individualized suspicion, when the test serves special governmental needs that outweigh the individual’s privacy expectation.  Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602 (1989); Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)

Safety Sensitive Position

Random alcohol and drug testing of employees in “safety sensitive” positions may be permissible when the intrusiveness of the search is minimal and the Board is able to demonstrate that the drug-testing program furthers its interest in ensuring the physical safety of students. “Safety-sensitive” positions include those that involve the handling of potentially dangerous equipment or hazardous substances in an environment including a number of children.  Aubrey v. Sch. Bd. of LaFayette Parish, 148 F.3d 559 (5th Cir. 1998)

TESTING OF DRIVERS

The School shall conduct testing, in accordance with federal regulations, of commercial motor vehicle operators for use of alcohol or a controlled substance that violates law or federal regulation.  49 U.S.C. 31306; 49 CFR Part 382

The following testing requirements apply to every School employee who operates a commercial motor vehicle ("driver") and is subject to commercial driver's license requirements in accordance with federal regulations.

PROCEDURES

The Superintendent shall develop procedures to implement the drug and alcohol testing required under this policy.  (See Procedure A.2.4.3 Alcohol and Controlled Substance Testing and Procedure 0.6.1 Use of School Vehicles)

TESTING REQUIREMENTS

Commercial Motor Vehicle Defined

A commercial motor vehicle is defined as a motor vehicle used to transport passengers or property that:

  1. Has a gross combination weight rating of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; or
  2. Has a gross vehicle weight rating of 26,001 or more pounds; or
  3. Is designed to transport 16 or more passengers, including the driver.

49 CFR 382.107

Testing Procedures

The School shall ensure that all alcohol or controlled substances testing conducted under 49 CFR Part 382 complies with the procedures set forth in 49 CFR Part 40.  49 CFR 382.105

U.S. Department of Transportation (DOT) test must be completely separate from non-DOT tests in all respects.  DOT tests must take priority and must be conducted and completed before a non-DOT test is begun.  49 CFR 40.13

Tests Required

Required testing includes pre-employment, post-accident, random, reasonable suspicion, return-to-duty and follow-up testing.  No driver shall refuse to submit to a post-accident alcohol or controlled substances test, a random alcohol or controlled substances test, a reasonable suspicion alcohol or controlled substances test, or a return-to-duty or follow-up alcohol or controlled substances test.  The

School shall not permit a driver who refuses to submit to such tests to perform or continue to perform safety-sensitive functions.  49 CFR 382.211, .309

Education and Treatment

The School is not required to provide an evaluation by a substance abuse professional or any subsequent recommended education or treatment for an employee who has violated a drug and alcohol regulation of the U.S. Department of Transportation (DOT).

However, if the School offers an employee an opportunity to return to a safety-sensitive duty following a violation, the School must, before the employee again performs that duty, ensure that the employee receives an evaluation by a substance abuse professional and that the employee successfully complies with the professional’s evaluation recommendations. I49 C.F.R. 40.289

Return-to-Duty Testing

If the School permits an employee who has violated a DOT drug and alcohol regulation to return to safety-sensitive functions, the School must ensure that the employee takes a return-to-duty test.  This test cannot occur until after the substance abuse professional has determined that the employee has successfully complied with prescribed education and/or treatment.  The employee must have a negative drug test result and/or an alcohol test with an alcohol concentration of less than 0.02 before resuming performance of safety-sensitive duties.

The School is not required to return an employee to safety-sensitive duties because the employee has met the condition described in the preceding paragraph.  Return-to-duty is a personnel decision that the Superintendent has the discretion to make, subject to legal requirements. 49 CFR 40.305 (a)-(b)

Educational Materials

The School shall provide educational materials that explain the federal requirements and the School's policies and procedures with respect to meeting these requirements and shall ensure that a copy of these materials is distributed to each driver prior to the start of alcohol and controlled substances testing under this policy and to each driver subsequently hired or transferred into a position that requires driving a commercial motor vehicle.  Written notice to representatives of employee organizations of the availability of this information shall also be provided.  The materials shall include detailed discussion of at least the legally required items. 49 CFR 382.601

REPORTS

Because the School is required by federal safety regulations to conduct alcohol and drug testing of an

employee who holds a commercial driver's license, the School shall report the following information to the Department of Public Safety:

  1. A valid positive result on an alcohol or drug test and whether the specimen producing the result was a dilute specimen.
    "Valid positive result" means an alcohol concentration of 0.04 or greater on an alcohol confirmation test, or a result at or above the cutoff concentration levels listed in 49 CFR 40.87 on a confirmation drug test.
    “Dilute specimen” means a specimen with creatinine and specific gravity values that are lower than expected for human urine.
  2. A refusal to provide a specimen for an alcohol or drug test.
  3. An adulterated specimen or substituted specimen, as defined at 49 CFR 40.3, on an alcohol or drug test.

