Pay to Play

Illinois is a state whose constitution specifies it offers a "free education."  In looking through various cases from around the country, this is often what the courts examine when deciding if a school may charge extra fees for school services.  While those cases are sometimes as minimal as an activity fee, they have even included districts charging for certain core items such as textbooks. As a "free education" state, Illinois was squarely within the "no pay-to-play' camp.  Nevertheless, in a recent and (so far) unpublished appellate court decision, Illinois permitted the addition of a $350 fee for driver's education.

I imagine that as the financial pinch continues to be an issue that there will be more and more programs for which districts around the country will seek contribution from participants.  If the courts in "free education" states permit it, how much more do you imagine those without that provision will allow.

Of note, Pennsylvania's constitution does not specify that districts must offer a "free education" and there are some districts in PA that charge for some non-core and extra-curricular activities already.

The Illinois case can be found now at Sherman v. Township High School District 214, 2010 WL 3834544 (sorry, although it may be available through some free service, I could not find a link to it except through westlaw).

How to not release financial information about a person

What is one to do when one cannot redact actual financial information for a person?  According to the Commonwealth Court, you can instead redact the person's name and address.

Right now, there is still a lot of hand-wringing over the release of people's home addresses held by an agency.  The current state of the law is unsettled and neither Pennsylvania's Commonwealth nor Supreme Court has explicitly decided if there are any constitutional protections for that information. While we all wait for a definitive statement one way or the other, however, it is worthwhile to note that one of those courts has already sanctioned a situation where one may redact a person's home address: Prevailing Wage Certifications.

The case is DCNR v. OOR, 1165 C.D. 2009 (May 24, 2010).  In that decision, the court agreed that a prevailing wage certification clearly contains financial information, which would normally be subject to redaction.  However, the purpose of such a certiciation is to allow the public to verify that prevailing wages (as set by the Secretary of Labor through the Prevailing Wage Act) are being paid.  There would be little point in releasing contractor's wage certification with all the wage information redacted, but that would be what the RTKL permits.

What the court ended up saying was that redacting an employee's name and address off the certification has the effect of making the financial information anonymous.  Once it is made anonymous, it is no longer a single person's financial information and can be released.

In addition to the Department of Conservation and Natural Resources (DCNR), the other Pennsylvania agencies aligned against the position reached by the Office of Open Records (which had ruled the wage certifications should have been released without any redactions) were the Office of the Budget and the Department of General Services.

A reminder about redactions: where a requester asks only to view records but does not request copies, it is permitted to charge for copies anyway if the agency will need to make copies in order to make redactions.  If it chooses to charge for those copies, the agency should get its payment prior to giving access.

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An injunction to shield public documents

When an agency in Pennsylvania gets a right to know request, it has a couple of options.  Obviously, it can grant the request or deny the request.  The third, less obvious choice, is to realize that in many cases the agency "does not have a dog in the fight" and the person who does may be more interested in footing the bill for keeping information private.  In those cases, the agency may choose to simply notify that person (or corporation or other entity) of the request, and give that person a chance to bring proof of an injunction or some other court order stopping the agency from making the release.

That is what happened in a case just decided by the Pennsylvania's Commonwealth Court that ended up pitting Philadelphia's police union against the Philadelphia Newspaper LLC. The fight concerned a request for "all arbitration awards, including written decisions by arbitrators, pertaining to police officers ...."

The Philadelphia court issued the injunction but the Commonwelath Court found that it was a mistake.  The appeals court found that Philadelphia court should not have issued the injunction because there were ample ways within the RTKL of shielding the information the union had wanted to protect.  Nevertheless, there were interesting issues discussed by the Commonwealth Court in its opinion.

First, the case shows this is an effective and appropriate procedure for dealing with such issues.

Second, the court more clearly defined what needed to be released and drew a line between the arbitrator's 'opinion' and his or her 'award' or 'order'.  Although various records relating to grievance arbitrations are shielded by an exception within the RTKL, there is an "exception to the exception" stating that the "final award or order" is not shielded.  This means that where a requester asks for those final awards or final orders, the agency is supposed to release them.

