The Third Circuit Court of Appeals Clarifies the IDEA Statute of Limitations

The Third Circuit Court of Appeals has put to rest the issue of how to apply the statute of limitations added to the IDEA in 2005 to claims that existed prior to its addition.  In the case of Steven I v. Central Bucks School District (3d. Cir. Aug. 18, 2010), the Court explained that the statute of limitations in the IDEA applies to all claims, including those that existed prior to the addition of a statute of limitations to the IDEA in 2005.

The Court, noting the numerous conflicting opinions among the District Courts of Pennsylvania on this issue, explained that the IDEA created a statute of limitations, but then gave a seven month grace period before it went into effect to allow litigants to bring claims that would become untimely under the new statute of limitations. The Court explained that retroactive changes to a statute of limitations are permissible so long as potential plaintiffs could reasonably be expected to learn of the change in the law and act to protect their ability to bring claims. The Court found the seven month grace period under the IDEA  was sufficient to do so.  


As a practical matter, this means that claims based on the IDEA from prior to July 1, 2005, are essentially dead, unless one of the two exceptions to the statute of limitations in applicable. Interestingly, there remains a dispute among the District Courts in Pennsylvania as to how to apply those exceptions and that issue was not addressed in Steven I. Perhaps the next case out of the Third Circuit will clarify that issue. 

A Mandatory Exercise for Pennsylvania School Districts Commencing Bargaining with Their Teachers' Unions

By: Jeffrey T. Sultanik, Esquire, Chair of the Education Law Group, Fox Rothschild LLP

Those Pennsylvania school districts that have aid ratios of less than .4 (the wealthier school districts in the Commonwealth of Pennsylvania) are looking at historically low Act 1 indices for the next few years. Indeed, districts that have aid ratios in excess of .4 are also facing historically low numbers.

For the 2010-2011 school year, the base Act 1 index is 2.9%. For 2011-2012, the Pennsylvania Association of School Business Officials has opined that based upon the statewide average weekly wage and the employment cost index that one should expect an Act 1 index of 1.4%.

Putting aside the PSERS crisis that our State Legislature has yet to satisfactorily address, districts that are currently engaged in negotiations or soon to engage in negotiations should perform some relatively easy calculations to determine the amount of available dollars that can be spent on collectively bargained contracts.

Salary and healthcare benefit packages are not subject to any exception under Act 1. Because healthcare benefits have consistently exceeded the Act 1 index levels (as well as current CPI numbers that are hovering at the 1.2% level), districts that enter into collective bargaining agreements that substantively exceed their applicable Act 1 index will find themselves over time eating into their available fund balances, to the extent they exist.

A district should calculate the amount of dollars that a 2.9% Act 1 index would generate for the 2010-2011 school year and how much a 1.4% increase would generate for the 2011-2012 school year. If you are considering a collective bargaining agreement that extends beyond that, expect a low Act 1 index of the 1.4%-1.5% range for the next one or two years because of the lagging statistical data the comprises the Act 1 index.

Then take that available number and reduce it by about 50%. In most districts, the salary and benefits on your teachers’ contract represent approximately 50% of the tax effort/budget of the district. That number should yield the target number that a district should negotiate toward in order to enter into a fiscally prudent contract.

In those districts that I have worked with the Business Office to do this calculation, at least for the first two years of the contract, the index is often not enough to cover salary step movement alone. The numbers are sobering and is indicative of the difficulty that many districts are now having trying to enter into a collective bargaining agreement with their teachers’ union, particularly when the cost of healthcare benefits continues to escalate at sometimes a geometric level.

Teachers’ unions in the Commonwealth of Pennsylvania have not vocalized their understanding of this situation though some PSEA UniServ Representatives and Federation Representatives have acknowledged the significant consequences of the low Act 1 index on the ability of a school district to fund a labor contract.

If the Pennsylvania State Legislature intended the Act 1 of 2006 legislation to make it difficult, if not impossible, for a school district to enter into a multiple year labor contract with its teachers’ union, the Legislature has succeeded without amending Act 195 or Act 88 of 1992.

Unless a school board engages in this exercise, they cannot determine the scope of the difficulty of entering into a multiple year labor contract with its teachers. If a school district does this and does not have substantive financial reserves, they will find themselves over the next few years substantially cutting back on program, furloughing staff, and changing a lot of the “value-added” aspects of their teaching program that originally caused individuals to settle in their school districts.