For purposes of this requirement, the term "employee" includes applicants for employment subject to pre-employment testing.

Transp. Code 644.251-.252;49 CFR 40.3

Adopted:         5/26/95

Amended:       3/22/96, 3/21/97, 1/28/00, 5/25/04, 1/27/06, 9/25/15, 5/31/19

Reviewed:       5/24/96

PROHIBITION AGAINST ILLEGAL AND FRAUDULENT ACTS AGAINST TSBVI

School officers and employees are strictly prohibited under the law and under this policy from engaging in any illegal, improper, or dishonest, acts and/or practices that may involve the School.

Officers and employees who engage in such acts are subject to immediate termination of employment.

PURSUING LEGAL REMEDIES

The School shall pursue available legal remedies against persons or entities, including School officers and employees who engage in fraudulent acts against the School.  Remedies include, but are not limited to, terminating employment, requiring restitution, and forwarding of information regarding suspected fraud to the appropriate authorities for criminal prosecution.

SCOPE OF PROHIBITED ACTS

Within this policy, illegal, improper and/or dishonest acts and/or practices include, but are not limited to:

  1. Theft.
  2. Fraud.
  3. Embezzlement.
  4. Bribery, rebate, and "kick-back."
  5. Misappropriation, misapplication, destruction, removal, or concealment of property.
  6. Conflicts of interest.

ADMINISTRATIVE RESPONSIBILITY

Administrators of all School departments shall be responsible for identifying potential areas of risk within their respective departments in which fraudulent activities might occur and for implementing reasonable measures to prevent such fraudulent activities.

DUTY TO REPORT FRAUD

A state agency appropriated funds by the Texas Legislature, shall use appropriated funds to assist with the detection and reporting of fraud involving state funds by waste and abuse involving state resources directly to the State Auditor's Office.  This shall include, at a minimum, the State Auditor's Office fraud hotline information and a link to the State Auditor's Office website for fraud reporting.  (Current General Appropriations Act, Article IX, Sec. 7.09)  See link and hotline below.

Any officer or employee who has reason to suspect that any person, including a school officer or employee, is engaging in any type of fraudulent activity against the School including theft, fraud, embezzlement, bribery, rebate, kick-back, misappropriation, misapplication, destruction, and removal or concealment of School property or conflict of interest (see Policy DHD), shall report the suspected fraudulent activity to the Superintendent in person, by phone, in writing, or by email.  The individual reporting should state the individual(s), School department(s) or other entities involved; describe the fraud, waste, or abuse that is being reported, and any other detail that might assist the Superintendent or the State Auditor.  As much detail as possible should be provided so that appropriate action can be taken.  The individual reporting may choose to report anonymously, or provide a phone number or email address at which the reporter can be contacted for more information.  In no event shall any TSBVI officer, or employee, take any retaliatory action against the person making the report.

The School officer or employee also has the option to report suspected waste, fraud, or abuse of state resources directly to the Texas State Auditor’s Office by:

  1. accessing the link found under “Report Fraud” (on the home page of TSBVI’s website or on the School’s Intranet page,
  2. calling 1-800-TX-AUDIT,
  3. by emailing ,
  4. linking to https://sao.fraud.texas.gov/reportfraud,
  5. faxing to 512/936-9812 or
  6. writing:
    State Auditor's Office
    ATTN:  Investigations and Audit Support 
    P.O. Box 12067 
    Austin, TX 78711. 

The officer or employee reporting any type of fraudulent activity against the School to the State Auditor may make the report anonymously.

INVESTIGATION OF REPORTS

Reports of fraudulent activities shall be investigated in accordance with procedures developed and implemented by the Superintendent.  To the extent possible, the Superintendent shall investigate anonymous reports in the same manner as reports from a named person.

