Davis & Kuelthau’s School Law Practice Group is one of Wisconsin’s largest and most experienced school law practices. We understand that a school district is a complex institution with many distinct responsibilities, and provide services that include general school law, labor and employment, public finance, employee benefits, special education, and other services tailored to fit the needs of schools around the state.
The group marshals the firm’s wealth of experience and information to provide legal services that are proactive, informed, and designed to deliver results. School attorneys from all six offices of the firm meet monthly to discuss recent legal developments affecting Wisconsin school districts, to formulate strategies to support school district clients’ needs and initiatives, and to address emerging school law trends. We also provide outreach services to school districts through our Breakfast Briefings, School Law Solutions publications, regular client alerts, and through inservicing and programming for individual districts and school district groups. Most importantly, we represent and defend school districts with a comprehensive understanding of their unique needs and their responsibilities to the public and children that they serve: we strive to succeed for our school district clients and their constituents.
General School Law
Firm attorneys provide expert representation in a variety of areas important to school district clients, including pupil discipline, annual and special meetings, open meetings, public records, pupil discrimination, school district government, pupil transportation, school district reorganization, pupil attendance, open enrollment, and pupil records.
At Davis & Kuelthau, we understand the unique needs of and challenges facing Wisconsin’s school districts. School districts are an employer, a workplace, a social services agency, a financial institution, and a governmental body, as well as responsible for providing public education.
If you would like additional information regarding our School Law practice, please contact Kirk Strang at 608.280.6203 or kstrang@dkattorneys.com.
Labor and Employment
Labor & Employment Practice Group
We are one of Wisconsin’s leading labor and employment practice groups, representing school districts in collective bargaining, grievance arbitration, interest arbitration, discrimination complaints, unit clarification proceedings, prohibited practice complaints, human resources policies, accommodation plans, sexual harassment investigations and complaints, and other labor and employment issues.
Special Education
The firm has one of the largest legal teams in Wisconsin devoted to representing school districts in special education matters. Firm attorneys represent school districts in a wide range of special education issues, including IEP meetings and processes, due process hearings, IDEA complaints, OCR complaints, health care issues, and treatment of students with disabilities under Open Enrollment laws.
Special Education Services
Our School Law Group has a long history of advising Wisconsin school districts on compliance with special education law. We have one of the largest legal teams in Wisconsin devoted to the representation of school districts in special education matters. Our team of attorneys practicing in this highly specialized area has grown to meet the needs of our clients. Our team success is due to our approach of providing advice on sensitive special education issues in a manner that combines sound legal analysis with practical considerations such as student and staff safety, public perceptions and school district standards.
Compliance Issues
The special education team provides specialized legal counsel to numerous Wisconsin school districts regarding compliance with Individuals with Disabilities Education Act (IDEA), Chapter 115 of the Wisconsin Statutes, and Section 504 of the Rehabilitation Act.
Compliance assistance includes guidance on issues such as:
Individualized Education Program (IEP) meetings and process, including procedural and substantive rights for both the student and the district
Student discipline and the interplay with the legal requirements for students with disabilities
Due process hearings, including necessary appeals to Federal court and the 7th Circuit Court of Appeals
IDEA Complaint investigation and representation before the Wisconsin Department of Public Instruction (DPI)
Access to pupil records under both state and federal law, to include special issues related to students with disabilities
Health care matters involving students with disabilities, including representation before the Wisconsin Department of Regulation and Licensing, Medicaid compliance, and Health Insurance Portability and Accountability Act compliance
Board policy, student handbook, athletic code development related to students with disabilities
Treatment of students with disabilities under Wisconsin’s Open Enrollment and Code of Conduct laws
Davis & Kuelthau’s special education team members have successfully mediated numerous special education cases through the Wisconsin Special Education Mediation System (WSEMS), represented districts in due process hearings, and successfully litigated court appeals of due process hearing decisions for numerous issues, including the removal of dangerous students, the level of “inclusion” in regular education, and requests for compensatory education.
