Funding Disputes under PA's Charter School Law

Wow.  Today's PA Commonwealth Court decision limits charter schools ability to pursue tuition payment when a school district does not voluntarily pay.  The charter school law allows a charter school to seek payment of the unpaid tuition from the PA Secretary of Education through withholding the upaid amount from the district's subsidy. 

Today's decision reiterated a prior decision that the administrative hearing process in the charter school law had to be followed (and lays out that process).  It then goes on, however, to say that the only money available to withhold is from the subsidy money from the same year as the tuition which should have been paid by the district.  Thus, if a district failed to pay in 2009, but the 2009 subsidy has already been paid in full to the district and the district has spent, then there is nothing left for the Secretary to withhold for the charter school's tuition.

What does this mean for the Chester Community Charter School?  It means that it will not be paid $7,490,171.75 that it says it was owed.  As I said, "wow."

The case, Chester Community Charter School v. Commonwealth of PA, et al., 135 M.D. 2009 can be found here.

Another "Parent behaving badly" story

I don't know how I missed it, but by now you likely have heard about the controversy invovling a California student caught cheating and the parent that is suing to keep the school from imposing its normal punishment.  Not that I think the suit will ultimately be successful, but I want to point out the basis for the suit.  It could be instructive in other cases and situations.

Here, the father (a family law attorney) claims that that the policy imposing the penalty -- removing the kid from the special honors program -- is at odds with another school policy that seems to say the penalty would only be imposed for the second (or subsequent) offense.

Why does it matter?  Because the father's position has some legal basis.  If a school enacts policies that conflict with each other, that school may find it is not able to impose the harsher penalty because people could be confused about what punishment they'd face.  In general, when the Pennsylvania courts have seen such issues they have said that it was possible to read the conflicting policies together so there was no conflict.  That may not always be the case, though, so it is a situation to avoid where possible.

Lesson learned? Review policies as well as student/employee handbooks to ensure that you are not treating the same actions differently in those various places.

Finally, for those like me who managed to miss the coverage of this situation in California, you can read about it here.  By the way, the only reason I heard about this situation now is because Aaron Weems of Fox Rothschild's litigation department (family law) brought it to my attention.  Thanks Aaron.

I sometimes ♥ (heart) the Third Circuit

About a week ago, the Third Circuit Court of Appeals heard argument about a school's attempt to ban t-shirts and wristbands with the "I ♥ boobies" slogan on them.  This appeal is being closely watched because it can have a wide-reaching effect.  The prior decision was that the phrase has to be understood in its context, but -- as pointed out by the school's attorney during last week's argument -- what then of other good intentioned slogans such as the "feel my balls" slogan of the testicular cancer organization. 

There are various standards for limiting student speech.  The most often cited one is the Tinker standard that requires a substantial disrpution.  It is a high, but not impossible standard to meet for a school. 

The standard that is at the ♥ of this matter (ha!) is from Fraser, where the U.S. Supreme Court said that a school may ban lewd and vulgar speech taking place at school.  The Third Circuit panel hearing this case stated its feeling that the school would not meet the Tinker standard but might meet Fraser.

It is a slippery slope, so the danger is that were the court to allow this slogan, will the court tailor its decision closely enough so that it will not take away a school's discretion to ban something more clearly lewd?  With the success of the "I ♥ boobies" campaign for public awareness through its shock value, you can be sure that there will be others pushing the limits even further.

The lower court's opinion and order can be found here, although it will be what the Circuit Court says that really matters.

PA's Safe Schools Act Regulations

Were you wondering what ever happened to the PA Safe Schools regulations?  Yeah, me too.

So I noticed in the PA Bulletin today that the PA Board of Education just submitted them for IRRC review.  But wait, you say, I thought they had already submitted them some time ago.  Turns out, you are correct.  On March 15, 2012, the Board discovered that the Safe Schools Act regulations it had previously proposed (the new Chapter 10) had "issues of form and legality" and voted to immediately withdraw them. 

Apparently, they felt the changes needed were relatively minor because they also voted to give the authority to make those changes to the Board's Acting Executive Director.  So, the Acting Executive Director got to make all necessary non-policy changes on their behalf to make the regulations comply with proper form and law.  As above, they were just recently resubmitted to the IRRC for final review.

If you want to see the Board's resolution to withdraw the prior version, it is available here.  If you wish to see the new regulations, as well as the few comments issued, they can be viewed here.

 

Current Employees and Criminal Background, again

As you likely know PDE has taken the position that last year's amendment to §1-111 requires a school to terminate a current employee who was (at the time) properly hired with a prior criminal conviction for a (now) barred offense.  Since those workers could clearly never get another job in a school, it was hardly fair to take away the one they already had.  In a decision from February of this year, there is at least one PA court that agrees with me.

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In PA, a school employee fired for incompetence can still get unemployment

It is not new law, but a recent case reminds us that just because a teacher is incompetent as a teacher, once that teacher is fired he or she can still get unemployement compensation. 

What was kind of unfortunate is that it looks like the school administration in that recent case realized that an employee would be eligible for unemployment if fired for incompetence (probably when it got around to consulting with its counsel) but that realization only occurred after firing her.  So the court decided that when the administration told the employee "You are being terminated for being incompetent in you[r] job," that they pretty much meant what they said.

