When access and control will not render a record public

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

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

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

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

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

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

The Dangers of August 31

 

August 31st and the waning days of summer should be a time of renewal, a fresh school year with new expectations, students bright eyed and ready to learn. The last day of the eighth month can also represent the final day of a worn out, old, and beat up Collective Bargaining Agreement. Teachers, Administrators, and School Board Members are ready for a Contract with a face lift.

 

Unfortunately, the economics of our time have brought teacher negotiations in many corners of the Commonwealth to a standstill. Taxpayers unwilling to part with depleted funding, and teacher unions in denial that we’re going through the greatest economic calamity since the Great Depression.

 

The result: the old Contracts overstay their welcome, way past their expiration date.

 

What happens, then, if teachers begin working the days leading up to August 31st in preparation for the 2010-2011 school year? Teachers couldn’t possibly be entitled to a raise, just because they showed up for work, right? After all, the contract expired, so they would just be entitled to a maintenance of current wages?

 

In the wildly erratic world of Pennsylvania teacher contract negotiations, it should come as no surprise that the end date of a Collective Bargaining Agreement could mean the difference between potentially saving millions of taxpayer dollars while negotiating a successor Contract versus paying out raises across the board while losing complete bargaining leverage in the process. We give you the dangers of an August 31st expiration date for your Collective Bargaining Agreement.

 

What’s more maddening is the unsettling guidance from Pennsylvania Arbitrators on this very issue.

 

In Ringgold School District v. Ringgold Education Association (2005), Arbitrator Talarico opined that the Agreement clearly showed the parties bargained for a separate salary schedule for each year and stated:  "More importantly, salary increases beyond five school years specifically covered by the expired Contract were neither bargained for nor contemplated by the parties."  Therefore, the arbitrator held that the employees were not entitled to vertical salary step movement on the Collective Bargaining Agreement.

 

On the other hand, the more recent Northwest Area Education Association v. Northwest Area School District decision from Arbitrator John Skonier explicitly holds that if a school district starts a teacher's work year prior to the expiration of the prior Contract, step and column movement would be triggered.  This is the opposite of the Ringgold decision. Arbitrator Skonier’s decision was later affirmed by the Pennsylvania Commonwealth Court.

 

If August 31st is the terminal day of your contract you may be facing a salary increase and not even know it.