SUPERINTENDENT’S REPORT TO STATE AUDITOR AND TO THE BOARD OF TRUSTEES REGARDING SUSPECTED FRAUDULENT ACTIVITIES

If the Superintendent has reasonable cause to believe, which is more than mere suspicion and based on particular facts which support the belief, that money received from the State by TSBVI or a TSBVI contract may have been lost, misappropriated, or misused, or that other fraudulent or unlawful conduct has occurred in relation to the operation of TSBVI, the Superintendent shall report the reason and basis for the belief to the state auditor and to the TSBVI Board of Trustees.  The state auditor may investigate the report or may monitor any investigation conducted by TSBVI.  Gov't. Code §321.022, 811.101-.102

The report to the state auditor should include a description of the incident, the estimated value of the loss, the identity of all persons who may have involvement or knowledge relating to the loss, and a description of such involvement or knowledge, a description of the evidence, and the name and telephone number of the agency employee responsible for resolving the incident.

Adopted:         1/24/97

Amended:       1/23/98, 1/26/99, 9/25/15, 6/1/18

Reviewed:

STATE POLICY

It is the policy of the State of Texas and the Texas School for the Blind and Visually Impaired that a state officer, or state employee, may not have a direct, or indirect, interest, including financial and other interests, or engage in a business transaction, or professional activity, or incur any obligation of any nature that is in substantial conflict with the proper discharge of the officer's, or employee's, duties in the public interest.

Failure of an officer or employee to abide by this policy shall serve as a basis for disciplinary action.

Tx. Gov't Code §572.001

STANDARDS OF CONDUCT

A TSBVI employee may not:

  1. Accept, or solicit, any gift, favor, or service that might reasonably tend to influence the officer, or employee, in the discharge of official duties, or that the officer, or employee, knows, or should know, is being offered with the intent to influence the officer's, or employee's, official conduct.
  2. Accept other employment, or engage in a business, or professional, activity that the officer, or employee, might reasonably expect would require, or induce, the officer, or employee, to disclose confidential information acquired by reason of the official position.
  3. Accept other employment, or compensation, that could reasonably be expected to impair the officer's, or employee's, independence of judgment in the performance of the officer's, or employee's, official duties;
  4. Make personal investments that could reasonably be expected to create a substantial conflict between the officer's, or employee's, private interest and the public interest; or
  5. Intentionally, or knowingly, solicit, accept, or agree to accept any benefit for having exercised the officer's or employee's official powers, or performed the officer's, or employee's, official duties in favor of another.

Tx. Gov’t Code §572.051

PROHIBITED USES OF STATE APPROPRIATED MONEYS

The following prohibitions apply to the activities of the School and its individual officers and employees:

LOBBYING

  1. None of the moneys appropriated by the General Appropriations Act, regardless of their source or character, shall be used for influencing the outcome of any election, or the passage, or defeat, of any legislative measure. This prohibition shall not be construed to prevent any official, or employee of the School, from furnishing to any member of the legislature, or committee, upon request, or to any other state official, or employee, or to any citizen information in the hands of the employee, or official, not considered under law to be confidential information. Any action taken against an employee, or officer, for supplying such information shall subject the person initiating the action to immediate dismissal from employment at the School.
  2. No funds under the control of the School, including but not limited to state appropriate funds, may be used directly, or indirectly, to hire employees, or in any other way fund, or support, candidates for the legislative, executive, or judicial branches of government of the State of Texas, or the government of the United States.
  3. None of the funds appropriated by the Appropriations Act shall be expended in payment of the salary for full-time employment of any state employee who is also the paid lobbyist of any individual, firm, association, or corporation. None of the funds appropriated by this act shall be expended in payment of the partial salary of a part-time employee who is required to register as a lobbyist by virtue of the employee's activities for compensation by, or on behalf of, industry, a profession or association related to operation of the agency, or institution, for which the person is employed. A part-time employee may serve as a lobbyist on behalf of industry, a profession, or association, so long as such entity is not related to the agency with which he, or she, is employed.
  4. No employee of the School shall use any state-owned automobile, except on official business of the state, and such employees are expressly prohibited from using such automobile in connection with any political campaign, or any personal, or recreational activity.
  5. None of the moneys appropriated by the Appropriation's Act shall be paid to any official, or employee, who violates any of the above provisions.

General Appropriations Act, Article IX, Section 5.

AVOIDANCE OF APPEARANCE OF LEGAL OR POLICY VIOLATIONS

Officers and employees shall avoid any actions that would create the appearance that they are violating the law, or the ethical standards contained in this policy.

USE OF SCHOOL CREDIT CARDS

School officers and employees may not use School credit cards for personal expenses. School credit cards may only be used for legitimate School business expenses. Payment of charges on individual cases is the sole responsibility of the officer, or employee. The School shall not be responsible for the charges, regardless of the type of charge. Officers and employees may use School credit cards to charge items that, while they qualify as official business, are not fully reimbursable under State and/or School guidelines for reimbursement.

