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JUDICIAL & ADMINISTRATIVE DECISIONS
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Chester Water Authority v. Pa. Dep’t of Community and Economic Development, 2021 WL 1740596 (Pa. Supreme Ct. 2021)
RIGHT-TO-KNOW LAW; PUBLIC RECORDS
Exemptions • Predecisional Deliberation – Private Consultants
This Right-to-Know Law (RTKL) appeal addressed the issue of whether a statutory deliberative-process exception extends to records exchanged between a Commonwealth agency and private consultants. For almost 25 years, the City of Chester (City) has been designated as a distressed municipality, which is administered by the Department of Community and Economic Development (DCED). Among DCED’s other responsibilities, the agency is tasked with appointing coordinators, which may be DCED employees or private consultants, to formulate plans to address the financial problems of distressed municipalities. In 2016, DCED entered into a professional services contract with a private consulting firm to act – in the capacity of an independent contractor – as the recovery coordinator for the City of Chester. The private consulting firm subcontracted with a professional financial services firm and a law firm. Pursuant to the law, the private consulting firm was assessing the potential privatization of local municipal authorities – including Chester Water Authority (Authority) – and estimating the impact on the City’s financial health. In late 2017, the Authority submitted two lengthy RTKL requests to DCED requesting copies of documents reflecting communications among DCED and the private consultant and its subcontractors. DCED made a partial tender but redacted and/or withheld a substantial quantity of materials, asserting that disclosure of the withheld materials was not required because the documents were internal, predecisional deliberations and privileged communications. The Office of Open Records and the Commonwealth Court agreed with DCED, finding that if government agencies are forced to operate in a fishbowl, the frank exchange of ideas and opinions would cease and adopted a “consultant corollary” extending exemptions to communications between government agencies and outside consultant that they hire. The Pennsylvania Supreme Court reversed the Commonwealth Court as to the application of the statutory deliberative-process privilege and affirmed as to the mootness of the privileged nature of the communications.
The Court started by analyzing the plain-meaning interpretation of Section 708(b)(10)(i)(A) of the RTKL, which prohibits disclosure of “internal, predecisional deliberations of an agency, its members, employees or officials” as well as deliberations between such individuals and another agency. Since the private consultant and its subcontractors were clearly not agencies, members, employees or officials, the Court determined that the statutory provision did not apply to communications with outside consultants. The Court pointed out that the statutory exemption only protects deliberations that are internal to an agency and its members, employees or officials, or represent deliberative inter-agency communications. The Court dismissed the issues the Authority raised under the attorney-client privilege and work-product doctrine as moot since the records that were originally withheld had been produced. Justice Dougherty concurred in the result to the extent the majority held that the RTKL does not prevent disclosure of communications exchanged between a Commonwealth agency and its private consultant’s subcontractors. Justice Wecht and Chief Justice Baer dissented finding that the General Assembly did not intend this result and postulated that this decision will have “the deleterious effects of deterring agency professionals from seeking the unvarnished advice of non-governmental experts.”
Click here for the majority opinion.
Click here for the concurring opinion.
Click here for the dissenting opinion.
Wise v. Huntingdon County Housing Development Corp., 2021 WL 1661243 (Pa. Supreme Ct. 2021)
IMMUNITY/SUITS AGAINST LOCAL AGENCIES
Sovereign Immunity Act • Real Estate Exception
The Pennsylvania Supreme Court reversed the lower court's holdings that the real estate exception to sovereign immunity applied to a pedestrian’s injury claim that involved insufficient lighting that occurred because of the location on the property of a pole light and a tree blocking the light emitting from the pole light. On March 9, 2015, Wise filed a negligence action against the Housing Authority of the County of Huntingdon (HACH) alleging that she tripped and fell while walking on a sidewalk in a public housing complex in Mount Union, Pennsylvania. Wise alleged that the cause of her fall was due to insufficient outdoor lighting of the sidewalk area, purportedly due to the location of a pole light and a tree obstructing the light provided. Wise claimed that she suffered severe and permanent injuries and losses as a result of the accident. HACH asserted, in response, that sovereign immunity barred Wise’s claim. HACH contended that the real estate exception did not apply because there was no defect in the sidewalk and “insufficient lighting is not a condition or defect of the land itself.” The trial court agreed with HACH as did the Commonwealth Court, observing that Wise’s characterization “ignore[d] that, but for the natural nighttime darkness, there is no alleged defect.” The Pennsylvania Supreme Court disagreed.
