The Pennsylvania School Board Solicitors Association (PSBSA) and the Pennsylvania School Boards Association (PSBA) are pleased to introduce this biweekly e-newsletter, which combines two longstanding publications, links to electronic resources and current information on other school law issues and programs. Let us know how you like this new approach to keeping you informed. Best - Katherine M. Fitz-Patrick Esq., Deputy General Counsel, Member Services and Editor
Commonwealth of Pennsylvania v. Goslin, 2016 WL 3613238 (Pa. Super. 2016).
Lawful Purpose • Possessing a Weapon on School Property
The Superior Court affirmed a sentence of one-year probation for possessing a weapon on school property in violation of Section 912 of the Crimes Code.
Andrew Josiah Goslin attended an “informal hearing” at his son’s school concerning an incident where his son possessed a knife on school property. At the hearing, Goslin stated that he had a knife, asked if the principal was going to call the police, and then slammed the knife down on the table. He did not point the knife at anyone, and it was closed the entire time. The Commonwealth filed a complaint charging him with possessing a weapon on school property.
The Pennsylvania Crimes Code
makes it a first-degree misdemeanor to possess a weapon, including any knife, in the buildings or grounds of any elementary or secondary public, private, or parochial school, further providing that: “It shall be a defense that the weapon is possessed and used in conjunction with a lawful supervised school activity or course or is possessed for other lawful purpose
.” 18 Pa.C.S.A. § 912(b), (c).
At the bench trial, Goslin testified that he’s a carpenter and he carries the knife with him everywhere. The trial court acknowledged the prohibition and the exceptions, and concluded that Goslin’s situation does not fall within one of the exceptions.
On appeal, he asked the court to review whether the trial court erred in appropriately applying “lawful purpose” under 18 Pa.C.S.A. § 912(c), and how “other lawful purpose” is defined. In addressing the issue, the court referenced the following dicta from a Commonwealth Court decision, “or for ‘[an]other lawful purpose’ (meaning, for example, that an investigator, or a security guard, or other person who as part of his or her duties carries a firearm will not be charged with a crime under this section even if he or she is possessing a weapon on school grounds). Bolden v. Chartiers Valley School District
, 869 A.2d 1134, 1139 n.7 (Pa. Cmwlth. 2005).” The court also referenced language from the trial court’s opinion, “[T]he … ‘lawful purpose’ must be related to the reason why one is on school property. If not, it would allow anyone to bring a variety of weapons onto school property so long as the possessor had an alternate explanation for possessing the weapon. Such an intention would nullify the intent of the statute. ...” The court ultimately agreed with the trial court, concluding that Goslin went to the school as a parent, with no purpose for possessing the knife on school property. Consequently, his sentence of probation was affirmed.
Judge Dubow dissented, arguing that “the other lawful purpose” language expands the defense to include any additional or different lawful reason not otherwise mentioned in the first clause.
Click here for the full decision.
Click here for the dissent (J. Dubow).
In the Matter of the Private Sale of Property by the Millcreek Township School District, 2016 WL 3916316 (Pa. Cmwlth. 2016).
PENNSYLVANIA PUBLIC SCHOOL CODE
Sale of Unused Real Property • Section 707
In this case involving the sale of an unused school building, Commonwealth Court reversed the trial court’s order that approved the private sale and remanded the case with instructions to the trial court to order a public sale.
In 2013, Millcreek Township School District closed Ridgefield Elementary School, built in 1951, for lack of use. The district listed the property for sale, and Montessori Regional Charter School offered to purchase the whole property for $1.1 million in cash. The district rejected the offer. Months later VNet offered to purchase a portion of the property for the same price, contingent upon the property being rezoned. The district rejected a second offer by Montessori and two offers from BNS Properties, and ultimately, voted to accept VNet’s offer to purchase Lot 1 (the township later approved the subdivision of the property into three lots). Then the district filed a petition with the trial court, as required by Section 707 of the Public School Code
, for approval of the private sale to VNet. Montessori petitioned to intervene in the private sale proceedings, and also had several other actions pending with regard to the sale and a deed restriction (to prohibit the sale or lease of the empty school building to a charter school).
