Lehigh University School Study Council (March 12, 2014)

1. Lehigh University School Study Council (March 12, 2014) Levin Legal Group, P.C.

2. Trends (or Anomalies?)—They will affect our work • The dismantling and “dumbing down” of public education, evidenced by: • Failure to provide sufficient state funding, coupled with strict prohibitions of local funding; resulting in: • more districts unable to pay their bills; • gutting of administrative teams necessary to perform the work; • adding to the list of jobs/requirements that must be performed when remaining employees do not have the time to perform their existing duties; • elimination of the arts and other “non-essential” classes Levin Legal Group, P.C.

3. Trends (or Anomalies?)--They will affect our work • Doing everything possible to dissuade people from entering public education • New evaluation rules for superintendents • New evaluation rules for teachers, principals and other educators • Privatization of Public Education • Alternative Education for Disruptive Youth • Services for PT, OT, speech, school psychologist services • Cyber Education • Bill paying services • Requiring “teaching to the test” • Rein of Terror by PDE alleging administrators and teachers are cheating on PSSA’s Levin Legal Group, P.C.

4. Trends (or Anomalies?)--They will affect our work • Increased Complexity • Privatization • Technology • Contracting • Ratings for professional and temporary professional employees • Technology • BYOD • When copy machines were copy machines • When phones were phones—now cameras are phones; watches are phones and video cameras • Audio recording devices—the LiveScribe Pen—can kids use it in class? Levin Legal Group, P.C.

5. Trends (or Anomalies?)--They will affect our work • Never ending change of vocabulary and acronyms • 94-142 begat “Education of All Handicapped Children Act” begat “IDEA” • “Handicapped” begat “disabled” • Act 105 of 2011 (amending Mental Health and Mental Retardation Act of 1966): “mentally retarded” begat “intellectual disability.” • New Rating Forms: “SLO” = “The student learning objective” Levin Legal Group, P.C.

6. Technology Levin Legal Group, P.C.

7. Technology Issues • Is your Acceptable Use Policy Up-to-Date? • Issues to consider: • Conduct of Employees on Social Media: Last year in Pennsylvania, a complaint was filed against a teacher who posted the following: Levin Legal Group, P.C.

8. Technology Issues • A teacher in suburban Philadelphia advertises her moon-lighting business on her Facebook page—i.e., sex toys • A suspended teacher emails his classes with assignments during his suspension • A suspended teacher produces video lessons and emails them to substitute to show in class—It is about what happens to a whistleblower Levin Legal Group, P.C.

9. Technology Issues • Rules to consider adopting: Teachers and administrators shall not: • 1. Communicate with any School District student using any email account other than the email account provided by the School District on the School District’s network; • 2. Communicate with any School District student through social media; • 3. Provide instruction to students over the Internet without express prior written approval from the Principal of the student for the precise instruction or lesson provided at the approved time frame; • 4. Communicate with any School District student while on a disciplinary suspension or administrative leave without express prior written approval from the Superintendent or the Director of Human Resources; Levin Legal Group, P.C.

10. Technology Issues: • Teachers and administrators shall not: • 5. Download or save any student or district records or work on any computer, network or cloud application owned, leased or in an account possessed by the employee that is not a computer, server or network drive that is owned or leased by the School District server—i.e., no Googledocs; no Dropbox, no Skydive; no Adobe SendNow. • 6. Text Message any student; Levin Legal Group, P.C.

11. New Educator Discipline Act (“EDA”) • Effective Date: February 18, 2014. • New and Expanded Reporting by Educators • All educators, those who are certified and those who teach without certification (such as some charter school teachers), are required to report to PDE sexual misconduct and exploitation. Section 9.1a(d) provides: • (d) An educator who knows of any action, inaction or conduct which constitutes sexual abuse or exploitation or sexual misconduct under this act shall file a mandatory report • with the department and shall report such misconduct • to his or her chief school administrator and • immediate supervisor. • The report shall be filed within 15 days of the discovery of the sexual abuse or exploitation or sexual misconduct. 24 P.S. §2070.9a(d)(italics added). Levin Legal Group, P.C.

