Finally, I found the right County website which houses all the dockets. Here is the docket that MTLSD filed asking for clarification.
This just appeared this week as a response from the MLEA.
I am not an attorney, so all you attorneys out there, please translate.
25 comments:
The award was dated January 31, 2013. See page 123.
During the May 20, 2013 meeting, Mr. Peterson told Ms. Bongiorno there was no award at that time.
Doesn't that violate policy about providing false information?
Good point, 3:31 PM. The Arbitrator had in fact issued a legal Opinion and Award; however, the District has a Court filing for a clarification of the Opinion and Award while at the same time also asking that they be set aside. Not really false information by the Solicitor, but merely lawyerly weasel wording - an award ain't official just quite yet.
If I am gathering this correctly, it seems Jan Klein testified that the District's current unreserved fund balance is $4.6 million dollars. We also have a "reserved" fund balance that contains funds designated for Health Care (OPEB) and Capital Improvements. Although, she has been very lackadaisical in the past about actually moving these funds into physical "designated" accounts. I wonder if this will come back to bite her.
I say this because it is clear to me that the Union is looking at that fund balance and thinking it is plenty to pay them for this settlement.
Way down the testimony, and I quote this word for word: She (Klein) noted the District taxed over the index this past year.
Really? I don't remember the referendum. Were there exceptions?
The District's response to the complaint is that they are doing nothing wrong partly because:
1. They have never had complaints from teachers until now
2. The Association (Union) had tried to insert specific language allowing for step placement but was never included in any contract.
It also seems there was a similar grievance and settlement somewhere around 2000. HR put together 3 groups of people:
1. First group included claims resolved in the last grievance
2. Second group included those eligible to grieve
3. Third group were new employees under this Agreement
Much much farther down we learn that there was a 1999 case called Penns Manor decided by the Supreme Court which required the school district to recognize service as a permanent sub for purposes of placement on the salary scale.
The district does call out the lack of leadership (ignorance he called it) at the MLEA for not including the Penns Manor judgement in the contract even after knowing it was the law of the land.
The district's post-hearing brief says if the Union was to get what it was asking for it "would require the district to pay millions of dollars in additional salaries and benefits that it did not bargain for or agree to pay solely because the MLEA, based on its deligquent discovery of two Commonwealth Court opinions from 2002, has now decided that it should not be bound by terms that it voluntarily agreed to during the course of bargaining for at least the last four most recent contracts."
My conclusion on the above is the the school district knew (based on prior cases) that they were to include permanent subs on the proper step according to Penns Manor and other Commonwealth decisions but that the Union neglected to put this wording in the contract. Stupid move by the Union not negotiating this in the contract and a possible brilliant legal manuever for the school district for saving literally millions of taxpayer dollars....as long as they never got caught.
93 of the 177 grievants involved in the case are thrown out due to having been part of the 1999 grievance.
Ok, there is a lot to read.
So here is the ruling from the arbitrator (pg 123):
Award: The District violated the Agreement by not giving credit when placing teachers on the salary schedule that had previous service as long term and/or permanent substitutes in the District when they were hired as contract teachers. The District is directed to adjust the pay of the newly hired grievants, effective the date the grievance was filed, credit them with proper amount of service credit and sick time, and make them whole for loses incurred. I will retain jurisdiction in this matter in the event issues arise in the implementation of the award. Signed Michelle Miller Kotula
"She (Klein) noted the District taxed over the index this past year." Isn't that illegal? She admitted that under oath.
Elaine
A few days ago, I happened to catch a few minutes of the May 20 episode of Moffet Street Machinations, formerly known as Horsman Drive Blues. This evening, I relived the experience, thanks to a Lebo Citizen’s archived podcast.
It was the last few minutes of the meeting during citizen comments, where Solicitor Peterson was responding to a resident’s question about an outstanding grievance that has come to be known as THE grievance.