ACCEPTANCE OF HONORARIA

School officers and employees may not solicit, accept, or agree to accept an honorarium in consideration for services they would not have been asked to provide but for their official position, or duties. This prohibition includes a request for, or acceptance of, a payment made to a third party in exchange for such services.

School officers and employees may accept the direct provision of or meals, or lodging provided, or reimbursement of actual expenses incurred in connection with a speaking engagement at a conference, or similar event in which the public servant renders services, such as addressing an audience or engaging in a seminar, to the extent those services are more than merely perfunctory. 

See Texas Penal Code §36.07

DUAL OFFICE HOLDING

School officers and employees may hold other positions of employment with agencies, boards, commissions, or other entities of government, so long as the holding of such positions is consistent with the prohibitions against dual office holding in the Texas Constitution. Consulting arrangements with federal, state, or local governmental agencies of a detached and independent advisory nature are not considered to be appointments with such agencies.

OUTSIDE EMPLOYMENT

Full-time School employees are expected to devote their time and talents on a full-time basis to their assigned duties and responsibilities. Employees may accept outside employment, if the employment:

  1. Does not interfere with the quality of performance of the employee.
  2. Is reasonable in the amount of time taken for outside employment and its related activities.
  3. Avoids unfair competition with legitimate private enterprises.
  4. Does not bring an employee into conflict with the interests of the State of Texas, or the School.
  5. Does not depend on, or is not associated with, the employee's employment with the School.
  6. Is approved under any guidelines the Superintendent may establish.

NEPOTISM

All School officers and “employees who exercise appointive power” are prohibited from appointing, voting for, or confirming the appointment of any person related to such employee within the third degree of consanguinity, or within the second degree of affinity, when the salary, or compensation, for such person is to be paid from public funds.

This prohibition does not apply if the person who is related to the School employee exercising appointive power has been continuously employed in the office, or position, for at least thirty days prior to appointment, or employment, of the officer, or employee.  If an individual continues in a position, the public officer or employee to whom the individual is related in a prohibited degree may not participate in any deliberation or voting on the appointment or reappointment, employment, reemployment, change in status compensation or dismissal of the individual if that action applies only to the individual and is not taken regarding a bona fide class or category of employees.

Tx. Gov't. Code §573.041; 573.062

PROTECTION OF PUBLIC PROPERTY

State property may be used only for state purposes. Officers and employees are prohibited from using state property other than for authorized activities. State property includes computers and other electronic equipment issued, assigned, or otherwise accessible to the employee.  Tx. Gov’t Code §2203.004

Officers and employees may not entrust state property to any state official, or employee, or to anyone else to be used for other than state purposes. School officers and employees shall not use School equipment, or property, for their own benefit unless:

  1. The use also benefits the School and has been approved in advance by the Superintendent, or his/her designee(s), and suitable arrangements have been made in advance for payment of the agreed upon value of the use of such property; or
  2. The property consists of books from the library, recreational facilities and other such items of well-established usage that are authorized for use by the Superintendent, or his/her designee(s).

PROPERTY MANAGER - PROPERTY INVENTORY

  1. The Superintendent is responsible for the custody and care of property in TSBVI's possession.
  2. The Superintendent designated the agency’s Director of Support Services as the TSBVI’s property manager and informed the comptroller of the designation. Subject to comptroller approval, more than one property manager may be designated.
  3. The TSBVI Director of Support Services shall maintain the records required and be the custodian of all property possessed by TSBVI.
  4. When TSBVI property is entrusted to a person other than the Director of Support Services, the person to whom the property is entrusted shall provide a written receipt to the manager. TSBVI may lend its property to another state agency only if the Superintendent lending the property provides written authorization for the lending.  The head of the agency to which the property is lent must execute a written receipt.
  5. TSBVI shall conduct an annual physical inventory of all property in its possession. The comptroller may specify the date on which the inventory must be conducted.
  6. Not later than the date prescribed by the comptroller, the Superintendent shall submit to the comptroller:
    1. a signed statement describing the methods used to conduct TSBVI's annual physical inventory under Subsection (e);
    2. a copy of the results of the inventory; and
    3. any other information concerning the inventory that the comptroller requires.
  7. At all times, TSBVI property records of the School must be accurately reflect the property possessed by the School. Property may be deleted from the School's records only in accordance with rules adopted by the comptroller.
  8. The state auditor, based on a risk assessment and subject to the legislative audit committee's approval of including the examination in the audit plan under Section 321.013, may periodically examine property records or inventory as necessary to determine if controls are adequate to safeguard state property.

