|
|
|
|
|
Illegal for Employer to Directly Pay Union Dues
On April 16,
2008, the Michigan Employee Relations Commission ("MERC") ruled that a union proposal for a
school district to pay teachers' union dues and
representation fees violated the Public Employment Relations Act
("PERA"). MERC dismissed the union's unfair labor practice
charge against the school district, which had refused to bargain over
this proposal. Lansing
School District and Lansing Educational Assistants, MEA/NEA, Case No. C05 B-029 (April 16,
2008).
During
teacher negotiations, the Michigan Education Association
("MEA") proposed that the school district should directly
pay union dues and representation fees of its teachers instead of
deducting them from their paychecks. The MEA described its
proposal as a "fringe benefit," and contended that its
proposal was a mandatory subject of bargaining. When the school
district refused to bargain over this proposal, the MEA filed an
unfair labor practice charge with MERC,
accusing the school district of violating its duty to bargain in good
faith.
MERC affirmed the Administrative Law
Judge's recommended decision and order to dismiss the unfair labor
practice charge. While this was a case of first impression
under PERA, MERC
had no difficulty in finding that the Union proposal violated Section
10(1)(b) of PERA, which states in relevant
part: "It shall be unlawful for a public employer or an
officer or agent of a public employer...to initiate, create,
dominate and contribute to, or interfere with the formation or
administration of any labor organization."
In reaching
its decision, MERC relied on cases decided
by the National Labor Relations Board ("NLRB") under
Section 7 of the National Labor Relations Act, 29 USC 157.
Generally, the NLRB has found that an employer's payment of
employees' union dues or fees constitutes unlawful financial support
of the union. The only exceptions are when the payment is
insubstantial or involves a single occurrence. Neither
circumstance was present in the MEA's
proposal, which imposed a substantial and continuous obligation.
MERC found that the proposal could result
in the MEA surrendering financial control. For example, a union
could not raise its dues without first bargaining over the amount of
any increase with the employer. On the other hand, an employer
could propose and demand bargaining to decrease its financial
obligations. Thus, the school district correctly refused to bargain
over this improper proposal.
It is
unlikely that unions will continue to advance these types of
proposals at the bargaining table. In fact, a union's
insistence on bargaining over a proposal that violates PERA may itself be an unfair labor practice
charge.
[Back to Top]
|
Michigan Supreme Court Holds Home
Addresses and Telephone Numbers are Exempt From FOIA
By: Joseph
B. Urban
A recent
Michigan Supreme Court decision, Michigan
Federation of Teachers and School Related Personnel, AFT, AFL-CIO v.
University of Michigan, 2008 Mich. LEXIS 1395 (July 16,
2008) provides protection from disclosure of personal information
related to employees' home addresses and telephone numbers.
Based on the ruling in this case, school districts may elect to
exempt the addresses and telephone numbers of their employees from
disclosure when responding to requests for information under the
Michigan Freedom of Information Act, MCLA
15.231, et seq. ("FOIA").
The
University of Michigan case arose out of a FOIA
request by the Michigan Federation of Teachers for extensive
information related to employees of the University of Michigan (the
"University"). Among the items requested were
employees' home addresses and telephone numbers. The response
initially exempted from disclosure the home addresses and telephone
numbers of those employees who did not turn over to the University
their information for publication in its faculty and staff
directory. The exemption was based upon MCLA15.243(1)(a), which
exempts "information of a personal nature if public disclosure
would constitute a clearly unwarranted invasion of an individual's
privacy." The University released the home addresses and
telephone numbers relating to employees who furnished the information
for the directory.
Following
a trial in which the circuit court upheld the exemption, the Michigan
Court of Appeals, upon reviewing the matter, ordered that the
information must be disclosed. The opinion relied on Bradley v Community Schools Bd of E., 455 Mich 285 (1997), in
which the home addresses and telephone numbers of employees were held
to not fit the exemption category for information of a personal
nature because such information did not reveal "intimate"
or "embarrassing" details of an individual's private life,
the test by which the Court reviewed the applicability of the
exemption.
In
reviewing the Court of Appeals decision, the Michigan Supreme Court
examined the line of cases applying the MCL
15.243(1)(a) exemption and reformulated the test relied upon by the
Court of Appeals in determining whether information is "of a
personal nature" and therefore eligible for exemption under MCL 15.243 (1)(a).
