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Tucker Arensberg's
EDUCATION LAW REPORT
Published in Cooperation with the
University of Pittsburgh
Tri-State Area School Study Council
- May 2007 -
COMMONWEALTH COURT AFFIRMS USE OF CURRENT MARKET
VALUE ON TAXPAYER ASSESSMENT APPEALS
Daugherty v. County of Allegheny and Board of Property Assessment
Appeals and Review of Allegheny County, 1777 C.D. 2006 (Pa. Cmwlth.
Ct., March 27, 2007). Commonwealth Court affirms trial court
decision that taxpayers argue for use of current market value or 2002
base year value in assessing property.
Summary and Factual
Background
School districts have faced challenges in formulating budgets because of
seismic shifts in property tax assessments. After Allegheny County’s
countywide property reassessments in 2001 and 2002 prompted public
outcries, Allegheny County Council in 2006 changed several operating
rules of the Allegheny County Board of Property assessment, Appeals and
Review (BPAAR), including “Rule IV,” to provide that for appeals of
assessments in 2006 and beyond, the determination of value would be
based on a 2002 base year value established by the County.
DISCUSSION
In Daugherty vs.County of Allegheny and Board of Property Assessment
Appeals and Review of Allegheny County, 1777 C.D. 2006 (Pa. Cmwlth. Ct.,
March 27, 2007), taxpayers James and Jennifer Daugherty owned property
in Wilkinsburg, Pennsylvania. In 2002, Allegheny County, as part of its
countywide assessment, set the property’s assessment at $66,900. In
January 2004, the Daughertys purchased the property for $31,500, but for
the 2006 tax year the property was still assessed at $66,900. The
Daughertys appealed their 2006 assessment, seeking to have it reduced to
the purchase price. As a result of the County’s use of a 2002 base year,
the Daughertys were precluded from successfully arguing that their
property’s 2006 fair market value should result in a decrease in their
assessment.
The Daughertys filed an action in the Court of Common Pleas of Allegheny
County seeking a declaratory judgment that Rule IV violated the state
law on property assessments, as well as the Uniformity Clause of the
Pennsylvania Constitution. The Court of Common Pleas held that Rule IV
violated the Daughertys’ right to appeal an assessment based on the
current value of the assessed property. Further, the trial court
concluded that the County lacked authority under its home rule charter
to enact Rule IV.
On appeal to Commonwealth Court, Allegheny County maintained that Rule
IV was valid and necessary to preserve the base year market system
methodology it had chosen. Also, state assessment law did not allow a
taxpayer to use an appeal process that utilizes a different methodology.
On appeal, Commonwealth Court held that, based on the Second Class
County Assessment Law (which governs only Allegheny County) and the
General County Assessment Law, Allegheny County could choose either a
base year market value or a current year market value in maintaining an
assessment system. However, the Court also held that Second Class County
Assessment provisions on assessment appeals allowed taxpayers to appeal
a particular year’s assessment if the assessment exceeded the current
market value of the assessed property.
The trial court noted that, as a result of these statutes, Allegheny
County was authorized to use a base share market system, but also that
taxpayers could appeal a particular year’s assessment if it exceeded the
current market value of the assessed property. The Commonwealth Court
found no contradiction in this result and relied on a similar situation
found in Butler County in Appeal of Armco, Inc., 515 A.2d 326 (Pa.
Cmwlth. 1986). The Court stated that one could utilize one
administrative method to assess property administratively and another
method to value property upon appeal. The rationale was that
administrative assessments may not be perfect and that values will not
be constant. There needed to be flexibility to remedy incorrect
assessments.
Further, the Court rejected the County’s argument that with Rule IV,
assessments would not be frozen at 2002 levels. The County maintained
that on appeal a taxpayer can have an expert review comparable sales and
adjust those values backwards in time to 2002, thereby setting a new
2002 base year market value. But the Court found that the County’s
position, if correct, would make the statutory language compelling BPAAR
determination of current market values on appeal a nullity. Further, the
County’s argument was at odds with the object of property assessment —
to determine actual value — and would be a strong disincentive for the
County to ever again perform a countywide reassessment. Accordingly, the
Court held that as the Second Class County Assessment Law allows
taxpayers to challenge assessments if the base year market value no
longer reflects current value, Rule IV improperly limited the Daughertys
from arguing for an assessment reduction based on a change in current
market value.
PRACTICAL ADVICE
The Daugherty decision affords taxpayers a choice between two methods of
property valuation in tax assessment appeals. The major disadvantage of
a base year system from a taxing body perspective is that they are
unable to capture and tax appreciation in property values that have
occured since 2002. Now with the Daugherty decision, taxing bodies face
the loss of tax revenue, and may become responsible for refunds, where
property values have declined since 2002. Thus, school districts must
plan accordingly.
