aides

New Twist in TESD Aides & Paraeducators Outsourcing — Neal Colligan v. Tredyffrin Easttown School District in PA Open Records Case

During the last two years, the aides and paraeducators working in the Tredyffrin Easttown School District have lived with the threat of outsourcing. Given that we live in a wealthy Philadelphia suburb with an award right_to_know_squarewinning, nationally ranked school district, it is difficult to understand how the TESD leaders would seek to outsource valuable employee jobs rather than offer health care benefits as required by the Affordable Care Act. Due to the delay of ACA compliance enforcement, the aides and paras were able to continue their employment through the 2014/15 school year.

With the outsourcing threat present since 2013, residents continued to support the aides and paras, the only group of District employees not covered by health insurance (and the only group of employees without collective bargaining status).  Many in the community questioned the Board’s decision to outsource to avoid the cost of complying with ACA and … if this was the right alternative for the TE School District.

The journey of the District aides and paras moved forward during the 2014/15 school year, knowing that the Board continued to discuss their outsourcing future as a budget strategy. In a surprise move, the School Board approved a resolution to change the employment status of the 73 full-time aides and paras at the February 3, 2015 TESD meeting. The action was taken without notice, other than listing ‘Affordable Care Act Update’ on the meeting agenda, and after five secret executive session discussions held on November 5, 2014, December 16, 2014, January 12, 2015,  January 20, 2015 and February 3, 2015.

The Board’s February 3, 2015 action to outsource disrespected our expectation of good government.  Some residents believed that a PA Sunshine Act violation had occurred by the Board’s action, whether by misinterpretation or misapplication of the language of the Act, or … by intention.  Adding insult to injury, the affected group of aides and paras, learned of the Board’s decision via email at 10:30 PM following the February 3 Board meeting.

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 the February 3 policy decision regarding the Affordable Care Act, the discussions were held in private during 5 Executive Sessions, out of the light of the public eye and without benefit of public deliberation.

Believing that the Board’s actions of February 3 regarding the aides and paras violated the spirit and letter of the Pennsylvania Sunshine Act, a small group of concerned citizens (Neal Colligan, Ray Clarke, Barbara Jackson, Peggy Layden, Jerry Henige and I) sent a February 13, 2015 letter to the Board.  The request was simple … they asked the School Board to re-open the outsourcing discussion at the School Board meeting on February 23, to provide a thorough financial analysis of the ACA options and strategies, an explanation of suggested policy changes, and to allow for adequate resident commentary. As residents, these residents believed that with quick action at the February 23 meeting, the Board could remedy the process and maintain the trust of the community in the integrity of the District’s governance. The resident’s suggestion to re-open the outsourcing discussion was disregarded.

In an email dated February 20, the District’s solicitor Ken Roos responded (on behalf of the Board) to the residents’ letter of February 13, stating in part, “… At no time was the Sunshine Act violated. Moreover, the February 3, 2015 Board vote on this fully disclosed agenda item occurred after a lengthy public presentation, public Board discussion and public comment in full compliance with the Sunshine Act…”

Troubled by the dismissive and trivializing response, it remained clear that the District had not provided adequate notice to the public regarding the proposed policy changes nor specific reasons for each of the five Executive Session discussions of the Affordable Care Act; further adding to the Sunshine Act violation case. Residents and signers of the February 13 letter appealed to the Board to step from behind the words of the solicitor, to take the situation seriously and to think independently.  Again, there was no response from the Board in this regard.

Lacking an adequate response from TESD and the School Board to the February 13 letter, Neal Colligan filed a Right-to-Know Request with the District, on February 18 with the following request:

“All records relating to the implementation and execution of the TESD Resolution of February 3, 2015 regarding the Affordable Care Act updates since November 1, 2014, including all documents used to formulate, communicate, explain or justify the ACA Resolution not disseminated in public meetings.

Of particular interest are the 5 closed (Executive Session) meetings referenced by the Board President on 2/3/15, and all written communications and meeting notices and records thereof related to the discussion on this topic.”

On March 27, Colligan received a response to his RTK request from the District’s Open Records Officer Art McDonnell with two attachments – the public power point presentation of the Affordable Care Act presented at the February 3 Board Meeting and an email exchange between School Board member Virginia Lastner and a resident. Neither of these items related to the Executive Session ‘behind closed door’ ACA discussions and the outsourcing of the District’s aides and paras.  McDonnell’s response to Colligan’s RTK request:

Art McDonnell response

Colligan resplied to McDonnell and the School Board via email on March 27, 2015, noting that that both his first and last name were spelled incorrectly in the response and added that,  although his RTK request was made using his personal e-mail address, McDonnell’s response was sent to Colligan’s business email. The remainder of Colligan’s email reads as follows:

Your response and timing of response in this matter is very disappointing to me.  I’ve made a number of Open Records requests over the years and this is the second one DENIED.  Interestingly, those are the only two responses that took the maximum 30 days to receive.  While you are certainly within the boundaries of the law on these responses, I would think a Denial could be formulated much sooner in the process.  Water under the bridge….