12. EDA—”Sexual Misconduct” • Sexual misconduct” shall mean any act, including, but not limited to, any verbal, nonverbal, written or electronic communication or physical activity, directed toward or with a child or a student regardless of the age of the child or student that is designed to establish a romantic or sexual relationship with the child or student. Such prohibited acts include, but are not limited to, the following: • sexual or romantic invitations; • dating or soliciting dates; • engaging in sexualized or romantic dialogue; • making sexually suggestive comments; • self-disclosure or physical exposure of a sexual, romantic or erotic nature; or • any sexual, indecent, romantic or erotic contact with the child or student. Levin Legal Group, P.C.

13. EDA—”Sexual Abuse or Exploitation” • The phrase “sexual abuse or exploitation” is defined in the Child Protective Services Act. It is defined as including any of the following: “(1) The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another individual to engage in sexually explicit conduct. (2) The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another individual to engage in simulation of sexually explicit conduct for the purpose of producing visual depiction, including photographing, videotaping, computer depicting and filming. (3) Any of the following offenses committed against a child: (i) Rape.(ii) Sexual assault. (iii) Involuntary deviate sexual intercourse. (iv) Aggravated indecent assault. (v) Molestation. (vi) Incest. (vii) Indecent exposure. (viii) Prostitution. (ix) Sexual abuse. (x) Sexual exploitation.” 23 Pa.C.S.A. §6303. Levin Legal Group, P.C.

14. New EDA--Reporting • Superintendent Checklist for Reporting/Complaining: • Report to PDE • Complaint to PDE • Report to District Attorney • Report to Police • Report to Childline • Lower Level Employee Checklist • All of the above, plus; • To Immediate Supervisor • To Chief School Administrator • Keep Log of All Reports and Keep Documentation of All Reports Levin Legal Group, P.C.

15. EDA—Consequence of Not Making Report • An educator who fails to make a report under these provisions is subject to discipline under the EDA. • Section 9c of the EDA provides that “[t]he commission shall direct the department to impose discipline against any educator for conduct found by the commission to constitute: * * * (10) Failure to comply with duties under this act, including the mandatory reporting duties set forth in section 9.1.” 24 P.S. §2070.9c(a)(10). Levin Legal Group, P.C.

16. EDA—New Mandatory Reporting for “Chief School Administrators” • Superintendents • IU Executive Directors • Directors of Vo-Techs • Chief Administrators of Charter and Cyber Charter Schools Levin Legal Group, P.C.

17. EDA—New Mandatory Reporting for “Chief School Administrators” • Chief School Administrators must report to PDE each of the following things: • Dismissal Proceedings (within 15 days after notice is provided by school entity) • Crimes (within 15 days of discovery of indictment, arrest or conviction) • Sexual Misconduct (within 15 days of discovery of the allegations of sexual misconduct) • Physical Injury (within 15 days of discovery that there is reasonable cause to suspect educator has caused physical injury) • Resignation in Lieu of Dismissal (within 15 days of separation from employment) • Child Abuse (within 15 days of filing report with Police and D.A. • Perpetrator in Founded Report (within 15 days of learning that an educator has been named as a perpetrator in a founded report. Levin Legal Group, P.C.

18. EDA—What Must Be In Report • “All reports submitted to the department shall include an inventory of all information and documentary and physical evidence in possession or control of the school entity relating to the misconduct resulting in the report and the name and contact information for the current custodian of the items listed in the inventory. The school entity shall provide promptly to the department any documents or items requested after the department reviews the inventory.” 24 P.S. §2070.9a(e). Levin Legal Group, P.C.

19. Commonwealth vs. Lynn, 2013 WL 6834765 (12-26-13) • (a) Offense defined.-- • (1) A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support. • (2) A person commits an offense if the person, in an official capacity, prevents or interferes with the making of a report of suspected child abuse under 23 Pa.C.S. Ch. 63 (relating to child protective services). • (3) As used in this subsection, the term “person supervising the welfare of a child” means a person other than a parent or guardian that provides care, education, training or control of a child. • (b) Grading.--An offense under this section constitutes a misdemeanor of the first degree. However, where there is a course of conduct of endangering the welfare of a child, the offense constitutes a felony of the third degree. Levin Legal Group, P.C.

