U.S. SUPREME COURT RULES AGAINST FAIR SHARE FEE ARRANGEMENTS

June 27, 2018

 This morning the United States Supreme Court issued its opinion in Janus v. AFSCME and has ruled that requiring a bargaining unit member to pay Fair Share deductions to the union representing the bargaining unit is unconstitutional.  Recall that Fair Share payments are payroll deductions for bargaining unit members who have not elected to join the union as a full member, but who are nevertheless covered by a Fair Share fee requirement in a collective bargaining agreement.  If you have Fair Share fee payers in your district, you now must immediately cease deductions of Fair Share amounts and cease remittance of those fees to the union.  If you have a payroll being processed this week, make sure your payroll department knows to eliminate Fair Share deductions from any person who has been assessed such deductions this year.

 This decision DOES NOT affect union member voluntary dues deductions.  Payroll deductions for employees who are voluntary members of the union MUST continue.  This ruling only applies to employees covered by a Fair Share provision who have not elected to join the union as full members.

 Please contact your SHP attorney to discuss any questions or concerns you may have.

RECENTLY ENACTED LEGISLATION AFFECTING SCHOOL DISTRICTS

September 2, 2016

             As school districts begin a new school year, Scariano, Himes and Petrarca, Chtd. is pleased to provide the following summary of some of the new laws that may affect your district’s operations. To access our recent eBlackboard on the Local Government Travel Expense Control Act, which was approved by Governor Rauner on July 22, 2016, please click here.  If you have any questions or concerns about the following, please contact your attorney at Scariano, Himes and Petrarca, Chtd. 

Student Residency Procedures

 Public Act 99-0670 

            This amendment to the School Code makes several significant changes to the process by which school districts adjudicate student residency matters. As of January 1, 2017:

 1. The school district’s initial determination that the student is a non-resident must detail the specific reasons why the school district arrived at that determination.

 2. If a hearing is requested, at least 3 calendar days before the hearing, both parties must submit to each other all written evidence, testimony, and a list of witnesses. The hearing notice sent by the school district must notify the person requesting the hearing that if the above is not disclosed in time, it will be barred at the hearing unless the other party consents.

 3. Extends the deadline for a school board to decide residency matters to 30 calendar days (from 15) after the conclusion of the hearing.

4. Gives the person who enrolled the student the ability to petition the regional superintendent for review of the board’s decision regarding the student’s residency and details the procedures governing that review.

 Open Meetings Act and Transparency of IMRF Retirement Payments

 Public Act 99-0646

             This law requires school boards to discuss, and disclose, at a minimum, the following at an open meeting before making a “disclosable payment” to IMRF employees (a payment that would increase the employee’s reportable monthly earnings by at least 6%, and is made between a year and 90 days before the employee retires) who began participation in IMRF before January 1, 2011, and are not subject to a collective bargaining agreement: (1) the employee’s name; (2) the purpose and amount of the increase or payment; (3) the employee’s retirement date; (4) the effect of the payment upon the employee’s expected retirement annuity; and (5) the effect of the payment upon the liability of the employer to the Article 7 fund.

FOIA – Noncompliance and Associated Fees and Presumptions

 Public Act 99-0586 

            This Public Act makes the following changes to the Freedom of Information Act effective January 1, 2017:

 1. If a requester seeks relief in circuit court after a request is denied, there will be an automatic presumption that the school district willfully and intentionally failed to comply with FOIA if: (1) the Attorney General’s Public Access Counselor (“PAC”) issued a binding opinion regarding the request; (2) the school district does not seek administrative review of the PAC’s opinion within 35 days of being served with the PAC’s opinion; and   (3) the school district does not comply with the PAC’s opinion within 35 days of being served with the PAC’s opinion.

 2. The school district can rebut the presumption in #1 above by showing that it is making a good faith effort to comply with the PAC’s opinion, but compliance was not possible within the 35-day time frame.

 3. If a requester seeks relief in circuit court after a request is denied, and the court determines that the school district willfully and intentionally failed to comply with FOIA, or acted in bad faith, an additional penalty of $1,000.00 (on top of any civil penalties assessed per occurrence of bad faith or willful non-compliance) may be imposed for each day non-compliance continues if: (1) the school district fails to comply with the court’s order after 30 days; (2) the court’s order is not on appeal or stayed; and (3) the court does  not allow additional time for compliance with the court order. 