Mr. Peterson’s explanation made perfect sense. It is not unusual for parties to solicit the assistance of an arbitrator to implement an award, when there is a degree of indeterminateness between the parties.
However, at this point I find Solicitor Peterson’s response to be abundantly void of adequateness.
At no time did Solicitor Peterson indicate --- the District had taken an additional giant step by filing a motion in Common Please Court, requesting a judge vacate THE award in THE grievance.
Asking to vacate an arbitrator’s award is a big fishing deal and far more difficult than having a zoning board decision overturned on appeal. Frankly, it rarely happens. Courts don’t like to mess in this arena. Arbitration is intended to be efficient, not perfect.
Solicitor Peterson’s failure to mention the “already filed” petition to vacate the arbitrator’s award from his thoughtful explanation was a material distortion of the status of THE grievance.
An apology is due the Community.
To hear the Solicitor – in his own words – click over and listen to the last 2+ minutes of the podcast:
http://www.lebocitizens.com/Lebo_Citizens/Podcasts/Entries/2013/5/20_School_Board_Business_Meeting.html
The ruling (on page 123)was made on January 31,2013. So when I asked Elaine Cappucci at the April 2, 2013 Budget Forum about the Grievance, she lied to me. Rudely,in fact. Why wasn't this included in the 2013-14 budget? Maybe it is. I'll find out if my RTK is granted.
I would love to get my life back, instead of spending my days tracking down documents that should be available to all of us.
Elaine
Elaine, Here is the list of Act 1 exceptions allowed over the years.
Millage Increase Above the Index Allowed as a Result of
Approved Exceptions
2007-2008: 0.0500
2008-2009: 0.5538
2009-2010: 0.5538
2010-2011: 2.7039
2011-2012: None
2012-2013: 0.6111
2013-2014: 0.3468
http://www.portal.state.pa.us/portal/server.pt/community/referendum_exceptions/7456/report_on_referendum_exceptions/
Ms. Klein's interpretation of "this past year" may be a factor.
Does this mean that Jan found a loophole? Or is it her "typical for this time of year" doublespeak?
Elaine
Bill,
I completely agree with what you said. Peterson has clearly known that they lost an arbitration case and that it would cost the district money. So did Cappucci.
After reading the docs myself, I came to two conclusions.
1. The school district counsel is clearly mostly to blame for this. He signed off on the 2000 settled grievance when the teachers grieved THE EXACT SAME THING they are grieving now. Remember, the District lost that grievance as well.
2. The Union is partly to blame because they didn't assert their rights for step placement in their MOUs to include step placement for permanent subs.
But, if you are Tom Peterson, and you lost an arbitration case where placement of permanent subs was an issue, wouldn't you simply ask that the next teacher contract include language for proper placement of permanent subs?
You change one sentence.
Time spent as a permanent sub will NOT count as service time.
Change to:
Time spent as a permanent sub WILL count as service time.
In sum:
1. The district lost the exact same case in 2000.
2. There were at least two PA Supreme Court rulings in and around 2002 saying that you MUST credit permanent subs with service time.
3. The District did not alter either the 2010 contract or the one previous to this to include these rulings into the MOU.
4. The Union claimed ignorance on knowing that the rulings took place.
5. The District argued that the Union had negotiated away their step-placement rights by signing the MOUs.
The conspiracy theorist in me is itching to come out!
Remember, the Board and Jan file for exception EVERY year. This is that FAKE budget they put out in January. The argument is that they have no idea what will be happening the next 4-5 months so they have to put out something that exceeds Act 1 limits "just in case they need it".
So yes, while they filed for and received approval for the exceptions, that does not mean they used them.
That is why Jan's comment is concerning to me. She said she went over the index. But I don't remember that being communicated to the community or to the Board. My belief was that they had been going up the index or below for the past few years.
7:58, not true about filing for exception EVERY year.
There was no exception or tax increase two years ago.
8:25
You are right.
One out of the 8 years they didn't file for an exception. That was the year AFTER the huge tax increase.