The trial court held a hearing as required, and both the district and Montessori presented evidence. The certified appraisers who testified on behalf of the district, testified that VNet’s offer was a fair and reasonable price and better than the district could obtain at a public sale. Additionally, the superintendent testified that returning Lot 1 to the tax rolls would result in $15,000 in expected tax revenue. In his testimony, Montessori’s CEO explained why they wanted the property, and made a new offer, “$1.6 million cash deliverable in the fastest closing time possible.” The trial court approved the private sale to VNet, and denied Montessori’s petition to intervene.
After the trial court issued an opinion explaining its ruling, Montessori appealed to Commonwealth Court arguing the trial court abused its discretion in not considering Montessori’s substantially higher offer and denying Montessori’s motion to supplement the record.
Commonwealth Court began by noting the following: school districts are expected to sell their unused property to the highest bidder; a private sale will be allowed as long as the trial court, after a public hearing, determines that the price is fair and reasonable and a better price than could be obtained at public sale; and a private sale may be approved, despite a higher offer, where the difference in the price is small or where other circumstances regarding the sale appeal to the court’s sound discretion. The court also referenced case law, which is instructive on how a private sale should be handled where the hearing produces a better price. The court concluded that due to Montessori’s longstanding interest in the property and its substantially higher offer, the trial court should have stopped the proceedings, and at a minimum, disapproved the sale to VNet and ordered more negotiations between Montessori and the district (the court did note that the better course, in light of the district’s refusal to negotiate, would have been for the trial court to order a public sale). The court held that the “trial court erred and abused its discretion in concluding that that proposed sale to VNet served the public interest by giving a lopsided view of the record in favor of the” district. The trial court also abused its discretion in refusing to supplement the record.
With regard to the district’s argument that Montessori lacks standing to appeal, the court noted that “[s]tanding to intervene in a hearing on a petition to sell public property in a private sale should be broadly allowed; otherwise there is no point to inviting the public to a hearing on a proposed private sale.”
Senior Judge Pellegrini dissented, arguing the majority substituted its direction for that of the district and it ordered an improper remedy.
Click here for the full decision.
A.G. v. Chester Upland School District, 2016 WL 3626812 (3rd Cir. 2016). OPINION NOT PRECEDENTIAL.
The Third Circuit affirmed the district court’s dismissal of plaintiff’s complaint. The plaintiff, A.G., attended Chester High School, which, at some point during his ninth-grade year, decided to not issue identification (ID) cards to students anymore. Subsequent to that decision, Plaintiff was attacked in his high school by a trespasser posing as a student, who bypassed security and entered school property. As a result of the attack, plaintiff suffered physical injuries and emotional distress. Plaintiff sued, claiming the decision to discontinue issuing student ID cards violated his substantive due process rights based on the state-created danger theory. Focused on the fourth element of a state-created danger claim, an affirmative act, the court agreed with the district court’s conclusion that the decision not to issue student ID cards was not an “affirmative act” or “affirmative exercise of authority” that created or enhanced a danger to plaintiff that he otherwise would not have faced. The court noted that the plaintiff failed to show causation – how the attack on him was a “fairly direct” result of the decision not to issue ID cards. Thus, plaintiff’s due process claim under the state-created danger theory failed.
Editor’s Note: Pursuant to its Internal Operating Procedures, the Third Circuit will not cite “not precedential” opinions in their reported decisions.
Click here for the full decision.
