Published in cooperation with the University of Pittsburgh s Tri-State Area School Study Council 2014

Transcription

1 EDUCATION LAW REPORT Published in cooperation with the University of Pittsburgh s Tri-State Area School Study Council Volume XXV Number IN THIS ISSUE Closed-Door Meetings are Permitted Under the Sunshine Act Where the Meeting is Limited to Fact-Finding and No Deliberation Occurs School District Bound by Settlement Agreement Approved by Mistake Application of Transportation Policy Survives Section 504 Challenge Whistleblower Law Claim Requires Causal Connection Between Report of Wrongdoing and Discharge Tucker Arensberg, P.C. Municipal and School Law Group Tucker Arensberg PC 1500 One PPG Place Pittsburgh, PA Lemoyne Drive Suite 200 Lemoyne, PA tuckerlaw.com Copyright All rights reserved. CLOSED-DOOR MEETINGS ARE PERMITTED UNDER THE SUNSHINE ACT WHERE THE MEETING IS LIMITED TO FACT-FINDING AND NO DELIBERATION OCCURS Smith v. Township of Richmond, 82. A.3d 407 (Pa. 2013) (Decided December 17, 2013). The Pennsylvania Supreme Court determined that a Township s Board of Supervisors was permitted to meet privately with various parties for fact-finding purposes, including opposing parties in litigation, because such meetings did not constitute deliberations under the Sunshine Act. In March and April 2010, the Board of Supervisors of the Township of Richmond ( Board ) met multiple times with a cement company and a group of concerned citizens regarding (1) the possible expansion of the cement company s limestone quarry into the Township, and (2) related litigation pending between the Township and cement company. Township resident James M. Smith ( Smith ) filed a complaint in county court challenging the validity of the meetings. Smith alleged that a quorum of the Board had discussed and deliberated Township business at a gathering that was closed to the public in violation of the Sunshine Act. The complaint sought to invalidate all action taken during the meetings or which resulted from discussions held at the meetings. At the Board s regular meeting on April 5, 2010, the Township s solicitor explained that the Board did not deliberate on, conduct or make any decisions on Township business at these meetings. According to the solicitor, the sole purpose of the meetings was to allow the Board to ask questions of the invited persons so as to obtain information regarding the impact of a quarry in the Township. After multiple depositions of individuals who attended the meetings, the common pleas court granted the Township s motion for summary judgment and determined there was no violation of the Sunshine Act. On appeal, the Commonwealth Court affirmed the county court s decision. The Commonwealth Court determined the central issue was whether the meetings included deliberations or merely discussion and fact-finding, SUMMARY AND FACTUAL BACKGROUND 1 continued

2 EDUCATION LAW REPORT noting that agency members may informally discuss and debate proposals among themselves without violating the [Sunshine] Act. The Court held that Smith had failed to meet his burden of proving that deliberations had occurred at the meetings in question. Smith then petitioned the Pennsylvania Supreme Court to hear his appeal. DISCUSSION The Supreme Court allowed Smith s appeal for the purpose of examining whether the Sunshine Act s definition of deliberations is implicated where, as here, an agency meets with various parties including opposing parties in litigation to obtain information designed to help the agency make a more informed decision with regard to settling the ongoing litigation. The Court noted that the Sunshine Act defines deliberation in terms of discussion of agency business, but only where the discussion is held for the purpose of making a decision. This would occur, for example, where agency members weigh the pros and cons of the various options involved, or otherwise engage in comparisons of the different choices available to them as an aid in reaching a decision on the topic In the instant matter, the evidence showed that the meetings in question were fact-finding in nature and held solely for the purpose of collecting information and educating agency members about the issues. Accordingly, the Court found that the Board had conducted no deliberations and there was therefore no violation of the Sunshine Act. However, the Court cautioned that such closed door gatherings create a risk of public skepticism and potential challenges from citizens. PRACTICAL ADVICE The Court emphasized that whether or not a closed door meeting involves permissible factfinding or unlawful agency deliberations is highly fact-sensitive and requires an evidentiary record be developed before a court can make a determination. Accordingly, it is generally a good practice to limit gatherings of a quorum of the Board at non-public meetings. When deciding whether the proposed meeting would be permitted under the Sunshine Act, you should review the circumstances surrounding the meeting with your solicitor. Discussion among and between Board members at such a meeting should be limited so as to reduce the risk of deliberation. The focus of the meeting should be educating the Board on a particular issue rather than weighing the pros and cons of a particular course of action. d SCHOOL DISTRICT BOUND BY SETTLEMENT AGREEMENT APPROVED BY MISTAKE A.S. v. Office of Dispute Resolution, Pa. Commonwealth Court (January 24, 2014) 2014 WL School District that approved a settlement agreement without realizing the document contained changes requested by the Parents counsel was bound by the agreement. SUMMARY AND FACTUAL BACKGROUND The Parents of an elementary age child who was eligible for special education services under IDEA filed a due process complaint alleging that School 2