Tex. Gov't Code §403.273

TELEPHONES, PHOTOCOPY MACHINES AND OTHER COMMUNICATIONS EQUIPMENT

TSBVI officers and employees may make occasional personal use of communications equipment, including but not limited to the telephone, e-mail, computer, or facsimile machine during working hours as long as such use does not hinder the day-to-day operation of an office, department, or other area of the School, or unduly interfere with the officer's, or employee's, assigned responsibilities.

Use of telephones, facsimile machines, photocopiers, computers, electronic mail and other means of communication is a prohibited use of state equipment if it results in additional costs to the School, including, but not limited to, long distance charges, or damage to the equipment.

See Texas Ethics Advisory Opinion No. 372

MISUSE OF AUTHORITY

It is a violation of state law for School officers and employees acting with the intent to obtain a benefit or, with intent to harm another, to intentionally or knowingly, misapply anything of value belonging to the government that comes into their custody or possession by virtue of their office or employment.

PROCEDURES

The Superintendent shall develop procedures to implement this policy.

USE OF WORK TIME

Except as set forth above, employees may not engage in non-work related personal activities during time designated as work time. Administrators and supervisors are prohibited from requesting, or requiring, any employee, including any employee under their respective direction, to perform non-work related personal activities for them during time designated as work time.

DISTRIBUTION OF POLICY 

The Superintendent shall ensure that each school officer and employee receives a copy of this policy and provides the School with a receipt therefor.

Adopted: 1/24/97
Amended: 1/23/98, 1/28/00, 4/6/18
Reviewed:

The Texas Facilities Commission has responsibility for all duties on behalf of TSBVI to achieve compliance with the Hazard Communications Act as follows:

Notice

  1. Post and maintain adequate notice, at locations where notices are normally posted, informing employees of their rights under the Hazard Communication Act.  Health and Safety Code 502.017(a), .017(a)

Education and Training

  1. Provide an education and training program for employees who use or handle hazardous chemicals.  "Employee" means a person who may be or may have been exposed to hazardous chemicals in the person's workplace under normal operating conditions or foreseeable emergencies.  Workers such as office workers or accountants who encounter hazardous chemicals only in nonroutine, isolated instances are not “employees” for purposes of these requirements.  Health and Safety Code 502.003(10), 502.009
  2. Keep the written hazard communication program and a record of each training session given to employees, including the date, a roster of the employees who attended, the subjects covered in the training session, and the names of the instructors.  Records shall be maintained for at least five years. Health and Safety Code 502.009(g)

Workplace Chemical List

  1. Compile and maintain a workplace chemical list that contains required information for each hazardous chemical normally present in the workplace or temporary workplace in excess of 55 gallons or 500 pounds, or as determined by the Commissioner of Health and Human Services and reported by the Texas Commission on Environmental Quality for certain highly toxic or dangerous hazardous chemicals.  The list must be readily available to employees and their representatives.  All employees shall be made aware of the list before working with or in a work area containing hazardous chemicals.  Health and Safety Code 502.005(a)-(c) [See https://www.tceq.texas.gov/assets/public/permitting/tier2/EHSList.pdf]
  2. Update the list as necessary, but at least by December 31 of each year, and maintain the list for at least 30 years.  Each workplace chemical list shall be dated and signed by the person responsible for compiling the information.  Health and Safety Code 502.005(b)-(d)

Safety Data Sheets

6.   Maintain a legible copy of the most current manufacturer's safety data sheets (SDS) for each hazardous chemical.  If TSBVI does not have a current SDS for a hazardous chemical when the chemical is received, TSBVI shall request an SDS in writing from the manufacturer or distributor in a timely manner or otherwise obtain a current SDS.  Safety data sheets shall be readily available, on request, for review by employees or designated representatives at each workplace.  Health and Safety Code 502.006

Protective Equipment

7.   Provide employees with appropriate personal protective equipment.  Health and Safety Code 502.017(b)

Labeling

A label on an existing container of a hazardous chemical may not be removed or defaced unless it is illegible, inaccurate, or does not conform to the OSHA standard or other applicable labeling requirement.  Primary and secondary containers must be relabeled in accordance with Health and Safety Code 502.007(a).  An employee may not be required to work with a hazardous chemical from an unlabeled container except for a portable container intended for the immediate use of the employee who performs the transfer.  Health and Safety Code 502.007

PEST CONTROL TREATMENT NOTICE

The Director of Support Services shall notify persons who work in TSBVI buildings or facility of an indoor pest control treatment by:

  1. Posting the sign provided by the certified applicator or technician in an area of common access the employees are likely to check on a regular basis at least 48 hours before each planned treatment.
  2. Providing the pest control information sheet made available by the certified applicator or technician to a person working in the building on request.