Our legal advice has allowed school districts to successfully avoid costly litigation by consulting in advance, and when litigation is unavoidable, to prevail in a cost effective manner that includes practical consideration of the day-to-day issues facing administrators and school boards.
For more information about how Davis & Kuelthau, can provide special education services to your school district, please contact Mary Gerbig at 920.431.2242 or mgerbig@dkattorneys.com.
Employee Benefits
The firm’s employee benefits practice group has unsurpassed experience providing counsel to Wisconsin school districts in areas that include early retirement programs, tax sheltered annuities, retiree health benefits, WRS issues, Section 125 plans, and administrator benefit plans.
Employee Benefits Services
Davis & Kuelthau, history of representing Wisconsin school districts has allowed our Employee Benefits Team to develop unsurpassed expertise with employee benefit and compensation matters that Wisconsin school districts regularly face.
Our experience and the breadth of our firm’s school law practice have allowed us to deal with these issues more regularly and in more detail than other law firms. While other, even larger firms have employee benefits departments, their focus and expertise involves predominantly clients that operate in the private sector. Our familiarity with school law generally and the unique benefits issues that school districts face allow us to bring comprehensive, informed counsel to bear for all of our clients.
Early Retirement Programs
Wisconsin school districts offer a variety of early retirement programs, including cash stipends, extended health care benefits and other incentives. These early retirement programs present a number of unique legal and financial issues that require experienced legal advice.
Tax Consequences
We regularly advise school districts with respect to the tax consequences associated with their early retirement programs. Over the last several years, we have had to revise or reconfigure almost every district’s cash incentive in order to obtain the tax consequences that school districts and employees desire. Despite this, we continue to see situations where school districts unknowingly offer non-tax-preferred benefits. School districts that offer these benefits and their employees face significant adverse tax consequences: one Wisconsin county recently settled a dispute with the Internal Revenue Service by agreeing to pay $500,000 and agreeing to modify its benefit in the future.
Age Discrimination
Many school districts continue to offer early retirement programs that terminate health coverage when an individual turns 65 or becomes eligible for Medicare. We have represented dozens of school districts with respect to EEOC investigations in this area. We have also provided expert testimony directly to the EEOC regarding this matter and, as a result, we were able to persuade the EEOC to cease all of its active investigations concerning this matter. In addition, we played a pivotal role in assisting the EEOC in drafting new proposed regulations to more clearly allow these types of arrangements.
Retiree Health
Many districts offer some retiree health benefits, either as a part of an early retirement program (as discussed above) or as part of a collectively bargained program. As a result of recent changes in the Government Accounting Standards (GAS) rules, school districts will soon be required to account for any unfunded future health obligations. This change could result in many school districts having their bond rating downgraded significantly. As a result, many school districts are seeking to change the way that they provide and account for these benefits. We can often use this opportunity to also implement changes that will significantly reduce or limit the district’s future liability for these benefits.
Administrator Benefits
We routinely advise administrators and districts regarding administrator compensation programs. Our breadth of experience allows us to provide both administrators and districts with information concerning current trends and developments. We are also able to work with all involved parties to structure those benefits to secure favorable tax consequences and to ensure that districts comply with the administrator compensation limits under Section 118.245 of the Wisconsin Statutes.
HIPAA/FERPA Privacy Rules
We have counseled many school districts with respect to their privacy obligations under the federal Health Insurance Portability and Accountability Act. In addition, school districts need to carefully understand the relationship between HIPAA and FERPA (which applies to student records and information) in order to avoid additional administrative burdens or potential legal liabilities.
Cash-in-Lieu of Benefits
Almost all of our school district clients continue to offer some kind of cash or TSA benefits to individuals who forego or who are not eligible for district-provided health benefits. If these benefits are not properly structured, all district employees could be taxed on some or all of the health benefits that they receive. If the district does not comply with all of these requirements, it may also be responsible for failing to withhold income taxes or for paying FICA on the health benefits. We have developed several mechanisms that districts can use to continue to offer these benefits.