My request was plainly written and, I assumed, easy to understand.

I was asking for the documents related to the closed Executive Sessions that occurred before the presentation on February 3, 2015 on this year; to the extent they were available and public.  What I received (attached) was the Power Point presentation from the 2/3/15 meeting and several e-mail chains between citizens and Mrs. Lastner dated after this critical meeting date.  Added to this was your denial that includes three different legal reasons for the denial of the request.  Wholly unsatisfying to this member of the community who was as puzzled as the rest of us regarding how a sensitive issue like this could have been made in a series of closed-door Executive Sessions.  I was hopeful that some light could be shed on your deliberations and decision-making thought matrix but that is not going to be the case.

It seems you have done a great deal of legal work here although the legal opinion and defenses articulated in your reply likely did not take outside research.  I’m sorry if you choose to spend valuable legal dollars just to deny this request.  If that was the intent, the response could have been forwarded last month when I made the request for Open Records.  The inclusion of post 2/3/15 items was outside of the scope of my request and it is my firm hope that you did not pay for legal review of these (and other post meeting communications) for redaction/exclusion for this Open Records response.

I’m not a lawyer and will not argue your various legal reasons for denying the request.  I know plenty of smart lawyers would tell me the counter to each of these defenses but I’m not looking to play that game.  I do know that there are many groups/organizations/people/firms dedicated to good and open government in the Commonwealth.  I’m also aware that the process for appeal of Open Records denials is a fairly simple and user friendly process…this is to insure that average citizens can shed light on the deliberations of government bodies in PA.  I’m very likely to take those steps and seek that help.  First I will confer with the other members of our community who supported me in this endeavor.  But I ask each of you: Is this the level of openness and transparency that you think appropriate for this issue?  Really, when you stood for election to your seat; is this the relationship with the community you wanted?  This is not the first time that transparency has become as issue; isn’t there one/some of you who would like to see this relationship change; the School Board become more open in process?  I know the answer is YES but we need someone brave enough to voice the opinion and insist on transparent government and it can’t come from the public.

Colligan shared the District’s response to the RTK request and his reply to Art McDonnell (above) with the other signers of the February 13 letter.  The District’s response did not support the claim for exemption from public access and those claims are not applicable in this specific case.  Although McDonnell states that the RTK was granted ‘in part’ —  neither of the two records provided are germane to the request. The District’s RTK denial request contained provisions for an appeal to Pennsylvania Office of Open Records, part of PA Department of Community and Economic Development, within fifteen business days.

On March 28, 2015, Colligan took the next step in the process and filed an appeal with the Pennsylvania Office of Open Records office. He provided requested background documentation, including copies of the original RTK request, response and records from the District. The case, Colligan v. Tredyffrin-Easttown School District, Docket No. 2015-0442 is assigned to Appeals Officer Jill Wolfe, Esq. in Harrisburg.  Colligan is required to provide all supporting information and a legal argument by Wednesday, April 8 to the Open Records Office.  A final ruling on the appeal will be made within 30 days.

Transparency in government is not a new issue. John Adams, 2nd president of the United States, wrote, “Liberty cannot be preserved without a general knowledge among the people, who have a right and a desire to know.”  Through his Right-to-Know request and his open records appeal, Neal Colligan is asking for transparency and easily accessible information which should be public information.  He is not looking to unearth government secrets … simply asking for public information.

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TE School Board Will Not Reinstate Aides/Paras Hours Unless Affordable Care Act Answers Received by August 1!

I attended the Special School Board meeting last night and when the Board was 20 min. late coming from their executive session, that should have been a clue as to what was to come.  The agenda did not include the regular opportunity for questions or comments from community members at the start of the meeting but instead the Board went directly to the discussion of the Vanguard assessment appeal resolution. As background, Vanguard filed appeals challenging the assessments for its main corporate campus on Cedar Hollow Road and several of the buildings that surround the main campus for the tax year 2012-13.  Vanguard and the District also both appealed the decision by the Board of Assessment for a building leased by Vanguard.

