The Myth Of Local Control

An Introduction

When the average citizen of Pennsylvania hears the words “Local Control” from our legislators most of us assume this to means the level of controls that we, as the citizens of the state, have over our governing bodies.  After hours of research I have reached the startling conclusion that I was sadly mistaken in such an assumption, especially when it relates to public education.

Our rights to property should be among our most treasured rights.  As John Locke stated “The reason why men enter into society is the preservation of their property.” Our Founders agreed that the principle purpose of government was the mutual protection of our rights to property.  When we have no real controls over our own property there can be no sense of local control.  If at any moment in time the government or an agency of government can tax us beyond our ability to pay what controls do we really have?

If you purchased a lamp at the store for $30 you would expect to pay 6% sales tax on that lamp or $1.80.  If you got to the register and were told that the tax was actually $2.40 because some agency in the state determined that the lamp was worth $40 so the sales tax was on $40, would you silently just accept that?

If the tax man showed up at your home the following year and asked for another $2.40 because you still owned that lamp, would you still silently accept that?

Yet this is exactly what has happened with the property tax.   You are taxed on an opinion  of  your  properties  worth  and  you  are  taxed  each  year  until  you  will eventually pay more in tax that the property is actually worth.  For too long we have sat silently and allowed this to happen.

HB/SB 76 changes all of this by eliminating the School Property tax as a first and necessary state in eliminating all property tax.  Some of our opponents complain about a loss of local control if we follow the recommended path of HB/SB 76.

After learning what I have learned, I find this claim to be rather insulting.  When it comes to public education Local Control is a myth or it means something very different.  I have come to believe that when certain legislators say local control, they do not mean the control that we, as local residents have.  They mean protecting the power they have to control the locals….you and me.

The Myth Of Local Control

 In most states, the issue of public education is considered in the constitution of the state. The Pennsylvania State Constitution addresses public education in Article III, Section 14 which states:

Section 14. Public School System   The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth.

Furthermore in Article II, Section 30:

Section 30. Charitable and Educational Appropriations  No appropriation shall be made to any charitable or educational institution not under the absolute control of the Commonwealth, other than normal schools established by law for the professional training of teachers for the public schools of the State, except by a vote of two-thirds of all the members elected to each House.

Therefore, in Pennsylvania the Constitution gives plenary, or absolute, control over education to the General Assembly, which is the legislative branch of government.

Act 175 (The Administrative Code of 1929) began a process of the creation of Departments, Agencies and  Commissions in  State Government and  placing these under the executive office.    Over the years, the powers to these departments have expanded  to  include  legislative  authority  through    regulatory  powers  and  even elements of judicial powers through the controls of fines, fees and penalties in these bodies of government.   Remember that these are not governing bodies in the same manner we regard our Executive, Legislative and Judicial Branches of Government yet they have been granted certain legislative and judicial powers while operating under the executive branch of Government.     None of the people in the Departments, Agencies and Commissions are elected. They are all appointed.

Legislatively our General Assembly began this process of exerting defined controls over education  through the consolidation of previous education laws and adding to them under the Public School Code of 1949.  It also began shifting responsibility for executing the State laws as well as providing for regulatory authority and certain judiciary aspects to the various Departments, Agencies and Commissions as we will see.

The Public School Code is now 797 pages of regulations over our school districts and still growing.  The regulations cover our school districts, our school directors, their meetings, their duties and powers, the school finances, the grounds and building, furniture and Supplies. It regulates our District Superintendents and other professional employees of the school district.  It regulates the Collective Bargaining process and prevailing wage in our schools.  It regulates the rules concerning teacher assessment, student attendance, student discipline.  It regulates School health services and all Educational programs from kindergarten through high school and vocational training courses. There are regulations concerning our higher institutions of learning as well.

Almost every page in in this massive volume of regulations contains a citation to another law.  If each of these laws cited was printed out and added to this, the document would be several thousand pages of laws concerning local education.  The State regulates the school district.   Not all legislative law is covered in The Public School Code of 1949 and here are 8 examples:

Act 159 of 1998 defines the offense of aggravated assault as the attempt to cause, or intentionally and knowingly causing bodily injury to teachers, school board members, other employees or students in elementary and secondary schools. Such aggravated assault is a felony of the second degree.