Speech Rights of Student Journalists Act

 Public Act 099-0678 

            Effective July 29, 2016, public high school students who gather, compile, write, edit, photograph, record, or prepare information for dissemination in school-sponsored media have the right to exercise freedom of speech and press in school-sponsored media, regardless of whether the media is supported financially by the school district or produced in conjunction with a class. The Act prohibits prior restraint of material prepared for official school publications unless the speech is: (1) libelous, slanderous, or obscene; (2) constitutes an unwarranted invasion of privacy; (3) violates federal or State law; or (4) incites students to commit an unlawful act, to violate policies of the school district, or to materially and substantially disrupt the orderly operation of the school. The Act places the burden on school officials to show justification without undue delay prior to limiting the student speech that is in question, and provides civil and criminal immunity to school districts, employees, and parents/guardians for student expression, except in cases of willful or wanton misconduct. 

Prevailing Wage Resolutions

Senate Bill 2964 (vetoed) 

            Senate Bill 2964’s most significant amendment to the Prevailing Wage Act would have required the locally approved prevailing wage to be no less than the rate for similar work performed under collective bargaining agreements in the area so long as those agreements covered at least 30 percent of workers on the project. However, on July 22, 2016, Governor Rauner issued an amendatory veto, which returns the bill to the House and Senate. Both houses can vote to either accept the Governor’s proposed amendments with a simple majority, or with at least 60% of the vote in both houses, override the Governor’s amendatory veto. Unless either of those actions happen, SB 2964 is dead. 

School Construction Projects and Zoning Compliance

Public Act 99-0890 

            Boards of education are now required to comply with any valid local government zoning ordinance or resolution that applies where the pertinent part of the school district is located. This law amends the Counties Code, Township Code, and Illinois Municipal Code and requires counties, townships, and municipalities to make reasonable efforts to streamline the zoning application and review processes for school boards and minimize the administrative burdens involved in the zoning review process. This includes requiring counties, townships, and municipalities to reduce application fees and other costs, limiting the number of times a school board must amend site plans, and reduce the number of copies that need to be submitted to each body of local government during the zoning review process.  

Amendment to the School Breakfast and Lunch Program Act

 Public Act 99-0850 

            This law requires school boards to provide “breakfast after the bell” (i.e. breakfast in class, grab and go breakfast, and second-chance breakfast) to students in each school building: (1) in which at least 70% of students qualify for free or reduced-price lunches based upon the previous year’s October NSLP claim; or (2) in which at least 70% of students are low-income based upon the Fall Housing Data from the previous year (for schools that do not participate in the NSLP). The effective date of the law is January 1, 2017. However, the program would not need to be implemented until the first school day of the 2017/2018 school year. 

            There is a “safe-haven” for school districts who are already providing school breakfast effectively to 70% or more of free or reduced-price-eligible students or if expense reimbursement would not cover the costs of implementing a “breakfast after the bell” program. The board must hold a public hearing and pass a resolution if it finds that, pursuant to a cost analysis, the reimbursement would not cover the cost of the program. 

Food Contracts

 Public Act 99-0552 

            Effective July 15, 2016, school boards are prohibited from entering into a contract to purchase food if the contract terms prohibit the board or school district from donating food to food banks, including, but not limited to, homeless shelters, food pantries, and soup kitchens. 

Insuring School Buses

 Public Act 99-0595 

            Allows the Illinois Vehicle Code’s minimum insurance requirement for school buses of $2,000,000 to be satisfied by either: (1) a $2,000,000 combined single limit primary commercial automobile policy; or (2) a $1,000,000 primary commercial automobile policy and a minimum $5,000,000 excess or umbrella liability policy. 

Prohibition of Employers’ Access to Employees’ and Applicants’ Online Accounts

 Public Act 99-0610 

            Effective January 1, 2017, the Right to Privacy in the Workplace Act will be amended to prohibit employers or prospective employers from requiring or coercing any employee or applicant for employment to: (1) provide their username, password, or any other information that would allow the employer or prospective employer to gain access to the employee’s or applicant’s personal online account; (2) access the employee’s or applicant’s personal online account in the presence of the employer or prospective employer; (3) invite the employer to join a group affiliated with any personal online account of the employee or applicant; and (4) join an online account established by the employer or add the employer to the employee’s or applicant’s list of contacts that enable the contacts to access the employee’s or applicant’s personal online account. The amendments also prohibit employers from retaliating against employees who refuse to do any of the above.

             The amendments also carve out several “safe havens” for employers who may, under certain circumstances, need to screen, access, or gather content from employees’ or applicants’ personal online accounts. 

Withdrawal from Special Education Joint Agreements (Elementary Schools)

 Public Act 99-0729 

            This law amends the School Code immediately to allow elementary school districts (maintaining grades up to and including the 8th grade) to withdraw from special education joint agreements subject to various, specific conditions.

ADA Training During Teacher Institute Days

 Public Act 99-0616 

            Beginning with the 2016-2017 school year, teacher institute days must include, at least once every 2 years, professional development on the subject of the Americans with Disabilities Act as it pertains to the school environment.