3 Volume XXV Number District was failing to provide appropriate extended school year services. The complaint was duly assigned to a Hearing Officer. Parents and School District, through their respective counsel, entered into negotiations to resolve the complaint prior to a due process hearing. After a meeting of counsel for the parties, with Parents present, School District counsel ed a proposed settlement agreement to Parents counsel. School District s Director of Pupil Services did not attend the settlement meeting and did not receive a copy of the proposed settlement agreement prepared by School District counsel. Parents reviewed the proposed settlement agreement and advised Parents counsel that the agreement did not conform with Parents understanding of the terms of settlement which had been discussed at the meeting. Parents counsel ed a revised agreement to Parents. The revised agreement contained some terms which had been explicitly rejected by School District during negotiations. Parents reviewed the revised settlement agreement and determined that it contained the changes they had requested. Instead of contacting Parents counsel, Parents signed the revised settlement agreement, and on the same day, delivered the signed agreement to the receptionist at the School District s administrative office. The Director of Pupil Services only skimmed the revised settlement agreement and then gave the document to the School Board Secretary to put on the Board s agenda for approval. The Director of Pupil Services did not read the revised agreement in detail and failed to notice the divergent terms. Both parties counsel were unaware that Parents had delivered the signed revised Settlement Agreement to the School District administration office. The School District Superintendent presented the revised agreement to the School Board for approval. The Superintendent was unaware the agreement contained changes made by counsel for Parents. The Director of Pupil Services sent an executed copy of the Agreement to Parents. It was later discovered the revised agreement was materially different from what was expected by the School District s counsel and administrators. The School District sought to rescind the revised Settlement Agreement by filing a due process complaint with the Pennsylvania Office of Dispute Resolution. The Hearing Officer found that the revised agreement was invalid and that no settlement agreement existed between the parties. Parents appealed that decision to the Pennsylvania Commonwealth Court. DISCUSSION Commonwealth Court, in a 2-1 decision, reversed the Hearing Officer s decision, and upheld the validity and binding effect of the revised settlement agreement. The Court noted fundamental law that the formation of a contract requires an offer, acceptance and consideration. Here, Parents execution and delivery of the signed agreement was an offer which was accepted by the School Board s formal approval and execution of the agreement. A contract, once accepted by the parties, may be invalidated by proof of fraud or mutual mistake. A mutual mistake exists when both parties are mistaken as to existing factors underlying the agreement. Commonwealth Court held that the mistake which occurred in acceptance of the continued 3

4 EDUCATION LAW REPORT contract resulted from the unilateral negligence of the School District s attorney and administrators in placing the agreement before the School Board without assuring the accuracy and acceptability of the agreement s terms. The Hearing Officer had characterized the case as a perfect storm of unreliable assumptions, but those assumptions were predicated on the failure the School District s representatives to carefully read the written contract before School Board approval. PRACTICAL ADVICE School Districts need to establish sound procedures and practices for the approval of contracts. While review of written agreements seems like work for the District Solicitor, the contract terms more frequently are developed by the District administrator directly involved in the matter. No contract should be placed on the School Board agenda until it has been carefully read by the responsible administrator. The Solicitor also should review the form of written contracts prior to execution. In cases where the School District s attorney has been involved in the negotiation or drafting of a written contract, that attorney should review the final document before it is submitted to the School Board for approval and execution. The Superintendent, by submitting a contract document for School Board approval, should be viewed as certifying that the written agreement has been carefully reviewed by the administrator involved in the matter, and by the Solicitor where appropriate. d APPLICATION OF TRANSPORTATION POLICY SURVIVES SECTION 504 CHALLENGE North Allegheny Sch. Dist. (In re S.K.), 62 IDELR 306 (SEA PA 2013): A hearing examiner upheld a school district s general transportation policy against a special education student attending an out-of-district private school. SUMMARY AND FACTUAL BACKGROUND In accordance with its general transportation policies, North Allegheny School District (District) refused to provide a kindergarten-aged special education student with transportation to-andfrom a daycare center located outside the District. The District did provide transportation from the student s home to the student s school. The student s mother objected, arguing that the District had discriminated against the student in violation of Section 504 of the Americans with Disabilities Act (ADA). However, a special education hearing officer held that the District had not discriminated against the student. The hearing officer explained that while transportation to-and-from the daycare center may have been convenient for the parent, it was not necessary in order for the student to access the educational program described in the student s Individualized Education Plan (IEP). S.K., a kindergarten student in the District, was diagnosed with various speech, hearing, vision, cognitive, social and motor skills delays. Consequently, S.K. s IEP provided that S.K. would be educated at a private school located outside the District. Transportation between S.K. s home and the private school was included in the IEP, at the expense of the District. After S.K. started at the private school, S.K. s mother enrolled the student 4