Williamsport Education Association, PSEA/NEA v. Williamsport Area School District
John M. Skonier Esq., arbitrator
July 1, 2016
- Just Cause
- Suspension and Dismissal
The arbitrator denied the union’s grievance in this dispute involving the suspension and dismissal of a full-time custodian for allegedly stealing a red sweatshirt. On May 22, 2015, a teacher reported that his red school sweatshirt that he kept in his classroom was missing. The school’s security videos recorded the grievant, a full-time custodian, removing the sweatshirt from the teacher’s classroom, taking the sweatshirt into the break room, and then placing a red sweatshirt into her personal vehicle. When questioned by the head custodian, the grievant gave no indication that she removed a sweatshirt from the teacher’s classroom. On Friday, May 29, 2015, the grievant received a note from her supervisor asking her to appear at a meeting on Monday, June 1, 2015, and to have union representation present. It was at this meeting, after she was shown the video of her leaving the teacher’s classroom with the red sweatshirt, that she did acknowledge that she took a red sweatshirt from the teacher’s classroom. However, she claimed she left the sweatshirt atop a recycling bin in the custodial breakroom and it was her sweatshirt she left the building with. The association argued that the district failed to give written notice of the reasons for the June 1 meeting as required by the collective bargaining agreement (CBA). The arbitrator concluded that provision only applies when the employee is “required by the Board to appear before the Superintendent, Board or any committee, or member thereof …,” which was not the case here. The district did comply with the applicable CBA provision for the June 1 meeting. With regard to the dismissal, the arbitrator concluded that the district demonstrated just cause for the disciplinary action taken, finding that there were several inconsistencies in the grievant’s statements throughout the matter.
Click here for the full opinion and award.
Wyalusing Area Education Association v. Wyalusing Area School District
Thomas M. Krapsho, arbitrator
Feb. 11, 2016
- Appointment of Short-Term Substitute
The arbitrator denied the union’s grievance in this dispute involving the appointment of a short-term substitute teacher. The district’s policy on employment of substitute professional employees provides that short-term substitutes are those who are employed to work 20-89 consecutive days for the same teacher and that long-term substitutes are those who are employed to work 90 or more consecutive days for the same teacher. Due to a sabbatical leave of absence, the district advertised for and then hired a short-term substitute teacher. The short-term substitute teacher worked 86 days, and was paid according to district policy. The union filed a grievance asserting that the district failed to consider her as a long-term substitute teacher and pay her according to the collective bargaining agreement (CBA). With regard to whether or not the grievance is arbitrable, the arbitrator concluded it is, since the language of the CBA recognizes the right of the union to enforce its agreement with the district. With regard to whether the district failed to properly consider the grievant a long-term substitute, the association argued that the determination of whether a substitute must be considered part of the bargaining unit is based on the length of the leave of absence taken by the regular classroom teacher not the number of days worked by the substitute. So, even though grievant only worked 86 days, since the leave, as granted, extended beyond 89 days, the union argued that grievant should have been considered a member of the bargaining unit and paid accordingly. The district argued the district’s policy set out the entirety of the limits regarding hiring part-time employees. The arbitrator did not agree with the union’s creative interpretation of time, and noted the argument did not take into account that in addition to the time requirement being met, the substitute teacher must also demonstrate an expectancy of continued employment. Here, the grievant did not meet the expectancy of continued employment test. Since the CBA did not contain language on filling of positions created by short or extended leaves of absences, the arbitrator concluded that the district’s policy controls how such a vacancy will be filled. Consequently, the arbitrator denied the grievance.
Click here for the full opinion and award.
The Public Sector Arbitration publication is not possible without the efforts of solicitors and superintendents who send us new arbitration decisions. PSBA would like to thank those individuals who have contributed arbitration decisions. If you would like to make such a contribution, please send a scanned copy of the decision to email@example.com, or mail a hard copy to PSBA, Attn: Katherine Fitz-Patrick, 400 Bent Creek Blvd., Mechanicsburg, PA 17050-1873.
Pennsylvania School Board Solicitors Association (PSBSA)
On Thursday, July 14, 2016, and Friday, July 15, 2016, 140 school solicitors traveled to State College, Pennsylvania, for the School Solicitors Symposium, a PSBSA training opportunity. The Symposium provided an overview of legal issues facing school districts across the Commonwealth including what’s happened in the past year and insight about what’s likely to come in the future.
A special thank you to all who made the 2016 School Solicitors Symposium such a success, especially the following presenters.