Section 6311(b) of the Child Protective Services Law states that school administrators, school teachers and school nurses are required to report suspected child abuse. Other sections of this law deal with such issues as the reporting procedure, “good faith” immunity from liability, and penalties for failing to report. Sect. 6352 concerns the serious bodily injury or sexual abuse or sexual exploitation of students by school employees. When a student comes before a school employee in the employee’s professional or official capacity and that employee has reasonable cause to suspect injury, abuse or exploitation of the student by another employee, the school employee immediately must contact the administration. The school employee who makes such a report is immune from civil and criminal liability arising from the report. A school employee who willfully violates the requirement of Sect. 6352 commits a summary offense.

Act 206 of 1990 (PL 596) states that guidance counselors, school nurses, school psychologists, home and school visitors or clerical workers who work for them cannot be compelled or allowed to share information acquired from a student in confidence or disclose such information in any legal proceeding without the consent of the student or the student’s parent or guardian if the student is under eighteen years of age.

Act 67 of 1984 (PL 337) gives civil immunity to school officers or employees when reporting student drug or alcohol abuse to other school personnel, parents, legal guardians or spouses of students or when referring students for treatment or counseling or disciplinary action. This immunity is from civil damages as a result of negligent statements or acts, which were made in good faith. This immunity is also granted to school  authorities  responsible  for   discipline  for   negligent  statements  or   acts undertaken in good faith when they report a student to law enforcement officers for drug or alcohol abuse. School authorities must report such abuse in accordance with school policy and the action must be based on a reasonable belief that a crime has been or will be committed.

Act 43 of 1995 gives governmental and official immunity to local agencies. School districts are local agencies. Under this act, there are eight acts by a local agency or any of its employees that may result in the imposition of liability on the local agency. These areas for which a school district may have liability are:

(1) Vehicle liability

(2) Care, custody or control of personal property

(3) Real property

(4) Trees, traffic controls and street lighting

(5) Utility service facilities

(6) Streets

(7) Sidewalks

(8) Care, custody or control of animals

Act 24 of 1993, The Environmental Education Act, requires the Pennsylvania Departments of Education and Environmental Resources to develop and implement environmental education programs. It enumerates the powers and duties of both departments regarding environmental education, and it creates and Advisory Council on Environmental Education within the Department of Education.

Act 195 of 1970, The Public Employee Relations Act (PERA) deals with public sector collective bargaining in Pennsylvania. It was modeled on the National Labor Management Relations Act (NLMRA) and contains much of the terminology and logic of NLMRA. It covers all public employees in Pennsylvania , including those employed by public schools. In 1992, the General Assembly passed Act 88 (PL 403), which  is  Article XI-A  of  the  Public School Code. Act  88  modified Act  195  in important ways regarding public schools, including impasse procedures, strikes and lockouts, injunctive relief by the Secretary of Education, and the prohibition of selective strikes and the utilization of strike breakers. Since it only applied to public schools, Act 88 is included in the Public School Code.

Finally, Act 149 of 1990 gives an employee or a designated agent the right to inspect his or her personnel files during regular business hours.

Sections 2601B-2606B of the Public School Code of 1949 enabled the State Board of Education.  In Pennsylvania, the State Board of Education consists of twenty-one members serving six-year terms, seventeen of whom are appointed by the governor with the approval of the Senate. The remaining four members are members of the House and Senate education committees. The Pennsylvania State Board of Education is divided into the Council of Basic Education and the Council of Higher Education. Under the powers delegated to it by the General Assembly, the State Board promulgates and adopts rules and regulations concerning educational programs in such areas as certification of school personnel, curriculum, pupil attendance and transportation, and special education.

The State Board approves regulations through a regulatory process, which includes the publication of proposed rules in the Pennsylvania Bulletin. After comments and revision, the State Board gives approval to the regulations which are published in the Pennsylvania Code in Volume 22.

