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SUMMARY OF PENNSYLVANIA’S NEW PUBLIC RECORDS LAW

New legislation establishes the "Right To Know Law". Revised law, applies to requests made after January 1, 2009.

SUMMARY AND FACTUAL BACKGROUND

On February 14, 2008, the Commonwealth of Pennsylvania adopted Act 3 of 2008 to substantially amend Pennsylvania’s public records law, known as the "Right to Know Law," which has governed the records request protocol for Commonwealth and local agencies since 1957. The revised law, which applies to requests made after January 1, 2009, effectuates a significant shift in public records policy. Under prior law, persons seeking records from local agencies had the burden of demonstrating that such records were within the limited definition of a public record as codified by the statute. The revised law adopts an opposite approach. All records are presumed to be subject to disclosure unless the local agency can demonstrate that the requested record meets a statutory exception to disclosure.

What is a Public Record?

Pursuant to the revised law, a record is defined as follows:

"Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document."

All such records are deemed "public records" and are subject to disclosure unless the record:

(1) is exempt under section 708 [which provides
for thirty (30) different classes of records that are
exempt from disclosure];

(2) is exempt from being disclosed under any other
Federal or State law or regulation or judicial order
or decree; or

(3) is protected by a privilege.

Exceptions to Disclosure

Section 708 enumerates thirty (30) categories of records that are exempt from disclosure. Among those relevant to school districts are the following:

(1) Disclosures likely to result in a "substantial and
demonstrable" risk of physical harm or the
personal security of an individual;

(2) Records maintained in connection with public
safety activity that, if disclosed, would be
reasonably likely to jeopardize public safety or
preparedness;

(3) Records that, if disclosed, would endanger the
safety or physical security of a building;

(4) Records of an individual’s medical, psychiatric or
psychological history or disability status;

(5) Personal identification information [e.g., Social
Security number, driver’s license, home telephone
number, spouse’s name, dependent information,
etc.];

(6) Letters of reference;

(7) Employee performance ratings;

(8) Employment applications of persons not hired;

(9) Written reprimands or other documents reflecting
employee discipline;

(10) Grievance materials, except arbitration awards;

(11) Records reflecting "internal, predecisional
deliberations;"

(12) Notes and working papers used solely for the
employee’s own personal use;

(13) Academic transcripts;

(14) Examinations, exam questions, scoring keys or
answers to exams;

(15) Draft minutes of meetings;

(16) Real estate appraisals, environmental studies or
similar analyses relating to the potential purchase
of real property;

(17) Proposals for the procurement of supplies,
equipment or construction prior to the award of
contracts; and

(18) Communications between the school district and
its insurance carrier.

Response to Records Request

• A "requester" is not limited to a resident of
Pennsylvania; the new definition of "requester"
includes all legal residents of the United States.

• Each school district is required to designate an official
or employee as an "open-records officer" who shall

be responsible for receiving and responding to records
requests.

• The open-records officer must provide a written
response to a written request within five (5) business
days or the request will be deemed denied.

• For one of the reasons enumerated in the Act, a school
district may elect a thirty (30) day extension of time;
notice of this election must be provided to the requester in writing within five (5) business days of the request, otherwise the request will be deemed denied; the requester can agree in writing to an extension beyond thirty (30) days. Reasons for extensions include:

- record requires redaction;

- record requires retrieval from remote location;

- staffing limitations;

- necessity of legal review;

- non-compliance with the school’s policy for records request;

- requester’s refusal to pay applicable fees.

• Denials of access to requested records must be made
  in writing and include:

- a description of the record requested;

- the specific reasons for denial, including a citation of
   supporting legal authority;

- the signature and contact information of the open-records
   officer;

- the date of the response; and

- the procedure to appeal the denial of access under the Act.

• A school district may deny a requester access to a
record if the requester has made repeated requests
for the same record and the requests have created an
unreasonable burden on the school district.

• A school district may fulfill written or verbal requests,
but the relief and remedies provided for under the
Act are only available for written requests via mail,
e-mail, fax or in person, addressed to the open-records
officer.

• A school district must post the following on its
premises and on its website (if it has one):

- contact information for the open-records officer;

- contact information for the Office of Open Records or other
   appeals officer;

- a form which may be used to file a request; and

- regulations, policies and procedures of the agency relating
   to the Act.

Appeals of Denials of Records Requests

• The Commonwealth will create an Office of Open
Records in the Department of Community and
Economic Development to administer the Act.
Among its duties will be the disposition of appeals
of decisions by local agencies that deny requests for
records.