Overall, the 2016 School Solicitors Symposium provided an informative and relaxed training and networking opportunity for all participants.
- Brian F. Boland Esq., Kozloff Stoudt, Wyomissing, PA, who presented “Social Media, School Employees, and the First Amendment”
- Kenneth A. Roos Esq., Wisler Pearlstine, Blue Bell, PA, who presented “The Anatomy of a School Board Meeting: Best Practices for Open Meetings, Executive Sessions and Sunshine Act Compliance”
- Karen McConnell, assistant superintendent for finance and administrative operations, Central Dauphin School District, Harrisburg, PA, and Anthony G. Sanchez Esq., Sanchez Legal Group, Pittsburgh, PA, who presented “Accommodating Transgender Students”
- Michael I. Levin Esq., PSBA General Counsel, Levin Legal Group, Huntingdon Valley, PA, who presented “School Law Update”
- John G. Audi Esq., Sweet, Stevens, Katz & Williams, Pittston, PA, who presented “Front-loading Public Policy into Your Arbitration Case”
- Carl P. Beard Esq., Andrews & Beard, Altoona, PA, who presented “Pitfalls and Programming Strategies in Safely and Legally Responding to Dangerous and Disruptive Students in General Education Settings”
- Amanda J. Sundquist, Esq., Unruh, Turner, Burke & Frees, West Chester, PA, who presented “Before You Hit Send: Navigating an E-mail Minefield”
School solicitors should mark their calendars for the next CLE training opportunity! The annual School Law Workshop will take place on Thursday, Oct. 13, 2016, from 8:30 a.m.-4:30 p.m. at the Hotel Hershey.
In Other News
Omnibus School Code Bill (House Bill 1606). On July 13, 2016, Gov. Wolf signed the Omnibus School Code Bill, now Act 86 of 2016. A summary of the Public School Code amendments is available here.
Fact Sheet: Education Department Releases Proposed Regulations to Encourage Better and Fairer Tests, Reduce Burden of Testing. On Wednesday, July 6, 2016, as part of its ongoing effort to seize that opportunity through implementation of the law, the U.S. Department of Education is releasing two Notices of Proposed Rulemaking (NPRM). Click here for an overview of the proposed regulations. Click here for the first proposed regulation, Title I-Improving the Academic Achievement of the Disadvantaged - Academic Assessments. Click here for the second proposed regulation, Elementary and Secondary Education Act of 1965, as Amended by the Every Student Succeeds Act - Innovative Assessment Demonstration Authority.
Literacy is for Life. On Friday, July 8, 2016, Pennsylvania Secretary of Education, Pedro A. Rivera, sent the following information in a Penn*Link.
The Pennsylvania Department of Education is pleased to announce the release of the Literacy is for Life Initiative and Toolkit. This initiative is based on research that has identified specific issues related to literacy in Pennsylvania:
Children need to be prepared for life beyond school – life where higher literacy can only help them. That’s why educational entities across the state – the Department of Education, school districts, educational agencies, Intermediate Units and more – are joining together to promote literacy.
- The percentage of Pennsylvanians who struggle with literacy has remained unchanged since 1992.
- Many people contend that their literacy knowledge is “good enough.”
- 75% of jobs in Pennsylvania require schooling beyond high school.
The purpose of this toolkit is to provide literacy resources in order to share a consistent and urgent message across Pennsylvania school districts, intermediate units and charter schools. The goal is for families and students to understand that literacy isn’t just about a grade in English class, it’s about honing their skills in reading, writing, speaking and listening in order to improve their chances of success in whatever path in life they take. PDE will use channels that are already in place – school, district and IU communications, social media and even local media contacts – to disseminate this message and help improve the perceptions of literacy and its importance in everyday life. Access the kit on the PDE website using this link: Literacy is for Life.