Occupations Code 1951.455; 4 TAC 7.146, .147 [See CLB (TSBVI) - BUILDING, GROUNDS, AND EQUIPMENT MANAGEMENT: MAINTENANCE]

Education Code 30.022 (h-1)

Adopted:         1/23/87

Amended:       5/28/92, 5/26/94, 3/21/03, 3/26/04, 6/1/18

Reviewed:       1/26/96

OFFICIAL OP

Note:  This policy addresses harassment of TSBVI employees.  For legally referenced material relating to discrimination and retaliation, see DAA(LEGAL).  For harassment of students, see FFH.  For reporting requirements related to child abuse and neglect, see FFG.

OFFICIAL OPPRESSION

A public official commits a Class A misdemeanor if, while acting in his or her official or employment capacity, the official intentionally (a) subjects another to mistreatment, arrest, detention, search, seizure or dispossession, or (b) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity, knowing such conduct is unlawful or (c) intentionally subjects another to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.  Penal Code 39.03

HARASSMENT OF EMPLOYEES

Harassment on the basis of a protected characteristic is a violation of the federal anti-discrimination laws.  TSBVI has an affirmative duty, under Title VII, to maintain a working environment free of harassment on the basis of sex, age, race, color, religion, national origin and disability.  Claims of harassment based on characteristics other than sex are evaluated under the same legal standard as applied to sexual harassment claims.

42 U.S.C. 2000e, et seq.; 29 CFR 1601, 1606.8, 1604.11, 1625, 1626, 1640 Burlington Industries v. Ellerth, 524 US 742 (1998), Faragher v. City of Boca Raton, 524 US 775, (1998)

Harassment violates Title VII if it is sufficiently severe and pervasive to alter the conditions of employment. EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors. (1999), Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)

Title VII does not prohibit all verbal and physical banter in the workplace.  For example, harassment between men and women is not automatically unlawful sexual harassment merely because the words used have sexual content or connotations.  Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)

Hostile Environment

Verbal or physical conduct based on a person's sex, race, color, religion, or national origin constitutes unlawful harassment when the conduct:

  1. Has the purpose or effect of creating an intimidating, hostile, or offensive working environment;
  2. Has the purpose or effect of unreasonably interfering with an individual's work performance; or
  3. Otherwise adversely affects an individual's employment opportunities.

Pennsylvania State Police v. Suders, 542 U.S. 129 (2004); Nat’l Railroad Passenger Corp. v. Morgan; 536 U.S. 101 (2002); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); 29 CFR 1604.11, 1605, 1606

Quid Pro Quo

Conduct of a sexual nature also constitutes harassment when:

  1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; or
  2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual.

29 CFR 1604.11

Same-Sex Sexual Harassment

Same-sex sexual harassment constitutes sexual harassment.  Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)

HARASSMENT POLICY

The School should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate penalties, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.  29 CFR 1604.11(f)

Prohibited Conduct

Employees shall not engage in conduct constituting sexual or other illegal harassment of other employees.  Employees who believe they have been sexually harassed by other employees are encouraged to come forward with complaints.  School administrators shall investigate promptly all allegations of harassment of employees by other employees, and the designated school officials shall take prompt and appropriate disciplinary action against employees found to have engaged in conduct constituting sexual or other illegal harassment of employees.

Training

The School shall provide employee training, including information regarding the School’s policies and procedures to prevent employment discrimination as follows:

  1. Equal employment opportunity and training to prevent sexual harassment, including other forms of illegal harassment to all new employees within 30 days of hire at the New Employee Orientation program; and
  2. Refresher training in equal employment opportunity and sexual harassment to all employees every two years thereafter.

Each employee who participates in an initial or refresher training program shall be required to sign a statement verifying attendance at or completion of the training program.  This statement shall be maintained in each employee’s personnel file.