This despite the fact that the school also had evidence that the employee had also been terminated for wilfull refusal to accomplish assigned tasks.

Lesson to be learned?  School administrations would be best served to consult with counsel before taking steps to terminate employees.

The recent case -- which really does not break any new ground -- is the Hamburg Area School District v. UCRB and can be found at here.

Finding the End of a Sentence

 

With apologies to some of my earlier English teachers, I now admit that I got through most of middle school without being able to identify the end of sentence.  As a result, I often saw the dreaded notation "RUN ON" written in red ink on my papers.  Although I finally got the hang of it, I am reminded of my earlier troubles now in the context of the criminal background check amendments which rely on the end of a person's sentence.

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PA Schools: Firing Employees with Old Convictions

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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Contracting for Professional Services Under Pennsylvania Law

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.

PA School Districts Not To Pay for Pre-K Charter/Cyber Charters

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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You're Outta Th ... huh ... no? Still Working in PA's Schools

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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BB Gun Not a 'Weapon' in Florida Schools

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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Banged up Pennsylvania Students

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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Pennsylvania Schools and What Good are the Criminal Background Checks

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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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.

The Antidote to Our Funding Crisis for Public Schools

It is now obvious to all in the Commonwealth of Pennsylvania that what was the norm just a few months ago will no longer be the norm in the foreseeable future. The Commonwealth of Pennsylvania is facing a $4-$5 billion deficit; the Act 1 index is at a historical low and will likely slip further particularly because of the employment cost index for secondary schools hovering in the 0% territory; the real estate market continues to be in stagnation; turmoil in the Middle East could throw the entire world economy into a second recession; and the pension crisis in Pennsylvania has yet to be solved. For all of the above reasons, it is expected for the next 3-5 years that public schools in the Commonwealth of Pennsylvania will be cash-starved, and there appears to be no willingness on the part of the executive or legislative branches to increase taxes to fund this economic shortfall.

Based upon the foregoing, the “antidote” for this unprecedented crisis will have to take into account, in part, the following:

  • Establish a Floor and a Cap for the Act 1 Index – Because 50% of the Act 1 index is based upon the employment cost index for secondary schools, which has the possibility of going into the negative numbers, a floor needs to be developed for minimal State funding. This is similar to what exists in New Jersey and many other states. A minimum of a 2% funding level should be considered. A “cap” should also be considered as part of the equation.
  • Allowing Economic Furloughs – On the one hand, you cannot expect a school district to substantively cut its expenses if you do not give the school district the tools to cut expenses when it involves the largest expenditure of those school districts (i.e., employee costs). Sections 11-1124(1) and (2) of the School Code need to be modified to allow economic furloughs and not limit it to a substantial decline in enrollment, class or course enrollment, or reorganizations approved by the Department of Education. Most states do allow economic furloughs of staff members.
  • Modify the Public Employe Relations Act to Allow for Implementation of a District’s Final Best Offer Following Impasse – Unlike the National Labor Relations Act, the Public Employe Relations Act appears to prohibit a school board from implementing its final best offer following impasse. This has been the law in the public sector for many years, but is not technically permitted under the Public Employe Relations Act, nor is it contemplated under Act 88 of 1992.  Instead of focusing on more dramatic revisions to the public bargaining law (such as taking the right to strike away, which will obviously create a firestorm of controversy similar that in Wisconsin and other states), a more immediate and perhaps more effective fix is to allow a school district following an impasse to implement its final best offer. This will end the leverage currently being held by teachers’ unions of simply sticking with their status quo collective bargaining agreement and forcing districts to fund geometrically increasing healthcare benefits on expired teachers’ contracts. Though this blogger is not opposed to the concept of further limiting the right to strike of public school teachers, simply eliminating the strike option will not necessarily deal with the bigger financial issue currently faced by school districts, namely, upon the expiration of the collective bargaining agreement, the district is obligated to maintain the “status quo.” This simply needs to change in light of ever-increasing labor and benefit costs. There needs to be legislation that will permit districts to implement a final best offer even if it occurs following contract expiration without fear that a lockout (and unemployment compensation) would result. The State Legislature needs to address this immediately.
  • Relaxing the Bargaining Laws to Promote Subcontracting of Bargaining Unit Services – Under both Pennsylvania and federal labor law, districts are required to bargain the impact of subcontracting with its labor unions. However, the National Labor Relations Act has a far more “relaxed standard” than the decisions emanating from the Pennsylvania Labor Relations Board. The State Legislature should address legislation that would facilitate a school district to unilaterally subcontract Bargaining Unit services when efficiency can be demonstrated and substantive tax savings can be demonstrated.
  • Using Technology to Save Costs – Tied very closely to the “subcontracting” restrictions under Pennsylvania law, districts need to have much more flexibility to allow the delivery of educational curriculum “online” without fear of a subcontracting challenge by a teachers’ union.
  • Exploration of Self-Insured Trust to Deliver Health Benefits – School districts are one of the largest purchasers of insured health benefits in the Commonwealth of Pennsylvania. Cooperative purchasing of insurance can result in savings for school districts. At the same time, labor unions should not be in a position to block the imposition of a self-insured trust simply because there is Pennsylvania Labor Relations Board precedent that requires the implementation of a self-insured program must be bargained with a labor union. The Commonwealth of Pennsylvania should give funding incentives to school districts that participate in self-insured trusts with high deductible plan provisions, which will be the only effective way of controlling health benefit costs in the future and keep health benefit costs marginally within the Act 1 index.
  • Reform our Pension System – A defined benefit pension system will not be able to exist in the future. Long ago, employees in the private sector have shifted to 401(k) types of plans. Though there needs to be recognition that certain teachers having longer years of service are “expecting” their retirement, taking away retirement benefits for some existing PSERS participants needs to happen, and Pennsylvania law will need to be tested with respect to that issue. Moving to a 401(k) system is absolutely essential for the financial viability of the Commonwealth of Pennsylvania.
  • Elimination of Other Mandates – It would be too long of a blog entry to consider all of the mandates that impact public school entities. To the extent legally possible, as many of the State and federal mandates should be limited for public school entities so that they can operate with the same degree of flexibility as that for charter schools and certain independent schools. If public school districts are meant to “compete” with these alternate educational delivery systems, they need to have the tools to do so and be able to compete on the same playing field.