Unpaid Meal Charges: Local Meal Charge Policies. On Friday, July 8, 2016, the U.S. Department of Agriculture issued a memo “to address the need for school food authorities (SFAs) participating in the Food and Nutrition Service (FNS) National School Lunch Program (NSLP) and School Breakfast Program (SBP) to institute and clearly communicate a meal charge policy, which would include, if applicable, the availability of alternate meals.” SFAs must have a written meal charge policy in place no later than July 1, 2017.
Unpaid Meal Charges: Clarification on Collection of Delinquent Meal Payments. On Friday, July 8, 2016, the U.S. Department of Agriculture issued a memo to clarify “the processes of designating delinquent debt that has been determined to be uncollectable as bad debt and obtaining assistance to offset bad debt losses.”
Zika Virus Response Planning: Interim Guidance for District and School Administrators in the Continental United States and Hawaii. Click here for more information on the Center for Disease Control and Prevention’s website.
U.S. Department of Education Takes Actions to Address Religious Discrimination. On Friday, July 22, 2016, the U.S. Department of Education shared a series of actions that confront discrimination and promote inclusive school environments. Among the highlights:
Click here for more information.
- Religious Discrimination Website. The Department’s Office for Civil Rights launched a new page on its website with information about federal laws that protect students from discrimination involving their religion.
- Updated Online Complaint Form. OCR updated its online complaint form to clarify that the office can investigate complaints regarding racial, ethnic or national origin discrimination involving religion.
Guidance on Civil Rights of Students with ADHD. On Tuesday, July 26, 2016, the U.S. Department of Education’s Office for Civil Rights “issued guidance clarifying the obligation of schools to provide students with attention-deficit/hyperactivity disorder (ADHD) with equal educational opportunity under Section 504 of the Rehabilitation Act of 1973…. In addition to the guidance, the Department also released a Know Your Rights document that provides a brief overview of schools’ obligations to students with ADHD.” The press release is available here.
Pennsylvania School Board Solicitors Association
The Officers and Regional Directors for the Pennsylvania School Board Solicitors Association for 2014 are as follows:
Region 10: Michael A. Davis Esq., General Counsel, School District of Philadelphia
Michael L. Brungo Esq., President
Maiello, Brungo & Maiello, Pittsburgh
Kristine Marakovits-Roddick Esq., President-Elect
King, Spry, Herman, Freund & Faul, Bethlehem
Philip H. Spare Esq., Secretary
Stock and Leader, York
Jeffrey D. Litts Esq., Immediate Past President
Kegel, Kelin, Almy & Lord, Lancaster
Region 1: Carl N. Moore Esq., Knox McLaughlin Gornall & Sennett, Erie
Region 2: Andrea C. Parenti Esq., Dillon, McCandless, King, Coulter & Graham, Hermitage
Region 3: John M. Ranker Esq., John M. Ranker & Associates, Greensburg
Region 4: Scott C. Etter Esq., Miller, Kistler, & Campbell, Bellefonte
Region 5: Patrick J. Fanelli Esq., Fanelli Willett Law Offices, Duncansville
Region 6: Vincent L. Champion Esq., Rhoads & Sinon, Harrisburg
Region 7: Michael I. Butera Esq., Butera Law Office, Pittston
Region 8: Erin D. Gilsbach Esq., King, Spry, Herman, Freund & Faul, Bethlehem
Region 9: Brooke E. D. Say Esq., Stock and Leader, York
Region 11: Brian E. Subers Esq., Fox Rothschild, Blue Bell
Region 12: Patrick J. Barrett III Esq., Canton
Region 13: Ira Weiss Esq., School District of Pittsburgh
Region 14: Christina Lane Esq., Andrews & Price, Pittsburgh
Region 15: Michael V. Puppio, Jr. Esq., Raffaele & Puppio, Media
Thursday, Oct. 13, 2016 – School Law Workshop, Hershey, PA
Mark your Calendars
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For questions about this publication, contact Katherine Fitz-Patrick Esq.
Tel: (717) 506-2450, ext. 3414.
Legal Services Team:
Stuart L. Knade, General Counsel
Emily J. Leader, Senior Deputy General Counsel
Katherine M. Fitz-Patrick, Deputy General Counsel, Member Services