20. Commonwealth vs. Lynn, 2013 WL 6834765 (12-26-13) • This reading of the EWOC statute is not only consistent with a literal interpretation of the statute's language; it is also consistent with the longstanding and steadfast position that any statute designed to protect children must be read broadly. Commonwealth v. Mack, 359 A.2d 770, 772 (Pa.1976). These statutes “are to be given meaning by reference to the ... broad protective purposes for which they are enacted.”Id. Specifically, the EWOC statute “attempts to prohibit a broad range of conduct in order to safeguard the welfare of children.”Brown, 721 A.2d at 1107. As a result of the statute's protective purpose, our Supreme Court has explicitly instructed lower courts interpreting this provision to do so according to “the common sense of the community,” as well as “the sense of decency, propriety and the morality which most people entertain.” Levin Legal Group, P.C.

21. Sunshine Act • Smith vs. Township of Richmond, 82 A.3d 407 (Dec. 16, 2013) • Holding: Closed-door gatherings that did not involve deliberations did not violate Sunshine Act • “On this record, we agree with the Commonwealth Court that the Supervisors' four closed-door gatherings did not violate the Act because they were held for informational purposes only and did not involve deliberations.” • “With that said, there is one portion of the deposition transcripts that gives us pause. John Keiser, a member of the Citizens Group, testified that, at the closed gathering with his organization, two of the Supervisors expressed differing views as to whether it would be in the Township's interests to settle the quarry litigation.” Levin Legal Group, P.C.

22. Neshaminy School District vs. Neshaminy Federation of Teachers, ---A.3d--- (Jan.9, 2014) • “Your failure to request the hearing will constitute a waiver of your statutory, contractual and constitutional rights and you will be discharged from employment without any hearing. IF YOU CONTEST YOUR DISMISSAL, YOU MUST ASK FOR A HEARING OR YOU WILL LOSE ALL OF YOUR RIGHTS, and the hearing as described above will be cancelled.” • The trial court found this above-quoted information, which is not required anywhere in the Public School Code of 1949, to be gratuitous and confusing. Indeed, this warning is directly opposite to what Section 1133 of the Public School Code of 1949 provides. Section 1133 states that if “the professional employe chooses to exercise his or her right to a [Section 1127] hearing,” this request renders the opportunity to pursue grievance arbitration “void.” 24 P.S. § 11–1133 . Levin Legal Group, P.C.

23. Willis vs. Norristown Area School District, ---F.Supp.---(E.D.Pa.2014) • he Court rejects this argument. First, plaintiff himself estimated that he would have needed overlap support for “maybe a month,” not three days. Willis Dep. at 54:13, 4/18/13, ECF No. 19–32. Second, even assuming arguendo that a three day overlap would have been effective, such an accommodation would have required the District to excuse plaintiff's previous misconduct and allow plaintiff back into the classroom.12 The ADA, however, does not require that an employer excuse an employee's previous misconduct, even if it was precipitated by his or her disability. See Davila v. Qwest Corp., 113 F. App'x 849, 854 (10th Cir.2004) (“[A]s many cases have recognized in various contexts, excusing workplace misconduct to provide a fresh start/second chance to an employee whose disability could be offered as an after-the-fact excuse is not a required accommodation under the ADA.”);  Levin Legal Group, P.C.

24. Zauflik vs. Pennsbury School District, 2014 WL 183784 • Supreme Court will consider whether $500,000 cap on tort liability under Political Subdivision Tort Claims Act is constitutional. Levin Legal Group, P.C.

25. Negron vs. School District of Philadelphia, (E.D.Pa. 2014) • Pennsylvania's Criminal History Record Information Act (“CHRIA”), contained in Crimes Code, provides: • (a) General rule.—Whenever an employer is in receipt of information which is part of an employment applicant's criminal history record information file, it may use that information for the purpose of deciding whether or not to hire the applicant, only in accordance with this section. • (b) Use of information.—Felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant's suitability for employment in the position for which he has applied. • (c) Notice.—The employer shall notify in writing the applicant if the decision not to hire the applicant is based in whole or in part on criminal history record information. • 18 Pa. Cons.Stat. Ann. § 9125. Levin Legal Group, P.C.

