The Philadelphia School Reform Commission & Its Unilateral Teachers Contract (Part 2)

As I wrote in yesterday’s post, the Philadelphia School Reform Commission (SRC) has filed a motion for declaratory judgment in a Pennsylvania appellate court seeking validation of its unilateral imposition of a contract on its teachers.  Here are the steps in the SRC’s argument as laid out in its declaratory judgment brief: (1) §§ 696(i) and 696(k)(5) of Act 46, which is the statute that allowed the SRC to take control of the Philadelphia School District, give the SRC the powers granted in § 693(a)(1) of the Pennsylvania Public School Code; (2) § 693(a)(1) grants governing bodies of distressed districts like the SRC the power to “cancel” contracts when doing so “will effect needed economies in the operation of the district’s schools,” and that is what the SRC did; (3) implicit in this power to “cancel” a contract is the power to unilaterally impose terms post-cancellation, despite the status quo doctrine established by PERA (the Pennsylvania statute governing labor relations for public employees) and cases interpreting it that requires an employer to maintain the status quo terms and conditions post-contract expiration until a new agreement is reached or the parties reach an impasse; (4) therefore once it “cancelled” the teachers’ contract the SRC was entitled to dictate whatever terms it deemed necessary for the district’s budget; (5) whatever the actual statutory law may be, the District really needs revenue, so the court should allow the action to stand because the District needs the revenue so badly.

To borrow an apt phrase used by an honest man in a somewhat different context, the District’s argument is as thin as a soup made from boiling the shadow of a pigeon that had starved to death.  While the argument falters at several points, the most decisive and glaring is that the cited provision for the SRC’s authority to “cancel” the contracts, on which the entire rest of its argument hinges, specifically says the SRC cannot cancel “teachers’ contracts.” Here is the text of § 693(a)(1), on which the SRC relies entirely to justify its actions:

To [the end of meeting a pressing economic necessity] the special board of control [including the SRC] may require the board:

(1) To cancel or to renegotiate any contract other than teachers’ contracts to which the board or the school district is a party, if such cancellation or renegotiation of contract will effect needed economies in the operation of the district’s schools.

693(a)(1) (emphasis added).  This language is clear: the SRC cannot cancel teachers’ contracts.  Period.  To deal with this decisive statutory language, the SRC makes a strained, cringe-inducing effort to argue that the phrase “teachers’ contracts” is a term of art that does not include the collective bargaining agreement between the District and the teachers. This bald assertion is not supported by any source of law, and every indication is that “teachers’ contracts” as used in this statute carries its common, everyday meaning, which would obviously include the Philadelphia teachers’ contract.  For instance, the Definitions section of the Public School Code, in which § 693(a)(1) lies, does not define “teachers’ contracts” at all.  In fact, the SRC does not cite any statute or regulation for its claim because none exists.

In a desperate effort to find a source for its term of art assertion, the SRC says that at times the Pennsylvania Supreme Court has used the phrase “teachers’ contracts” to describe a specific type of teachers’ contract, and that by doing so the Court was designating the phrase a term of art.  But the cases cited by the SRC for this proposition contain absolutely no indication that the Court meant to designate the phrase a term of art and certainly do not indicate that the legislature that passed § 693(a)(1) meant for “teachers’ contracts” to have anything besides its ordinary meaning.  In sum, “teachers’ contracts” means teachers’ contracts, and § 693(a)(1) specifically prohibits the SRC from canceling a contract with its teachers.

The fact that the statutory provision on which the SRC relies entirely to justify its action specifically and unequivocally forbids that action is decisive.  But there are several other dispositive factors demonstrating that what the SRC did was unlawful.  For instance, Act 46’s § 696(k) specifically enumerates subjects that are no longer mandatory bargaining subjects after a state takeover.  Everyone, including the SRC, agrees that the terms it imposed on October 6 are not among those enumerated subjects.  This strongly suggests that the legislature that passed Act 46 intended healthcare, retirement benefits, and the other terms altered by the SRC to remain mandatory bargaining subjects.  The SRC’s interpretation of Act 46 would render the painstakingly enumerated list of non-mandatory subjects completely unnecessary, as under its interpretation all subjects would become non-mandatory.  Moreover, even if the SRC could cancel teachers’ contracts (it can’t), here there is no contract to cancel—the bargaining agreement expired over a year ago, and the PERA status quo doctrine applies.  And even if the SRC could cancel a contract and there was a contract to cancel, there is no reason to think that implicit in the cancellation power is the power to impose terms.  It is equally if not more plausible that in granting distressed districts the power to cancel contracts, the legislature intended only to permit the districts to collectively bargain for a new contract with more favorable terms as opposed to granting it authority to unilaterally dictate terms.  Still, these arguments are unnecessary given the fact that the law plainly forbids the SRC from canceling “teachers’ contracts.”

As a matter of legal interpretation, this is not a close case.  The SRC itself implicitly indicated that it did not have the power to take this action as recently as 2012, when it lobbied the Pennsylvania legislature to grant it the authority to impose contract terms on teachers.  However, faithful application of the law here would mean depriving an unconscionably underfunded school district of badly-needed money, albeit money that was unlawfully carved from the backs of its teachers.  Reading the SRC’s brief, one gets the feeling that even they recognize the implausibility of their legal arguments and instead are hoping that judges sympathetic to the District’s financial plight will disregard the statutory law and rule in their favor on emotional grounds.  Whatever its outcome, this case will have seismic implications in Philadelphia that will no doubt reverberate to other troubled school districts throughout the country.


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