• An appeal of a denial of a written request shall be
filed with the Office of Open Records within fifteen
(15) business days of the mailing date of the agency’s
response or the date of the deemed denial.

• A hearing officer shall make a final determination
within thirty (30) days of receipt of an appeal.

• Local agency and requester appeals of a hearing
officer’s determination must be filed with the Court
of Common Pleas within thirty (30) days of the
mailing date of the determination.

• If a Court reverses the agency’s denial of access, it
may order that the requester be reimbursed his legal
fees/litigation costs if the agency’s refusal was
willful, wanton, or not based upon a "reasonable"
legal interpretation.

• If a Court upholds an agency’s denial of access and
finds the request to be frivolous, it can award legal
fees/costs to the agency.

• Agencies/public officials are subject to civil penalties
not exceeding $1,500.00 for violating the Act.

Tech One Associates vs. Board of Property Assessment Appeals and Review of Allegheny County, BV 02-002742 (Court of Common Pleas of Allegheny County December 28, 2007). Commercial property owner may be taxed for tenants’ improvements.

SUMMARY AND FACTUAL BACKGROUND

For several years now, some commercial properties in Pennsylvania have escaped property taxation of their improvements. State courts have ruled that if an owner of the property leases land to a developer, and the developer erects and owns the improvements, the owner is assessed only on the lease payments the owner receives under the lease, and not on the improvements. Based on a recent decision of Common Pleas Court of Allegheny County, though, such improvements, even if not technically owned by the developer, may be subject to tax.

In Tech One Associates, the owner held approximately 50 acres of undeveloped land in West Mifflin Borough, Allegheny County. In 1989, Tech One entered into a 50 year lease with Terra Century Associates ("TCA") for annual rent payments of $665,000. Under the lease, TCA had the right to improve the land and would own what it would build; TCA also was responsible for real estate taxes on the property. TCA eventually constructed a one-story shopping center, a multi-screen movie theater building and a restaurant building, with a total rentable area of approximately 415,000 square feet. A tax assessment appeal was filed on the property in 2001, which was eventually heard by the Allegheny County Board of Viewers. At the Viewers’ hearing, Tech One’s expert valued the land at $9.5 million based on the parties’ lease, but assigned no value to the improvements because TCA’s payments to Tech One were not based on such. The taxing bodies’ expert assigned a value of $9.3 million to the leased land, but also valued the improvements (depending on the year in question) from $13.3 million to about $26.7 million, for a total assessed value of $22.6 million to about $36 million. The Viewers agreed with Tech One’s position. Consequently, the taxing bodies filed objections that were heard by Common Pleas Court Judge R. Stanton Wettick, who has ruled on numerous tax assessment cases in Allegheny County.

DISCUSSION

Tech One’s argument before the court on the objections was that under established Pennsylvania law, real estate subject to a land lease could be assessed at no more than the value of the lease payments "even if the tenant had replicated the Taj Mahal or the Empire State Building on the land so long as the owner received only [the rental payments] under the lease agreement." If the improvements were owned by the tenant, they could not be subject to real estate tax.

In his analysis, Judge Wettick found nothing in the state assessment statutes that supported this position. The court reasoned that whenever a developer is purchasing vacant land it has two choices: it can purchase the land for its fair market value and then develop the land, or it can develop the land after entering into a transaction which will be structured as a long-term lease with the amount of rental payments being based on the fair market value of the vacant land. But according to Judge Wettick, any state legislation that would expressly allow this different tax treatment based on the structure of the transaction would be unconstitutional based on the uniform tax clause and the prohibition against creating tax exemptions not expressly provided for in the state constitution. Even if current state statutes did support Tech One’s position, state law similarly calls for the assessment of all real estate, including improvements: Pennsylvania law does not permit a method of assessing property that does not consider the value of buildings and other improvements (even if technically owned by a tenant).

Judge Wettick also distinguished the case allegedly supporting Tech One’s arguments. In re: Appeal of Marple Springfield Center, Inc., 602 A.2d 708 (Pa. 1992), has been long cited for the proposition that assessment of property subject to a land lease is limited to the value of the lease payments. In Marple, the Pennsylvania Supreme Court held that in valuing property using the income capitalization approach, contract rent (or rent from a lease) — and not comparable rents that other landlords usually receive on the market — is the most appropriate means of establishing fair market value of real estate when the rental income from a long time commercial lease is below current market value. But according to Judge Wettick, Marple did not fully answer the issue before the court in favor of Tech One’s position because nothing in the Marple opinion suggests that a county may use a method of assessing property that does not consider the value of buildings and other improvements. The Court also minimized the importance of another case, In re Assid, 842 A.2d 995 (Pa. Cmwlth. 2004), on the basis that the taxing bodies conceded or failed to address key points in the case. Overall, upon review, Judge Wettick discounted Tech One’s legal arguments excluding the value of improvements from tax assessment. Accordingly, the Court overruled the Viewers decision and agreed with the values set forth by the taxing bodies’ expert.