The Court started by reviewing the Sovereign Immunity Act (Act) to determine if the Commonwealth Court properly applied the real estate exception under the Act. The Court analyzed numerous cases and concluded that to be “of” the Commonwealth realty, as the word is used in Section 8522(b)(4), the dangerous condition “must derive, originate from or have as its source the Commonwealth realty.” A dangerous condition resulting from “a defect in the property or in its construction, maintenance, repair or design” will preclude application of immunity. Additionally, the dangerous condition must be an artificial condition or defect of the land itself, as opposed to the absence of such a condition, and that artificial condition or defect must be the cause, or a concurrent cause, of the injury. In claiming that the insufficient outdoor lighting stems from the existence and position of the pole light and tree in relation to the sidewalk area of HACH’s property, the Court found that Wise identified a dangerous condition that resulted from a “defect in the property or in its construction, maintenance, repair, or design.” Accordingly, the order of the Commonwealth Court was reversed.
Justice Donohue and Justice Wecht filed a concurring opinion agreeing with the result and agreeing that the insufficiently illuminated walkway was a dangerous condition “of the property” so that the real estate exception applied. Justice Wecht and Justice Dougherty filed a separate concurring opinion.
Click here for the majority opinion.
Click here for the Donohue concurring opinion.
Click here for the Wecht concurring opinion.
Haney-Filippone v. Agora Cyber Charter School, 2021 WL 1853434 (E.D. Pa. 2021)
CHARTER SCHOOLS
Family Medical Leave Act • Public Agency
The District Court granted Haney-Filippone’s motion for judgment on the pleadings after determining that Agora Cyber Charter School (Agora) was a covered employer under the Families First Coronavirus Response Act (FFCRA). Haney-Filippone (Plaintiff) works as a teacher at Agora. She remotely co-teaches live classes throughout the day, monitors and tracks individual students’ goals, meets with students one-on-one and attends meetings and calls with parents. After the COVID-19 pandemic started, all four of Plaintiff’s young children were home full-time. Although her schedule was accommodated in the beginning of the pandemic, at the beginning of the 2020-21 school year, it was “business as usual” at Agora. Plaintiff, accordingly, asked about taking leave under FFCRA but this was denied by Agora, which alleged that the FFCRA did not apply to it because it is a “private entity” employing over 500 people, making the FFCRA paid and unpaid leave provisions inapplicable to Agora. Plaintiff used her vacation days and worked at night and on the weekends so she could supervise her children during the day. Ultimately, Plaintiff filed a complaint seeking a declaratory judgment that Agora was a “covered employer” under FFCRA, specifically the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). After cross-motions for judgment on the pleadings were filed, the sole issue to be decided was whether Agora is a covered employer under the FFCRA.
The District Court started by analyzing EFMLEA, which temporarily expanded the Family Medical Leave Act to provide certain COVID-19-related family leave. The court determined that EFMLEA was only applicable to Agora if it is a “public agency.” In interpreting EFMLEA, the court reviewed the background of extensive federal statutory law, case law, regulations and administrative decisions under the Family Medical Leave Act (FMLA), which found that school districts and school boards are “public agencies” under FMLA. The court also reviewed Pennsylvania law to determine how public charter schools are treated. Based on this review, the court determined that Agora was not “meaningfully distinguishable from traditional public schools and school districts for some regulatory purposes.” Accordingly, the court concluded that Agora is a “public agency” under FMLA and can be sued for FMLA violations. Using similar analysis, the court also concluded that EPSLA was applicable to Agora.
Click here for the opinion.