The Vanguard discussion was confusing because the agenda published on the District website differed from the agenda available at the meeting. Ray Clarke attended the meeting, questioned the inconsistencies between the two agendas and provided the following personal observations:

The TESD voted to approve a proposed settlement of the “Vanguard appeal” that appears to be a significant improvement over the worst case scenarios for which we have been prepared.  Good news all around, although the $1.3 million “windfall” did not appear to affect the Board majority’s willingness to accept any remaining minimal risk on the aide/para issue.

Once again, the audience had to listen carefully to the financials, which as reported by the Solicitor were significantly different from the numbers published with the original meeting Agenda.  It appears that the bottom line is:

1.  A repayment to Vanguard of $150,000 in respect of 2012/13 tax year.  We had been bracing for a repayment of $830,000.  By my calculation this will contribute to expected 2012/13 revenues of $111 million and an expected surplus of $3.6 million.  (The actual accounting may perhaps depend on the fiscal years in which the settlement can be recognized?).

2.  A repayment to Vanguard of $153,000 (or a new tax bill revised by that amount) in respect of 2013/14 tax year.  It appears that we had budgeted for revenue $800,000 less than the original tax bill, since Art McDonnell reported that revenue will now be $650,000 higher than the budget.  It looks to me as though this should bring the budget into balance (before the one-time $1.16 million TEEA bonus – and before the $300,000 of expense savings for the current year that may well recur).

3.  There was no impact on 2011/12 tax year, contrary to the first version of the agenda materials.[According to the Solicitor there was an error and the assessment did not include the 2011/12 tax year as previously stated.]

Perhaps some credit should go – in addition to TESD’s negotiating team – to whichever Court of Common Pleas Judge urged the settlement discussions.

My only comments to add to Ray’s remarks are that the settlement of the Vanguard appeal requires the approval from the other taxing authorities (township and county) and the Board of Assessment. From a timeline standpoint, the Solicitor expected the additional approvals by the end of the month.  Further, the settlement comes with the agreement that Vanguard will not file any assessment appeals for 3 years.

Immediately following the Vanguard discussion, under Recommended Other Action on the agenda, Board president Kevin Buraks launched into a very long motion that in essence was to reverse the June 17 Board decision and return the hours of all aides, paraeducators and paraprofessionals to their 2012-13 school year level. Buraks referenced the Treasury Department’s announcement of the one-year delay in the Affordable Care Act compliance requirement as the basis for his motion.

What is the saying about ‘no do-overs in life’ – apparently, what the many aides/paras and other audience members viewed as a simple task to re-instate the employee hours proved anything but simple for the TE School Board!  Betsy Fadem immediately launched into commentary on all the unknowns of the ACA information and the what-if scenarios, convincing Buraks that his motion could not be open-ended — the District does not have enough information on the ACA delay and therefore too risky at this point.  Buraks called upon the District personnel director Sue Tiede for a status report on the aides/pars and expectation of their return in September.  According to Tiede, 135 aides/paras have said that they intend to return, two said they would not and there has been no response from 29.  Buraks asked Tiede how much time was needed to fill any vacancies before the start of school.  Her response was one month, or August 1.

Much to the chagrin of two Board members (Anne Crowley and Liz Mercogliano), the intial motion was quickly re-written to include August 1 deadline.  According to Buraks revised motion, the Board must have further verification on the Affordable Care Act to make certain that the District will not be liable should they re-instate the hours of the aides and paras.  It will then be up to the District solicitor to determine if the necessary ACA information (guarantee?) is received by August 1.  If the solicitor does not receive any further ACA information by August 1, the affected employees remain reduced at 27.5 hours or below.  Also included in the motion is that any new Ditrict aides, paraeducators or paraprofessionals hired will not exceed 27.5 hr. workweek.

To their credit, Anne Crowley and Liz Mercogliano fought passionately to have the August 1 deadline removed from the motion.  At one point, Crowley offered an official change to the initial motion to exclude the August 1 date, but it failed 7-2.  When Mercogliano lamented that the District should offer all employees healthcare benefits, Betsy Fadem, who told her the Board was not going to revisit the discussion of June 17, quickly cut her off.  Only Crowley and Mercogliano defended the current employees and the need to preserve their hours, particularly in view of last week’s Treasury Department announcement.

Unfortunately, Crowley and Mercogliano held a minority viewpoint in the discussion. After 30 minutes of the Board going around and around with each other and back and forth with the solicitor, it was increasingly obvious that the majority of this Board was not going to give the hours back to the affected employees or … at least not easily. Why should doing what’s right (and practical) be so difficult!  In the end, the motion to return the hours to the aides/paras (with the inclusion of the August 1 date caveat) was approved 8-1. Fadem voted no to the motion, she clearly wants no do-over to the June 17 vote.