Now even though the Department of Education is an office in the executive branch under the Governor through the State Board of Education the Department has legislative powers through regulations.  Title 22 of the Pennsylvania Code regulates every aspect of school from kindergarten through higher learning.   They also have limited   regulating   powers   concerning   parochial   schools   and   private   schools concerning curriculum and a few other aspects.

The section of Title 22 dealing specifically with K-12 public schools is over 1000 pages. The first 1/3 of this document is the Standardization regulations in our schools. Like the Public School Code this is regulation after regulation with a focus on the responsibilities of the individual schools.

The courts have also played a role in exerting controls over local education.  In Pennsylvania, the lowest court is the Court of Common Pleas. There are two intermediate appellate courts: the Pennsylvania Superior Court and the Pennsylvania Commonwealth Court. Under current judicial procedure in Pennsylvania, most public school cases begin with some administrative agency proceeding and go to the Commonwealth Court, although there are some exceptions. The highest court in Pennsylvania is the Pennsylvania Supreme Court. In Pennsylvania, all judges are elected rather than appointed.

When it decides an issue, a court issues an opinion that may be published or unpublished. If it is published, the court’s decision is given a judicial citation that lists the name of the case (plaintiff v. defendant; appellant v. appellee), the volume of the reporter(s) in which the case is published and the page at which the opinion begins, usually followed by the court and the date of decision in parentheses. For example, Girard School District v. Pittinger. This case was first decided by the Commonwealth Court for which a full citation to the Atlantic Reporter, published by West Publishing Company, is Girard School District et. al., Plaintiffs, v. John C. Pittenger, as Secretary of Education and Chief Executive Officer of the State Board of Education et. al., Defendants, 370 A. 2d, 420 (Pa. Comwlth., 1977). The decision of Commonwealth Court is found in volume 370 of the Atlantic Reporter (or the Pennsylvania Reporter), beginning at page 420. Commentary written by attorneys employed by the West Publishing Company is also presented with the decision. This case was appealed to the Pennsylvania Supreme Court. When the Pennsylvania Supreme Court reached its decision, the opinion received a different citation: 392 A.2d 261 (PA, 1978). This case also has another citation that was reported above: 481 Pa 91, which means it is also published in volume 481 of the Pennsylvania Supreme Court decisions beginning at page 91. Most state court decisions will have more than one citation because they are published in both commercial and official reporters.

This creates a complicated process for our school districts in complying with Court rulings.

Most state legislatures have established local and state administrative remedies that must be exhausted before a case may be brought to a state court. The laws of each state must be consulted to determine the specific administrative remedies for each public school action and the procedures to follow to pursue them because such remedies and procedures differ from state to state. As a general rule, administrative remedies must be exhausted before a court will hear a case and the judicial procedures for appeal must be followed exactly, especially in terms of time requirements.

Several examples of administrative remedies and the court to which appeals are made in Pennsylvania are presented below. The examples for teacher dismissal, demotion and suspension are for tenured teachers. The remedies are different for non-tenured teachers. There is no right of appeal from a Commonwealth Court decision, but a petition may be filed with the Pennsylvania Supreme Court to request permission to file  an  appeal.  A  more  complete  description  of  the  administrative remedies  and appeals process for actions involving tenured and non-tenured teachers and students is located in Issues in Pennsylvania School Law.

Dismissal of a tenured teacher – According to provisions of the Pennsylvania Public School Code, a tenured teacher who has been notified of dismissal charges has the right to a hearing before the school board on the charges. This hearing must be held before the board votes on dismissal. If it has been negotiated into the contract between the board and the teachers’ organization, the teacher can choose arbitration instead of the School Code proceeding. In this case, arbitration could replace the school board hearing and the appeal from the decision of the arbitrator would be to the Court of Common Pleas. Under the School Code proceedings, the rights of the teacher are determined by both the relevant sections of the Public School Code ( §§ 11-1126 through 11-1130) and relevant Pennsylvania case law. After the hearing, the school board votes on the dismissal. If there is more than one charge, the school board votes separately on each charge. A two-thirds majority vote (six out of nine) on a charge is required for dismissal.