Practical Advice

At the time of this article, Tech One had appealed the matter to Commonwealth Court, and given the importance of the case, it may be further appealed to the state Supreme Court. Taxing bodies have a legitimate point that improvements built by a tenant and not an owner should not escape taxation. But it is easy to understand taxpayer arguments that on the open market, buyers will base the purchase price of property subject to a land lease on the rent payments the owner receives; therefore taxes should be limited to the lease payments.

A final decision from the appeals courts may not occur for several years. In the meantime, school districts should determine with their tax assessment counsel if there are commercial properties within their borders that have been effectively undertaxed because they are subject to a land lease. In particular, if there are properties subject to a land lease that are underassessed if the improvements are excluded, it maybe worthwhile to consider a tax appeal of that parcel. In such a scenario, an assessment panel or a court may find, based on Tech One, that not only should the land value rise, but legal ground exists for taxing the improvements as well.

SCHOOL DISTRICT COULD NOT PRECLUDE STUDENT FROM PARTICIPATING IN GRADUATION CEREMONY DUE TO NON-SCHOOL RELATED DRINKING INCIDENT

Richmond vs. Greenville Area School District, No. 2007 - 1811 (Court of Common Pleas Mercer County 2007). School District’s policy that permitted students to be precluded from participating in "activities" for non-school related drug and alcohol policy violations did not extend to participation in graduation ceremony.

SUMMARY AND FACTUAL BACKGROUND

The Greenville Area School District had a Drug and Alcohol Policy which prohibited students from possessing, using or being under the influence of drugs or alcohol while in school, on school property or when attending a school sponsored program. The policy also contained a provision captioned "Off School Violations" which provided "if any drug/alcohol violations occur off school property and not at a school sanctioned event (including after school, weekends and holidays), attendance at/participation in activities will be addressed under the appropriate category as listed below at the time when the school verifies the violation". The policy defined the term "participation in school activities" to include all extra and co-curricular activities, including sports, clubs, band, student council, chorus, cheerleading, prom, graduation, homecoming, etc. The policy provided, as a penalty for violations, various sanctions including suspension from school and exclusion from participation in "activities".

The plaintiff was a senior at Greenville Area High School. She had successfully completed all of the requirements to graduate. The graduation ceremony was scheduled for June 2, 2007. During the spring of 2007, the plaintiff received a criminal citation charging her with underage drinking. There was no dispute that the incident resulting in the citation occurred after school hours, off of school property and did not involve a school-related activity.

A magistrate hearing on the citation was scheduled to occur before graduation; however, the student requested that the hearing be continued to June 19, 2007. Although the School District opposed the continuance, it was granted. The District’s "investigation" of the incident was limited to a telephone conversation between the Principal and the police officer who issued the citation.

Sometime subsequent to students’ request for the continuance of the magistrate hearing, the District notified her that she would be prohibited from attending the graduation ceremony as a result of her alleged violation of the District’s Drug and Alcohol Policy. On May 30, 2007, the plaintiff filed a Complaint and Petition for Preliminary Injunction. The court issued a preliminary injunction enjoining the District from prohibiting the plaintiff from attending graduation.

DISCUSSION

Section 5-510 of the School Code authorizes school boards to adopt and enforce such reasonable rules and regulations as it may deem necessary and proper regarding the conduct and deportment of all students attending the public schools in the District, during such time as they are under the supervision of the board of school directors and teachers, including the time necessarily spent coming to and returning from school. The parties agreed that the incident resulting in the citation did not occur in school, on school grounds and was not in any way connected with a school sponsored activity or program. The District apparently conceded that there was not a sufficient nexus between the incident involved in the citation and the school which would enable it to impose an out-of-school suspension as provided in the policy. In fact, the District did not suspend the student but instead sought only to preclude her from participating in the graduation ceremony.

The District attempted to justify its action by relying on the "Off School Violations" section of the policy which permitted the District to limit or preclude a student’s attendance at/participation in "activities" for a violation of the drug and alcohol policy, even if the incident occurred off school property and not at a school sanctioned event.