The
first prong consisted of an analysis of whether the information
sought was "information of a personal nature." The
Court concluded that the term "information of a personal
nature" includes much more than "intimate" or
"embarrassing" details about individuals, as found by the
Court of Appeals in Bradley,
but also includes "private" or "confidential"
information. The Court concluded that employees' addresses and
telephone numbers are the type of information that would be
classified as private, as they serve "as a conduit into the
sanctuary of the home."
The
second prong involved an analysis of whether the disclosure of the
information would constitute a "clearly unwarranted"
invasion of an individual's privacy. As the disclosure of
employees' home addresses and telephone numbers would reveal
"little or nothing" about a governmental agency's conduct,
the stated purpose of FOIA, the Court
concluded that the invasion of an individual's privacy in this regard
is therefore unwarranted.
School
districts frequently receive FOIA requests
for the addresses and telephone numbers of their employees. The
decision in University of
Michigan permits school districts to exempt from
disclosure the addresses and telephone numbers of their
employees. It should be noted that, as a rule, school districts
are not compelled to invoke an exemption under FOIA,
as such election is voluntary. Lansing Ass'n of School Adm'rs v. Lansing School District,
216 Mich App 79 (1996).
[Back to Top]
|
Michigan Court of Appeals Finds SRSD is an Unfunded Mandate
By: Joseph
B. Urban
On
July 3, the Michigan Court of Appeals released its opinion in Adair v. State of Michigan, No.
230858 (July 3, 2008), in which the panel held the mandate that
school districts compile and provide information to the Single
Records Student Database ("SRSD"),
maintained by of the Center for Educational Performance and
Information ("CEPI") constituted
an unfunded mandate in violation of the Michigan Constitution of
1963.
The Court of
Appeals found that "through the implementation of the [SRSD], the state is requiring districts to
actively participate in collecting, maintaining and reporting data
the state requires for (only) its own purposes" and that the
data collection and reporting requirements effectuated through CEPI constitute a requirement for which the
legislature did not provide funding, as required by law.
The SRSD, a comprehensive database that is
to be reported on a "student-by-student, employee-by-employee
and building-by-building" basis, was implemented by CEPI in response to various federal laws, such as
the No Child Left Behind Act, that require disaggregated data to be
furnished to the federal government by state level recipients of
federal funds.
Although
the Court of Appeals found that the data-collection mandate was
federally mandated, rather than driven by a state mandate, the origin
of the mandate made no difference in the analysis: an offloading of
state-level responsibilities to local units of government must, the
Court held, be accompanied by an appropriation sufficient to fund the
additional duties.
[Back to Top]
|
Sixth Circuit Upholds Ban on Wearing
Confederate Flag
By:Joseph B. Urban
In a recent holding, Barr, et al. v. Lafon,
Hord, and the Blount County School Board,
No. 07-5743 (August 20, 2008), the Sixth Circuit Court of Appeals,
whose holdings are binding in Michigan, upheld the ban imposed by a
high school located in Blount County, Tennessee, on the wearing by
students of the confederate flag symbol on their
tee-shirts.
In reviewing the students' claims, the Court of
Appeals reviewed the case-law governing student dress-codes and
similar speech regulations, such as Tinker v. Demoines Independent
School District, 393 U.S. 503 (1969). In Tinker, students wore black
armbands to protest the country's involvement in the Vietnam
War. On the eve of the protest, school officials, who had been
informed about the impending protest, promulgated a regulation
banning the protest, although they permitted other forms of political
speech to be undertaken, such as the wearing of the Iron Cross by
students, and the wearing of other political pins and buttons.
The United States Supreme Court held that the students' free speech
rights were violated by the regulation as there was no showing that
any disruption to the educational environment would be created by the
wearing of the arm bands.
[Back to Top]
|
Pre-injury Waivers for Minors
Invalid
By: Marshall
W. Grate
It is a
common practice for school districts and non-profit organizations to
require from parents and guardians of students a waiver of possible
personal injuries resulting from participation in extracurricular
trips, activities, and athletic events. According to a recent
Michigan Court of Appeals decision, pre-injury waivers for minors
are apparently a futile gesture. Woodman v Kera, LLC,
No. 275079, 275882 (August 12, 2008).