5 Volume XXV Number in before-school and after-school daycare at a private facility also located outside the District. Although the daycare program offered necessary medical care based on S.K. s condition, S.K. s mother admitted, through counsel, that the daycare program was not meant to further IEP goals and is solely to accommodate parent s busy schedule. The District s general policy, applicable to both regular and special education students, was to offer transportation for students to and from private daycare centers, limited to daycare centers located within the District. The policy stated, The [District s transportation department] will not travel outside the attendance border for childcare purposes. DISCUSSION The parent s sole claim was that the District discriminated against S.K. under Section 504 of the ADA. In order to prevail on this claim, the hearing examiner explained that the parent was required to prove that S.K. was denied the benefits of the [educational program, was otherwise discriminated against because of her disability, or that the District acted with deliberate indifference toward the student on the basis of that student s disability. The hearing examiner held that the District had not discriminated against S.K. based on her disability. The hearing examiner explained that the District denied the request for transportation based on the same policy that applied to all students, and did not discriminate against S.K. based on her disability. S.K. s mother also argued that the application of the transportation policy unfairly impacted the student, whose IEP required the student to be educated at a private school outside of the District. The parent requested a reasonable accommodation, in the form of an exception to the transportation policy, in order to allow S.K. to access the educational program offered at the private school. The hearing examiner rejected this argument, noting that the District had provided transportation between S.K. s home and the private school. S.K. s mother argued: While other parents with children who can be accommodated in regular daycare centers located within the District s attendance boundaries can for their own convenience and work schedules utilize daycare and the transportation services of the District, due to [the student s] medical needs, parent is unable to utilize those same transportation services for her [child]. In response, the hearing examiner stated, [A]t the end of the day, these assertions are considerations of parent and her needs. The District stands ready to meet the student s educational needs, and provide the benefits provided through the student s IEP. PRACTICAL ADVICE A school district is generally obligated to provide transportation for special education students being educated outside the school district. However, a school district may not be obligated to provide transportation which merely offers greater continued 5

6 EDUCATION LAW REPORT convenience for parents and which does not relate to IEP goals or overall access to education. School officials should keep this principle in mind when negotiating transportation provisions within a student s IEP. d WHISTLEBLOWER LAW CLAIM REQUIRES CAUSAL CONNECTION BETWEEN REPORT OF WRONGDOING AND DISCHARGE 81 A.3d 1062 (Cmwlth. Ct. 2013). A discharged employee s claim under the Pennsylvania Whistleblower Law is dismissed due to the inability to demonstrate that her termination was the result of a report of wrongdoing. SUMMARY AND FACTUAL BACKGROUND Bernadette Evans was employed by Thomas Jefferson University as a licensed practical nurse in its addiction clinic until her discharge for unprofessional behavior. Evans filed a claim against her employer and a supervisory employee pursuant to the Pennsylvania Whistleblower Law, contending that her termination was the result of a report of wrongdoing by the supervisor. Evans refused to administer methadone to a patient whom she believed to be intoxicated based upon her observations of the patient s condition and her familiarity with the patient. It was the clinic s policy that methadone should not be given to a patient who is intoxicated because of the danger of overdose or drug interactions. When Evans refused to provide methadone and requested a urine sample, the patient became angry and complained to Evans supervisor. The supervisor concluded that the patient did not appear to be intoxicated and directed that the drug be administered to the patient. When Evans refused, another nurse dispensed the methadone. Later, Evans reported the incident to the clinic administration, asserting that the supervisor, who was not a licensed nurse, should not have directed the dispensation of methadone to the patient. Prior to the incident and report, Evans had received satisfactory performance evaluations, although several expressed concern and the need for improvement in Evans manner of interaction with patients and co-workers. Subsequent to the incident, several co-workers and patients complained of Evans demeanor as being harsh and intimidating. A subsequent performance evaluation resulted in lower scores than Evans received prior to the incident. Ultimately, Evans was discharged for rude, intimidating, discourteous and unprofessional behavior. Evans then filed a lawsuit pursuant to the Whistleblower Law. Her claim was dismissed prior to trial due to insufficient evidence that her discharge from employment was in retaliation for her previous complaint of wrongdoing against her supervisor. DISCUSSION The Whistleblower Law provides that an employer may not discharge, threaten, discriminate or retaliate against an employee because the employee makes a good faith report to the employer an instance of wrongdoing or waste. The law defines 6