 

Social Media

A vast majority of Pennsylvania public school districts have not as of yet developed social media policies. Indeed, there are profound legal concerns about the implementation of such policies because of the lack of legal precedent, constitutional bargaining concerns with district labor unions on the subject. 

Unlike private employers and independent school employees, public school employees have the right under the First Amendment, in certain circumstances, to speak out on matters of public concern. However, Boards may arguably regulate the use of social media by its employees, including employees' personal use of social media, when such use:

 

(1) interferes with the work of the school district;

(2) is used to harass coworkers or other members of the school community;

(3) creates a hostile work environment;

(4) breaches confidentiality obligations of school district employees;

(5) directly disrupts the work of the school district;

(6) harms the goodwill and reputation of the school district in the community; or

(7) violates the law, board policies and/or other schools rules and regulations.

 

There is no question that comments made by school employees on social media sites can hurt employee or student morale. Personal email is not typically the target of such policies; just web pages in the public realm. The major concerns of such policies are the social media sites Facebook, Twitter, LinkedIn, YouTube and MySpace.

 

The ultimate question is whether a public entity such as a school district has the right to mandate what people do off school property? The courts are also struggling with these issues as they relate to policies that govern off-site student disciplinary codes. 

 

A policy will likely pass muster if it says that employees may not mention the Board of School Directors, schools, programs or teams on personal social networking sites unless they state that it is a personal communication, and not the views of the District. A valid policy could also specific rules about creating links to school district sites.

 

Further, a policy could likely mandate that employees may not mention other employees or members of the school community without their consent, unless the subject is of public concern and the speech falls under applicable constitutional protections--whatever that may be.

A school district social media policy could likely also validly address the following issues:

 

(1) "Friending" of students and parents by teachers could be forbidden as inappropriate and

(2) "Personal posts" could possibly be limited by requiring that the employee should use appropriately respectful speech, and refrain from harassing, defamatory, abusive, discriminatory, threatening or other inappropriate communications. It is obvious that such posts reflect poorly on the school district's reputation, can affect the educational process and may substantially and materially interfere with an employee's ability to fulfill his/her professional duties.

 

Even assuming that such policy provisions will survive a legal challenge, enforcing such policies is more daunting. Very often, the only way a district could find out about a violation is by anecdotal reports of others since most school administrators do not have the time to regularly monitor the social media sites of Facebook, Twitter, LinkedIn, YouTube and MySpace.

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).

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.

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 Distinction Between Policy and Procedure

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

One of the most fundamental issues involving school boards is their policy-making function. Successful school boards are policy-driven.

However, in the quest to be policy-driven, many boards and districts struggle with the role of a board in dealing with procedures versus policy. A fundamental understanding of the distinction between procedure and policy is required in order for a board to appropriately ascertain its policy-making function.

What follows are the definitional differences between policy versus procedure, along with a series of bullet points that distinguish between policy and procedure in order to get a better grasp of the situation:

DEFINITIONS OF POLICY VERSUS PROCEDURE

Policy:  The formal guidance needed to coordinate and execute activity throughout the district.  When effectively deployed, policy statements help focus attention and resources on high priority issues - aligning and merging efforts to achieve the district's vision.  Policy provides the operational framework within which the district functions.

Procedures:  The operational processes required to implement district policy.  Operating practices can be formal or informal, specific to a department or building or applicable across the entire district. If policy is “what” the district does operationally, then its procedures are “how” it intends to carry out those operating policy expressions.

DISTINGUISHING CHARACTERISTICS

The distinctions commonly drawn between policy and procedures can be subtle, depending upon the nature of the organization and the level of operations being described in the statements.  Nevertheless, there are common characteristics that can help discern policy from procedures (or the practices used to implement policy).  Here they are:

·                    Widespread application – Policy

·                    Narrow application – Procedure

·                    Changes less frequently – Policy

·                    Prone to change – Procedure

·                    Usually expressed in broad terms – Policy

·                    Often stated in detail – Procedure

·                    Statements of “what” and/or “why” – Policy

·                    Statements of “how,” “when,” and/or and sometimes “who” – Procedure

·                    Answers major operational issue(s) – Policy

·                    Describes process – Procedure

Emergency Service for Annuitants under the Pennsylvania Public School Employees' Retirement System (PSERS)

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

On April 30, 2010, the Commonwealth Court of Pennsylvania ruled against Dr. John Baillie, former Chester County Intermediate Unit Executive Director, in Baillie v. Public School Employees’ Retirement Board, No. 1306 C.D. 2009, on the basis that his alleged emergency return to service did not fulfill the requirements of the PSERS.