Archer, et al v. Rockwood Area School District, et al, 2021 WL 1200314 (Commw. Ct. 2021)
SCHOOL TERRITORY TRANSFER/INDEPENDENT DISTRICTS
Educational Merit • Student Population not Factor
The Commonwealth Court reversed the Secretary of Education (Secretary) and remanded this matter for further consideration of the landowners’ petition to establish an independent school district. The petitioners own 22 acres of contiguous parcels of land in Jefferson Township that are assigned to the Somerset Area School District (Somerset). The petitioners filed a petition with the trial court to create an independent school district in order to have their land transferred from Somerset to the Rockwood Area School District (Rockwood). Somerset opposed the petition, arguing that an insufficient number of “taxable inhabitants” had signed the petition because only two of the petitioners had their permanent residence in the proposed independent school district. The trial court agreed that an “inhabitant” was a “permanent resident” and dismissed the petition, but the Commonwealth Court reversed the decision, observing that “taxable inhabitants” had been expressly defined in precedent as persons that can “lawfully be taxed.” After the Pennsylvania Supreme Court denied Somerset’s petition for allowance of appeal, the trial court entered an order directing the Secretary to determine whether the petition had merit from an educational standpoint. The Secretary sent both districts an extensive questionnaire seeking all sorts of information, including the number of students that would be transferred. Somerset responded that no school-aged children live in the proposed independent school district. Rockwood responded that a transfer would have little educational impact other then to expand educational opportunities for its students due to the increased tax revenue. The Secretary, through his designee, dismissed the petition because no students resided in the proposed independent school district, making it difficult to evaluate the educational merit of the proposed transfer. Despite all of the evidence that the petitioners presented to the Secretary, the Secretary refused to evaluate it for the stated reason that no students resided in the proposed independent school district.
The Commonwealth Court analyzed the statutory requirements pertaining to the procedures for transfer of territory from one school district to another. The focus was on the detailed list of what must be contained in a petition to establish an independent school district set forth in § 242.1(a) of the School Code. Based on this analysis, the court concluded that in considering the “merits of the petition” from an “educational standpoint,” the Secretary added words to a statute that were “not chosen by the legislature.” Accordingly, the Secretary’s analysis of educational merit must be done without regard to student population. As a result, the Secretary’s adjudication was reversed and the matter was remanded. Senior Judge Leadbetter dissented, finding that the Secretary’s adjudication was sound since the petitioning property owners have no legitimate interest in the educational value of the school district in which their property sits.
Click here for the opinion.
Kern v. McGuffey School District, et al, 2021 WL 1733304 (Commw. Ct. 2021)
EMPLOYEE DEMOTION; DISCIPLINE; EVALUATION; TERMINATION
Termination • At-Will Employment Doctrine’s Public Policy Exception
The Commonwealth Court affirmed the trial court’s decision granting summary judgment in favor of McGuffey School District and the other defendants (collectively McGuffey) in this matter involving the termination of Kern from his transportation supervisor position. Kern was employed by McGuffey as the supervisor of transportation from June 2015 through June 2017. McGuffey terminated his employment in June 2017 due to an alleged “substantial decrease in pupil enrollment in the district.” According to Kern, he was replaced by a person with less experience as a supervisor at a larger salary. Kern also alleged that relatives of the school board members who worked at McGuffey were not furloughed. Kern filed a complaint alleging that his employment was terminated in violation of the Public Official and Employee Ethics Act (Ethics Act) and he asserted one count of wrongful discharge and of civil conspiracy. McGuffey responded by alleging that potential violations of the Ethics Act do not constitute a public policy exception to the at-will employment doctrine. McGuffey also asserted that the wrongful discharge claim was barred by governmental immunity and the civil conspiracy claim was not viable.
The Commonwealth Court started by analyzing the public policy exception to the at-will employment doctrine. Based on this analysis, the court turned to the Ethics Act to determine if violations of the Ethics Act rose to the level of constituting a public policy exception to the at-will employment doctrine. While recognizing that the Ethics Act reflects a public policy that public officials should not engage in nepotism or display favoritism to familial members for their own pecuniary gain when deciding to discharge some employees rather than others, the court recognized that this public policy was not “applicable directly to… [Kern’s] actions.” The court pointed out that in all cases where the courts have found a cognizable wrongful discharge claim, the employee either committed an affirmative act or refrained from doing something that the employer requested. This was not the situation in this matter. The court concluded that the at-will employment relationship should not be converted into a wrongful discharge claim just because the employer violated a mandate of public policy. Accordingly, the wrongful discharge claim and the claim for civil conspiracy failed as a matter of law.
