Gov. Wolf Threatens Veto of Protect Excellent Teachers Act

This week, the Pennsylvania General Assembly passed legislation that would end the practice of basing teacher furloughs on seniority alone. Pennsylvania is one of only 6 states that bases such decisions on seniority alone, and the new law would allow schools to retain less senior teachers who have been rated satisfactory and instead furlough teachers who have been given poorer ratings. Seniority would still be used to break a tie in the event two teachers have been rated similarly in their performance.

Supporters of the new law, known as HB805, note examples in which Districts were forced to furlough distinguished teachers while keeping others that had been rated poorly, simply because they were not permitted to look at other factors than seniority. The new law recognizes that teachers, as professionals, are not all the same and that the student achievement and welfare should be of greater concern than seniority alone.

Governor Wolf, however, has threatened to veto the bill, which currently sits on his desk. Oddly, Governor Wolf claims this is a “local matter to be decided by districts,” yet he continued to threaten a veto of the bill that actually would give local districts the tools to make such a decision.

In addition, the new law would allow districts the ability to make furlough decisions on the basis of economic considerations, whereas now such decisions only can be made on the basis of specific reasons such as declining enrollment, program curtailment, and building or district consolidation.

Stay tuned to see whether the Governor actually provides local districts with these needed tools or follows through on his threat to veto.

EDIT: Governor Wolf in fact did veto the bill Wednesday, May 19, 2016, as threatened.

Could Teacher Layoffs Be Based on Performance Rather Than Seniority?

If some Pennsylvania state lawmakers have their way, teacher layoffs soon can be based on performance rather than just seniority. Although the idea is not new, the proposal once again has been made to amend the PA School Code to eliminate the longstanding requirement that when schools lay off teachers they eliminate the positions of the least senior employees.

The proposals, found in Senate Bill 5 and House Bill 805, would permit districts that need to lay off teachers to select the worst performing teachers instead of the least senior, using annual performance ratings as the guide. According to reports the bills’ sponsors say that it too often is the case that good teachers are let go while poorer performing teachers are kept, and they note that Pennsylvania is one of only six states that still requires these decisions to be made on the basis of seniority only.

Again, the proposal is not new, but the bills do have bi-partisan support. They have been referred to the respective Education Committees in each chamber, and we will continue to monitor their progress.

school bus

PA Supreme Court Affirms Cap on School & Municipal Liability

In an important decision for school districts and municipalities, the Pennsylvania Supreme Court this week upheld a cap on damages claimed by plaintiffs injured by public entities. Here, in the case of Zauflik v. Pennsbury School District, the Court invalidated a jury verdict in excess of $14 million dollars, leaving the plaintiffs with a revised award of just $500,000.

In this tragic case, a student was injured severely when a bus owned by the Pennsbury School District, and operated by a District employee, accelerated onto a sidewalk, hitting 20 students. The plaintiff suffered a crushed pelvis and required the amputation of her leg. There was no question that the District was liable for the injury.

The question in this case, though, involved the Political Subdivision Tort Claims Act and its cap on damages that can be awarded. Generally, governmental entities are immune from liability, but the Act includes some exceptions to that general rule. Even when an exception applies, as it did in this case, the law still says that no damages can be awarded against a local government in excess of $500,000 per incident.

Here, the plaintiffs argued that the cap was unconstitutional and that a $14 million award from the jury should stand. The Court affirmed the constitutionality of this limit on liability, however, leaving the plaintiff with the statutory cap.

This is an important decision for local governmental entities, since paying large verdicts in cases like this would divert taxpayer funds from providing other essential services. Governmental entities should be aware, though, that this Act and its cap on damages apply only to personal injury claims and not other types of disputes, like eminent domain actions, employment related claims and breach of contract disputes for example.

As always, governmental entities should contact legal counsel with any questions about possible liability.

Supreme Court Allows Prayer at Public Meetings – What Does It Mean for Schools?

By now, you likely have heard or read about this week’s United States Supreme Court decision upholding the constitutionality of prayer at public meetings.  The decision itself should not be all that surprising, and really does not represent any kind of change – one way or another – in the Constitutional analysis of public prayer.

More than 30 years ago, in Marsh v. Chambers, the United States Supreme Court held that it was not unconstitutional to use taxpayer money to hire sectarian chaplains to offer ceremonial prayers at the opening of state legislative sessions.  The Court noted that ceremonial prayers at the opening of a legislative body’s meetings had been used since the nation’s founding (at the same time the Constitution was written and first implemented) to solemnize these meetings.  The case has been used to uphold prayers at local municipal government meetings as well.

So that means school boards, as local legislative bodies, can open meetings with prayer as well, right?  No necessarily.

For the last few years, courts have had to address the question of whether prayers at the opening of a school board meeting should be considered like other legislative body prayers or like school context prayers, which generally are not permitted when authored or at least sanctioned by the school itself.  The Third Circuit Court of Appeals, which has jurisdiction over Pennsylvania, where we are located, answered this question in Doe v. Indian River School District.  The Court concluded that because students may be likely to attend school board meetings, these prayers were more like school prayers than like other legislative prayers.  As a result, they held the prayers were unconstitutional.

Unless or until the US Supreme Court holds otherwise, the Third Circuit decision in Doe v. Indian River is final and binding on Pennsylvania School Districts.  This week’s decision will not be likely to limit it.

PA House Bill Would Require Public Notice Before Approval of School Collective Bargaining Agreements

If supporters of Pennsylvania House Bill 1471 get their way, Pennsylvania public school Districts soon will be required to advertise their intention to adopt a collective bargaining agreement or any employment agreement with any professional employee.  The bill has been passed by the House and referred to the Senate’s Education Committee for consideration.

If enacted, the bill would require that the notice be advertised on the school district website and in at least one local newspaper, at least 48 hours in advance of the official action to approve the agreement.  Although the bill would require the PA Department of Education to promulgate regulations relating to the form of the notice, the bill does say that the notice would need to include a “statement of the terms of the proposed collective bargaining agreement or employment contract” and an “estimate of the costs to the school district associated with the proposed collective bargaining agreement or employment contract.”

Although presumably the PDE regulations could provide some more detailed guidance, the requirement that the “terms” and “costs” be advertised is not only vague but also could serve to create an unnecessary and counterproductive burden on school districts.  It should be noted that schools already are required to act in public when approving these agreements, and advertising an oversimplified and context-free summary of a collective bargaining agreement is not likely to guarantee the kind of productive dialogue the bill’s proponents may anticipate.

Keep an eye on this one, as it makes its way through the state Senate.