The case involved the September 2006 notification of the CCIU Executive Director that he intended to retire in January 2007. However, Dr. Baillie agreed to work under an emergency contract until the end of the school year. In light of the alleged challenges facing the Intermediate Unit and the perceived shortage of qualified candidates to replace Dr. Baillie, the CCIU Board voted in November 2006 to employ Dr. Baillie under an emergency contract until June 30, 2007. Dr. Baillie retired on Friday, January 5, 2007. After spending the weekend in retirement, Baillie returned to his job as Executive Director on Monday, January 8, 2007. In April 2007, Dr. Baillie began collecting a retirement annuity from PSERS effective January 2007 and simultaneously, he collected his salary from the Intermediate Unit for his work as Executive Director.

In April 2007, by email, the CCIU announced Dr. Baillie’s retirement on January 5, 2007, but explained that his last day at the CCIU would be June 30, 2007. A copy of the email was sent anonymously to the PSERS with the following handwritten notation: “Thought this was illegal? (Double dipping).”

The CCIU informed PSERS that exigent circumstances prompted its decision to employ Dr. Baillie on an emergency basis. PSERS concluded, however, that Baillie’s employment from January 8, 2007, to June 30, 2007, was not prompted by a genuine emergency but by astute planning by Dr. Baillie, with the agreement of the Intermediate Unit. Accordingly, PSERS recalculated Baillie’s final average salary based upon a retirement date of June 30, 2007. This recalculation also excluded from his final average salary per diem compensation Dr. Baillie had received from the CCIU for unused vacation days. As the result of this recalculation, PSERS ordered Baillie to repay PSERS $79,083.39.

Dr. Baillie attempted to argue that the CCIU had emergency conditions during the second half of the 2006-2007 school year. This was supported by the Board President of the Intermediate Unit, which indicated that “… recent legislation that required taxpayer approval of school district budget increases; contract negotiations to avert a threatened strike of support staff personnel; pending construction or renovation of four educational facilities; and the retirement of several persons in managerial positions at the Intermediate Unit …”

PSERS based its argument on Section 8346(b) of the Retirement Code, which authorizes public schools to employ a retired public school employee, who is collecting a retirement annuity, for up to six months when there is an emergency. In that case, the retiree is able to collect both his/her annuity and his/her salary for the emergency services rendered. However, PSERS did not believe that there was an emergency in Baillie’s case. PSERS sought to show that the “emergency” was one created by Baillie’s retirement, and it could have been solved by hiring a temporary or permanent replacement, instead of retaining him as Executive Director after a sham retirement. PSERS presented testimony from three of its employees that it did not constitute an emergency.

According to the case, PSERS examines two factors to determine whether an employer has abused its discretion when it hires a retiree on an emergency basis. First, PSERS determines whether the rehiring was planned before the retirement took place and, second, it determines whether the employer made a bona fide effort to fill the emergency vacancy with a non-retiree.

The Baillie decision stands as precedent of the emergency services provisions under PSERS. PSERS will vigorously investigate situations that they believe to be improper.

In such a situation, we suggest that any district write to Troy Peechatka at P. O. Box 125, Harrisburg, PA 17108 requesting an exception to Act 2004-63 due to an emergency situation. You will be required to provide substantiation of the situation of hiring a retired individual and what efforts the district made to fill the position with a non-retired individual.

Merely hiring someone as an independent contractor will not likely pass muster today due to the strict interpretation of independent contractor status that PSERS uses.  It is suggested that you work with your legal counsel carefully to protect the interests of all involved in these processes.

 

Our Public Schools - The Great "American Equalizer" is In Danger of Disappearing

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

Every Monday-Friday from 6:00 a.m.-7:00 a.m., I read the online versions of School Business Daily, Employment 360, and The New York Times. I do this so that I can keep not only up-to-date to satisfy my own intellectual curiosity, but also to provide that type of broad-based legal advice that all the consultants say is necessary to provide the value-added legal advice that clients deserve.

Over the past year, the focus of these publications (primarily School Business Daily) has been to report about the crises that are being faced by public school entities throughout the nation, along with Canada. There isn’t a day that I read stories outlining extensive furloughs of teaching and support staff, referenda failing to raise taxes, state pension funds being seriously underfunded, school entities seeking protection under Chapter 9 of the bankruptcy laws, increasing labor strikes because of constrictions in the ability of school districts to pay a fair compensation level to its professional and non-professional staff, proceeding to shorter school years and work weeks for the purposes of saving money, and state legislatures grappling to deal with mounting debt and an inability to meet the educational needs of the students.