OPINION NOT REPORTED
Editor’s Note: Unreported decisions of the Commonwealth Court are not intended to have precedential value but may be cited in legal proceedings for persuasive value.
Click here for the opinion.
In Re: Danielle Robinson, Order No. 1783, Docket No. 19-034 (State Ethics Commission, March 29, 2021)
PUBLIC OFFICIAL AND PUBLIC EMPLOYEE ETHICS ACT
Use of Authority • Private Pecuniary Benefit
The Ethics Commission determined that there was no violation of the Public Official and Employee Ethics Act (Ethics Act) in this matter involving the school board president and her husband, who is a teacher in the school district. Danielle Robinson has served as a school board member at the Harrisburg School District (Harrisburg) since May 2012. She was the board president from 2015-17 and 2018-19. Voting at board meetings occurs via individual roll call as a “yes/no” vote depending on the subject of the vote. Personnel actions require the affirmative vote of a majority of the board members in attendance. Among other responsibilities, the board approves the employment, sets the compensation and establishes the term of employment for administrative, professional and support employees at Harrisburg. Robinson’s husband was employed as a teacher at Harrisburg. He was recommended for a sixth-grade teacher position in Harrisburg. His salary was based on the terms of the collective bargaining agreement (CBA) between the teachers and Harrisburg. At the July 31, 2017 school board meeting, Mr. Robinson and 43 others were appointed to various teaching positions at Harrisburg. Board Member Robinson did not vote on the appointment of any personnel at this meeting. Thereafter, Mr. Robinson questioned his compensation when he noticed that his starting salary was too low based upon the terms of the CBA. At the August 21, 2017 board meeting, Mr. Robinson and four other teachers received “a correction with a change in pay” at the meeting. Board Member Robinson voted “yes” to this action. Thereafter, the Investigative Division of the State Ethics Commission conducted an investigation regarding possible violations of the Ethics Act.
At the conclusion of the investigation, the Ethics Commission found that Board Member Robinson did not violate the Ethics Act when she voted to approve and/or authorize a “correction with change in pay” concerning her husband as an employee of Harrisburg, as her use of office was limited to a ministerial action of authorizing the placement of her husband into a pay scale which appropriately reflected his years of experience and educational credits. The Ethics Commission found that Board Member Robinson did not participate in the board’s vote on July 31, 2017, which appointed Mr. Robinson as a teacher in Harrisburg. Although the CBA established a salary of $73,716.00 for a teacher with Mr. Robinson’s years of experience and educational credits, Mr. Robinson's salary was set at $69,864.00 when the board voted to appoint him to a teaching position. Board Member Robinson’s use of office in participating in the board’s subsequent vote that approved a “correction with a change in pay” for Mr. Robinson and set his salary at $73,716.00 merely placed his salary into the appropriate pay scale under the CBA and did not result in Mr. Robinson’s receipt of compensation to which he was not entitled.
Click here for the opinion.
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PUBLIC SECTOR ARBITRATION
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Thank you to all who plan to or who have contributed recent or older but useful arbitration opinions and awards.
PLEASE KEEP THEM COMING!
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Attorney participation at special education mediations
A new FAQ on attorney participation at special education mediations has been posted on the Office of Dispute Resolution website.
New Q&A on civil rights and school reopening in the COVID 19 environment
The Department of Education's Office for Civil Rights recently released a new Q&A document, which provides answers to common questions about schools' responsibilities under the civil rights laws and is designed to help students, families, schools and the public support all students' rights in educational environments, including in elementary and secondary schools and postsecondary institutions.
Topics covered in the Q&A include protections against discrimination for students with disabilities; protections for students against discrimination based on race, color and national origin; and protections for students against sex discrimination.