I have no idea what magic answers Buraks and the other Board members (except Crowley and Mercogliano) expect to have from Washington in the next 3 weeks. It is as if he and the others expect some kind of personal guarantee from the Federal government that the terms of the ACA will pose no liability issue for the TE School District.  I read the press release from the Treasury Department and it seemed clear to me that businesses with 50 or more employees were given a one-year reprieve for compliance (without any penalty).  The Affordable Care Act is complex and the additional year was intended to give employers (school districts) an opportunity to more fully understand the implementation requirements.  In addition, we know that the requirements and compliance issues are in a state of flux and who knows what will happen over the next year.  However, here in the TE School District, the Board has decided they need more answers from Washington – and those answers need to be in by August 1.

Bottom line about last night’s school board meeting – I entered the meeting very hopeful that the Board would do the right thing and reinstate the hours of the aides, paraeducators and paraprofessionals to their 2012-13 school year level.  However, my hoping, wishing, wanting was not to be last night.  I suppose there’s a small sliver of possibility that if more ACA information becomes available by August 1 and if the District solicitor determines the information is sufficient, then maybe the aides and the paras will see the return of their hours.  Is it likely to happen … that is anyone’s guess!

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For the record, the regular District solictor Ken Roos did not attend the meeting – there was another attorney from the Wisler Pearstine law firm in his absence.  Also, Rich Brake and Karen Cruickshank attended the meeting remotely, by phone.

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Outcome of TE School Board Meeting more suited for black roses than white ribbons!

Much like the last TE School Board meeting on May 13, the audience was filled with residents and staff, including aides, paraeducators, paraprofessionals, teachers and TENIG members … the outcome of the evening more suited for black roses than white ribbons!

The same 9-0 Board vote to cut the weekly hours of aides and paras to part-time, 27.5 hours could have taken place in the first 5 minutes of the meeting, rather than dragging the vote out until 10:30 PM.  To those of us who attended, we all now know that the minds of the school board members were made up before the meeting ever started.

During the first public comment period of the night, TESD resident Neal Colligan delivered a statement that included the timeline of activity surrounding the decision on the District’s aides, paraeducators and paraprofessionals.  The ever-changing status of this group of District employees began six weeks ago with the outsourcing of their jobs to STS.  When STS pulled its proposal, the District turned to another outsourcing company CCRES.  Its unclear what happened with the CCRES outsourcing plan – that plan disappeared without explanation.  In its place, the employees were notified about 10 days ago, that their hours would be cut to part-time.

Colligan stated, “No one has seen a vote on any of these decisions.  The community, the employees who live in our community and the members of the public who have taken an interest in this issue ask for that vote tonight.”  He asked that the Board listen to the residents before taking the vote.

Often we hear residents complain about a local issue but when you suggest they speak up at a public hearing the answer most likely is this:  “Why bother, no one listens.”  Nothing truer could have been said about last night’s school board meeting! After a series of meetings, phone conversations and emails with many of the District aides and paras, it was clear they feared retribution if they spoke publically.  Believing that the Board needed to hear their testimonials, I collected personal statements to read.  With the 5 min. limit imposed for individual resident comments, I was only able to get through two letters.  I appealed for audience volunteers and residents lined up to read aloud the letters into the  meeting testimony.

The thoughtfully written personal statements are with an insight that only comes with years of experience in the school district.  Although personally affected by the decision to reduce their hours to part-time, the overriding concern of aides and paraprofessionals in their statements, is for the education, safety and well-being of our District’s children.

Click here to read full text of personal statements written the TE School Board.  Below are excerpted quotes:

  –  There is no substitute, when working with all children and especially kids with needs, for consistency, continuity, trust and relationship.

–  The aides and paras have been treated as puppets and the Administration and School Board are the Puppet Masters.

–  The loss of hours, I fear, will cause unnecessary turnover of staff with detrimental effects on school programs and the students of the district.

–  We go the extra mile because many of us had our own children go through TE and we are proud of the TE tradition.  You cannot pay for that.  Many of the aides were originally volunteers at their schools, putting in many hours making TE schools what they are.

–  What does affect me is seeing our school district begin a race to the bottom under the care of this school board.  The beginning of the “Walmart-ization” of our district as one speaker called it at a recent meeting.