Section 5-511 of the School Code permits a board of school directors to "prescribe, adopt and enforce such reasonable rules and regulations as it may deem proper regarding the management, supervision, control or prohibition of exercises, athletics, or games of any kind, school publications, debating, forensic, dramatic, musical and other activities related to the school program". The District attempted to justify its preclusion of plaintiff under this provision, characterizing plaintiff’s participation in the graduation exercises, as a participation in a "activity". The court rejected this argument finding that participation in a graduation exercise was not the type of "activity" that school districts may govern under School Code Section 5-511.

PRACTICAL ADVICE

While school districts may adopt policies that make a student’s eligibility to participate in extracurricular activities contingent upon compliance with a code of conduct, even during non-school related time, a school district may not deny a student participation in curricular activities for conduct which was in no way related to the school or a school sponsored activity. It should be noted that this is only a Common Pleas Court opinion that may or may not be followed by courts on other counties.

Plaintiff had been employed as a high school math teacher at the Defendant School District since 1992. The District’s practice for teacher class assignments was for teachers to get their first choice assignments and if first choice assignments were not available, teachers would be assigned classes based on seniority and their qualifications. Plaintiff taught Advanced Placement Calculus and Advanced Placement Statistics for several years.

In October 2003, Plaintiff informed her principal that she was pregnant and due to deliver twins in March 2004 and that she expected to take a leave of absence, including leave under the Family Medical Leave Act ("FMLA"), and then return to work. In December, she advised the District that she had a high risk pregnancy and might be placed on bed rest by her physician. Due to pregnancy complications, and at the advice of her doctor, Plaintiff’s last day at work was March 1, 2004. She gave birth to the twins on March 22, 2004.

For the 2004-2005 school year, Plaintiff again requested AP Calculus and AP Statistics. Even though those classes were available, she was told that she would not be teaching those classes due to "issues relating to her pregnancy" and because of a "rotation philosophy" that was never fully explained to the court. Plaintiff was eventually permitted to teach AP Statistics, but not AP Calculus.

Plaintiff filed suit against the school board, superintendent and high school principal in which she purported to allege various claims, including a claim for violation of the FMLA for failure to restore her to an equivalent position upon her return from leave. Defendants filed a Motion to Dismiss, arguing that the FMLA does not require that she be given her top choices in assignment, that the distinction between one and two AP courses is de minimis and that Plaintiff failed to cite any loss of tangible benefits.

DISCUSSION

The FMLA entitles an employee, upon return from FMLA leave, to be restored to the same position held by the employee when the leave began or an "equivalent" position. Under the FMLA, an "equivalent" position is one with "equivalent employment benefits, pay, and other terms and conditions of employment." 29 U.S.C. §2614(a)(1)(B). An equivalent position is "virtually identical" to the position the employee held before the leave in terms of working conditions, which includes "privileges, perquisites and status." 29 C.F.R. §825.215(a). The equivalent position "must entail substantially equivalent skill, effort, responsibility, and authority." Id. Further, it "must have substantially similar duties, conditions, responsibilities, privileges and status" as the previous position, 29 C.F.R. §825.215(e), including, ordinarily, "the same shift or an equivalent work schedule." 29 C.F.R. §825.215(e)(2). This equivalence requirement does not, however, extend to "de minimis or intangible, immeasurable aspects of the job." 29 C.F.R. §825.215(f).

Plaintiff argued that successfully teaching AP classes is the equivalent of becoming an expert in the field, and that removal from teaching these courses amounts to a demotion and diminishes career opportunities, including seeking additional or subsequent employment at the college level. Thus, she argued, teaching non-AP classes is not "equivalent" to teaching AP classes. The court ruled that it could not be concluded, as a matter of law, that Plaintiff was returned to an "equivalent position" and denied the Defendants’ Motion to Dismiss the FMLA claim. Further, although it did not appear to be a count specifically plead by Plaintiff, the court also indicated that it was unable to determine, at this early stage of litigation, whether the decision not to return her to her former teaching assignment during the 2004-05 school year gave rise to an inference of retaliatory intent.

PRACTICAL ADVICE

Whenever possible, employees returning from FMLA leave should be returned to a position that is, as near as possible, the precise same position that the individual held prior to taking the FMLA leave. To the extent that such a reassignment is not possible, the District should be prepared to show that the difference in assignment is de minimis or that the change in assignment would have occurred even if the employee had not taken leave under the FMLA.