I stand corrected.
There are two threads happening here.
Did the Board knowingly exceed Act 1 index while communicating something else to the community?
How much will the mistake by the school district attorney cost taxpayers?
Yes, 8:36 AM, there are two threads happening here. Both threads share a common theme. What can the District get away with before they are caught? Peterson knew better and it will cost us plenty. One of the cost reductions last year was reducing legal fees. What a joke!
Elaine
BTW, reading further, I think this is a big deal, not a BIG deal.
The ruling says this:
Based on the fact there is no evidence the parties were aware of this matter until the Association filed the grievance in 2011, the District is not obligated to adjust the pay of the grievants until the date the grievance was filed. The District must pay the long term substitutes who were newly hired into contract positions at the correct rate, effective the date of the grievance.
So I don't see how this could be $900k a year. Not if it goes back only to 2011. It might be a one-time $900k but I can't see how it goes much beyond that. The last settlement (in 2000) was just under $250,000.
It is still a crapload of money the District doesn't really have and it should have been completely avoided given Peterson should have known the entire time they were violating the law. The arbitrator didn't seem to connect the Peterson dots presumable because he worked for a different law firm in 2000.
I mean, if the district, in their post-hearing brief, chastises the Union for not being aware of the law, shouldn't the same attorney chastise himself for not writing current case law into the MOU?
Peterson got at least $100,000 in legal fees just for the grievance.
This was stated during an open meeting.
8:58 AM The District has estimated that the total Award could range from a high of about $1,155,000 down to as little as only $85,000 depending on final clarification agreement of all the parties.
Vacating the Opinion and Award altogether is another major consideration. Guess the District is a strong proponent of "nothing ventured, nothing gained" as well as "don't ask, don't tell" regarding the vacating - i.e. don't let the taxpayers know what we're doing or that we screwed up.
Notice how silent the board is on this matter, not even rolling of the eyes and other telling body language from the haughty ones, or Steinhauer trying to change the subject with photo ops of pizza lunches with innocent kiddies.
Isn't it noteworthy that the only real honest District transparency comes about because of this blog !
Peterson worked for Springer Bush & Perry back then and prior when Lebo resident Don Bush was the District long time solicitor and Peterson his understudy. Bush died of cancer a few years later, Peterson went with Tucker and took the successor solicitorship with him.
A couple of more connected dots.
Look at page 2 of last year's budget:
http://www.mtlsd.org/district/budget/stuff/201213budgetfinal.pdf
Not included in above numbers:
Reserve for Grievance: Salary and benefit costs $823,887, legal fees $100,000 estimated. Millage equivalent .44 mills.
Peterson should have known the District was violating the law, but he chose to collect an additional $100,000 instead.
Another bit of Don Bush history as District solicitor, 10:54 AM. This goes all the way back to the ill fated, yes ill fated, 1970 renovation and enlargement of the high school.
Back in 1969, the then school board and admin, about as incompetent as the present group, decided that the the District enrollment would definitely increase to some 9,000 students by 1978 from the then level of under 8,000. They planned a $17 million project. Problem was, a project of that magnitude back then according to laws and regs in place required an electoral referendum approval to proceed. And a project opposition group vowed to sue if the District tried to proceed without a referendum.
So, how to legally avoid the referendum ? I believe it was solicitor Bush who came up with the answer - use what was and still is the state school building authority to "invest" in the project. Investing is not legally considered borrowing or debt. PA takes an "investment" interest and ownership in the project and the District "buys" back that ownership interest over time similar to a debt (but not debt). The PA charge for this end run was and is higher than bond interest costs, but that avoided the necessity of a public vote. So the project proceeded on that arrangement and was completed in 1973.
Here's where the ill fated comes in. By 1978, total enrollment had not increased to 9,000 students. Enrollment had actually declined to the point that enrollment was something like only 7,000 students ! There was now significant excess building and classroom capacity in the entire system, K-12. What did the District do about this ?