Indeed, in the State of Pennsylvania, Pennsylvania’s only way to fulfill the obligation to pay the basic education subsidy to Pennsylvania school districts was as the result of the federal stimulus funds, which are scheduled to run out at the conclusion of the 2010-2011 school year. The State will then be forced to make up the $760 million it received from a tax base that is suffering from a prolonged recession that does not seem to benefit most of the school entities in the State. Coupled with state statutory restrictions on districts’ ability to raise additional income because of our reduced statewide average weekly wage and a reduced employment cost index for secondary schools, the future of public education in Pennsylvania as we know it is in serious danger. Pennsylvania is not alone.

In my 31 years of observing public school entities, primarily in the State of Pennsylvania, I will be the first to say that the school districts that I have represented over these years have not always done things in the most optimal and efficient manner. I am also aware that the school districts I represent are laden with a myriad of federal and state mandates and competing community concerns about the delivery of the educational program that stretches the ability of any board to effectively satisfy its constituencies.

That being said, I do believe that the future of public education is clearly at risk. In Pennsylvania, the state legislature is faced with a serious funding shortfall for the state pension system for state employees (SERS) and for public school employees (PSERS). The projected rate spike will start in 2012-2013 and has the potential of making almost every one of the 500 school districts in the Commonwealth of Pennsylvania insolvent and unable to fulfill its statutory requirements to pay its pension obligation.

Thusfar, the reaction of the Pennsylvania legislature is to hold hearings and study the issue. In the meantime, the failure to address the “pension spike,” which was exacerbated as the result of our poor economy, is putting the brakes on the viable negotiations of successor labor contracts and essentially paralyzing the ability of even the most reasonable of school boards to resolve any compensation or wage-related issues that will extend beyond the 2011-2012 fiscal year.

Unfortunately, I have not seen that either the state legislature or the federal government has exercised the kind of intestinal fortitude that it will take to address the crisis that will affect us even if the economy slowly improves and recovers from the October 2008 collapse.

Unless our legislature and federal government successfully addresses the issue of education, the system is, in my opinion, on the verge of collapsing within the next 2-3 years.

What will it take to resolve this problem? As stated before, it will take a level of intestinal fortitude that is typically not seen at the legislative level. We have to unfortunately come to terms with the fact that we will no longer have the financial horsepower to operate our educational system in the way that we know it. There will have to be significant changes both structurally and substantively in order for us to inch our way out of the “educational depression” of our time.

Specifically, this is what needs to occur:

  •  Districts themselves have to be more aggressive in negotiating labor contracts that are affordable to the district with substantive concessions.
  • State legislatures need to give boards the leverage under state law to unilaterally implement its last best offer when the labor contract is at impasse.
  • State pension systems need to be overhauled with the pension systems that provide for defined benefit programs having to be “frozen” so that additional accrued defined benefit obligations will not occur and that the pension systems have to move to purely defined contribution programs. Making it applicable to only new employees is too little and too late, given the broad-based nature of the economics facing school entities.
  • School districts will no longer be able to create golden handcuff benefits at all levels in the organization and will have to substantively live within their means moving forward.
  • The use of distance learning and technology to pool district resources to deal with low enrollment programs and to rethink the traditional virtues of a bricks and mortar education will be necessary.
  • Teachers will no longer be able to have expensive/Cadillac healthcare plans that are substantively different than that received by the taxpayers who fund our education.
  • State legislatures will need to remove, to the extent possible, as many of the mandates that preclude efficiencies of school districts as possible.
  • Legislatures should eliminate archaic bidding laws in favor of electronic methodologies.
  •  Legislatures should eliminate prevailing wage laws on public building projects, even though they support unions. Our communities can no longer afford the impact of prevailing wage predeterminations on building projects.
  • School districts should be able to furlough professional and non-professional staff for economic items only, notwithstanding any statutory requirements or strictures.
  • School district traditional notions of having a high school class of 25-30 students may have to change. Districts may want to consider having a full-time teacher who is supported by assistant teachers earning a lesser sum of money following a university model. Perhaps school districts will have lecture courses that would have between 50-75 students with smaller group discussion courses led by assistant teachers.

These ideas and more ideas will need to be implemented in order to assist our school entities that are going through the most difficult time since the Great Depression. The future is not completely bleak and rethinking education as we know it may be a valued outcome.

I, for one, cannot sit idly by while the world around us seems to be closing in on our educational establishment. The time is now to intensely pressure our state and federal legislators that we do need to changes and the flexibility to continue to operate and we do need their courage to address issues that they may not want to address. Their failure will be our failure, and the failure of generations to come. Please do not let our state legislators and legislatures to mortgage our future by amortizing the debt of our pension obligations for many years to come. We need to deal with the issue now, limit benefits, and begin to live within a standard of living more commensurate with the output of this country, which is no longer a manufacturing power. Unless we do this, the great American equalizer will fall the way to a mediocre educational delivery system that will cater to the needs of those with exceptionalities only, while the more affluent population will be educated in private or charter schools. I do not believe that this was what our constitutional framers thought was in the best interest of our community. It is time for the wake-up call.

Otherwise, I envision the next 20 years of my practice to be devoted to be a “workout lawyer.” The term “workout lawyer” primarily refers to private sector attorneys who spend their time legally untangling debtor businesses and either winding them down and sending them to bankruptcy or working out their economic situation so that they can continue to operate. This is not an exciting prospect for the educational industry.