If dismissed under Public School Code procedures ( § 11-1131), the teacher can appeal to the Secretary of Education who holds a hearing and renders an opinion in a written document, Teacher Tenure Appeal, which is given a citation. The Pennsylvania State Board of Education has adopted regulations concerning appeals to the Secretary of Education ( 22 Pa Code 351 et seq) The Secretary of Education is the “ultimate fact finder” who can review the record, take new testimony or place a new interpretation on  the  testimony  taken  at  the  school  board  hearing  without  taking  additional testimony. The opinion issued by the Secretary in the Teacher Tenure Appeal, which must contain findings of fact and legal conclusions, marks the exhaustion of the administrative remedies for dismissal.

Administrative  Agency  Law  (2  Pa  CS  101  et  seq)  allows  an  appeal  from  the Secretary’s decision to be made to the Pennsylvania Commonwealth Court. The Pennsylvania Rules of Appellate Procedure govern the procedure in filing an appeal to Commonwealth Court. After hearing arguments, the Commonwealth Court issues an opinion, which is given a judicial citation. A party dissatisfied with the decision may file a petition with the Pennsylvania Supreme Court to request permission to file an appeal. If the Pennsylvania Supreme Court grants an appeal and hears the case, the Court reaches a decision that is given a judicial citation. If a federal constitutional issue is involved, the United States Supreme Court could grant certiorari and hear the case.  The  United  States  Supreme  Court  could  overturn  the  decision  of  the Pennsylvania Supreme Court.

Suspension of a tenured teacher – A tenured teacher who has been notified that she or he is going to be “laid off”, which is referred to as suspension in the Public School Code, has the right to a hearing before the school board to insure that the suspension is for one of the reasons specified in the Public School Code. The hearing, which does not have to occur before the suspension, is governed by Local Agency Law. Local Agency Law provides a right to appeal from the adjudication of a local agency such as a school board. Pennsylvania law relating to the judiciary and judicial procedure governs the court to which an appeal is made. If suspended, the teacher can appeal to the Court of Commons Pleas and after that to the Commonwealth Court. After a decision of the Commonwealth Court, a petition may be filed with the Pennsylvania Supreme Court to request permission to file an appeal.

Expulsion of a student – According to the provisions of the Pennsylvania Public School Code (§ 13-1318) and the Regulations of The State Board of Education (22 Pa Code 12.8), a student who has been notified that he or she is going to be expelled has the right to a hearing before a hearing examiner or a subcommittee of the school board or  the  entire  school  board  before  the  expulsion.  The  rights  of  the  student  are determined  by  the  Public  School  Code,  the  Regulations  of  the  State  Board  of

Education, and relevant Pennsylvania case law. A majority vote of the entire school board is required for expulsion. If expelled, the student can appeal to the Court of Common Pleas and after that to the Commonwealth Court. An appeal from the Commonwealth Court is the same as described in the dismissal and suspension of a tenured teacher.

Through each of these examples you see control of the process through regulations determined by the State.

In Pennsylvania, there are currently 501 school districts, each with a school board. The school districts are local agencies created by the General Assembly making them an agency of the State. Some of the more important duties of school boards are:

1. Adopt rules and regulations governing teachers and students

2. Determine the  school  budget  and  set  the  millage  to  be  levied  on  assessed valuation of property in the district, which provides most of the local tax monies to fund the schools

3. Hire teachers and contract for various services, including the maintenance and construction of buildings

4. Choose textbooks and establish the curriculum

5. Serve as the local agency in the first level of adjudication for teachers and students in matters such as teacher dismissal or student expulsion.

In doing the above, the school board must conform to the regulations of the State

Board of Education and the statutes of the General Assembly.

Many of the regulations in the Public School Code of 1949 and Title 22 of the Pennsylvania Code are unfunded mandates. That simply means they are not funded at the State level even though they originate there.  There are funded locally, primarily through the property tax.

Now even though the local school district determines the millage that is set, the millage is applied to the assessed value of a property.  The assessment of properties is also controlled through the state through the County Assessment Law (Act 294).