The
plaintiff and her minor son filed a lawsuit for personal injuries
incurred by her minor son against the defendant, which operated a
recreational facility. The plaintiff rented the facility,
which contained large, inflatable play equipment, for her son's
fifth birthday party. The plaintiff, and the plaintiff's
guests, were required to sign a waiver that purportedly released the
defendant facility from any liability resulting from personal injury
and property damage. The waiver also required the parents or
guardians to indemnify the facility and their agents and hold them
harmless from any liability for personal injury or property damages
caused by their children's participation in any activity at the
facility.
The
child's father signed the invitation and release agreement on behalf
of his son. Unfortunately, the child jumped from the top of a
slide and fell to the ground, breaking his leg.
The
defendant facility asserted the release agreement as a defense to
the plaintiff's personal injury claim that was filed on behalf of
her minor son. The trial court concluded that the release
agreement was enforceable.
The
Court of Appeals decision invalidated the entire release and waiver,
including the indemnity provisions. The Court of Appeals rejected
any distinction between pre-injury releases related to for-profit
commercial activities and pre-injury releases relating to non-profit
activities, a distinction that is recognized in other state
jurisdictions.
According
to the Court of Appeals, a Michigan parent has no authority to
waive, release, or compromise claims of his or her child. A
parent, or guardian, has no authority to do any act which is
detrimental to the child.
The
Court of Appeals stated the Michigan legislature is only recourse
for entities that seek pre-injury waivers for minor children.
Only the Michigan legislature can authorize parents to execute
pre-injury releases for their minor children.
This
decision leaves school districts, municipal governments and
non-profits in an enormous quandary. Past approaches to
pre-injury waivers for minors included provisions requiring parents
and guardians to execute covenants not to sue and indemnity
agreements. The Woodman
case makes the validity of these agreements doubtful. Based on the Woodman decision, it appears
that the Michigan legislature may ultimately have to define the
public policy of this state in protecting non-profit activities,
including those of involving school districts and political
subdivisions, with respect to the enforceability of pre-injury
waivers.
[Back to Top]
|
The
Michigan Court of Appeals ruled that a teacher early retirement
incentive program contained in a collective bargaining agreement was
illegal and unenforceable in Mona
Shores Board of Education v Mona Shores Teachers Education Association,
MEA/NEA, 2008 Mich App LEXIS
1599 (August 5, 1998). The School District filed tenure
charges against a teacher for dismissal. During his appeal to
the Tenure Commission, the teacher withdrew his appeal and applied
for the early retirement benefit under the collective bargaining
agreement, which provided $5,000 for teachers who retired at 58 or
less, $4,000 for teachers who retired between ages 59 and 61, $250
for teachers between 61 and 64, and no benefit for teachers who
retired after age 64.
The
school district refused to recognize the teacher's early retirement
claim. The District argued that by withdrawing his Tenure
Commission appeal, the teacher accepted his dismissal, which was
different from retirement. The teacher filed a grievance under
the collective bargaining agreement. The arbitrator
found that the teacher was entitled to the early retirement benefit.
In
a somewhat ironic twist, the school district filed an action in
circuit court to vacate the arbitration award. The school
district argued that the retirement incentive program was illegal
and unenforceable as a matter of law, and thus the teacher should
receive no benefit.
The
case wound its way through the Court of Appeals and then to the
Michigan Supreme Court. The Court of Appeals' August 5, 2008
decision was made after remand from the Michigan Supreme Court.
The
Court of Appeals ruled that the school district was correct.
The early retirement incentive program violated both the Michigan
Civil Rights Act and the Age Discrimination in Employment Act.
Because teachers who retired at a younger age received more money
than those who retired at an older age, solely because of their age,
the early retirement incentive program was an instrument of age
discrimination and illegal.
However,
the fact that the early retirement benefit was invalid and
unenforceable did not justify vacating the entire arbitration
award. The arbitration award that found the teacher qualified
for an early retirement under the collective bargaining agreement
was still valid. Of course this was a hollow victory since
even though the teacher could qualify for early retirement, he could
not receive any benefits under the illegal early retirement system.