Open Source Textbook Websites Are Wonderful Options But Have Legal Traps

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

There are a number of non-profit 501(c)(3) entities that have sponsored open source textbook websites that provide either free or open source textbooks that enable elementary and secondary schools to put together their own textbooks at no cost subject to the provisions in the open source website. A number of the non-profits have established projects that are scanning millions of books and making them available on-line for educational purposes. Some of the books (especially those out of copyright) are available for free, and a number of the projects enable a school administrator to cherry pick chapters from different allegedly open source textbooks to put together a district-specific textbook without paying the huge cost normally necessary to obtain new textbooks from textbook publishers.

Most of these non-profits are established with a view toward providing schools with open access materials that will enable students who otherwise would not be able to get the advantage of new and updated textbooks to have the advantage of comprehensive materials that become district-specific curriculum methodologies.

The utilization of these services, however, does not come without risk. The websites for many of these non-profits clearly limit the liability of the altruistic non-profit, which technically does not verify the copyright or open source nature of the materials that would be downloaded or put together by a school entity using the software of the website. Independent verification or care must be utilized by the school to determine whether or not the material being downloaded does comply with copyright rules and is truly “open source.” At a minimum, the district should attempt to verify the open source nature of the materials or run the risk of a copyright violation action.

As with all good things, care must be used when open source materials are placed on the web.

 

Will Pennsylvania High School Students Be Allowed to Enroll in College Earlier?

Although Pennsylvania law already provides some ways for students to attend college while still in high school (and leave altogether in certain circumstances), the New York Times reported on February 17, 2010 that Pennsylvania and seven other states will pilot a program that will permit students to graduate after 10th grade and go on to college.

http://www.nytimes.com/2010/02/18/education/18educ.html?hpw

Although unusual, Pennsylvania law does not really prevent this now.  Compulsory attendance ends at the point of graduation, which can be before age 17.  Such graduation requirements are set by individual districts with only general guidance by statute and PDE.  Further, PDE regulations contemplate both part-time high school / college attendance and also altogether dropping such kids from the high school rolls if they opt to leave high school before graduation to attend college.

In the article, this is a plan touted by the National Center on Education and the Economy and is aimed at raising various basic proficiencies.  One wonders, however, how this plan will change the educational landscape.  Since, according to the article, "Students who pass but aspire to attend a selective college may continue with college preparatory courses in their junior and senior years," who will actually go and who will remain a district's responsibility? 

Right to Know Requests and the Disappearing Revenue Stream

A Delaware County judge over-rules the Office of Open Records.  Signature Solutions v. Aston Township, DCCCP No. 4852-09.

For years school districts and other taxing authorities have charged title companies and closing companies a fee to obtain a certification of the tax imposed and owed on a property.  These fees varied, but generally did not exceed $50.  This was a way of raising money without raising taxes.

On January 1, 2009, when the new Right to Know Law (“RTKL”) went into effect, companies involved in real estate closings and re-financings began submitting RTKL requests instead of requests for tax certifications. Charges for RTKL requests are capped at $0.25/page (with, up to an additional dollar for certification).  By March 2009, only 2 ½ months after the RTKL’s effective date, at least one school district reported it had gone from collecting $25,000 in that same 2 ½ month period a year earlier to nearly $0 in 2009.  Multiplied out, this would cost that particular school district over $100,000 each year in lost revenue.  In a year where school district budgets are tight, and the boards are limited in the amount they are permitted to tax, this unexpected loss of revenue was especially disheartening.

Attempts to refuse the requests claiming they were not covered by the RTKL were overruled by the Office of Open Records (“OOR”), the state-wide agency charged with implementing that law. 

Recently, however, a judge in Delaware County, Judge Joseph P. Cronin, Jr., focused on an explicit limitation built-into the RTKL to decide that the OOR was wrong.

Signature Solutions, the primary company that has been making these RTKL requests, made a request of Aston Township for “printouts of the current year tax information (including INTERIM tax bills), as well as any other charges for lienable items against the real estate that [the] tax entity collects,” and also asking for “the Homestead Rebate Information where applicable.”  Aston Township claimed that it would have to create a record or compile information from various sources in order to comply. On appeal, the OOR rejected Aston Township’s assertions.

When the matter went before Judge Cronin, he noted that although there were pieces of information on various computer screens that were likely public information, the only way to give all the tax information requested was to compile it.  He pointed out that the RTKL explicitly states that an agency has no duty to make such a compilation.  For that reason, he found that the OOR had made an error of law and reversed the OOR’s findings.

While this could be a very important decision with wide implications, it is important to note a few things.  First, this was a county judge's decision that is informative about how such cases will be decided within that county, but is is not a binding state-wide decision.  Second, since the time Judge Cronin issued his decision in the Aston Township case, the OOR has decided 4 other matters involving Signature Solutions.  Two of those recent matters were in Delaware County.  In each of those cases – including the Delaware County matters – the OOR has granted access, despite Judge Cronin’s ruling.

A link to Judge Cronin's ruling, from the OOR's website, is below.
www.dced.state.pa.us/public/oor/jd/2009-0072_Court_Ruling.pdf

Did you know that . . .