Texas Labor Code 21.010

CORRECTIVE ACTION

The School is responsible for acts of unlawful harassment by fellow employees and by nonemployees if the School, its agents, or its supervisory employees knew or should have known of the conduct, unless the School takes immediate and appropriate corrective action.  29 CFR 1604.11(d), (e), 1606.8(d), (e)

When no tangible employment action is taken, the School may raise the following affirmative defense:

  1. That the School exercised reasonable care to prevent and promptly correct any harassing behavior; and
  2. That the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, (1998)

COMPLAINT PROCEDURE

An employee who believes he, or she, has been, or is being subjected to any form of sexual or illegal harassment shall have the following options with respect to pursuing his, or her, complaint:

  1. The employee may bring the matter to the attention of his/her immediate supervisor in accordance with the School's grievance policy, DGBA, with the following modification:  The time line within which the employee must meet with his/her immediate supervisor may be extended from the 14 day period to a 30 day period when the grievance alleges sexual or other illegal harassment.  However, no procedure, or step, in that policy shall have the effect of requiring the employee alleging harassment to present the matter to a person who is the subject of the complaint.  If this process results in a finding of sexual or other illegal harassment, the employee who has engaged in  the illegal harassment shall be subject to disciplinary action in accordance with policy DCDB; or
  2. Within 30 days of the incident, or series of incidents causing the complaint, the employee may notify the Director of Human Resources who serves as the Title VII coordinator for employee issues.  The Director of Human Resources shall undertake such confidential investigative measures as are deemed necessary to determine whether illegal harassment has occurred, and shall inform the Superintendent of the results.  The Superintendent shall then determine and take appropriate disciplinary action against the employee who has engaged in sexual or other illegal harassment.

Harassment of unpaid interns

The School commits an unlawful employment practice if sexual harassment of an unpaid intern occurs and the district or its agents or supervisors know or should have known that the conduct constituting sexual harassment was occurring, and fail to take immediate and appropriate corrective action.  Labor Code 21.1065

Adopted:         1/27/06

Amended:       5/23/07, 11/20/15, 6/1/18

Reviewed:

PRESSION

A public official commits a Class A misdemeanor if, while acting in his or her official or employment capacity, the official intentionally subjects another to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.  Penal Code 39.03(a)

HARASSMENT OF EMPLOYEES

Harassment on the basis of a protected characteristic is a violation of the federal anti-discrimination laws. A district has an affirmative duty, under Title VII, to maintain a working environment free of harassment on the basis of sex, race, color, religion, and national origin.  42 U.S.C. 2000e, et seq.; 29 CFR 1606.8(a), 1604.11

Harassment violates Title VII if it is sufficiently severe and pervasive to alter the conditions of employment.  Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)

Title VII does not prohibit all verbal and physical harassment in the workplace. For example, harassment between men and women is not automatically unlawful sexual harassment merely because the words used have sexual content or connotations.  Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)

Hostile Environment

Verbal or physical conduct based on a person's sex, race, color, religion, or national origin constitutes unlawful harassment when the conduct:

  1. Has the purpose or effect of creating an intimidating, hostile, or offensive working environment;
  2. Has the purpose or effect of unreasonably interfering with an individual's work performance; or
  3. Otherwise adversely affects an individual's employment opportunities.

Pennsylvania State Police v. Suders, 542 U.S. 129 (2004); Nat’l Railroad Passenger Corp. v. Morgan; 536 U.S. 101 (2002); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); 29 CFR 1604.11, 1606.8

Quid Pro Quo

Conduct of a sexual nature also constitutes harassment when:

  1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; or
  2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual.

29 CFR 1604.11(a)

Same-Sex Sexual Harassment

Same-sex sexual harassment constitutes sexual harassment.  Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)

HARASSMENT POLICY

The School should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate penalties, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.  29 CFR 1604.11(f)

Prohibited Conduct

Employees shall not engage in conduct constituting sexual harassment of other employees. Employees who believe they have been sexually harassed by other employees are encouraged to come forward with complaints. School administrators shall investigate promptly all allegations of sexual harassment of employees by other employees, and the designated school officials shall take prompt and appropriate disciplinary action against employees found to have engaged in conduct constituting sexual harassment of employees.

Training

The School shall provide employee training, including information regarding the School’s policies and procedures relating to employment discrimination as follows:

  1. Equal employment opportunity and sexual harassment training to all new employees within 30 days of hire at the New Employee Orientation program; and
  2. Refresher training in equal employment opportunity and sexual harassment to all employees every two years thereafter.