Going through this exercise will undoubtedly yield profound results in a very difficult time. Things just don’t seem to be getting better.


CCP Lackawanna and the Tax Collector

A reader asked me in the context of my prior article dealing with CCP Lackawanna v. OOR (see item from August 17) how that case might apply to the tax records in the hands of the Tax Collector.  It doesn't.  In fact, the CCP Lackawanna case is the exact opposite of that.

For the benefit of those unaware of this, the OOR has taken the position that where a Tax Collector performs his statutory duty on behalf of an agency, it remains the agency's duty to get his records and turn them over upon request.  This despite the statute making the Tax Collector exempt from the RTKL.  The OOR's position was successfully challenged in the Montgomery County CCP with the case on appeal to the Commonwealth Court.  (I wrote about this situation in an alert to the firm's clients back in January 2010 before Mr. Honaman took his appeal on behalf of Signature Solutions. CW Ct. argument is now scheduled for September 2010, so stay tuned).

Thus, where the CCP Lackawanna case involved judicial records (private non-RTKL records) in the hands of an agency with a duties under the RTKL, the Tax Collector situation involves a request for arguably public records sent to an agency that does not have the records to turn over. 

So I would not recommend relying upon the CCP Lackawanna case for issues dealing with the Tax Collector's records. For that issue, we will have to await the ruling of the courts.  That being said, were I deciding the case, I would side with Judge Moore (of Montgomery County CCP) and point out that the records the Tax Collector is required to turn over to a taxing agency is limited both in extent and timing and only make an agency turn over what it has actually received.

Executive Sessions for Litigation under the PA Sunshine Act

In what should have been an obvious decision, the PA Commonwealth Court recently gave guidance to public bodies holding executive sessions related to litigation matters.  The case was Trib Total Media, Inc. v. Highlands School District, 1588 C.D. 2009 (Pa. Cmwlth.).

The facts were fairly odd.  The Highlands School District's board held an executive session to discuss tax assessment litigation.  This is a perfectly legitimate use of an executive session.  What the court found made it not so legitimate was that in addition to their attorney, the Board invited the owner of the tax parcels -- otherwise known as the adverse party.

A board is supposed to hold all meetings in the public eye so that the public can remain informed on the business of the board.  An executive session excludes the public and is permitted only in limited situations.

The purpose of an executive session for litigation is to discuss strategy and facts that, if they became known to the adverse party, could impact on the District's position during that litigation.  A board is permitted to invite others into an executive session if doing so will further the aims of such an executive session, but as you see there are clearly limits on who can be invited when the board is discussing litigation.

In this case, what the court found was that by including the adverse party in the executive session, the board made it pointless (and a Sunshine violation) to exclude the public.  The court recommended that if the board had simply wanted to negotiate, it should have followed normal precedures for it, by giving a negotiator parameters and authority to meet with the tax parcel owners.  Discussions in executive session on the negotiations toward settlement would then have been permissible.

When access and control will not render a record public

The Commonwealth Court recently issued a decision in the Court of Common Pleas of Lackawanna County v. the Pennsylvania Office of Open Records and Lackawanna County, No. 35 M.D. 2010 (Pa. Cmwlth.). Essentially, this case indicated that where an agency has access to a record as a result of its support of a second agency, that record will maintain its status and exclusions as though it was only held by the second agency.

The court found that the requested records were judicial records (normally exempt from the RTKL) but they were housed on the County's computer server, giving the County access to and control over the records.  The OOR had decided that meant that a requester could gain access by directing a request to the County.  The Commonwealth Court disagreed.

Essentially, the court decided that the County was providing a support function to the judicial agency and that the County’s ability to access records as a result of that support did not convert the judicial agencies documents into County documents.

Just because the County provides logistic support to the courts does not mean that every record stored on what the County provides as part of its function to support the court makes it a county record – those records always remain the records of the court.

The court went on to point out that a different finding would lead to an absurd result where one could obtain non-public documents of the court simply by directing the request to the county.

This reasoning applies equally well to §708(b) exceptions. Thus, the §708(b) exceptions that would apply to a supported agency will continue to be effective on the records in the hands of the supporting one. An example of interest to some agencies might be where they contract with another agency to analyze or gather data and issue reports used for negotiations.