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MARK YOUR CALENDAR
Register now! Solicitors Symposium: July 8 & 9, 2021
The School Solicitors Symposium is an annual, multiday educational and networking program specially focused on issues and trends having particular impact on legal representation of public school entities. As many aspects of life and law practice begin to return to some semblance of normalcy, we are increasingly eager to resume the informative and collegial gatherings of the PA School Board Solicitors Association. Although the 2021 Symposium will be conducted remotely due to the ongoing pandemic, like the traditional in-person event, it will include networking and brainstorming opportunities in addition to topical presentations, all offered in a relaxed atmosphere. We look forward to “seeing” you there! Attendees can earn seven continuing legal education credits (six substantive, one ethics). Click here to register now! The first 100 registrants will receive a “swag bag” mailed to their home prior to the event.
2021 topics include:
- Title IX Update – a look at the future of the 2020 regulations, protection of LGBTQ students and other emerging issues
- School Law Update – a lively overview of what’s happening in the courts, new statutes and regulations, and other developments directly impacting public school operations and liability exposures
- Achieving a Sane Work-Life Balance (ethics and professionalism)
- Reviewing Board Policies with an Equity Lens – the solicitor’s role in identifying potential equity barriers and shortfalls in the way district policies are worded and implemented
- Economic Furloughs of Professional Employees – legal requirements and practical considerations involved in preparing for and implementing reductions in force for purely economic reasons
- Cybersecurity & Privacy Compliance – what solicitors need to know to help clients ensure that district systems and data are protected from cyber threats and privacy breaches
The program also will include multiple roundtable discussion sessions where attendees can exchange information, ideas and strategies about trends in various focus areas, such as:
- Arbitrators and Arbitrations
- Pandemic Response and Recovery
- Labor Negotiation Trends
- Special Education Hotspots
- Tax Assessment Litigation Developments
- Developing Policies Protecting Transgender Students
Save the Date: School Law Workshop - September 27, 2021
We remain optimistic that the School Law Workshop on Monday, September 27 will be an in-person event, as planned, at Kalahari Resorts & Conventions in the Pocono Mountains. More information to come!
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CONTINUING LEGAL EDUCATION WEBINARS
The Continuing Legal Education (CLE) Distance Learning area of the PSBA website and distance learning platform has gone live and is now available here! This spring, PSBA concluded a 12-week series of CLE webinars for attorneys. Recordings of these webinars can be accessed at any time, at the convenience of the participant. Most recorded programs provide one CLE credit hour. A list of currently available programs that can be purchased for viewing and credit can be found here.
Questions? Contact PSBA Legal Services staff at clelegal@psba.org.
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INFORMATION FROM PSBSA
For questions about Pennsylvania School Board Solicitors Association (PSBSA) membership status and dues invoices, as well as about the PSBSA officers, board of directors, bylaws and other governance information, please call Stuart Knade at (800) 932-0588, ext. 3377, or email him at Stuart.Knade@psba.org.
The Solicitors Association is looking forward to the upcoming year of programs and dissemination of information regarding legal developments in school law. If you have ideas for legal programs, please send the ideas to your regional director or Stuart Knade or Linda Randby.
Let us Know
Got a tip, a link, a correction, a question, a comment, an observation, a clarification, a wisecrack, an idea you’d like to see addressed? We are always glad to hear from you.
Have you changed your email address, mailing address, or phone number? Please let us know. For questions about this publication, contact Linda Randby (717) 506-2450, ext. 3378. |
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School Board Solicitors Association Officers
John G. Audi, Esq., President
Rachel K. Lozosky, Esq., President-Elect
Benjamin L. Pratt, Esq., Secretary
Vincent L. Champion, Esq., Immediate Past-President
Legal Services Team
Stuart L. Knade, Esq.
Linda J. Randby, Esq.
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Copyright © 2021 Pennsylvania School Boards Association, All rights reserved.
No claim of copyright to information on other websites or to original U.S. Government Works.
The School Law EDition is a biweekly publication of the Pennsylvania School Board Solicitors Association (PSBSA) and the Pennsylvania School Boards Association (PSBA). This publication is distributed to members of the Solicitors Association and administrators who have purchased the comprehensive subscription package. Except for distribution within the school entity or law office, no part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or otherwise, without the prior written permission of PSBA. This material cannot be shared with other school entities or law firms. All inquiries about reprint permission should be sent to Linda Randby, Editor.
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