Bills designed to protect public schools from liability so they will be more willing to share fields and gyms for kids’ sports leagues have run into surprising opposition: lawyers for the schools.
At issue in the General Assembly is an idea pushed by the American Heart Association to open up more recreational facilities as a way to fight childhood obesity. The identical measures, Senate Bill 12 and House Bill 382, require outside groups using school facilities to obtain at least $1 million in liability insurance coverage and agree to hold harmless the school’s governing authority.
Such joint-use agreements are common, said Glenn Brock, a partner at Nelson Mullins whose 25 years of practice have focused on representing school districts, including as Clayton and Fulton counties.
What’s new, he added, was the codification of these requirements.
"I’m unclear what the benefit of [the legislation] is, unless it’s seeking to force all school districts to use them," Brock said.
Senate Judiciary Committee Chairman Josh McKoon, R-Columbus, a lawyer who is sponsoring SB 12, said he agrees with the American Heart Association that school facilities, particularly in rural areas, are underutilized.
"The problem is that while schools enjoy a heightened level of protection against liability of injuries that occur to children during school hours or during school events, they don’t enjoy that for after-school activities that are not school sanctioned," McKoon said. "School districts’ legal counsel, wisely, is advising school board members that they would be running a risk to open up a school’s facilities to these groups."
But Phillip Hartley, managing partner at Harben, Hartley & Hawkins, which represents 120 of the 180 school districts in Georgia, said McKoon is mistaken. Hartley also suggested the bills may be superfluous because school boards already can enter into agreements with outside groups to use their districts’ facilities and have policies that require those groups to have liability insurance.
Hartley added that what actually may make school boards hesitant to enter into recreational use agreements is that they don’t want to grant long-term recurring usage to an outside group that may tie up school property and conflict with future school functions.
"When I read the act, it appeared to me that the law would not do anything that school districts could not already do," Hartley said. "In fact, it frames the liability issue different from immunity, which I consider a bad thing."
The state Constitution grants the state and all of its governmental entities, including school districts, sovereign immunity, which means they cannot be liable for damages in traditional tort claims, said Hartley.
The legislation would reframe the liability standard so that a school district could be sued if a plaintiff could prove "by clear and convincing evidence" that injuries or damages were caused by the "gross negligence or willful or wanton misconduct" by the school’s governing authority.
"It suggests there are circumstances under which [school districts] can be sued, and I believe the Constitution says there are not," Hartley said.
Brock agreed. "When you put a school district into the state tort framework, you could be running the risk of causing the school to lose its immunity," he said.
Chastity Mitchell, regional vice president of the American Heart Association, said a survey conducted by the association showed that schools cited fear of being sued as the No. 1 reason they choose not to open their facilities. The American Heart Association has successfully pushed for the passage of similar bills in Tennessee and Louisiana, Mitchell said.
Bill Clark, the chief lobbyist for the Georgia Trial Lawyers Association, said his group has vetted the bills. "He [Sen. McKoon] brought it over to us over a year ago and has been receptive to our input so as to balance properly the interest in getting kids out and active after school with the interest in making sure that kids are not exposed to dangerous property conditions that could harm them," Clark said via email.
"Placing the liability on the entities that would enter into these joint use agreements—and not letting them pawn that liability off on others—will incentivize them to make sure the schools they’re doing business with are properly maintaining their facilities so that kids will have safe places to engage in healthy activities," Clark said.
SB 12 and HB 382 are identical. Both are before the House Judiciary Committee.
Even though McKoon’s bill has already passed the Senate, the House Judiciary Committee is moving forward with HB 382, which is sponsored by Rep. Jay Powell, R-Camilla. Powell’s bill garnered approval from a subcommittee on Tuesday.
Powell said he believes his bill is moving forward in the House to give the initiative the best chance of passing the General Assembly.
"I think the heart association got [the bill] dropped in both the House and Senate because sometimes things move faster in one chamber," Powell said. "Sometimes, one bill may get held up in the Rules Committee."
When asked why his bill would have a better chance getting through the Rules Committee than McKoon’s, Powell responded, "I’m not touching that."
McKoon has butted heads with House Speaker David Ralston, R-Blue Ridge, over ethics reform. McKoon sided with the Tea Party and Common Cause Georgia, which filed a complaint in 2011 regarding a lobbyist-funded trip Ralston took in 2010 and proposed a $100 lobbyist gift cap. The Senate adopted the gift cap this year into its rules.
Ralston, who also is a lawyer, has proposed legislation that would prohibit most lobbying gifts, such as expensive meals and sports tickets.
Powell’s bill, HB 382, also has been amended to exempt the state and its division from including a hold harmless clause in any joint use agreement it may forge with a school board. The amendment was requested by the state attorney general because the state cannot grant hold harmless clauses, said Powell.