26. Negron vs. School District of Philadelphia, (E.D.Pa. 2014) • Under CHRIA an employer may use an applicant's criminal record “for the purpose of deciding whether or not to hire the applicant”“only to the extent to which [it] relate[s] to the applicant's suitability for employment in the position for which he has applied.” I have held that CHRIA applies only to hiring decisions. Negron now alleges that he was “hired subject to the results of a pending background check” and that his termination was “motivated by his criminal history or record” in violation of the CHRIA. (Amend.Compl.¶ 12, 13.) Construing it in “the light most favorable to the plaintiff,” the amended complaint alleges that because Negron was hired subject to a background check his subsequent termination, based on that background check, potentially constitutes a hiring decision, drawing his claim within the scope of the CHRIA.3 Levin Legal Group, P.C.

27. Contracting Levin Legal Group, P.C.

28. CONTRACTING: 5 CASES TO CONSIDER • 1. Bowman vs. Sunoco, 65 A.3d 901 (Pa.2013). • 2. Delaware Valley High School vs. Centennial School District (pending in Bucks County Court of Common Pleas) • 3. EdisonLearning vs. Philadelphia School District (Pending in E.D.Pa at 2:11-cv-07190-AB) • 4. Representation Fees and the Union Hold Harmless Agreement—Tucker vs. Downingtown Area Education Association (Filed in E.D. Pa. at No. 13-1570; discontinued by settlement) • 5. Devereux vs. Chester County IU (Pending in Chester County Court of Common Pleas) Levin Legal Group, P.C.

29. Workers’ Compensation Disclaimer for Vendors • Bowman vs. Sunoco, 65 A.3d 901 (Pa.2013). A workers’ compensation disclaimer provision in a contract with a contractor did not violate public policy. • In light of increasing privatization, following provisions should be added to all contracts with virtually all vendors: Levin Legal Group, P.C.

30. Workers’ Comp Disclaimer • CONTRACTOR’S employees, agents, contractors and subcontractors must sign a legally enforceable waiver and release of any and all claims that the employee, agent, contractor or subcontractor may have to make a claims, or commence a law suit, or recover damages or losses from or against the School District(and the employees, agents and officials of the School District) or from or against any student (and the parents, guardians or custodians of the students) enrolled in any School District program or activity arising from or related to any injuries which are covered under Pennsylvania’s Workers’ Compensation statute or which would be covered if the agent, contractor or subcontractor were an employee. Upon request, the PROVIDER shall provide a copy of the waiver and release to the School District. • Remedy for breach Levin Legal Group, P.C.

31. EdisonLearning vs. Philadelphia School District • School District contracted with Edison to provide educational services at a number of schools • Complex contract entered into dividing responsibilities between Edison and District • Contract provided: “School District shall at School District's sole expense provide all appropriate safety and police protection to all students and employees in Service Provider Managed Schools . . ..” • One Student was sexual assaulted by another student at school Levin Legal Group, P.C.

32. EdisonLearning vs. Philadelphia School District • Injured student filed suit in state court alleging torts only against EdisonLearning and School District • Summary Judgment granted in favor of School District under Tort Claims Act • EdisonLearning spent over $1 million in defense costs and settled case for $2 million • EdisonLearning is now suing District for both defense costs and settlement Levin Legal Group, P.C.

33. EdisonLearning vs. Philadelphia School District • Legal Issues: • Does a contractual duty to provide security and safety services create liability under a breach of contract if a student is injured? • Does the following clause insulate District from any indemnity or contractual liability? • “Nothing herein constitutes or shall be considered as a waiver of any provision of the Applicable Laws which affords protections in the nature of sovereign or governmental immunity to the School District, the SRC, the Board of Education, or any of their members, officials, officers, directors, employees and agents.” Levin Legal Group, P.C.

34. EdisonLearning vs. Philadelphia School District • Does a carve out of EdisonLearning’s indemnity obligation to District create an indemnity obligation in the District? Levin Legal Group, P.C.

