TE School Board, Let the Sunshine In …

At the TESD School Board meeting of February 3, the School Board voted on a resolution to change the employment status of 73 full-time aides and paras in the District. The action was taken without notice, other than listing ‘ACA Update’ on the meeting agenda, and after five secret executive session discussions.  Not only does the February 3 action of the School Board disrespect our expectation of good government, some residents are of the opinion that a violation of the Sunshine Act has occurred, whether by misinterpretation or misapplication of the language of the Act, or by intention.

The Sunshine Act defines when government bodies must conduct official business in public and private, when they should allow public comment, and how and when to advertise meetings. The Act is a mechanism to increase public participation in the democratic process by minimizing secrecy in public affairs.  The School Board has had a “longstanding practice” of meeting in executive session before its regular meetings. In the case of their recent policy decision regarding the Affordable Care Act, it is unfortunate that these discussions were held in private, out of the light of the public eye and the benefit of public deliberation.

Legal proceedings are expensive for all parties and no one wants that burden. Seeking a remedy to the Sunshine Act violation, a small group of concerned citizens sent the letter below to the Board. The request is simple —  we are asking the School Board to re-open the discussion at their next meeting on Monday, February 23.  At the meeting, we ask for a thorough financial analysis of ACA options and strategies, an explanation of suggested policy changes and adequate time for resident’s comments.

If you too are concerned after reading the letter, you are encouraged to contact the School Board directly with your comments at schoolboard@tesd.net  as soon as possible.

February 13, 2015

Dear Members of the Tredyffrin Easttown School Board,

Re:  Pennsylvania Sunshine Act Violation

At the TE School Board meeting of February 3, 2015, under Agenda Item IX, B: Affordable Care Act Update, you directed the Administration to offer two employment options to full-time District aides, paraeducators and paraprofessionals.  The resolution was distributed during the Board meeting and it was stated by School Board President Kris Graham that the Board in five Executive Sessions had previously discussed this matter.

As residents of the Tredyffrin Easttown School District, we believe that the Board violated both the spirit and letter of the Pennsylvania Sunshine Act.

  • The General Assembly states that the public has the right to be present at all meetings to witness the deliberation, policy formulation and decision making of agencies. Secrecy in public affairs undermines the faith of the public in government and the public’s effectiveness in fulfilling its role in a democratic society.  The five closed meetings and the non-descriptive language on the agenda (“Affordable Care Update”) violate the spirit of the Sunshine Act.
  • Commonwealth Court has ruled that a specific reason must be given for each Executive Session so the public can “determine from the reason given whether they are being properly excluded from the session”. The Board violated the Sunshine Act as no specific reason was given for any of the five executive sessions and, in fact, we cannot determine from the record (as no meeting dates were given) whether these meetings were announced at all.
  • As no agenda exists for the five Executive Sessions, it is difficult to determine whether other sections of the Sunshine Act were violated. It may be that the Board justifies the Executive Sessions using either the “personnel” exception or the “negotiations” exception but neither exception is valid for the current situation as the discussion centered around a group of employees not subject to a CBA.

We suggest that these Executive Sessions constitute a violation of the Sunshine Act. We ask you to review your procedures and reasons behind these closed meetings. If a violation of the Act has occurred, we would suggest it be remedied by a full and transparent airing of the matter. A public challenge to a violation of the Sunshine Act could only result in individual penalties determined through the appropriate courts. We prefer the Board hold a duly advertised public meeting (preferably at its next scheduled meeting on February 23) at which the full spectrum of strategic options in response to the ACA is analyzed, presented and discussed, and at which a resolution is developed and voted upon.  By so doing, the Board can assure all employees and residents that its decision is based on a thorough examination and on the values of the community.

In reading the Act and interfacing with the PA FOIC, we are strongly of the opinion that a violation of the Sunshine Act has occurred, whether by misinterpretation or misapplication of the language of the Act, or by intention. We ask each of you to consider this seriously. This matter is of widespread concern in the community and time is pressing for the affected employees and for the legal process.  We trust that we will receive a responsive plan from you no later than close of business on February 20, 2015.

Please feel free to contact any one of the undersigned.

Sincerely,

(Letter signed by Pattye Benson, Ray Clarke, Neal Colligan, Jerry Henige, Barbara Jackson and Margaret Layden)

14 Comments

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  1. This is terribly upsetting as I have elementary school children, are you saying Pattye that we will have strangers working in our buildings and the Board made this decision behind closed doors? My sister-in-law told me her son has had three different outsourced aides this year, that these outsourced aides don’t stay long. Do we as residents have the right to consider this decision still open since it wasn’t made legally? Is that what this means?

    [Reply]

    Pattye Reply:

    Nancy, I am struggling to understand how the resolution could be legal, as the District’s policy change was made behind closed doors after 5 secret executive meetings of discussion. There was no advertising of the proposed change, just a mention as a ‘ACA update’ on the agenda. The resolution itself was not included in the agenda or on the District’s website in advance of the Board’s decision. The discussion and decision-making was done completely out of the public’s eye. The action here was deliberate and calculated — the Board did not want the public to know what was going on, they did not want a repeat performance of the past when the ACA was discussed.

    At the November Finance Meeting Committee (Karen Cruickshank chair) and December Finance Committee meeting (Virginia Lastner chair), I specifically asked about the Affordable Care Act, its mandate and how the Board proposed to handle the insurance situation of the aides and paras. On both occasions, I was told by Cruickshank and then Lastner, that the ACA/healthcare benefit discussion would occur at a later meeting, suggesting March for that discussion. The private ACA meetings were already underway at that point, so was this their way of throwing the public off track? Making us believe that they would be involving the residents in the discussion?