The Tax Equalization Division (TED) (formerly PA State Tax Equalization Board (STEB)) was established by the General Assembly in Act 447 PL 1046, 1947.  They are part of the Department of Community and Economic Development.  The primary function of the Board will determines the aggregate market value of taxable real estate property in each political subdivision and school district throughout the Commonwealth of Pennsylvania.   By Determining land use and market value the board establishes a Common Level Ratio that is applied to the assessed value of the property in the district.

Once the Land Use/Market Value is determined for the district, this is contrasted to the amount generated through local taxation based on the millage and assessment.  If that amount falls below what the State controlled Board has determined the district should be collecting through the property tax a common level ratio, controlled by this board, is applied to the assessed value of the property which increases the amount we owe in property tax. The Board is an appointed agency of the state, not an elected body.

During contract negotiations there are state controlled regulations that must also be followed. Many school districts appoint a lawyer to handle the negotiation process. If during the breakdown of those negotiations an arbitrator is necessary, the Labor Relations Board steps in.  This is part of the Department of Labor and Industry.  Once again these are appointed positions not elected.

The Pennsylvania Labor Relations Board administers and enforces Commonwealth laws dealing with labor-management relations. It provides oversight of the laws which guarantee collective bargaining rights to public and some private sector employees in.

Most of the board’s work is in the public sector. The Public Employee Relations Act (PERA), enacted in 1970, extended collective bargaining rights and obligations to most public employees and their employers at the state, county and local government levels and vests the board with administrative authority to implement its provisions.

A 1977 decision of the Pennsylvania Supreme Court further expanded the board’s jurisdiction to include representation and unfair practice issues arising from Act 111 of 1968, which granted collective bargaining rights to police officers and firefighters. Act 88 of 1992 modified the board’s role in public school bargaining disputes.

The board has the responsibility to determine the appropriateness of collective bargaining units and to certify employee representatives as well as the authority to remedy and prevent what they determine to be unfair labor practices. For public employees other than police and firefighters, the board is also assigned a limited role in resolution of collective bargaining impasses.

Specific procedural requirements for all of the Board’s processes under all of the statutes that the Board administers are contained in the Rules and Regulations of the Pennsylvania Labor Relations Board.

Other  areas  that  function  through  legislative  controls  that  directly  impact  local property taxation at all levels include:

Act 442 (The Prevailing Wage Act) – Controlled through the Department of Labor and Industry.  This wage control measure inflates how much local building projects cost where we see definite impact in our schools where many of the local building and renovation projects occur in order to keep up with building standards and codes. During the push for Open Classrooms by the State Board of Education many school were constructed to meet these new regulations.   When Open Classrooms were determined not to be beneficial to the state the program was stopped and those schools had to be renovated to comply with new approaches.

Title 63 (Municipal Planning Code) – 377 pages regulating the functions of Municipal Government.   State Controlled regulations on forms of Municipal Government; Types of Taxation; Pensions and Benefits of Employees; Regional and Comprehensive Planning; Conservation Easements; County Assessments, etc.   This code was developed through the Department of Environmental Protection; Department of Conservation and Natural resources; and the Department of Community and Economic Development.

Act 195 (Public Employe Relations Act) –  State Controlled regulations through the Labor Relations Board granting unique protections and privileges to public sector employees not afforded to employees of the private sector. This board also determines which employees qualify for certain nonprofit organizations and institutions.

 Act 113 (Setting County Salaries):   State controll of the compensation of county officers in counties of the second through eighth classes of citizens.  It also controls the disposition of fees, for filing bonds in certain cases and for the duties of certain appointed officers.

Act 45 (Construction Code Act):  State controlled through the Department of Labor and Industry using the model code of the Building Officials and Code Administrators Internationals, Inc. (BOCA).  BOCA standards are developed through coordinated efforts with the International Code Council (ICC) and the International Council for Local Environmental Initiatives (ICLEI).