Well, in 1986 they closed the Jefferson Jr. High and moved the students to the high school. Then in 1990, they closed Mellon Jr. High and moved the kids to the high school. The high school ended up with 3,000 grade 7-12 students. The Jr. High's remained closed until they were converted in the $18 million Middle School farce in the mid-1990's, where they had to move the 6th. grade out of all 7 elementary schools into Middle's to justify it. Then the scheming for this high school fiasco could get slowly underway by 2001, knowing that debt borrowing limits and referendum requirements would delay a start until years later.
Isn't history wonderful. The fact that we do not learn from it correctly is not. Oh, the financial advisor informed the District the PA authority was an available financing option for this current high school misadventure. The board preferred the "premium (higher interest) rate" bond issue of 2009 that generated $75 million in proceeds for $69 million in par value, assuming the public would not be able to figure out the cost penalties involved.
Hey 12:41 PM, you forgot to mention that planning for the elementary school renovation project began in 2001, not the high school project. Remember the local school architects, now VEB&H or something like that, did a study and said the elementary's could be renovated for something around $16 million. The District ended up going forward with a $44 million project, under a "it's for the children" banner, in 2003-2005 financed with a wrapped $50 million 28-year bond issue. Wrapping, i.e. interest only for the first 14 years to minimize the initial millage impact (fools the public), added $10 million in excess interest cost to the project. The $50 million bond issue requires a total of $103 million in debt service (i.e. taxes) to pay it off !
The project went over budget, so $6 million of the bond issue intended for a joint venture indoor pool with the Muni ($5 million) that did not go forward + rebuilding the stadium track ($1 million) also postponed was reallocated to the elementary schools for cost over runs.
So it was actually the elementary school renovation that pushed out the high school renovation scheduling and added even more concern about referendum requirements.
More District dirty tricks, but no lessons learned by the otherwise "very busy" public.
Don't forget that Dr. Sable had huge issues with shoddy or neglected maintenance/recordkeeping and housekeepIng when she arrived. Which probably contributed to higher renovation cost and maybe the transformer explosion.
I think those last two posts belong in another section...a bit off topic.
There is no way of telling how much this grievance will cost.
What we can tell for sure is that the District (with Peterson's help) was taking a gamble that this same issue wouldn't bite the in the butt years after losing the same thing in court.
If I was a school board member I would ask Peterson to step down. Now.
Elaine could do another post about incidents where it could be argued that the goal of counsel was more billable hours instead of the taxpayer good.
I am not saying that has happened for sure. I am saying that it could be argued...I have to cover myself there. We are dealing with an attorney after all.
1) What employees got money when the MOU was signed? Look it up! Think about it!
2) The 1999 grievance was withdrawn by the union, the District didn't lose. Following the withdrawal of the grievance the Superintendent and the Union President signed the MOU with Penns Manor language included.
3) The district negotiator of the 2000 Contract was a Tucker lawyer.
4) Testimony was given at the arbitration hearing that over $1,100,000 has been budgeted for the cost of the grievance for two years in this contract and two years' costs remain to be disclosed. At the beginning of the new contract in 2015 these teachers will start at a higher Step costing the District even more in the new contract.
5) The reserved funds balance has $1.6 million for retirement health care benefits and over $2 million for capital projects.
6) The arbitrator's ruling said the grievance on Step Pay and Sick Leave should be awarded as of the date of filing of the grievance. That is because it is up to the claimant (union) to mitigate their damages rather than let them run on forever and then make a huge claim. The union did not mitigate their damages for over a decade. The Tucker lawyers know this, so the second group (eligible to grieve), and the third group (hired under this contract), did not mitigate their damages prior to filing the grievance. This should be an argument the Tucker firm makes to the Court to mitigate the expense of the grievance.
Here is the form for attorney misconduct:
http://www.padisciplinaryboard.org/documents/Complaint_Form_English_Fillable.pdf
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