Another important note is that this “choice” in valuation methods has
been limited so far to taxpayers. It appears for now that absent another
lawsuit by a taxing body on this issue, school districts are limited to
using the 2002 base year on tax appeals.
LACK OF EXCLUSIVITY OVER TEACHING DUTIES
PRECLUDES UNFAIR SUBCONTRACTING CLAIM
Palisades Education Association v. Palisades
School District, 37 PPER 131 (Proposed Decision and Order, 2006).
A teacher union’s unfair labor practice charge alleging an unlawful
subcontracting of instructional duties was dismissed because the union
failed to establish that such duties were exclusive to the bargaining
unit.
SUMMARY AND FACTUAL BACKGROUND
Beginning in the 2000-01 school year, the Palisades
School District offered dual-credit courses to its high school students.
The courses were offered during the regular instructional day and
participating students received credits for both high school graduation
requirements and for college. The courses were provided in collaboration
with the Bucks County Community College and were taught by a BCCC
instructor.
For several years two dual-credit courses were
offered, Sociology and Foundations in Education. In order to meet
student demand, two sections of the dual-credit course in Sociology
eventually were offered. All courses continued to be taught by a BCCC
instructor using a syllabus prepared under the auspices of BCCC.
I n September 2005, the Palisades Education
Association filed a charge of unfair labor practices with the
Pennsylvania Labor Relations Board alleging that the school district
violated the Pennsylvania Employee Relations Act when it offered
dual-credit courses during the regular instructional day that were
taught by persons other than bargaining unit members. Following an
evidentiary hearing, a hearing officer dismissed the Association’s
unfair labor practice charge, concluding that the Association had not
demonstrated that the teaching of dual-credit courses was exclusive to
the bargaining unit.
DISCUSSION
An employer violates its bargaining obligation under PERA if it
unilaterally transfers bargaining unit work to persons other than
bargaining unit members. The gravamen of the Association’s unfair labor
practice charge was that the school district unilaterally subcontracted
the instruction of school-age children during the regular instructional day to persons
outside the bargaining unit.
The sine qua non of a unilateral subcontracting claim
is that the work in question is bargaining unit work. To constitute
bargaining unit work, the duties in question must have been exclusively
performed by bargaining unit members or, to the extent assigned to
non-bargaining unit members, shown to have resulted in a material change
to amount of work being performed by non-unit members.
In this case, the hearing officer concluded that the
Association failed to demonstrate that the teaching of dual-credit
courses was bargaining unit work. The dual-credit courses had always
been taught by non-bargaining unit personnel employed by the partnering
post-secondary institution. Simply put, teaching the dual-credit courses
could not be characterized as bargaining unit work when bargaining unit
members had never performed that work. Consequently, the Association’s
unfair labor practice charge was dismissed.
PRACTICAL ADVICE
Under PERA, a school district violates its bargaining
obligation by unilaterally transferring bargaining unit work to non-unit
members. However, the complaining party has the burden of establishing
that the claimed work was exclusive to the bargaining unit or that there
has been a material change in the proportion of work being performed by
non-unit members.
School districts often have arrangements with outside
entities to provide instruction or services to students during the
regular school day, including special education services, the assignment
of students to alternative schools, and distance learning. With the
enactment of Act 46 of 2005 (Article XVI-B of the Public School Code),
school districts increasingly are offering dual-credit courses as were
the subject of the Palisades case. As demonstrated by this case,
any prior provision of such instruction, in its entirety or in part, by
non-unit members effectively precludes the teachers’ union from claiming
such instruction as bargaining unit work. Consequently, where bargaining
unit members do not exclusively perform such services, the introduction
of new courses or services through these means typically would not be
subject to the school district’s bargaining obligation.
AMERICANS WITH DISABILITIES ACT
DOES NOT REQUIRE INDEFINITE LEAVE OF ABSENCE
Reifer v. Colonial Intermediate Unit 20,
462 F. Supp. 2d 621(M.D. Pa. 2006). The United States District Court
for the Middle District of Pennsylvania has held trust a school district
employer was not required to grant an open ended indefinate leave of
absence to a disabled employee as a reusable accommodation under either
the ADA or PHRA.
