Proposed RTKL Amendments

The PA Legislature is considering some amendments to the current Right to Know Law (RTKL).  From my initial review of the proposed changes, I am not sure what to think of them.  They include some clarifying language as well as some more substantive changes, but mostly, they do not include the big items.

An ongoing problem, and one not addressed in the proposed amendments, has to do with charging for a search. A requestor can submit a request requiring enormous man-hours to fulfil, but the law does not provide any explicit means for the agency to charge the requestor for that search.  When this problem was brought up in an appeal, the OOR essentially said 'too bad.'  In that case, a sheriff's office was told that it had to manually search through every file in the office to see which had documents that were responsive. (See,  Carter v. Phila. Sheriff's Office, OOR Dkt. AP 2009-0175).

Do any other situations where this law is not entirely fair to agencies come to mind for you?  If so, email me or leave a comment.

OOR and the Non-Criminal Investigation Exception

In another setback for the Office of Open Records ("OOR"), the Commonwealth Court has ruled that records collected as part of a mandatory inspection and survey are covered by the "non-criminal investigation" exception of the RTKL. 

The OOR stated that this could make the "exception [one that] that swallows the rule" and that if these records were covered, then almost anything else could be, too.

The Commonwealth Court disagreed.  In finding that this exception applies, the court decided that there is no requirement for a triggering event -- such as a complaint -- which the OOR had made a prerequisite for this exception.  Further, the definition of "investigation" is now set by the court in this context:

Therefore, we conclude that, as used in Section 708(b)(17), the term “investigation” means a systematic or searching inquiry, a detailed examination, or an official probe

As it applied to this case, the court also decided that since all the records were gathered as part of the non-criminal investigation, that they were all covered by the exception.  This meant that no part of the record had to be redacted and released. 

Separately, the court chose not to address an argument concerning a second possible exception -- internal pre-decisional deliberation -- because it had already found the records were not availabile under the first exception.

The case can be found at Department of Health v. Office of Open Records


Your kid not going to school? Don't sue the Superintendent!

The PA Commonwealth Court published an opinion earlier this month involving a parent with skewed sense of perspective. The case concerned a situation where a district brought truancy charges against a student who had some issues with attending school.  There is a requirement to give notice to the parents prior to bringing such an action, and the district forgot to do so.  As a result, the truancy charge was dismissed by the court.

However, dismissal was insufficient for the parent and he decided to swear out a private criminal complaint against the Superintendent.  This determined parent was not deterred when the DA's office rejected the complaint as "legally insufficient" (meaning it did not allege facts sufficient to bring a criminal action).  He appealed to the local court.  After the local court examined the case and agreed with the DA's office, the parent appealed to the Commonwealth Court.  The parent represented himself throughout all these phases.

Because it was a legal analysis, both the local court of common pleas and the Commonwealth Court had to review the matter de novo and make their own legal conclusions from the facts offered.  Both courts found that a failure to give proper notice made the truancy prosecution unsustainable, but as a matter of law did not make the school officials criminally liable.

Interestingly, had the district opted to take some sort of disciplinary action against its own personnel, the Commonwealth Court indicated the district would have had jurisdiction to do so, but that was not the subject of the case.

The case is Commonwealth v. S. S. Smith.

The Pros and Cons of Early Bird Contracts

As the difficulty of negotiating contracts with teachers’ unions in elementary and secondary schools increases because of the overall economic conditions, many school entities believe that entering into an “early bird” contract negotiation will ultimately simplify the process and achieve the requested results in a much more expeditious and efficient manner. Though this is true in a number of circumstances, in many situations, the pursuit of an early bird contract can be fraught with problems for a school entity.

The obvious “pros” of entering into an early bird negotiation are as follows:

·                    An early bird contract gets the job of negotiating a labor contract done without expending a large amount of time, effort, and monetary and non-monetary resources in achieving the objective.

·                    It causes the school entity to focus early on its principal objectives in the process and eliminates a lot of discussion about what ultimately may be extraneous issues.

·                    An early bird contract (achieving a contract result in an expedited manner) can assist a school entity in formulating its budget for the upcoming school year since the teachers’ salaries and benefits are approximately 50% of the school entity’s entire budget.

·                    Entering into an early bird contract also fixes the increases that a school entity may have to expend over the next number of years and makes the predictability of future expenses known to both the school administration and its board.

·                    Entering an early bird contract can also address significant benefits increases expected by a school district earlier versus later, which could mitigate the cost impact of the needed changes far earlier by focusing in on the principal issues in dispute.

There are some obvious “cons” to the early bird process that need to be carefully examined before the parties enter into the process. Those “cons” are:

·                    There needs to be a fundamental trusting relationship between the association and the district. In the absence of that relationship, early birds generally do not work and could cause some permanent damage to the process.

·                    The parties also cannot have a large number of difficult issues on the table. Both parties need to be prepared to hone down their issues to a manageable amount and work out solutions that would work for both sides in the process.

·                    Often, the early bird process does not result in the best deal for either side (particularly, management). This is because of what I call the “early bird” effect. The “early bird” effect is the situation where individuals on both bargaining teams fold their hands and say “well, if we hold out a little bit longer or if we take the negotiations to the ‘brink,’ we will be able to get more.” This effect causes both sides to end up with a result that may not be as good as if the negotiations actually do go the “brink.”

