Who Taxes the Taxman?

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.

May Entirely Deny Access Where Fee Not Paid

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.

Examining the Public Policy exception to the Essence Test in employment matters

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.


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.

Supreme Court Holds that First Amendment Right to Petition Government only Applies to Matter of Public Concern for Government Employees

The Supreme Court has held that in order for the actions of a public employee to qualify for protection under the First Amendment’s Petition Clause, it must relate to a public concern. In the case of Borough of Duryea v. Guarniere, the Court ruled that the action of filing a union grievance related to a police chief’s alleged improper termination and changes in duties was not a protected activity and, thus, actions taken by the employer in response to the was not retaliation for exercising First Amendment rights.

The Court explained that government employees can act as citizens and, when discussing public concerns, could engage in petitioning the government and that such actions would be protected under the First Amendment. However, when an employee’s complaint relates to the employee’s own duties, that is not a matter of public concern and, thus, not protected. As the Court explained, “The right of a public employee under the Petition Clause is a right to participate as a citizen through petitioning activity, in the democratic process. It is not a right to transfer everyday employment disputes into matters for constitutional litigation in the federal courts.”


The Court explained in determining whether a particular activity was of public or private concern, the whole record regarding the content, form and context of the petition needed to be reviewed and the forum in which it was raised needed to be considered.   

Pa. State Legislature Considers Changing Special Education Funding Again

The Pennsylvania State Legislature is again considering changing the manner in which it funds special education in local school districts.  You may recall that a similar effort was made two years ago, but the legislation simply got stuck in committee in the Senate after being pasted by the House.

As was noted the last time that a change was considered, the caluculation used to determine the amount of money allocated to each school district presumes that 16% of a school district's students are special education students.  There are two bills, House Bill 704 and a corresponding bill in the State Senate. 

Both bills were only recently introduced and will likely go through several changes as they make their way through committees.  Check back for further details on this legislation.

Parents' Attorneys Beware - Guidance on Fee Shifting

In a case out of the Second Circuit Court of Appeals addressing a fee shifting provision similar to the IDEA, which allowed prevailing parties to recover counsel fees under the Fair Labor Standard's Act, the Court found that an attorney could not recover fees for time for which he did not keep contemporaneous time records.

In the case of Scott v. City of New York (2d Cir. 2011), the Court denied the request of the prevailing party's fees for time the attorney spent on the case, but did not contemporaneously keep records of.  The only leeway the Court gave was to allow the attorney to recover for time that he spent in court or in conferences with the court for which there was a record of the appearance and a means by which to determine the length of time for the appearance. 

This could have implications in other fee shifting cases, including IDEA and Section 504 cases, in the same manner.  This case should be a warning to counsel for parents who intend to seek fees to keep accurate and contemporaneous time records and offers schools district counsel a possible weapon to attack fee demands.