SUMMARY AND FACTUAL BACKGROUND
A recent decision of a United States District Judge,
applying both the Americans with Disabilities Act and the Pennsylvania
Human Relations Act, determined that the employer, an Intermediate Unit
in Central Pennsylvania, was not required to grant a disabled
employee an open-ended, indefinite leave as a "reasonable
accommodation." The employee, a special education supervisor, was
injured from a fall at work. After she failed to respond to the
employer’s attempts to discuss her ability to return to work with a
"reasonable accommodation," her employment was terminated - ten months
after the accident.
DISCUSSION
The federal court held that mandating an employer to
grant an open-ended, indefinite leave of absence would be an "undue
hardship," forcing the employer to "encounter significant difficulty or
incur significant expense." Therefore, it was "utterly unreasonable and
not within the mandate of the ADA."
The court also dismissed the employee’s claim under
the Family Medical Leave Act, because she had been totally disabled and
absent from work for 25 weeks — more than double the length of FMLA
leave required by federal law. The court reaffirmed, however, that the
"burden is on the employer to ensure that an employee is aware of her
rights under the FMLA and that qualifying leave is designated as FMLA
leave." This enables an employee "to structure her work schedule and
leave around the 12 guaranteed weeks."
PRACTICAL ADVICE
In summary, although an employer is not required to
grant an open-ended, indefinite leave as a "reasonable accommodation"
under the ADA, employers must be careful to fully inform employees of
their right to Family Medical Leave Act leave and to ensure that
employees on leaves of absence are informed if and when their leaves are
being counted toward their FMLA entitlement.
WEINGARTEN
RIGHTS UNDER PERA INCLUDE THE EMPLOYEE’S
RIGHT TO BE ACCOMPANIED AT AN INVESTIGATORY INTERVIEW BY A UNION
REPRESENTATIVE OF HIS OR HER CHOICE
Commonwealth of
Pennsylvania, Office of Administration v. Pennsylvania
Labor Relations Board, (Pennsylvania Supreme Court, February 20, 2007).
The Pennsylvania Supreme Court has held
that a public employee’s right of
accompaniment by a union representative during an investigatory
interview (i.e. Weingarten right) includes the employee’s choice of
union representative - when the union representative is reasonably
available and there are no extenuating circumstances.
SUMMARY AND FACTUAL BACKGROUND
Donald Vogel worked for the Commonwealth of Pennsylvania (the
Commonwealth) as a State Correctional Officer. On November 13, 2001,
Officer Vogel was instructed to report to his immediate supervisor,
Captain Soroko for counseling. Before he entered Captain Soroko’s
office, Officer Vogel met with Officer Paul Lennert concerning the
reason for his meeting with Captain Soroko. Officer Lennert was a member
of the Pennsylvania State Corrections Officers Association’s (the
Association) local executive board. When he entered Captain Soroko’s
office, Officer Vogel requested to be represented by Officer Craig Panko
instead of Officer Lennert. Officer Vogel knew that Officer Panko had
been counseled for missing roll calls and that Captain Soroko referred
to Officer Vogel’s roll call record while counseling Officer Panko. Furthermore, at the
time of the counseling session, Officer Panko was a union steward;
Officer Lennert did not hold such a position.
Captain Soroko denied Officer Vogel’s request.
Officer Lennert offered to relieve Officer Panko so that he could attend
the counseling session. Captain Soroko rejected Officer Lennert’s offer
and insisted that Officer Lennert stay to represent Officer Vogel during
the session.
During the counseling session, Captain Soroko accused
Officer Vogel of being late for roll call fifteen times and Officer
Vogel responded that there was no truth to these allegations. At the end
of the meeting, Captain Soroko indicated that he possessed the records
to prove that Officer Vogel had been late for roll call and informed
Officer Vogel that he would "get [Captain Soroko’s] decision later."
Ultimately, Officer Vogel was not disciplined as a result of the alleged
roll calls.
DISCUSSION
The Association filed an unfair labor practice charge
with the Pennsylvania Labor Relations Board (the Board or PLRB). The
Association alleged that by refusing to permit Officer Vogel to have
Officer Panko represent him during the counseling session, the
Commonwealth violated Section 1201(a)(1) and (5) of Public Employee
Relations Act ("PERA"), which provides, in pertinent part:
(a) Public employers, their agents or representatives
are prohibited from:
(1) Interfering, restraining or coercing employees in
the exercise of the rights guaranteed in Article IV of this act.
* * *
(5) Refusing to bargain collectively in good faith
with an employe representative which is the exclusive representative of
employes in an appropriate bargaining unit, including but not limited to
the discussing of grievances with the exclusive representative.
A hearing examiner for the Board issued a proposed
Decision dismissing the complaint because the examiner determined that
the union did not establish that Officer Panko was readily available and
did not show that Officer Vogel was entitled to Officer Panko’s
representation.