According to "Workers World" (and I can't get a red star to appear as the "o" in world), Cuba has only 150 to 170 children diagnosed with Autism ("only 150 to 170 Cuban children have been diagnosed with autism, far fewer than the 1 out of 170 reported in the U.S.").  It is unclear to me whether this is because the Cuban health care system has worked a wonder or because authorities fail to diagnose the disorder.

Fox Rothschilds' Jeffrey Sultanik Testifies to Legislature on Teacher Strikes

By Timothy E. Gilsbach

Jeffrey T. Sultanik, chair of the Fox Rothschild Education Law Group, testified before the Pennsylvania State Education Committee regarding teacher strikes and potential solutions to the same.  During his testimony, Mr. Sultanik outlined the various problems that exist in this area under the current statutory provisions and proposed changes to the same suggested by the Pennsylvania School Board Association.  For further details, please read the text of his testimony

More confederate flag nonsense

Once again, it appears that some racial bigots attempted to cloak themselves and the confederate flag with First Amendment protection.  The courts did not let them.  Click here for the Eighth Circuit case.  Does anyone get the sad irony in all this?

Pennsylvania Department of Education's BEC's on Enrollment and Pregnant Students Serve as a Reminder to School Districts to Review Policies

By  Timothy E. Gilsbach

The Pennsylvania Department of Education has recently issued two new BECs that present a good reminder for school district's to review their Enrollment Policy and Policy on Pregnant Students.  Both BEC's are not in response to any recent changes in the law, but are a good reminder of some issues that need to be considered by school districts in both areas.   

PDE issues a new BEC on Enrollment of Students in January which puts most of the information you need to know about the process of enrolling students in one place.  The new BEC sets out the information that a district may request, as well as what it cannot, when a student enrolls in the district and the process for doing so.  It further notes the need for a separate process for enrolling homeless students, which differs in many ways as to what can be required of other students.  It is important for districts to take a look at their policy on this issue to make sure it complies with the requirements set out in the law, as explained in the BEC.  PDE has requested that districts post their policies and procedures with respect to enrollment on-line no later that July 30, 2009. 

The second is a revised BEC on Pregnant and Parenting Students.  While not adding anything new, the revised BEC does provide two important reminders.  First, that school districts may not exclude pregnant students from the public school nor from extracurricular activities.  Second, and a little less obvious, is what to do with students who need to be absent from school due to pregnancy complications.  This process may be handled in-district if the period of absence is not to exceed three months, but if the absence is to be longer than three months, approval must be obtained from the Department of Education.  In addition, for excusing students for three months or less, school districts must have a policy for how such requests are handled and by whom. 

Both BEC's should have school districts taking a look at the policies implicated, especially if it has been some time since this policy has been revised.  If necessary, districts should revise these policies and/or guidelines.   

Pennsylvania Open Records Office Forms

The following announcement appeared in Saturday's Pennsylvania Bulletin. 

Under section 505 of the Right-to-Know Law (65 P. S. § 67.505), the Office of Open Records must create and make available a Uniform Request Form that can be used when making request for records. This form is available on our web site at http://openrecords.state.pa.us, click on the FORMS link.  Local and Commonwealth agencies are permitted to create and use their own forms, but should be advised that the law requires that they must accept a request submitted on the Office of Open Records Request Form.

Click here for the "forms" page.

Response To Comments, Fall 2008

Its time again to write about some comments. I wrote about the District of Columbia School Chancellor’s efforts to implement performance pay in “Teacher pay and tenure: creating a free agent market.”  Professor Fox added a comment regarding improvement to the current common rater method of assessing performance. I also wrote a piece about confederate flag waiving students (“Yet another confederate flag case”)” that garnered a response from Lynn accusing me of revisionist history and political correctness (me!). Craig wrote an interesting question in response to the entry “College-Student Disciplinary Contract Claims.”  Finally, in “Fourth Circuit Placement Decision Revisited: the last word,” I brought readers up to date on the case at issue and responded to a previous comment critical of my suggestion that open and honest communication can be a salve to the bad decision. Well, I got a comment from Nagla in support of my view!  Thanks for all your comments, even if I don't get to address each one.  Now to the four comments.

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A Pennsylvania court's view of HIPAA, FERPA, and student records

The Pennsylvania Superior Court considered, and rejected, the notion that two federal privacy statutes create privileges against disclosing student records during the course of litigation discovery. But a state law, however, might bar production of such records.

The case involved a former student’s discovery demands in a case against a private special school. Student alleged he suffered sexual abuse and sought records relating to other similar possible past claims against the school. The school opposed producing any such records citing various statutory confidentiality protections against disclosing records involving other students.

The court found that the Health Insurance Portability and Accountability Act of 1996, known as “HIPAA,” and the Federal Educational Rights and Privacy Act, known as “FERPA,”  set forth the parameters by which protected student records can be disclosed and that, generally, disclosure pursuant to court order is an exception to the non-disclosure rule. In this respect, the state court decision comports with the statutes.

More interesting is how the court viewed the argument about a privilege against litigation disclosure based on state law. The Pennsylvania Mental Health Procedures Act, known as the “MHPA,” is seen as creating a privilege, with the only exception being legal proceedings permitted under the MHPA. The court did not decide the ultimate issue but instead sent the case back to the trial court to consider with the school was a “facility” under the MHPA and whether the MHPA actually applied. 