–  There is a saying in organizational psychology, “If you want to know what is important to leaders don’t listen to what they say, watch what they do.”  What do you think your end run around the ACA says about how important the aides are to this school board?

–  The school board doesn’t care about us and they never will.

–  The relationship and bond between the aides and the children will be shattered with a revolving door of strangers in their lives. Beyond the nightmare of scheduling problems with all the part-time workers, are you prepared for the security risks that will come with brining all these new people into the schools?

–  If something bad happens as a result of your actions towards the aides and paraprofessionals of TE, it’s going to be your fault and no one else’s – you will have to live with the consequences.

In addition to the anonymous testimonials read for the record, several brave employees delivered their own written statements to the School Board, which contained similar sentiments.  Audience members who volunteered to read the personal statements, added their own messages of support for the aides, and encouragement to the Board to do the right thing.  On behalf of the TESD teachers, Laura Whittaker, president of the teachers union, delivered an impassioned plea to save the hours of the aides and paras, describing their important contribution to the District’s children and their families.

Following-up on her comments presented at last week’s Finance Committee meeting, TESD resident Joanne Sonn, sought and received guidance from the National Women’s Law Center, a Washington DC advocacy group with expertise in healthcare law.  Sonn presented a letter (click here to read) to the Board from Dania Palanker, Senior Counsel at the Women’s Law Center. The letter puts forth the assertion that under current laws a self‐insured plan  (to which TESD switched in 2011) can be in compliance with nondiscriminatory testing regulations while still offering a separate group of 30‐40 hr. /week workers a lesser valued plan.  As a result of Palanker’s information, Sonn respectfully requested the Board to reconsider its plans to avoid Affordable Care Act compliance by reducing the hours of District employees to part-time status.

The legal opinion of Palanker was dismissed by the District’s solicitor Ken Roos and the benefit expert from his firm, attorney Rhonda Grubbs.  They remained constant in their advice to the Board … claiming that the only way to avoid the ‘possible’ penalties of the ACA was to reduce employee hours to under 30 hours per week.  It was stated and re-stated by some Board members that the District could not afford the cost of healthcare for the lowest paid District employees nor could we afford the cost of possible associated penalties for ACA non-compliance.

So … in the end, the Board took a vote (9-0) to decrease the hours of aides, paraeducators and paraprofessionals to 27.5 hours a week.  The vote also represented a decision not to listen to the residents, parents, aides and paras, teachers or the senior counsel of the National Women’s Law Center. Instead, all school board members chose to follow the opinion of the District solicitor.  Sadly, the takeaway from the Board’s action is that if you live in this community and feel that, you are not being listened to or acknowledged, you are probably right.

The Board’s claims that the District cannot afford healthcare for the lowest paid and/or the possible financial risks for ACA noncompliance may work for some residents.  However, these claims of fiscal responsibility ring false when we learn that the District, for another year in a row, has uncovered a multi-million budget surplus. Or that the Board can afford to give bonuses to administrators and raises to the District solicitor and his attorneys … or that the Board can stand behind a 10-year $50 million ‘dream’ facilities  plan to be paid for by taxpayers for years to come.  Beyond our yearly tax increases, we have a school board who chooses to go after revenue from nonprofit organizations and seeks to charge taxpayers for the use of tennis courts.

The most troubling aspect of the school board meeting was the Board’s total disregard for the residents and their message.  Our ‘collective’ votes elected these people to listen to us; but based on last night, it was obvious that what the community wants is not part of the Board’s agenda.  Residents need to learn to vote for representatives that will listen and serve us instead of only pandering to us during election time.

To review … Of the nine currently serving school board members, Anne Crowley and Betsy Fadem, are not seeking re-election, their terms end December 31, 2013.  Kevin Buraks and Rich Brake are seeking re-election and their names will appear on the November ballot.  Buraks and Brake’s opponents, Pete Connors and Scott Dorsey, respectfully, support the District staff and spoke out last night against the Board’s decision to cut the hours of aides and paraeducators.  In addition, Connors questioned the proposed budget expenditures and surplus and to his credit, Dorsey asked for (and received) an apology from school board member Pete Motel for his behavior toward resident Joanne Sonn at the Finance Committee meeting.

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Note:  With the 10:30 PM vote to decrease the aides and paras to 27.5 hours, over half of the audience got up and walked out, including myself.  For those that remained, it is my understanding that Rich Brake delivered a lengthy personal statement and presumably the 2013-14 budget was passed.  This was the first time I have ever left a public meeting before it ended but somehow there seemed little reason to stay.  For those that did stay, please fill us in on what we missed.

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