·                    An attenuated negotiations process certainly reduces predictability in budgeting and also may force the school entity to go into a status quo position following the expiration of the collective bargaining agreement where it increases the possibility that the union can declare a status quo breach, raise the possibility of a lockout and unemployment compensation, and stultify educational innovation for the district while the negotiations go on.

·                    In the event the early bird process were to fail, a serious problem results. Through the early bird process, both sides “show their cards.” If it becomes apparent that the “cards” are too far apart, it makes negotiating following an early bird very difficult. There is a substantial risk following a failed early bird of negotiations breaking down very quickly and the likelihood of a potential work stoppage increases dramatically.

·                    In an Act 1 of 2006 environment in the Commonwealth of Pennsylvania (as well as in other states) where school entities are limited in what they can put on the bargaining table during the negotiations process, the likelihood of getting to an early bird where both sides get something in the process is severely limited. Unions like to go to an early bird process because it decreases the likelihood of public exposure to what is contained in their collective bargaining agreement and will often force a school entity to come up with more dollars than they would otherwise do if they do a lengthy study of the collective bargaining agreement.

·                    An early bird also does not address multiple issues and language problems that may have resulted over years of collective bargaining. The focus is usually on the issues of salary, benefits, and time. The early bird process avoids some language changes, many of which may be very important to the school entity.

On balance, I believe that unless a school entity has an extremely good working relationship with its union and unless a school entity is prepared to spend a few more dollars than it otherwise would have to spend in conventional negotiations and limits its issues significantly, the process, particularly in the current economy, is a problematic one.

School entities should go into an early bird process with their eyes wide open recognizing both the positives and negatives of the process.

The Myths and Facts Revolving Around Early Retirement Incentives

 In this era of limited financial ability on the part of educational institutions to fund their budgets, employee groups and/or unions frequently suggest early retirement incentive programs (ERIPs) as vehicles to save the school entity dollars.

Indeed, the initial logic is simple. If Employee A retires at an annual salary of $100,000.00 per year and is replaced by an employee with a $50,000.00 annual salary, the school entity will, on its face, save $50,000.00.

However, in order to actually measure a savings, an effective ERIP will induce an individual to retire who otherwise was not planning to retire in that year in question. If there is an inducement (usually in the form of actual dollars or retiree healthcare benefits for a defined period of time), those costs need to be subtracted from the savings.

The great unknown about ERIPs is what basis an employer can assert a savings takes place when the employer really does not know if the employee was going to retire anyway either in the first year of the ERIP or some year down the road. This becomes a pure “guestimate” on the part of the employer and no one can absolutely know for sure what was the primary motivating factor in securing an employee’s resignation.

If a unionized entity represents the employees who are subject to the ERIP, in many states, including Pennsylvania, the employers must bargain with the union the implementation and provisions of an ERIP.

A carefully drawn ERIP should address the following issues:

·                    Clear eligibility criteria of the employees.

·                    Amount of benefit to be received by the employee. It is important to note that if the employer gives the employee options to select for the ERIP it could run afoul of the constructive receipt rules under the Internal Revenue Code. An attorney who is skilled in understanding benefits and tax-related issues needs to review the ERIP to make certain that a constructive receipt issue is not there, which could cause an adverse tax consequence on the employee.

·                    The ERIP can establish a minimum number of individuals who need to provide their irrevocable retirement notice to the employer before a date certain in order for the ERIP benefit to be triggered.

·                    The ERIP should establish a window period for exercising the rights of the ERIP and the submission of the irrevocable resignation.

·                    If it does cover retiree healthcare, the ERIP should address what happens if the early retiree’s spouse still remains employed by the school entity or what would happen in the event that the early retiree were to die before all of the benefits under the ERIP were paid out. Some of the issues may be determined by Internal Revenue Code requirements, including but not limited to the ability of an early retiree to have his/her estate collect on such dollars if the monies are to go into a non-elective 403(b) plan upon retirement (this will be a problem).

·                    Multiple year payouts for early retirement payments may need to be booked as a liability for the school entity under various GASB requirements. Though ERIPs very often do save school entities money, it is usually not as large as that asserted by the union and the amount of the savings dissipates year after year.

·                    Prior to an ERIP being suggested, the demographics of the employees must be reviewed and further reviewed in accordance with either a state-administered pension program or a privately-administered pension program. In many situations, particularly when a state program is involved, an ERIP cannot be successfully fashioned because the employees have too great of an incentive to wait for the statutory pension plan benefits. If a school entity has a very young employee population/bargaining unit, all the retirement incentives in the world will not encourage enough individuals to retire to make the plan worthwhile.

·                    There are a number of downsides other than the economics of the situation. A school entity can find itself in a very difficult situation as the result of losing its top educational talent to an ERIP. These are often the educational leaders in the school, which would include but not be limited to department chairs, organizers of various programs in buildings, and the like.

·                    Though an ERIP can indeed be used to save a school employer dollars, more often than not, they do not generate enough savings to make them worthwhile.

·                    Though the tool of an ERIP should not be overlooked in the negotiations process, they have certainly lost their vogue and are not necessarily popular with the person authoring this blog because of the difficulty in actually calculating the savings from such an ERIP.