WRS Matters
Because most of our school district clients participate in the Wisconsin Retirement System, we have significant experience advising districts with respect to a variety of matters related to WRS rules and benefits, including: disputes regarding eligibility, analysis of covered compensation, ability to purchase additional benefits, etc. We have also represented clients in administrative hearings before the Department of Employee Trust Funds.
We work together with a number of districts to ensure that their TSA plans and eligible deferred compensation plans (also known as 457 plans) continue to comply with changing legal requirements. We have developed a variety of form documents and employee communications material to assist districts with their obligations in this area.
Our Employee Benefits Team helps school districts avoid costly litigation, adverse tax consequences and accounting penalties. We respond to regulatory changes and prevent problems before they occur. Most importantly, we identify and provide benefits solutions for Wisconsin school districts. By staying proactive, we provide value added service for all of our school district clients.
For more information about how Davis & Kuelthau, s.c. can provide employee benefits services to your school district, please contact Andrew Bezouska at 608.280.6205 Kelly Kuglitsch at 414.225.1417.
Public Finance
We provide services for school district clients in a variety of public finance transactions, including referenda, short-term borrowing, general obligation notes and bonds, bonds or notes for unfunded pension liabilities, and tax-exempt equipment leases.
Public Finance Services
Davis & Kuelthau, has served as bond counsel to Wisconsin school districts since 1991. Since that time, members of the Public Finance Section have documented and issued opinions with a significant number of the following types of borrowing:
Tax and Revenue Anticipation Notes (“TRANs”)
TRANs, also know as short-term cash flow borrowings, are issued by school districts to assist in the management of their cash flow needs. TRANs are typically issued during the months of August through December, although they can be issued later in the school year depending upon the district’s cash flow needs. The cash flow borrowing program offered by Davis & Kuelthau, s.c., is a competitive bid program which requires relatively little work on the part of the school districts, as we prepare all the documents needed to issue the TRANs. At Davis & Kuelthau, s.c., we also assist school districts that prefer to work with their local banks, using Wisconsin Bankers Association preprinted forms for their TRANs, and districts that borrow for short-term cash flow needs using a line of credit.
General Obligation Notes and Bonds (“G.O. Notes and Bonds”)
School districts typically issue G.O. Notes and Bonds for new construction (including additions), renovations, and remodeling and the acquisition of equipment and furnishings for their school facilities. Generally, G.O. Notes and Bonds can be issued only after they have been approved by the district electors at a referendum and G.O. Bonds can be sold only at a competitive public sale. G.O. Bonds must be repaid within 20 years of their issuance whereas G.O. Notes must be repaid within 10 years. As bond counsel, Davis & Kuelthau, s.c., prepares the necessary resolutions and closing documents, reviews the proceedings of the district and works with the district’s financial advisor, the purchaser and the bond insurer, for insured obligations, in order to issue its unqualified legal opinion regarding the validity, enforceability and tax-exempt status of the G.O. Notes or Bonds.
General Obligation Refunding Notes and Bonds (“G.O. Refunding Obligations”)
When interest rates decline, many school districts take advantage of the opportunity to refund their outstanding G.O. Notes and Bonds by issuing G.O. Refunding Obligations. The issuance of G.O. Refunding Obligations does not require the approval of the district’s electorate and their sale can be negotiated with an underwriter rather than competitively bid. The role of bond counsel for G.O. Refunding Obligations is similar to that for G.O. Notes and Bonds.
Bond (or Note) Anticipation Notes (“BANs”)
BANs are short term obligations issued by school districts to provide interim or temporary financing in anticipation of receiving the proceeds of a long-term, permanent obligation that the district is authorized and covenants to issue in the form of G.O. Notes or Bonds. BANs are not considered debt for Wisconsin debt limit purposes and can be issued on the same federally tax-exempt basis as the G.O. Note or Bond which will be issued to refund the BAN. BANs can be sold at a negotiated sale and used when funds are needed but long-term market conditions are not favorable to the district.
