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Pulaski County Special School District v. Lewis

Court of Appeals of Arkansas, Division II

April 26, 2017

PULASKI COUNTY SPECIAL SCHOOL DISTRICT APPELLANT
v.
JANICE LEWIS AND PAM FITZGIVEN APPELLEES

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NOS. 60CV-14-3135, 60CV-14-3136] HONORABLE TIMOTHY DAVIS FOX, JUDGE AFFIRMED

          Bequette & Billingsley, P.A., by: George J. Bequette, Jr., and W. Cody Kees, for appellant.

          McDaniel, Richardson & Calhoun PLLC, by: Scott P. Richardson, for amici curiae.

          Mitchell, Blackstock, Ivers & Sneddon, PLLC, by: Clayton Blackstock, for appellees.

          KENNETH S. HIXSON, Judge

         Appellant Pulaski County Special School District (PCSSD) appeals from the Pulaski County Circuit Court's final judgments in favor of appellees Janice Lewis and Pam Fitzgiven. On appeal, appellant contends that the trial court erred when it ruled that the 15-minute physical-activity period in question was "noninstructional" duty under Arkansas Code Annotated section 6-17-117(2)(b) (Repl. 2013). We affirm.

         Appellees were certified teachers for all relevant time periods in the PCSSD. Lewis taught second grade, and Fitzgiven taught fifth grade. In 2003, the Arkansas Legislature passed a law that precluded school districts from assigning teachers more than 60 minutes a week of "noninstructional duties." Ark. Code Ann. § 6-17-117. Subsection (b) states that "'noninstructional duties' means the supervision of students before or after the instructional day begins or ends for students or for the supervision of students during breakfasts, lunches, recesses, or scheduled breaks." Ark. Code Ann. § 6-17-117(b) (emphasis added). Then, in 2007, the Arkansas Legislature passed a law that required kindergarten through sixth grade students to have 90 minutes of "physical activity" each week, which could include recess, in addition to another specific time period of actual "physical education" instruction with a certified teacher. Ark. Code Ann. § 6-16-132 (Supp. 2015).

         Prior to the 2012-2013 school year, PCSSD had "recess" built into the students' schedules in kindergarten through sixth grade. During recess, the students were supervised by paid monitors, not certified teachers. The teachers were permitted to grade papers, call parents, and plan and prepare for the next class. Starting in the 2012-2013 school year, PCSSD changed its policy. PCSSD eliminated the "recess" period and replaced it with a "physical-activity" period. Each period lasted 15 minutes. The main, if not only, difference between the previous recess period and the new physical-activity period was that during this new physical-activity period certified teachers, instead of the paid monitors, were required to supervise the children. Certified teachers were assigned on a rotating basis to supervise students during the physical-activity period. Because certified teachers were required to supervise students for an additional 15 minutes per day, the accumulation of that new supervision time allegedly ran afoul of and violated the 60-minute maximum-weekly supervision time as prescribed in section 6-17-117.

         In 2014, appellees filed separate but nearly identical complaints for monetary damages and for injunctive relief. Appellees alleged that the new physical-activity period was noninstructional and that because PCSSD required them to supervise the new physical-activity period, PCSSD was requiring them to perform more than 60 minutes of "noninstructional duties" each week in violation of section 6-17-117. Therefore, appellees requested damages for the time they had already expended in excess of their contracts and an injunction precluding PCSSD from assigning them more than 60 minutes of "noninstructional duties" per week in the future. Appellant generally denied the allegations, and a bench trial was held.

         Willie Morris testified that he was the director of standards for the Arkansas Department of Education and was responsible for ensuring that school districts are in compliance with all the state standards. He explained that students were required to have 60 minutes of physical education in addition to 90 minutes of physical activity each week at that time. The physical-activity periods were included in the students' "instructional day." Although schools were not required to have "recess, " a scheduled "recess" counted toward the 90 minutes of required physical activity and would be considered part of the students' 6 hours of minimum-required instructional-time per day. Lesson plans for the physical-activity period were not required.

         Janice Warren, the director of elementary education for PCSSD, testified that physical-activity periods were considered part of a students' instructional day. Therefore, she opined that appellees' claims should fail because PCSSD's schedule listed the fifteen minutes as a "physical-activity period"-not "recess." Warren further explained that she had instituted physical-activity periods instead of recess in 2012 because she was under the misunderstanding that recess would not count toward the required 90 minutes of physical activity per week, and she wanted to comply with all requirements. However, she admitted that the only difference between recess and a physical-activity period was whether a certified teacher was present with the students.

         After hearing oral arguments and after the parties filed posttrial briefs, the trial court found in favor of appellees, awarding Lewis $5, 840.99 and Fitzgiven $6, 095.98. Appellees filed a motion for a ruling on their requests for injunctive relief, and PCSSD filed a motion for findings of fact and conclusions of law. Subsequently, the trial court entered final judgments, awarding each teacher additional monetary damages for time incurred since the previous award and making the following additional relevant findings:

2. Beginning with the 2012-2013 school year, the Plaintiff has been assigned to supervise elementary children playing on the playground at her school for 15 minutes each school day or 75 minutes each week.
3. This 15-minute daily period of time was after the student instructional day began and before the student instructional day ended.
4. The 15-minute daily period of time was not part of the students' lunch period.
5. The Plaintiff's role during this time was to watch the students on the playground to make sure they were safe and the students were free to do what they wanted on the playground.
6. At the Plaintiff's school, this daily 15-minute period was "recess" as that term is used in Ark. Code Ann. § 6-17-117(b).
7. In the years before 2012-2013, non-certified employees of PCSSD supervised the students during the 15 minutes of recess time.
8. Sometime after the start of the 2012-2013 school year, PCSSD changed the title of this 15-minute period on the school duty schedules from "recess" to ...

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