The court explained that the final award or order is generally separated from the arbitrator's opinion much as the court itself separates its opinion from its order, even when they are within the same document. You can see the way the court itself did it in the linked court opinion/order, below, but the same is also true of the the final determinations of the OOR.  Those final awards or orders generally do not have much in the way of facts about the case, but even if they did, some of those facts can be redacted if there is an exception that covers them.

Third, when this case discussed the 2009 PSEA v. OOR injunction decision, it did not do so dismissively or in any way concluding that Senior Judge Friedman had been wrong in her statement about the law.  This is noteworthy in light of the later decision by the court to dismiss the PSEA case.  Also, Judge Pelligrini joined the majority in this case after writing a scathing concurrence in the prior case stating he did not believe there was any constitutional right to privacy in home addresses.

Published by the Commonwealth Court this past Friday, this new case is M. G. Lutz, et al. v. City of Phila, 1996 C.D. 2009.

It's governmental my dear Watson

When Sherlock Holmes says "its elementary," he's saying "of course this is the way it is."  He's looked into the facts, discovered his clues and come up with the only answer that could possibly fit the facts.

Now, the OOR and the Commonwealth Court are saying the same when investigating if the job an agency is having an outside party do is "a governmental function."  Of course, it is a pretty easy investigation.

If fact, you may not even want to bother with that part of the equation.  This is because the court has made it REALLY easy on you:  everything the agency does is a governmental function, so when the agency has someone else do that something for it, it is governmental, too.

In case you had been hoping that the East Stroudsburg case would turn out to be an anomaly or rely on its unusual facts, I have bad news.  In a panel decision written by Judge Pelligrini, the court in Buehl v. OOR reiterated the language from the earlier case before coming up with a somewhat less controversial finding that the operation of the Dept of Corrections' commissary is a governmental function.  Therefore, if someone else runs or supplies the commissary, it is also a governmental function.

When the RTKL first came out, the general understanding was the 'governmental function' language referred to the various court rulings determining 'intrinsic governmental functions' (which are core functions of governmental agencies and are the opposite of 'proprietary functions', essentially when a government acts as a business).  If that turned out to be the proper interpretation, the only time documents held by a school district's contractors would be available would be if that contractor's job was directly involved in teaching. The Buehl and earlier East Stroudsburg cases dispell that idea.  Now, if a school contracts for lining the football field, documents directly relating to that task in the hands of the contractor will be available to a requester.

(Actually, there is a second requirement, but my point concerns the definition.  Interestingly, the proposed amendment to the RTKL currently kicking around Harrisburg calls for further restrictions on what documents in the hands of a third party are available to a requester).

So, in the end, if Sherlock wants a more challenging game, he should try instead to discover what will NOT be a governmental function.  Tally Ho!  The game is a foot!

Read My Lips, No Special Legislation

Picture this ... the Pennsylvania legislature says "You! Yes, you!" then, once it has your attention, makes a law that only applies to you.  When the 'you' is a county, city, borough, ward or school district, such a law is called "special legislation" which is specifically barred by the PA constitution.

On September 29, the PA Supreme Court had to remind the legislature about that rule.  In a matter brought by the school districts that surround Duquesne City School District, those surrounding districts (West Mifflin Area School District, East Allegheny School District and South Allegheny School District) challenged legislation aimed solely at addressing Duquesne's decision to close its high school.  The legislation directed what was to be done with the closed school's students and gave preferential hiring status to the laid-off teachers.

Ultimately, the PA Supreme Court stated that although the legislature may have had worthwhile intentions, that this was specifically what the PA Constition says they are not allowed to do.  As a result, it struck down that portion of the legislative act.

The case can be found at West Mifflin ASD v. Zahorchak, 371 MD 2007.

Private Email of Public Officials

Judge Albright of the Court of Common Pleas of Montgomery County issued an opinion which -- at least within Montgomery County -- protects the personal emails of agency personnel (both elected and employed).  The Office of Open Records came to a different conclusion ruling that such emails are agency records and that the agency is required to get the emails from the individuals and turn them over to requesters.

As above, Judge Albright disagreed -- and at least within Montgomery County his opinion overrules the OOR.

