School Law Information Exchange & Public Sector Arbitration – Information you need to keep you up to speed on the issues facing public education.
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Vol. 53, No. 1

 

Franklin Regional School District v. Franklin Regional Education Association, 2016 WL 100176 (Pa. Cmwlth. 2016). OPINION NOT REPORTED.

COLLECTIVE BARGAINING/ARBITRATION/LABOR
      Arbitration Award • Public Policy Exception

In this case involving cross appeals related the whether the trial court erred in granting the school district’s petition to vacate an arbitration award based on the public policy exception, Commonwealth Court reversed, holding the trial court improperly reviewed and reweighed the factual record.
     Philip Wonderling, employed by the district for seventeen years, taught instrumental music to fourth and fifth graders at three separate elementary school buildings. Instruction consisted of both large-group (involved approximately ninety students and took place before normal school hours) and small-group (involved two to eight students and took place during school hours) instruction. E.K., a female student, missed large-group instruction on March 20, 2013, and when she failed to show up for her small-group instruction, Wonderling sent another student to get her (standard procedure for a no-show). Wonderling subsequently released E.K. back to class, since she was “non-participative” in the small-group instruction. The next day, two students advised Wonderling that “EK had gone to elementary Principal Buffone to get Mr. Wonderling into trouble.” E.K.’s mother called the school guidance counselor and alleged that Wonderling had inappropriately touched E.K. The district commenced an internal investigation, and contacted the local police and county children and youth agency (neither entity found grounds to prosecute or proceed any further).
     The district suspended Wonderling, and later charged him with immorality, incompetency and willful violation of school laws. The association filed a grievance, alleging a violation of the just cause provision of the collective bargaining agreement. The arbitrator considered the issue of whether there was just cause for Wonderling’s discharge. The arbitrator considered the fact that neither the police nor CYS initiated proceedings, and determined that both E.K. and her mother lacked credibility. Wonderling did admit to using “snack-bites,” which entailed squeezing a child’s knee between the thumb and forefingers, to regain a student’s attention, but the arbitrator concluded this behavior did not rise to the level to support discharge. The arbitrator determined that there was no just cause, concluding that the allegations were unfounded and unsupported by the facts. Accordingly, the arbitrator set aside his discharge.
     The district appealed to the trial court, arguing the award contravened public policy. The trial court concluded that the “arbitrator’s award is not in accord with established public policy of protecting students from impermissible touching by their teachers.” The court crafted its own remedy, which included reinstatement, after a period of suspension without pay, “upon proof that he has completed an evaluation and treatment directed at correcting the behavior he engaged in, . . .”
     Both the district and the association appealed to Commonwealth Court, where the court addressed whether the trial court erred in granting the district’s petition to vacate an arbitration award based on the public policy exception. An arbitration award will be upheld if it can rationally be derived from the collective bargaining agreement, unless it contravenes public policy. In reversing the trial court’s order, Commonwealth Court concluded that the trial court: overreached when it considered and reinterpreted the discounted evidence and reweighed the accepted evidence to determine that there was a basis for applying the public policy exception; made an unwarranted leap from the arbitrator’s decision in determining that Wonderling’s conduct constituted harassment such that it contravened a public policy prohibiting impermissible touching by teachers; and erred in modifying the award.     
     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 full decision.

 

Norristown Area School District v. F.C., 2016 WL 98571 (3rd Cir. 2016). OPINION NOT PRECEDENTIAL.

SPECIAL EDUCATION
      Attorneys’ Fees • Compensatory Education • Tuition Reimbursement

The U.S. Court of Appeals for the Third Circuit affirmed the district court’s orders awarding compensatory education, tuition reimbursement and attorneys’ fees.
     F.C., a student diagnosed with autism and speech and language impairment, attended school in the district from the start of kindergarten through the end of second grade. Pursuant to his Individualized Education Plan (IEP), F.C. was placed in a full-time autistic-support classroom for kindergarten and part of first grade. In the middle of first grade, F.C. began transitioning out of the full-time autistic support classroom to a general classroom without one-on-one support. F.C. spent about 38 percent of his total school day in the general classroom. At the start of his second grade year, F.C. spent 87 percent of his total school day in the general classroom without one-on-one support. F.C. had trouble integrating into the general classroom, and eventually his behaviors began to impede his learning and that of other students. Consequently, the IEP developed for his third grade year included a Positive Behavior Support Plan (PBSP), and one-on-one paraprofessional support through November (anticipated duration). His parents refused to sign the IEP and enrolled F.C. in a private school for third grade. The district offered a new IEP in April of his third grade year, but F.C. remained at the private school for the remainder of the year.
     His parents filed an administrative due process complaint, claiming a denial of FAPE and requesting compensatory education and tuition reimbursement. The hearing officer determined that the district failed to provide a FAPE during second and third grades, ordering compensatory education (for second grade) and tuition reimbursement (for third grade). On appeal, the trial court affirmed the hearing officer’s findings related to compensatory education and tuition reimbursement, but reversed the compensatory-education award for speech and language instruction. The trial court subsequently awarded the parents $139,629.34 for their reasonable attorneys’ fees and costs. The district appealed both orders.
     Commonwealth Court addressed a number of the district’s contentions, including whether the trial court applied the correct legal standard in determining whether the district provided F.C. with a FAPE. The court disagreed with the district’s contention that the trial court erred by referencing “in light of his intellectual potential” when considering whether the education provided a “meaningful benefit,” since the language merely references the capabilities of the child. Furthermore, the court found “no error in the trial court’s conclusion that one-on-one support in the general classroom was required for F.C. to receive a FAPE in second grade.” With regard to tuition reimbursement, the district contends that F.C.’s parents could not preemptively remove him from school and seek tuition reimbursement because the duration of the one-on-one paraprofessional support was anticipated, not actual. The court noted the adequacy of an IEP “can only be determined as of the time it is offered to the student, not at some later date.” The court concluded that the parents were justified in questioning the IEP and removing F.C. from the district, since the one-on-one support was critical to his ability to attain a “meaningful educational benefit.” In affirming the order granting tuition reimbursement, the court also noted that transitioning F.C. from the private school back to the district in April would have been harsh and that no clear error existed in the trial court’s finding that the private school was an adequate and appropriate placement. Lastly, the court concluded the trial court’s award of attorneys’ fees was not an abuse of discretion.            
     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.