7 Volume XXV Number wrongdoing as a violation, not of a merely technical or minimal nature, of a federal or state statute or regulation or a code of conduct or ethics designed to protect the interest of the public or the employer. Waste is defined by the statute as conduct or omissions which result in substantial abuse, misuse, destruction or loss of funds or resources belonging to or derived from Commonwealth or political subdivision sources. The statute provides a civil cause of action for employees for violations of its provisions. To sustain a cause of action for wrongful discharge under the Whistleblower Law, the employee must show both a protected report of wrongdoing or waste and a causal connection between that report and the discharge. In Evans, there was uncontroverted evidence that complaints were made by patients and co-workers concerning Evans behavior toward them. There was no evidence that anything other than Evans interactions with patients and co-workers was discussed in making the decision to discharge her. Consequently, the court concluded that there was insufficient evidence to demonstrate that Evans discharge resulted from her prior report of wrongdoing and, therefore, dismissed her Whistleblower Law claim. PRACTICAL ADVICE The Whistleblower Law is not designed to provide insurance against adverse employment action for an employee who informs on every peccadillo of other employees. To sustain a claim under the Whistleblower Law, the employee must demonstrate concrete facts or surrounding circumstances that the report of wrongdoing or waste led to the employee s dismissal. For example, specific direction 7 not to file the report or a warning that adverse consequences would result from filing the report would be sufficient to prove a causal connection between the report and adverse employment action. Accordingly, school districts should not consider an employee to be immune to discipline or discharge for cause merely because that employee has made a report that co-workers have engaged in acts of wrongdoing or waste. The mere fact that a discharge occurs sometime after a report of wrongdoing is not enough to show a causal connection necessary to sustain a Whistleblower Law claim. d TUCKER ARENSBERG, P.C. MUNICIPAL AND SCHOOL LAW GROUP The firm s Municipal and School Group represents local school districts, municipalities and municipal authorities in a myriad of legal matters. We are solicitors for several school districts, school jointures and municipalities in Western Pennsylvania. In addition, we serve as special labor counsel to numerous school districts and municipalities in Western Pennsylvania and have held appointments as special counsel to school boards, zoning boards, civil service commissions and other municipal sub-entities. Our representation of public bodies includes: public school financing, including the issuance of bonds; labor, employment and personnel issues; public bidding and contracting; school construction and renovation; eminent domain proceedings; taxation including real estate, earned income and Act 511; pupil services and discipline; zoning and land use; litigation and appellate court work.

8 MUNICIPAL AND SCHOOL LAW GROUP Matthew M. Hoffman Co-chair John T. Vogel Co-chair Frederick J. Wolfe James G. Morgan, Jr William Campbell Ries Kenneth G. Scholtz Irving S. Firman Gavin A. Robb Edward R. Lawrence, Jr Christopher Voltz Thomas P. Peterson Richard B. Tucker, III Steve R. Bovan David Mongillo Robert L. McTiernan MUNICIPAL AND SCHOOL LAW GROUP Tucker Arensberg, P.C One PPG Place Pittsburgh, PA tuckerlaw.com The Tri-State Area School Study Council at the University of Pittsburgh was established in 1948 as a continuing partnership between school districts and the University. We are the third oldest and second largest Study Council in the country. We seek to work with you to address the issues of practice we all face as we lead educational organizations to improve focus and build organizational capacity. Priorities established by the membership include: 1) timely information dissemination on current research and exemplary practices; 2) research and development technical assistance on projects to meet district needs; 3) professional development programs and workshops on current topics; 4) participation in District clinical experiences to prepare future school leaders and; 5) practitioner participation in academic preparation programs. For more information, please contact Dr. Diane Kirk, Director, The information contained in Tucker Arensberg s EDUCATION LAW REPORT is for the general knowledge of our readers. The REPORT is not designed to be and should not be used as the sole source of resolving or analyzing any type of problem. The law in this area of practice is constantly changing and each fact situation is different. Should you have any specific questions regarding a fact situation, we urge you to consult with legal council. 8