The case is a good reminder that many times state laws can offer more protections (or obstacles depending on your position) than federal laws. 

Teacher pay and tenure: creating a free agent market?

I have been known to describe the current situation of public education as not sustainable. The pay and benefits, and job protections, are very generous. Most working schlubs would really like to have that set up. I also freely admit that I would not be a good teacher in the sense of an objective assessment of cost-in versus product-out by which most of us are measured. Perhaps, however, changes will take hold that can save public education from itself. 

In Washington, D.C., the School Chancellor and the teachers’ union look set to make some real reform. According to The Economist,  in exchange for much higher merit-based pay, teachers would give up tenure protections. Teachers who excel get justified rewards while those who do not could be let go with ease. Backers believe not only will school and student performance improve by weeding out ineffective teachers, financial savings will come through greater system flexibility. Jonathan Alter, writing in Newsweek, also addresses the issue, albeit under a political guise. At least this time, I am not a lone voice on “educational sustainability.”

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Yet another confederate flag case

Once again, we suffer yet another juvenile escapade of confederate flag waiving. Read about it here. A few students in Bloomington, Minnesota irrationally thought it to be a quality prank to waive the confederate flag in the parking lot as students and parents were arriving for graduation ceremonies. The students were reasonably punished. Not surprisingly, the students and their supporters tried to hide behind the tiresome response tying the confederate flag to an admiration of Southern lifestyle (how these things evolve from prank to a post-hoc expression of lifestyle choice is never explained).

Astoundingly, reports indicate that many students protested in favor of the flag-waiving ignorants, with one quoted as saying the confederate flag “had nothing to do with slavery.”

A spokesman for the school noted “the Confederate flag represents hatred, bigotry, intolerance, slavery, . . . .” In addition to all that, proud Americans note that the confederate flag also represents armed insurrection against our Constitution and all the freedoms many generations of men and women fought and died for. The confederate flag is offensive to most for all these reasons and any justification that it is a mere prop in a sophomoric prank is nonsense.

We know that students are not learning history very well. Perhaps an appropriate punishment for these and other would-be pranksters is remedial history as they need to learn what it stands for.

Ability grouping: issues and concerns?

Recently, a reader wrote with a question and a situation.   

“I was looking at your website, and I was unable to find the answer to this question.  Is ability grouping allowed under Pennsylvania law?  In other words, a school has four classes for each grade level, and the students are grouped into four ability levels, from high achieving to low.  I've heard conflicting answers would like your insights.”

As readers know, I cannot give specific legal advice through this Blog.  But I can give my thoughts, generally (and welcome to hear yours), about this situation, so here goes. 

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The rules of evidence and employment and school investigations

A recent case  from the U.S. Court of Appeals for the Fifth Circuit gives a good lesson on how to document sexual harassment investigations. The lesson is also instructive on how a report can be used as evidence in all sorts of investigations in an education setting.

The case facts are not remarkable (the boorish behavior is seen repeatedly in sexual harassment cases). One employee uttered a number of improper comments, sometimes emphasized by physical gestures. Such actions ultimately lead to his termination. But before then, the employer investigated and interviewed a number of employees, all of whom confirmed the conduct in question, which lead employer to decide to fire employee. An appeal followed, a second investigation ensued and confirmed the first investigation and termination decision. Employee appealed to court.

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NCLB unfunded mandate lawsuits

The U.S. Sixth Circuit Court of Appeals, by a 2-1 decision, reinstated a lawsuit brought by local school districts and others challenging the No Child Left Behind law as an unfunded federal mandated. NCLB says that nothing in the Act “shall be construed to . . . mandate a State or [local school district] to spend any funds or incur any costs not paid for under this Act.” The schools argued that the federal government should not penalize the schools, such as withholding federal monies, if the schools do not spend local and state monies in order to comply with NCLB.

Congress can pass laws under the authority of the Constitution’s Spending Clause. But when doing so, Congress must also pay for the costs associated with implementing the law. If not, the law must give clear notice to the states of their obligations, such as whether the state and not the federal government must pay. 

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The MLB steroids report, imported lead-containing products, and education

I have never knowingly used anabolic steroids. Anyone seeing me during my long-past sporting days (let alone now) would confirm that nothing in my performance ever even suggested I did. I have, however, handled imported products containing lead, most recently my half-working Christmas lights.  One did nothing for me; the other remains to be known. But the presence of both substances are, in odd ways, connected to public education (if not to each other).

MLB issued its long awaited report confirming what pundits have longer said: some players have used anabolic steroids and MLB did not do much about it. (Click here for one of many news reports about the report.) The Pennsylvania legislature and the public schools, at least, did not take the head-in-the-sand approach but were out in front of the curve on this one.

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Annual notice time

Annual notices are one among the many things that school administrators must remember to do at this busy time of year. The National School Boards Association has issued a convenient summary regarding the multiple notices that schools (including higher education institutions in some cases) must provide to parents, students, and the public, complete with handy links to model forms and other information. 

You should note that the model forms links are to federal models and are not specific to a particular state's or district's requirements or needs. A district should consider its unique circumstances for each notice, for example, whether the FERPA notice covers independent contracts, such as private student evaluators, sufficiently to meet anticipated district needs.