 

  

While PSBA did not have any arbitration decisions to publish this week, we would like to remind you to contribute to this valuable resource by sending us new decisions. 


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 sean.fields@psba.org, or mail a hard copy to PSBA, Attn: Sean Fields, 400 Bent Creek Blvd., Mechanicsburg, PA 17050-1873.

 

Pennsylvania Legal Services Team Update


PSBA’s annual Spring Legal Roundup workshop is being offered at locations throughout Pennsylvania in March, April and May. The workshop provides important updates on significant developments in school law over the last year and is presented by a local solicitor and a PSBA attorney. Spring Legal Roundup offers three (3) substantive CLE credits. This year’s program will focus on a range of legal issues including:
  • Every Student Succeeds Act (ESSA)
  • Employee discipline and termination
  • Handling difficult parents and citizens in the school setting
  • Transgender students
  • Child abuse and criminal background checks
  • Right-to-Know Law
  • Other issues which may arise prior to this program
Registration information and a complete list of dates and locations can be found here.
 
 
Pennsylvania School Board Solicitors Association

The Officers and Regional Directors for 2016 are:
 
Officers
 
Carl N. Moore Esq., President
Knox McLaughlin Gornall & Sennett, Erie
 
Patrick J. Fanelli Esq., President-Elect
Fanelli Willett Law Offices, Duncansville
 
Erin D. Gilsbach Esq., Secretary
King, Spry, Herman, Freund & Faul, Bethlehem
 
Kristine Marakovits-Roddick Esq., Immediate Past President
King, Spry, Herman, Freund & Faul, Bethlehem
 
Regional Directors
 
Region 1: Christopher M. Byham Esq., Stapleford & Byham, Warren                    
Region 2: Thomas E. Breth, Esq., Dillon, McCandless, King, Coulter & Graham, Butler   
Region 3: Rachel K. Lozosky Esq., Peacock Keller, Washington     
Region 4: Richard Brown Esq., Meyer & Wagner, St. Marys
Region 5: Orris C. Knepp III Esq., Knepp & Snook, Lewistown
Region 6: Vincent L. Champion Esq., Champion Law Office LLC, Carlisle
Region 7: John G. Audi Esq., Sweet, Stevens, Katz & Williams, Pittston
Region 8: Daniel Corveleyn, Esq., Newman, Williams, Mishkin, Corveleyn, Wolfe & Fareri, P.C., Stroudsburg
Region 9: Brooke E. D. Say Esq., Stock and Leader, York
Region 10: Michael A. Davis Esq., General Counsel, School District of Philadelphia
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: Paul J. Giuffre. Esq., Giuffre Law Office, Aspinwall
Region 15: Michael V. Puppio Jr. Esq., Raffaele & Puppio, Media


In other News

Pennsylvania Courts Highlight “Normalcy” for Children in Foster Care – On January 11, 2016, the Office of Children and Families in the Courts (OCFC), a unit of the Pennsylvania Supreme Court’s Administrative Office of Pennsylvania Courts (AOPC), released a video that highlights the benefits of a new child welfare law (Act 75 of 2015, House Bill 477) giving foster youth the same opportunities to participate in “normal” activities as their friends. Although the video is primarily intended for judges, hearing masters, attorneys, child welfare professionals and foster families, the video highlights important issues for anyone working with children in foster care. The Establishing Normalcy for Foster Youth video is available here.   
 
Every Student Succeeds Act (ESSA) – On December 18, 2015, the U.S. Department of Education issued a Dear Colleague Letter to states to clarify some initial steps as states, districts and schools transition to the new law. The Department also launched the rulemaking process by publishing in the Federal Register a Request for Information (RFI) seeking advice and recommendations for Title I regulations under ESSA. The National School Boards Association (NSBA) has some helpful resources and information on the new law, available here


Mark Your Calendars

January 2016 - February 2016 – New School Director Training, various locations
March - May 2016 – Spring Legal Roundup, various locations
July 14 - 15, 2016 – Solicitors’ Symposium, State College, PA
Thursday, October 14, 2016 – School Law Workshop, Hershey, PA  

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For questions about this publication, contact Katherine Fitz-Patrick, Tel: (717) 506-2450, ext. 3414


 
School Board Solicitors Association Officers
    Carl N. Moore Esq., Erie, President   

    Patrick J. Fanelli Esq., Duncansville, President-Elect
    Erin D. Gilsbach Esq., Bethlehem, Secretary
    Kristine Marakovits-Roddick Esq., Bethlehem, Immediate Past President

 

Legal Services Team:
    Stuart L. Knade, General Counsel
    Emily J. Leader, Senior Deputy General Counsel
    Sean A. Fields, Deputy General Counsel, Government Affairs
    Katherine M. Fitz-Patrick, Deputy General Counsel, Member Services
Copyright © 2016 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 Information Exchange & Public Sector Arbitration 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 Katherine Fitz-Patrick, Deputy General Counsel, Member Services and Editor.



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