The Association filed exceptions to the Hearing
Examiner’s Decision and Order. The PLRB issued a final order rejecting
the findings of the hearing examiner and held that the Commonwealth
committed an unfair labor practice by failing to provide Officer Vogel
his choice of union representatives. The Board determined that Officer
Vogel’s Weingarten rights were implicated because he was required
to attend an investigatory interview which he reasonably believed could
lead to disciplinary action. The Board also concluded that an employee
exercising his Weingarten rights under the PERA has the right to
select an available representative of his or her choosing, absent
extenuating circumstances. The Board determined that the Commonwealth
violated Section 1201(a)(1), but rejected the argument that Section
1201(a)(5), concerning collective bargaining, was also violated, holding
that Weingarten is a right of the individual employee rather than
the Association.
The Commonwealth appealed to the Commonwealth Court
which rejected the Board’s conclusion that Weingarten rights rest
with the individual and held that the Weingarten rule rests
solely on the provisions of the PERA that involve collective bargaining
and therefore the union has the right to be present to protect its
interest; however, nothing in the PERA confers any individual
Weingarten rights.
The case was further appealed to the Pennsylvania
Supreme Court which began its review with an analysis of the U.S.
Supreme Court’s 1975 Opinion in Weingarten. In its opinion the
U.S. Supreme Court held that, under the National Labor Relations Act, a
union employee enjoys the right to have a union representative join him
or her during an interview which the employee reasonably believes may
result in discipline. The high court was clear that the right to
representation was the right of an individual employee and arose under
Section 7 of the National Labor Relations Act, 29 U.S.C. §157 which
states:
Employees shall have the right to self-orga nization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid and protection.
The Pennsylvania Supreme Court compared the language
of Section 7 of the NLRA to Section 401 of the PERA, which states:
It shall be lawful for public employees to organize,
form, join or assist in employee rganizations or to engage in lawful
concerted activities for the purposes of collective bargaining or other
mutual aid and protection.
Not only is this language very similar to Section 7
of the NLRA, the PERA defines the term "public employee" to mean "any
individual employed by a public employer". Thus, it is clear that the
Weingarten right to union representation at an investigatory
interview is an individual right to engage in concerted activities for
mutual aid and protection, which includes the right of the individual to
select his union representative for attendance during the investigatory
interview.
The right of an individual employee to select their
Weingarten representative is not without limitation. An
employee’s exercise of his right to representation is tempered by the
union representative’s reasonable availability and the absence of
extenuating circumstances. The employee’s exercise of his Weingarten
rights may not interfere with legitimate employer prerogatives. If the
employee requests a union representative who is unavailable, the
employer may deny the request and is not required to postpone the
interview, secure an alternative representative, or otherwise take steps
to accommodate the employee’s specific request. Rather, the employee has
the right and obligation to request an alternative representative.
PRACTICAL ADVICE
Any time an employee is being questioned or
interviewed about an incident, it is advisable to permit, if not
encourage, that the interviewee be accompanied by a union
representative. It is often unclear when questioning may result in the
surprise revelation of information which could otherwise serve as the
basis for a disciplinary action against the interviewee. In addition,
little guidance is given as to the meaning of "reasonably available" and
"absence of extenuating circumstances". Clearly, if the requested
individual is not at work, that person is not "reasonably available" and
the employer would have no obligation to postpone or reschedule the
hearing to accommodate the employee’s request. However, if the
individual could be available within a short period of time or if
temporary substitute coverage is provided, then it would seem that the
employer should probably try to accommodate the request if possible and
without prejudice to the investigation. A reasonable effort to
accommodate the request at this point eliminates the Association’s
ability to argue this issue and could save considerable litigation
expense and preserve an otherwise legitimate disciplinary action.
The School
Leadership Collaborative (SLC)
School of Education,
University of Pittsburgh
The
Studies Department of the School of Education, University of Pittsburgh
functions to integrate the activities and resources of the Leadership
Development Programs, the Principal’s Academy of Western Pennsylvania, the
Superintendent’s Academy and the Tri-State Area School Study Council. All of
these units are working toward the implementation of a synergistic force for
school and community renewal. The goal of the Collaborative is to stimulate
school and community renewal by improving the quality of educational leadership
in Western Pennsylvania. Activities of the Collaborative include the preparation
of present and future leaders through formal degree and certificate programs
ranging from the master’s through the doctorate. In addition, continuing
professional development of school leaders is aligned with the formal programs
and connected to ongoing organizational and community renewal projects.
For
more information, contact Charles J. Gorman, Director (412) 648-7068, (412)
648-7185 FAX
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 counsel.
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