The
message of Mona Shores
is quite clear. Early retirement plans cannot discriminate
against older employees solely on the basis of their age. An
easy solution is to provide one benefit to all employees who are
eligible for an early retirement benefit. Also, greater early
retirement incentives can be awarded based on years of service, but
not based on a person's age. In addition to these pitfalls,
there are numerous technical and statutory requirements which should
be carefully considered in drafting and implementing an early
retirement plan.
[Back to Top]
|
Court of Appeals Affirms
Dismissal of Student Peer Harassment Claims Predicated on ADA and
Section 504
By: Kevin
Sutton
The recent Sixth Circuit Court of
Appeals decision in S.S. v.
Eastern Kentucky University, et al, No. 06-6165 (July 2,
2008), provides essential guidance for districts responding to
claims by a special education student of peer harassment and offers
valuable insight into the Court's perspective on the interplay
between the ADA and Section 504
In S.S., the student
completed sixth through eighth grades at Kentucky's Model Laboratory
Middle School (Model), which is operated by Eastern Kentucky
University (EKU). The student had
various disabilities, including cerebral palsy, attention
deficit/hyperactivity disorder, dyslexia, pervasive developmental
disorder, and post-traumatic stress disorder.
During his attendance at Model, the student was involved in numerous
physical and verbal altercations with other students, leading the
student to complain that he was being bullied and harassed.
Model investigated the incidents as they occurred, determining
that some were initiated by the student and some were initiated by
other students. In response, Model took various steps as the
school administration deemed appropriate, including interviewing the
student and his classmates, disciplining the students that it found
to be culpable, monitoring the student, and at times separating the
student from his harassers.
Following
his promotion from Model, the student filed suit against the school
and several of its employees, alleging that the Defendants had
discriminated against him on the basis of his disability, in
violation of both federal and state law. The student framed
his ADA and Section 504 claims as asserting two types of
violations. First, he claimed that Model's actions in
responding to and investigating his complaints of discrimination and
harassment, as well as in monitoring and disciplining him and his
alleged harassers, were discriminatory. Second, he claimed
that the peer-on-peer harassment he experienced created a hostile
learning environment, and that Model failed to adequately protect
him. On a motion to dismiss by the Defendants, the trial court
dismissed the student's claims.
On appeal, the Sixth Circuit Court of Appeals analyzed the student's
ADA and Section 504 claims together because the statutes provide the
same remedies, procedures, and rights. In doing so, the
appellate court focused, not on the specific details of each
confrontation between the student and his peers, but the adequacy of
the school's response to those confrontations. The Court set
forth the following five-part test which must be met in order to impose
liability on a district in disability-based peer-on-peer harassment
cases:
(1) the plaintiff is an individual with a disability,
(2) he or she was harassed based on that disability, (3) the
harassment was sufficiently severe or pervasive that it altered the
condition of his or her education and created an abusive educational
environment, (4) the defendant knew about the harassment, and (5)
the defendant was deliberately indifferent to the harassment.
Ultimately concluding that Model responded properly to the
situations as they arose and was not "deliberately
indifferent" to the harassment experienced by the student, the
Court explained:
The record shows that Model
responded to all of the alleged incidents involving S.S. of which it
was made aware, and that its responses included conducting
individual and group interviews with S.S.'s
classmates in an attempt to determine who was at fault, instructing S.S.'s classmates not to taunt him, arranging
for outside speakers to talk to the students about name-calling,
identifying related topics for discussion at school assemblies and
in small groups, monitoring S.S., at times separating S.S. from
other students who had been involved in the altercations, holding a
mediation session between S.S. and another student, disciplining
both S.S. and the other students who were found to be at fault,
calling the police, having the police talk to an offending student,
and calling the other students' and S.S.'s
parents to discuss the disciplinary problems.
The Court's
decision in S.S.
provides an important reminder to all Districts: prompt response to
claims of disability-based peer-on-peer harassment is essential to
avoiding liability.
[Back to Top]
|
Tenure Commission -
Guns as Gifts
On July 1,
2008, the Michigan Court of Appeals closed what is the final chapter
in a decision by the Tenure Commission in Lewis v Bridgman Pub Sch,
2008 Mich App LEXIS 1337 (July 1, 2008). In violation of well
published board and school policies, as well as the student code of
conduct, a teacher gave an air rifle, along with ammunition, to a
student at school in the presence of other students. The
teacher did not solicit or secure the advice or permission of school
administrators or the student's parents. The student, who showed
more discretion than the teacher, was uncomfortable in accepting the
gift, fearing an expulsion for having an air gun on school property.