Each employee who participates in an initial or refresher training program shall be required to sign a statement verifying attendance at or completion of the training program. This statement shall be maintained in each employee’s personnel file.

Texas Labor Code 21.010

CORRECTIVE ACTION

The School is responsible for acts of unlawful harassment by fellow employees and by nonemployees if the School, its agents, or its supervisory employees knew or should have known of the conduct, unless the School takes immediate and appropriate corrective action.  29 CFR 1604.11(d), (e), 1606.8(d), (e)

When no tangible employment action is taken, the School may raise the following affirmative defense:

  1. That the School exercised reasonable care to prevent and promptly correct any harassing behavior; and
  2. That the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, (1998)

COMPLAINT PROCEDURE

An employee who believes he, or she, has been, or is being subjected to any form of sexual harassment shall have the following options with respect to pursuing his, or her, complaint:

  1. The employee may bring the matter to the attention of his/her immediate supervisor in accordance with the School's grievance policy, DGBA, with the following modification: The time line within which the employee must meet with his/her immediate supervisor may be extended from the 14 day period to a 30 day period when the grievance alleges sexual harassment. However, no procedure, or step, in that policy shall have the effect of requiring the employee alleging harassment to present the matter to a person who is the subject of the complaint. If this process results in a finding of sexual harassment, the employee who has engaged in sexual harassment shall be subject to disciplinary action in accordance with policy DCDB; or
  2. Within 30 days of the incident, or series of incidents causing the complaint, the employee may notify the Director of Human Resources who serves as the Title IX coordinator for employee issues. The Director of Human Resources shall undertake such confidential investigative measures as are deemed necessary to determine whether sexual harassment has occurred, and shall inform the Superintendent of the results. The Superintendent shall then determine and take appropriate disciplinary action against the employee who has engaged in sexual harassment.

Adopted:          1/27/06
Amended:        5/23/07, 11/20/15
Reviewed:

DRUG-FREE WORKPLACE NOTICE TO EMPLOYEES

The School is not eligible to receive a grant from any Federal agency unless the School provides a drug-free workplace by publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violations of such prohibition, and by establishing a drug-free awareness program to inform employees about the availability of information and assistance from the School’s Employee Assistance Program.  41 U.S.C. 702

PROHIBITED CONDUCT

Texas School for the Blind and Visually Impaired employees shall not unlawfully manufacture, distribute, dispense, possess, use, or be under the influence of controlled substances, illicit drugs, inhalants, or alcohol on school premises, or while conducting school business, or engaging in school activities off school premises.  41 U.S.C. 702(a)(1)(A); 28 TAC 169.2

CONSEQUENCES FOR VIOLATION

Employees who violate this prohibition shall be subject to disciplinary sanctions. Such sanctions may include referral to drug and alcohol counseling or rehabilitation programs, or employee assistance programs, termination from employment with the School, and referral to appropriate law enforcement officials for prosecution. Compliance with these requirements and prohibitions is mandatory and is a condition of employment.  41 U.S.C. 702(a)(1)(A)(D); 28 TAC 169.2

NOTIFICATION REQUIREMENT

As a further condition of employment, an employee shall notify the Superintendent of any criminal drug statute conviction the employee incurs for a violation in the workplace no later than five days after such conviction. Within 30 days of the Superintendent's receiving notice from any source of a conviction for any drug statute violation occurring in the workplace, the Superintendent, or designee, shall either (1) take appropriate personnel action against the employee, up to and including termination, or (2) require the employee to participate satisfactorily in a drug and alcohol abuse assistance or rehabilitation program approved by a federal, state, or local health agency, law enforcement agency, or other appropriate agency.  41U.S.C. 702(a)(1)(B), 703

EMPLOYEE ASSISTANCE

TSBVI recognizes alcoholism and drug dependence as treatable and will cooperate with employees who recognize that they have an alcohol, or drug problem, and voluntarily request assistance. Such employees are strongly encouraged to avail themselves of the School's Employee Assistance Program.

Information about the Employee Assistance Program's free, confidential services shall be provided to new employees during Orientation, posted throughout the workplace, and made available in the Human Resources Department.

[This notice complies with notice requirements imposed by the federal Drug-Free Workplace Act [41 U.S.C. 702] and notice requirements imposed by the Texas Workers' Compensation rules at 28 TAC 169.2]

Adopted:         5/30/91
Amended:       8/26/94, 9/29/95, 1/26/96, 11/20/15
Reviewed:       1/28/00, 1/31/03