Bonds or Notes Issued to Finance a District’s Unfunded Pension Liability
School districts can permanently finance their unfunded pension liability by issuing G.O. Notes or Bonds. For federal tax law purposes, a district’s unfunded pension liability is not considered debt and therefore cannot be financed on a tax-exempt basis. Nonetheless, many districts have found it advantageous to pay off their liability with the proceeds of taxable G.O. Notes or Bonds when the interest rate on such obligations is lower that that currently charged by the Wisconsin Retirement System. This type of financing typically occurs late in the calendar year, in time to pay off the liability by the subsequent January 31.
Tax-Exempt Equipment Leases
Instead of purchasing equipment outright, some districts will enter into a lease-purchase agreement with a leasing company to acquire such equipment. The advantage to the district of this type of financing is that the deal can be structured as a federally tax-exempt obligation (with a lower interest rate) while not being treated as debt under Wisconsin law and not being subject to the approval of the district’s electors at a referendum.
Over the years, the Public Finance Section of Davis & Kuelthau, s.c., has also assisted school districts in preparing for various referenda. For example, most construction projects can be financed with the issuance of G.O. Notes or Bonds only after the related resolution has been approved by referendum. Similarly, when districts determine that they need include amounts in excess of revenue limits in their budget, the tax levy to support such expenditures must be approved by the voters at a referendum. The Public Finance Section of Davis & Kuelthau, s.c., can help school districts make sense of and comply with the statutory requirements of holding a referendum.
For more information on how Davis & Kuelthau, can assist your school district manage its financing needs, please contact Attorney Thomas Rohan at 920.435.9378 or trohan@dkattorneys.com.
Construction and Real Estate
Like the communities they serve, Wisconsin's school districts come in all shapes and sizes. But one element common to all school districts is the challenge of planning for and providing appropriate facilities for their student populations, all against the backdrop of shrinking budgets and that school officials may be unfamiliar with the construction process and the many related and complex issues which often arise. Davis & Kuelthau, Construction and Real Estate Practice Group is a team of lawyers and legal professionals whose focus includes providing legal counsel, support, and guidance to Wisconsin's school districts and their construction projects.
Regardless of whether your district is experienced or inexperienced with the construction process, is at the beginning or end of a project, or in the midst of a construction related lawsuit, our Practice Group is able to assist you with your project and meeting your goals.
Construction and Real Estate Services
1. Pre-Construction Planning:
Orientation to the construction process
Project delivery method, such as traditional Design-Bid-Build or Design/Build.
Multiple Prime: based upon project budget and/or district's construction experience.
District's desired level of involvement in actual construction management, risk tolerance and other relevant factors.
Core partners, such as architect, general contractor, design/builder, and construction manager.
Construction contract negotiation and drafting, including review and negotiation of AIA and other standard form construction industry contracts used by many Wisconsin architects and general contractors
2. Guidance and Counsel During and Post-Construction
Counsel and guidance with contract compliance, including change order and differing site condition issues
Defense of contractor and subcontractor payment and lien claims, including delay, acceleration, and suspension of work claims
Prosecution of design and construction defect claims
Prosecution of design professional negligence and malpractice claims
Defense of construction site injury claims
Litigation of construction disputes in state and federal courts, including review of claims to determine plaintiff's compliance with Wisconsin's pre-suit notice-of-claim requirement
Alternative dispute resolution, including mediation and arbitration
In addition, Davis & Kuelthau can also help you arrange for financing of your project through our Public Finance team. We can also help you obtain the property you may need for your project.
For more information about how Davis & Kuelthau, s.c., can provide construction and real estate services to your school district, please contact Timothy Kronquist at 414.225.1475 or tkronquist@dkattorneys.com.