The Board of Education filed tenure charges to discharge the
teacher.
The procedural course of this case is convoluted. The
Administration Law Judge (ALJ) sustained
the discharge. However, the Tenure Commission reversed and
reinstated the teacher. Applying the Szopo factors
(guidelines developed by the Tenure Commission to determine an
appropriate level of discipline for a teacher demonstrating
unprofessional conduct), the Tenure Commission found that the
teacher's conduct was egregious and a clear violation of the conduct
expected of a teaching professional. Nonetheless, the Tenure
Commission ordered reinstatement after a suspension, because there
was no evidence that the teacher acted with an improper motive and
because of the teacher's contributions to the District as a teacher.
The Court of Appeals reversed the Tenure Commission's decision and
reinstated the ALJ's decision. The
Court of Appeals concluded that the Tenure Commission used the wrong
legal standard in reviewing the ALJ's
decision. The Tenure Commission should have applied a "clear
error" standard of review instead of a "de novo"
standard of review.
The teacher appealed to the Michigan Supreme Court, which concluded
that the Tenure Commission correctly applied "de novo"
standard of review. Accordingly, Supreme Court reversed and
remanded the case back to the Court of Appeals.
On July 1, 2008 Court of Appeals upheld the Tenure Commission's
decision to reinstate the teacher.
The Michigan Supreme Court placed the School District in a difficult
legal position. Under a de novo standard of review the Tenure
Commission has fairly expansive authority to reject an ALJ's decision. Moreover, the Court of
Appeals must uphold the Tenure Commission's decision if supported by
competent, material and substantial evidence on the whole record,
and if the decision is not contrary to law.
The Court of Appeals held that the Tenure Commission acted within
its authority in concluding that the teacher's misconduct did not
justify discharge. The Tenure Commission's findings, that
mitigated against a discharge penalty, were supported by competent,
material and substantial evidence.
This
decision inserts an element of unpredictability into teacher
misconduct cases that normally justify discharge.
[Back to Top]
|
Legislative Update
By: Jeremy
S. Motz
As
of August 18, 2008, the Bills summarized below have not become law;
they may be modified from their current form prior to being passed
by both the House and Senate and signed into law by the
Governor. Although we cannot predict with any certainty if
these Bills will become law, and if so, what their content will be,
we believe they could have an effect on Michigan public schools and
we will continue to monitor them as they work their way through the
Michigan Legislature. The full text of these Bills may be
accessed at www.michiganlegislature.org.
For ease of reference, "HB"
means a Bill originated in the House and "SB" means a Bill
originated in the Senate.
HB 4796: This Bill would place
a "cap" on all salaries of public school employees hired
after the effective date this Bill becomes law. The
"cap" would be equal to the salary of the Governor.
Certain items, such as vehicle allowances and social memberships,
would be deemed impermissible; items of compensation. However,
a board of education of a school district could apply for a waiver
of these limits if it can demonstrate that the nationwide industry
standard for compensation for a similar employee of a similar size
school district exceeds the salary of the Governor. This Bill
has been passed by the house and referred to the Senate Committee on
Education.
HB 5083: To be known as the
"School Sunshine Law," this Bill would require each local
school district to post on its website, not later than December 31st
of each year, a report which contains certain school district budget
information, including, but not limited to, the school district's
total budget, the number of pupils served, the number of employees
employed, certain administrator salaries and expenses, any contract
over $100,000 that was not competitively bid, the total amount of
money spent on fiber optic or cable equipment networks and various
other expenditures of the school district. This Bill has been
referred to the House Committee on Education.
HB 5244: This Bill would
require school districts to ensure that they do not belong to, or
participate in, events sponsored by an athletic conference or
statewide interscholastic athletic association which has a rule,
policy, bylaw etc. which limits the distance the interscholastic
athletic team may travel to in order to participate in an
event. This Bill has been referred to the House Committee on
Education.
HB 5506-5508: These Bills would
prohibit the personal use of motor vehicles owned or leased by a
school district by an officer or employee of the school
district. If the school district is found to be in violation
of this mandate, 5% of the state aid funding would be withheld until
compliance is demonstrated. This Bill has been referred to the
House Committee on Intergovernmental, Urban and Regional Affairs.