    The Board knew that there was real interest in this situation — from the residents, parents, employees, yet they made the decision in the dark, without public notice and no discussion.

    [Reply]

    Nancy Rudow Reply:

    Thank you. Just confirming the next Board meeting is this Monday at CHS, right?

    [Reply]

    Pattye Reply:

    Yes, next School Board meeting is 7:30 PM, Conestoga High School. For those interested in this issue and all other important school district issues, attendance is important.

  2. This situation is sad but not surprising. The school board will do anything to get rid of the aides and paraeducators. They dont want to give them insurance and they dont want to pay PSERS.

    As a TE resident and former parent, this board doesnt represent my interests or values. Its election year, whose term is up on the board?

    [Reply]

    Pattye Reply:

    School Board president Kris Graham’s term is up and she is seeking re-election. The terms of Jim Bruce and Liz Mercogliano are up but they are not seeking re-election. Pete Motel’s term is up but I don’t know if he is seeking re-election or not.

    [Reply]

  3. The Board’s orchestrated February 3rd discussion of the secret resolution raised more questions than it answered. I have sent to schoolboard@tesd.net my set of questions, listed below. These are just from my perspective, and I strongly encourage everyone to send in their own.

    1. Help us understand why it is that outsourcing companies apparently do not need to provide healthcare benefits to employees that work full time for a school year, but school districts do. Do you believe that this situation will be allowed to persist?

    2. Explain the basis for the district’s assumption that full time employees will be able to earn comparable wages when employed at a third party provider and there will be no net expense change to the District. In support of this, include an estimate of the service provider’s cost structure and its likely trend (a standard approach to support purchasing decisions).

    3. Provide and explain to the public a table that details by school year the financial consequences for a full set of possible options, including those used on February 3rd and those laid out below. Clearly document the assumptions underlying each option: the number of employees, their assumed family status, the healthcare premium (individual and district portions), PSERS costs, other costs.

    4. In addition to the financial analysis of the options, provide data relevant to the operational and educational impact on the district and its students. How will the district compensate for some full time staff reducing their hours and what will be the impact on the students they support? What information is available on the relative skills, experience, turnover rates, etc. of the staff available from the outsourcing companies compared to current staff?

    5. Include an option that models the likely uptake of district-provided insurance for current full-time employees based on what the district knows – or could determine – about the aggregate current healthcare coverage, likely time to retirement, and family status.

    6. Analyze the option of providing health insurance to all current full time staff when required to do so after the measurement period, funding the actual cost from the fund balance for a year and assessing the situation at that time in the light of the then-existing regulations.

    7. Can the district develop with the aides and paras a plan that would offer meaningful incentives to decline a district-provided plan at limited cost to the district?

    8. What specifically would be the consequences to the district of offering to full-time aides and paras a “skinny” healthcare plan? (costs, penalties, and underlying assumptions). Are there any ways in which the group can qualify for such a benefit within the current law?

    9. Does the district consider that its current healthcare plan will continue unchanged over the reasonable employment length of the affected full time aides and paras?

    10. What would be the impact of the district continuing through the 2015/16 measurement period with the status quo and implementing a change such as is being proposed before the following school year?

    11. In the February 3rd materials, other part time employees were mentioned as likely to be counted as full time if, for example, EDR hours were counted. However, no action was proposed to limit the hours of those staff. What is the plan for them?

    An open and objective discussion of these and other creative options and issues will help rally community support for hard choices, not only in this case, but going forward.

    [Reply]

  4. Ray, one additional comment to add to your very thorough list: how many full time Aides (presumably 2nd incomes) do not even need heath insurance coverage and would decline it. An informal survey taken in June, 2013 suggested about 70%. The Aides gave these informal results to the Board in 2014.

    [Reply]

  5. Many thanks to Pattye and the other signatories for raising this issue on behalf of the residents of T&E. Violations of the Sunshine Act are very serious and should not be ignored. There is no excuse for the T/E School Board to discuss and make this decision without public input. This issue impacts every school and all of our students. Everyone who cares about open governance should e-mail the Board ( schoolboard@tesd.net ) and ask them to hold open and detailed discussions regarding the employment options for the aides and paraprofessionals.

    Ray, great questions for the Board. It’s time for the Board to step up and seriously consider all the options and their consequences. Their actions over the past several years indicate a close-minded perspective which sought the simplest solution: outsourcing. Members of the Board have repeatedly shouted down and intimidated residents who have suggested alternative options, asked questions, and offered their services in finding solutions. Let’s find the right solution – together.

    [Reply]

  6. Liba, while I don’t support the outsourcing, any estimate of aides who say they would need insurance from the district is not likely to provide very useful information. People, situations, and needs change, and in today’s healthcare climate more companies (including mine) REQUIRE that if your spouse has an option of insurance from their employer, they are required to go that route and not eligible for insurance through their spouse.

    [Reply]

  7. Daylesford, if you go onto the Healthcare.Gov site you would see that if you have healthcare coverage through your spouse you are Not required to take ACA coverage to avoid penalty (Any job-based health plan you have qualifies as minimum essential coverage.

    This means you don’t have to change to a Marketplace plan to avoid the penalty that uninsured people pay.)
    As per the ACA site!

    [Reply]

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