35. Contracts for Alternative Education • Delaware Valley High School vs. Centennial School District; • Pending in court of common pleas of Bucks County at No.: 2011-11510 • Holdings and Issues: • Venue rules of Pa.R.C.P. cannot be waived by contract • Whether a 5 year contract for alternative education services is binding on new school board • Whether contract is void ab initiowhen school district has no policies to identify students eligible for assignment to alternative education and such policies are not included in the contract • When a “seat” is not a piece of furniture Levin Legal Group, P.C.

36. Contracts for Alternative Education • Alternative Education for Disruptive Youth • 25 P.S. §19-1902-E: • (1) A school entity may contract with a private alternative education institution. • (2) A contract under this section shall specify the policies established by the school entity to identify those students who are eligible for assignment to the institution and assure that the placement of a student will comply with the informal hearing procedures set forth in 22 Pa. Code §12.8(c) (relating to hearings). Notice of the hearing should precede placement in the institution. Where the student's presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process, the student may be immediately removed from the regular education curriculum with notice and a hearing to follow as soon as practicable. Levin Legal Group, P.C.

37. “Pay when paid” • Devereux vs. Chester County IU • The Intermediate Unit has a contract with Devereux in which Devereux is serving “Section 1306” kids and the IU is acting as the billing agent billing the resident school districts for the tuition changes • The contract provides that: “Devereux will not demand payment until the Chester County Intermediate Unit has received payment from the responsible Home School District.” Levin Legal Group, P.C.

38. Collective Bargaining—Dues and/or Agency Shop Deductions • Tucker vs. Downingtown, No. 13-1570 (E.D. Pa.) • Plaintiff is a teacher and was a member of the union. The CBA had a typical dues deduction and fair share provision in it • Fair Share Fee Law provides: “If the provisions of a collective bargaining agreement so provide, each nonmember of a collective bargaining unit shall be required to pay to the exclusive representative a fair share fee.” 43 P.S. §1102.3 Levin Legal Group, P.C.

39. Fair Share—Deduction Requirements--the Public Employee Fair Share Fee Law • “(a) Deduction by employer.--To implement fair share agreements in accordance with section 3,1the exclusive representative shall provide the public employer with the name of each nonmember who is obligated to pay a fair share fee, the amount of the fee that he is obligated to pay and a reasonable schedule for deducting the amount from the salary or wages of the nonmember. The public employer shall deduct the fee in accordance with the schedule and promptly transmit the amount deducted to the exclusive representative.” 43 P.S. §1102.4 Levin Legal Group, P.C.

40. Fair Share and Dues—Employee Notice to District • “Today l submitted my resignation from the Education Association. A copy of my letter to the union is enclosed. l will continue to meet my lawful obligation of paying a representation fee to the union under its "union shop" or "agency shop" or "fair share" agreement with the School District. l understand. however, that because l have resigned from the union I owe no money unless a new contract is in effect.” • No maintenance of membership in the CBA • Contract had expired, parties working under status quo • District, at union’s instructions, said no! Litigation ensued Levin Legal Group, P.C.

41. Fair Share--Indemnity • CBA had typical hold harmless and indemnity agreement: • “If any legal action is brought against the School District as a result of any actions it is requested to perform by the Association pursuant to this Article, the Association agrees to provide for the defense of the School District at the Association's expense and through counsel selected by the Association. * * * The Association agrees in any action so defended, to indemnify and hold the School District harmless for any monetary damages the School District might be liable for as a consequence of Its compliance with this Article.” • PSEA refused to provide defense or indemnity • Time to negotiate fair share out of contracts? Levin Legal Group, P.C.

42. Contracting—Things to Keep in Mind • Comply with legal requirements • HIPAA—Business Associate Agreement • FERPA • Copy Services—Lease and Maintenance of Copiers • Copy centers • Contracting out student services—OT, PT, speech and school psychology services • Risks: • runaway costs; pay for direct services only • Need them to be witness—ensuring their availability, cooperation and reasonable fees • Ownership of records • Compliance with requirements of third party payers • Who owns the records. Levin Legal Group, P.C.