HB 5594: This Bill, which would
raise the compulsory school age from 16 to 18, has been referred to
the House Committee on Education.
HB 5639: This Bill would amend
Sections 623a, 1267 and 1274 of the Revised School Code to permit
school districts to give a preference of up to 10% of the
competitively bid contract amount to a Michigan-based firm.
This Bill has been passed by the House and referred to the Senate
Committee on Appropriations.
HB 6344: This Bill would modify
current law regarding subjects of collective bargaining. This
Bill would clarify that the prohibition on bargaining the subject of
privatization of non-instructional support services is not intended
to operate to prohibit current school employees from offering bids
to perform the contracted services or offering alternative plans for
the school district's consideration. HB
6344 has been introduced by the House and referred to the House
Committee on Labor.
HB 6342: This Bill would
require school districts to publish a cost-benefit analysis prior to
entering into a contract with a third party to provide noninstructional support services when those
services are currently being performed by school district
employees. This Bill has been referred to the Committee on
Labor.
HB 6365/6366: These Bills would
amend Sections 623a and 1274 of the Revised School Code to indicate
that competitive bids for food are not required unless the food is
purchased in a single transaction costing over $10,000.00.
These Bills have been assigned to the House Committee on
Agriculture.
HB 6278: This Bill would
require the State Superintendent of Public Instruction, in
cooperation with the Department of State Police and other agencies,
to develop a model program for internet safety by January 1,
2009. In addition, a school district must, beginning with the
2009-2010 school year, provide grade-level-appropriate instruction
on internet safety in all grade levels. This Bill has been
referred to the House Committee on Education.
HB 6270: This Bill would
require school districts to prepare and make available to the public
a detailed privatization cost-benefit analysis prior to privatizing
any services, or expanding current privatized services that would
replace services currently being performed by school district
employees. It would also prohibit privatization or expansion
if the cost-benefit analysis does not indicate a savings at least
10% compared to the cost for school employees performing the same
services. Further, prior to renewing a contract or re-bidding
for services currently privatized, this Bill would require the same
cost-benefit analysis and if said analysis did not indicate a cost
savings to the school district, the school district would be
required to reassume those services and provide them though school
employees. This Bill has been referred to the House Committee
on Education.
HB 6234: This Bill would
require certain administrators of the school district to possess a
valid Michigan School Administrator's Certificate. This Bill
has been referred to the House Committee on Education.
SB
813/814: These Bills would require that pupils who do not
qualify for a Michigan Merit Award Scholarship under the Michigan
Merit Award Scholarship Act or a Michigan Promise Grant under
Section 6 of the Michigan Promise Grant Act and who want to repeat
the Michigan Merit Examination be allowed to repeat the Michigan
Merit Examination in the next school year. However, they shall
be responsible for paying the cost of such repeat examination.
This Bill has been referred to the Senate Committee on Education.
SB
842: This Bill would prohibit school districts from promoting
students to the 4th grade if they are not reading at a 3rd grade
level by the end of their 3rd grade academic year, unless the
reading deficiency is due to a disability other than a learning
disability that is based solely on reading difficulties. This
Bill has been passed by the Senate and been referred to the House
Committee on Education.
SB
1010: This Bill would permit Intermediate School Districts to
submit to their electors the question of establishing an Area Early
Childhood Education Program through a levy of up to 1 mill of ad
valorem property taxes. This Bill has been referred to the
Senate Committee on Finance.
SB
1021/HB 5625: These Bills would amend Section 1263 of the
Revised School Code and require school districts that are building
or expanding any school building to submit the building site plan to
the local unit of government for administrative review and
approval. Moreover, this Bill would require the State Superintendent
to approve a site plan for a school building only if it meets all
the requirements of Department Bulletin 412, which can be found
at http://michigan.gov/documents/dleg_bccfs_schsitep_97226_7.pdf. This
Bill has been referred to the Senate Committee on Education and the
House Committee on Intergovernmental, Urban and Regional Affairs.
SB
1252: This Bill would amend the fingerprinting and criminal
background check legislation to allow for the transfer of
fingerprinting/criminal background check records of substitute bus
drivers. This Bill has been referred to the House Committee on
Education.
|
|
|
|
|
|
|