I have read Judge Albright's decision.  He specifically found that emails on individual township supervisors' personal computers at their homes and private email accounts were neither township records nor public records.  This means that -- at least for now -- there is different law applied to those agencies within Montgomery County (and, as below, in York) than there is elsewhere in Pennsylvania.

As always, however, this may not be the final word.  Back in April a York County court also came to the same conclusion as Judge Albright and that York County case is already on appeal.  It is set to be argued in front of the Commonwealth Court in December.  If the Commonwealth Court thinks the York County judge was wrong, then its opinion will also be understood to overrule Judge Albright.  We'll have to wait to see what happens.

The solicitor's office for Worcester Township was nice enough to send me a copy of Judge Albright's order and I thank them for their courtesy.  That case is Township of Worcester v. CW of PA, Office of Open Records and James Mollick, Montgomery Cty. Dkt. No. 09-09584.  The York County case is docketed at In the Matter of Kenneth M. Silberstein and the docket entries can be found online here.

What Was the Pennsylvania Legislature Thinking When it Passed Act 210-46 Directing PSERS to Recertify the Employer Contribution Rate From 8.22% to 5.64%?

We have been talking about the funding crisis for paying the school district’s share of pension contributions for some time now.

For too many reasons, our existing PSERS system is admittedly unaffordable and instead of addressing the root causes of the problem (i.e., a too rich defined benefit pension plan), our Pennsylvania Legislature directed the Public School Employees’ Retirement Board to change the projected employer contribution rate of 8.22% for the 2010-2011 school year to 5.64% in Act 210-46.

The PSERS Board has been created to have the fiduciary responsibility to maintain a properly funded pension plan as required under the law and based upon the obligations of the plan concluded that for the 2010-2011 school year the contribution rate should be 8.22%.

Our State Legislature should frankly be ashamed of itself by changing that rate from 8.22% to 5.64%, which effectively creates an underfunded obligation for upcoming fiscal years.

As the result of this inane action, the projected contribution rates moving forward (assuming an 8.5% return of investment) are as follows:

2008-2009

4.76%

2009-2010

4.8%

2010-2011

8.22% changed to 5.64% by the Act of the State Legislature

2011-2012

10.70%

2012-2013

29.55%

2013-2014

32.45%

2014-2015

33.95%

Though it might sound politically popular for the State Legislature to lower the PSERS contribution rate, from a purely fiscal and accounting standpoint, the action was irresponsible. In fact, I have not heard one justification to support why the State Legislature did this, other than trying to stem the outcry on the amount of contributions that will need to be made to fund a pension system that not only benefits our public school employees and state employees, but also the legislators who vote on the system.

I am fully aware of the challenges that it will take to reform and cure the PSERS issue. The fact is if our State Legislature does not address this issue, the system will collapse under its own weight. When I say the “system,” I am not only talking about PSERS, but the educational system as we know it. Our taxpayers in the Commonwealth of Pennsylvania and our school districts cannot continue to afford to pay its upcoming obligations on the PSERS program.

I am certain that the State Legislature will come forward with other “brilliant” ideas, such as reamortizing the debt and spreading on the costs of the pension program to our children and grandchildren. We simply cannot continue to afford to do this.

In the private sector, many industries that have stayed solvent have properly addressed their defined benefit pension plan.

The PSBA proposal is certainly a good early step in that direction, but it simply is not enough. What PSERS needs to do is to grandfather certain individuals already in the pension program and provide them their pension benefits as part of the program. The non-grandfathered individuals would have to be subject to a new and less costly defined contribution plan.

I am mindful that there is case law that indicates that there may be some protection for existing PSERS participants, but I am not convinced that legal position will stand. That issue needs to be squarely addressed by our State Legislature, and we simply have to fashion a system that we can afford to fund in the future.

What has been done very frequently under the National Labor Relations Act and in accordance with law is to freeze participants in a pension plan as of a date certain. In other words, all of the contributed benefits to date will eventually result in what their ultimate pension amount would be. As for future accruals, they could be on a defined contribution basis.

This issue needs to be resolved and politically palatable solutions of simply lowering the PSERS Board’s contribution rate is the most unacceptable way to deal with a financial crisis that our State Legislature does not seem to want to address.

What were they thinking?