43. Alternatives to Bidding--Costar • Don’t let your clients be sloppy—have the Costars documents signed. • Have suppliers “warrant and represent” that the equipment that they are selling you are actually on the costars list Levin Legal Group, P.C.

44. Contract Implementation—The Need for Training • As contracts become more sophisticated, the people who are involved in implementation need to be provided with training • Example: Vendor sent an invoice for yearly cost in advance when there was nothing in the contract that required payment of full annual charge at the start of the school year. Levin Legal Group, P.C.

45. Privatizing Drivers’ Ed: Act 31 of 2012 • School districts are authorized to contract with private driver training schools for classroom instruction, even if the teacher is not certificated, • Before doing so, district must post vacant position for a minimum of 10 days on district’s website and private contractor can be retained only if no “qualified candidate certified by the Department of Education to teach driver and safety education is available to fill the position.” • Question: Can school district establish more qualifications than merely be certificated? Levin Legal Group, P.C.

46. Life After Philadelphia Housing Authority vs. AFSCME, 52 A.3d 1117(Pa. 2012) (hereafter “PHA”) • PHA is the latest Supreme Court decision addressing scope of review of arbitrator’s decisions, the essence test and the public policy exception • Reinstatement of employee who is guilty of egregious sexual harassment of co-worker violates public policy as articulated in Title VII. • PHA has been cited by only 2 cases so far: • Slippery Rock University vs. APSCUF, -- A.3d ---- (Pa. Cmwlth. June 7, 2013)(employee on student sexual harassment violative of Title IX violates public policy) Levin Legal Group, P.C.

47. Life After PHA • Slippery Rock also dealt with the “essence test” and showed that the court might actually look at the language of the CBA • “The arbitrator based his determination that the University did not have just cause to terminate Grievant on what he perceived was a lack of due process and a failure to comply with the terms of the CBA. Specifically, the arbitrator concluded that the University failed to issue a complaint to Grievant as was required by Article 43 of the CBA, did not identify his accusers, and was not authorized by the CBA to conduct an investigation because a formal written complaint was not filed and there was no complainant. (Arbitrator's Award at 13–15.) For the reasons that follow, we conclude that the arbitrator's conclusions cannot rationally be derived from the CBA.” Levin Legal Group, P.C.

48. Life After PHA • Westmoreland Intermediate Unit vs. Westmoreland Intermediate Unit Classroom Assistants Educational Support Personnel Association, ---A.3d --- (Pa.Cmwlth. June 20, 2013) 2013 WL 3081946 • The Arbitrator's conclusion was based on the finding that Grievant had an unblemished 23–year tenure with the Intermediate Unit. He concluded that this single error of judgment did not amount to such a grievous offense that it would offend the morals of the community. • “The Arbitrator's award demonstrated a tolerance, rather than intolerance for illicit drug use, and is in direct contravention of public policy. Grievant's immediate reinstatement to the classroom while she attempted rehabilitation “eviscerated” Employer's ability to enforce this dominant public policy.” Levin Legal Group, P.C.

49. Life Before and After PHA • Decided before PHA, but cited with approval in Slippery Rock after PHA, was City of Bradford vs. Teamsters, 25 A.3d 408 (Pa.Cmwlth. 2011) • With regard to the analysis of whether public policy is violated, the Court said: • “First, the nature of the conduct leading to the discipline must be identified. Second, we must determine if that conduct implicates a public policy which is well-defined, dominant, and ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. Third, we must determine if the arbitrator's award poses an unacceptable risk that it will undermine the implicated policy and cause the public employer to breach its lawful obligations or public duty, given the particular circumstances at hand and the factual findings of the arbitrator.” Levin Legal Group, P.C.

50. Teacher Free Speech: Demers v. Austin, ---F.3d ---, 2013 WL 4734033 (9th Cir. Sept. 4, 2013). • Ninth Circuit three-judge panel has ruled that Garcetti v. Ceballos, 547 U.S. 410 (2006), does not apply to teaching and writing on academic matters by teachers employed by the state. • Such speech/expression by publicly employed teachers is governed by Pickering v. Board of Education, 391 U.S. 563 (1968). • Will the same rules apply in elementary and secondary school? Levin Legal Group, P.C.