Interfund Transfers

 Public Act 99-0713 

            In a previous eBlackboard, we told you that Section 17-2A of the School Code granted boards of education the authority to transfer money between the Educational, Operations and Maintenance and Transportation Funds for any reason, but that authority would expire on June 30, 2016. Through Public Act 99-0713, the legislature has extended the authority for the transfers under Section 17-2A to June 30, 2019. In addition, Section 17-2.11(j), which grants boards of education the authority to transfer surplus life safety tax revenue and interest to the Operations and Maintenance Fund, was similarly extended. Both types of transfers require notices, hearings and resolutions. 

Monthly Reports of Concussions from High Schools

 Public Act 99-0831 

            This law immediately requires the IHSA to mandate its member schools that employ certified athletic trainers to complete a monthly report on concussions suffered by its student-athletes during a school-sponsored activity or event. This mandate requires the reporting to take place immediately during the months of the 2016-2017 school year. The law provides immunity to IHSA-member high schools from civil and criminal liability that could result from reporting the required information, except for willful or wanton misconduct. The law also gives the IHSA the authority to “take action” against a member school if the member school fails to adhere to its reporting requirements. 

Epi-Pen Administration

 Public Act 99-0711 

            We previously reported on amendments to the School Code that affected epinephrine administration in schools. This law further amends those School Code provisions to add school buses to the list of locations where asthma medication and epinephrine auto-injectors (better known as Epi-Pens) can be carried and administered. Additionally, if a school district’s independently-contracted transportation provider maintains a supply of undesignated Epi-Pens, the amendments require those school districts to send a report to ISBE detailing how many undesignated Epi-Pens are in the transportation contractor’s supply. Recall that “undesignated” Epi-Pens are prescribed in the name of a school district instead of a particular student.    

Charter School Authorizations and Renewals

 Public Act 99-0840 

            This law amends the Charter Schools Law to provide that initial charters granted on or after January 1, 2017 shall be for 5 school years. Additionally, charters granted on or after the bill’s effective date may be renewed by a local board for incremental periods not to exceed 10 school years, and not to exceed 5 school years if renewed by the Charter Schools Commission.

Changes Coming to FOIA and Teacher Evaluations

 January 13, 2010

Senate Bill 315

By the time you read this, Senate Bill 315 may have been passed by both houses on its way to Governor Quinn.  The bill clarifies the Freedom of Information Act (FOIA) with respect to the disclosure of performance evaluations and makes substantive changes to the requirements of teacher and principal evaluations under the School Code.  It is expected to be quickly signed into law to help the State’s application for Race to the Top funds.

FOIA

Under recent changes to FOIA, personnel file documents, including performance evaluations, are no longer shielded from disclosure.  In response to concerns from teachers and administrators over the potential negative ramifications of releasing performance evaluations, Senate Bill 315 adds a new Article 24A-7.1 to the School Code.  The new Article states that disclosure of teacher, principal and superintendent performance evaluations is prohibited, unless otherwise authorized by the School Code.  This addition will allow school districts to invoke §7(1)(a) of FOIA (exempting information specifically prohibited from disclosure under federal or state law) in response to FOIA requests for teacher, principal, or superintendent evaluations.

Please  note  that  the  prohibition,  on  its  face,  relates  only  to  teacher,  principal  and  superintendent evaluations.  Unless contrary guidance is issued by the Attorney General’s office, it appears that the performance evaluations of other administrators and non-certificated employees remain subject to release under FOIA.

Teacher Evaluations

Senate Bill 315 makes several changes to teacher and principal evaluations.  Some of those changes, such as incorporating student growth measures into evaluation plans, are contingent on receipt of Race to the Top funding, or on the state providing adequate funding if Race to the Top funds are not awarded to Illinois. However, the following changes are mandatory regardless of Race to the Top or state funding:

  •  Changing evaluation ratings to “Excellent”, “Proficient”, “Needs Improvement” and “Unsatisfactory”;
  •  Allowing peer evaluation, subject to union agreement;
  • Providing professional development plans for teachers rated “Needs Improvement”;
  •  Providing for remediation periods of shorter than 90 days, if permitted by a collective bargaining agreement;
  • During remediation, replacing evaluations every 30 school days with one midpoint evaluation and one final evaluation; and,
  •  Dismissal if following remediation the teacher does not achieve a rating of “Proficient” or “Excellent”.

The bill also provides changes to the evaluation system for principals.  One notable change is that the due date for principal evaluations is pushed back from February 1 to March 1.  These changes must be made in the evaluation process by September 1, 2012.   Senate Bill 315 will be effective immediately upon becoming law.  Please contact us with any questions or concerns you may have about this, or any other, pending legislation.