Education Law : Pennsylvania Education Law Lawyer & Attorney : Fox Rothschild Law Firm : Education Statutory and Regulatory Changes

 A new federal rule prohibiting commercial drivers from using a hand-held cell phone while operating a commercial truck or bus went into effect  on January 3, 2012.  For us educationally minded individuals, the next logical question becomes does this new ban on hand-held phone use also apply to school bus drivers?   The answer as it so often is: it depends.  It depends on the school bus driver’s employer.

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The Pennsylvania Department of Education is taking a hard-lined and politicized view on what has to happen to an employee who self-reports an old conviction for an offense listed in §1-111(e).  Although not supported by the statute, in a new Basic Education Circular issued December 12, 2011, PDE tells school officials that they have a duty to fire such an employee.

I am not taking a position here whether it would be better or not to fire those school employees, but the statute says what it says. If the legislature wanted such people fired, it would have had to say so in the statute. As you can see, this issue has me all fired up.  You can read more of my thoughts about it below.  (I usually try to keep my posts fairly short, but this one is a bit longer than my norm, sorry).

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Recently, our office has gotten many more questions regarding the legal requirements for contracting with custodial service, security service, and maintenance service firms under Pennsylvania law.

Custodial Services and Security Services.  Pennsylvania public school districts are not required to competitively bid, nor solicit quotes for, custodial services or security services.  Accordingly, school districts in Pennsylvania would not be required to solicit bids or quotes.  However, as a practical matter, a school district may want to know whether or not Marsden rates are competitive.  So, a school district may decide to solicit bids or quotes periodically to make sure that the rates are competitive for their geographic area.

Although custodial and security services do not need to be competitively bid or solicited via quotes, the services offered must be purely services and not cross over into the realm of the provision of supplies or the provision of construction services (as the purchase of supplies needs to be competitively bid/quoted under Section 8-801.1 of the School Code and construction needs to be competitively bid/quoted under Section 7-751 of the School Code).  For example, the custodial service agreement should not include the purchase of toilet paper, paper towels, cleaning supplies, and so on; and the security service agreement should not include the purchase or installation of security equipment; and so on.

Maintenance Services.  Pennsylvania public school districts are required to competitively bid and solicit quotes for maintenance work under Section 7-751 of the School Code.  Competitive bids are required for maintenance work greater than or equal to $10,000 (threshold will be increased to $18,500 effective January 1, 2013), and quotations are required for maintenance work greater than or equal to $4,000 but below $10,000 (threshold will be increased to $10,000 effective January 1, 2013).  There is an exception for maintenance performed by school personnel under Section 7-751(d) of the School Code, and such work does not need to be bid/quoted regardless of value.

The Pennsylvania Department of Education has provided some guidance on this issue, by posting a table of action required for non-reimbursable projects.  PDE has indicated that "MAINTENANCE BY DISTRICT PERSONNEL:  Care, cleaning, servicing, and refinishing surfaces, equipment, and property" does not require the solicitation of quotes or competitive bids.  PDE has indicated that "MAINTENANCE BY CONTRACTORS:  Care, cleaning, servicing, and refinishing surfaces, equipment, and property" does require the solicitation of quotes or competitive bids.  Finally, PDE has indicated that "SERVICE CONTRACTS:  Equipment operation, normal maintenance does not require the solicitation of quotes or competitive bids.  Thus, certain equipment, usually specialized equipment (e.g. elevators, HVAC systems, etc.) are often serviced by a third party contractor who specializes in their upkeep, and such preventative maintenance contracts do not need to be solicited by quote or competitively bid -- but repair/replacement of such equipment would need to be solicited via quotes or competitively bid.  Also, some public school districts do not solicit bids for groundskeeping or snow removal, as they view this purely as a service, and not maintenance work.  Most, do, however, voluntarily solicit quotes to make sure they are receiving competitive pricing for groundskeeping and snow removal.

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On Wednesday, November 23, 2011, the PA Supreme Court issued its decision on whether a school district has to pay for a student to attend a charter or cyber charter school’s kindergarten when the student would be too young to attend the district’s program.

The answer was a clear and unambiguous "no."

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I recently received yet another call from a current school employee (working at a school Fox Rothschild does not represent) who had a problem because of old criminal conduct.  Obviously, with all this continuing interest, it is a good topic for discussion.

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The Florida courts have come to the interesting conclusion that a BB gun is not a weapon and reversed the resulting school discipline imposed.  This could happen to you.

-- More below --

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No, this has nothing to do with any current high profile news.  Instead, this is to note that apparently, Pennsylvania's students are not as tough as we (and they) through they were.

Our students are injuring their brains playing sports.  In response, the Pennsylvania legislature passed a bill that says once a kid starts looking like he or she has a concussion, that student cannot play again until passed by a doctor.

More below.

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I was working on something or other yesterday when I got a call from a news reporter in the area.  No, I did not get quoted, and it was not to get my life story, but his questions about the amendments to the School Code's §1-111 got me thinking about the uselessness of the new amendment.  If any of the legislation's sponsors are reading this, I am sorry.

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Both- according to a recent Philadelphia Court of Common Pleas decision.

Judge Fox ,in the case of Anthony Burke v. Independence Blue Cross,  ruled that the PA Autism Insurance Act ("Act 62"), which went into effect on January 1, 2010, requires that if an insurance carrier chooses to cover a type of treatment or service for any other condition, then it must also cover that treatment or service for autism service disorders regardless of setting.  Meaning, even if a health insurance policy otherwise excludes services in schools, Act 62 overrides such an exclusion because Act 62  provides that insurers must pay for rehabilitative care, including applied behavioral analysis ("ABA").  While Judge Fox noted the overlap between IDEA and Act 62, he ultimately decided that the legislature, by creating overlapping statutes, purposely chose to pass some of the cost of ABA services to insurance carriers.  Of course the decision in Burke has no relevance when Act 62 does not apply, such as in the case of self funded healthcare programs. 

Not surprisingly, Independence Blue Cross filed their appeal on August 16, 2011. 

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After all the prior fighting over requests for W-2 information, the PA Commonwealth Court has finally taken a position on such requests.

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Thanks to Aaron Weems of Fox Rothschild's litigation (family law) division for noticing this item detailed in the Dallas Observer's blog. In truth, even though it is from the 5th Circuit, it is quite a good discussion of foundational requirements to prove student on student Sexual Harassment in school.  The cases it cites are almost exclusively from the U.S. Supreme Court rather than 5th Circuit matters.

So what was the case about? To quote Circuit Judge Smith:

[r]educed to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.

Hear, hear! You tell them Judge Smith!

The case, Sanches v. Carrollton-Farmers Branch Independent School District, can be read in full here.

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So long as they are not intentionally driving the tax collector out of business, and are not being otherwise "arbitrary or capricious," local taxing authorities -- such as PA School Districts -- are apparently allowed to pay their tax collectors however little they would like.

There was a case decided this week that examined this issue.  There, it noted that there have been cases where taxing bodies have gone too far, such as when the compensation was lowered to $1 for every tax bill paid with no rationale offered for the change.  On the other hand, the move has been upheld where the tax collector complained that the change would mean a 70% reduction in earnings.  In the particular case examined, the court said the compensation level was legal.  In reaching that decision the court indicated it will look to industry standards for what is reasonable and not at traditional practices.

So the take away from this is that the tax collector, the face of the taxing body, was likely never really appreciated by those being taxed.  Now, it appears that those receiving those tax dollars may not have to give much appreciation, either.

The PA Commonwealth Court case is Baker v. Central Cambria School District, 1872 C.D. 2010, and is available here.

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Apparently, if you want to complain that an agency in PA improperly redacted information from documents, you have to first pay for and receive the redacted documents.

Indiana University of Pennsylvania (IUP) received a request from one of its own journalism professors -- how's that for loyalty -- for documents belonging to IUP's foundation (a separate but contractually connected entity).  The foundation cooperated and copied the documents and sent them to IUP.  The copying charges were $118.  IUP then offered the documents to the requester, with various redactions, upon payment of the copying charges.  Instead of paying the copying charges, the requester simply appealed the redactions to OOR.

Although the OOR sided with the requester, the PA Commonwealth Court reversed and said that the request was properly denied.

In fact, the court said that until the requester actually paid the fee, the agency had an absolute right to deny access.  This was the case even though IUP notified the requester what it was offering and what was being redacted and that the appeal was based upon that notice.

The case is IUP v. Loomis, 1960 C.D. 2010, and can be found here.

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Today, the PA Commonwealth Court decided a case that further interpreted and gave a fairly concrete standard for deciding whether a Pennsylvania court may over-rule an employment arbitration award based on public policy.

The process the Commonwealth Court stated should be followed is this:

1. Determine the conduct leading to the discipline;
2. See if that conduct implicates a "well defined, [and] dominant" public policy.  This policy must be based on "laws and legal precedents and not from general considerations of supposed public interest;"
3. Figure out if the arbitrator's award "poses an unacceptable risk that it will undermine the implicated policy and cause the public employer to breach its lawful obligations or public duty, given the particular circumstances at hand and the factual findings of the arbitrator."

Because of the particular circumstances of this case, the Commonwealth Court found the arbitrator was within his authority when he reinstated the employee even after finding the employee had stolen money from a member of the public.

The case is City of Bradford v. Teamsters Local Union No. 110, 1804 C.D. 2009, and can be found here.

 UPDATE:

As an added note, if you wish to read about the original case that changed the standard to the one the Commonwealth Court applied here, you can read about it in a prior post from this blog here.

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