The  Constitution  of  the  Commonwealth  of  Pennsylvania  calls  for  uniformity  in taxation through Article 7, Section 1.  Article 7, Section 2 provides from special exemptions and provisions.   Through legislative efforts those exemptions and provisions have been expanded through several initiatives like:

Act 92 (Keystone Opportunity Zones) – State Controlled regulations concerning the application of limited tax exempt zones for a period of time.  During this time the tax burden on that property is shifted to the rest of the property owners to provide for the tax exempt status.

Act 319 (Pennsylvania Farmland and Forest Land Assessment Act: Clean and Green) – A State Controlled program through the Department of Agriculture.  This provides a decrease in property tax as a preferential shift of property tax away from farms who have entered into a land use compact granting the state certain controls over the land.   The preferential shift is away from the farms and to the remaining property owners.

Act 34 (Improvement of Deteriorating Real Property or Area Tax Exemption Act) – State Controlled tax exemption shift providing for improvements on deteriorating buildings or a deteriorated area.   This shift again goes to the remaining property owners.

Title 26 (Eminent Domain):  Enforces the Doctrine of Merger which essentially declares that the state has actual ownership of land whereas the property owner only possesses a deed to that land.

This is not all of the State regulations through the various other Departments and Agencies that have regulatory controls over public education.    The Department of Welfare has regulations concerning the school lunch programs and child abuse/child safety standards as well as regulations related to standards and assessments for student testing.    The Department of Transportation has regulations concerning the transportation of students.

In order to understand how law affects public education, one must conceptualize the legal environment in which the public schools operate. Constitutions, statutes, judicial opinions, rules  and  regulations, and  policies affect  the  functioning of  the  public school. A general hierarchy depicting the influence of federal and state legal sources on public education is presented below.

1.    The Constitution of the United States

2.    U.S.   Supreme  Court  decisions  based   upon   the   U.S.   Constitution  and congressional statutes

3.    Congressional statutes

4.    Rules and regulations of U.S. administrative agencies, such as EEOC (Equal Employment Opportunity Commission) and OCR (Office Of Civil Rights) in the U.S. DOE (Department Of Education)

5.    Federal court decisions, especially those of the circuit court of appeals that has jurisdiction

6.    State constitutions

7.    State supreme court decisions based on state constitutions and statutes

8.    Laws of the legislature

9.    State appellate court decisions

10. Regulations and rules of state administrative agencies

11. Regulations and interpretations within the authority of state departments of education

12. School board rules and regulations

The widest jurisdiction is at the top and the most narrow jurisdiction is at the bottom: the U.S. Constitution is the supreme law of the land and the decisions of the U.S. Supreme Court affect all the federal and state laws and regulations in the nation while the rules and regulations of school boards affect only the employees and students in the local school district.

The general hierarchy of influence of these sources relevant to Pennsylvania is presented below with those with the widest jurisdiction at the top and most narrow jurisdiction at the bottom. This is a general description of the relationships of these bodies in terms of influence on public schools in Pennsylvania.

1.    U.S. Constitution

2.    U.S. Supreme Court decisions based on constitutional and statutory grounds

3.    Congressional statutes

4.    Regulations and rulings of U.S. administrative agencies

5.    Decisions of the U.S. Third Circuit Court of Appeals

6.    Pennsylvania Constitution

7.    Pennsylvania Supreme Court decisions

8.    Statutes passed by the General Assembly

9.    PA Commonwealth Court or PA Superior Court decisions

10. Regulations of the Pennsylvania State Board of Education (or other state administrative agencies)

11. Regulations and interpretations of the Pennsylvania Department of Education made as a response to powers granted it by the General Assembly through statute or the Pennsylvania State Board of Education through regulation

12. Local school board policies

The local school board in making rules and regulations governing employee and student conduct must conform to the statutes, judicial decisions, and rules and regulations of the bodies that are located higher in the hierarchy.

The purpose of this brochure is to deal with Controls of Education at the State Level. Controls at The Federal level would compile several more pages of ever expanding regulations from the Federal Government.  This saw dramatic growth under the 607 page “No Child Left Behind” of the Bush Administration.  Now under “Race To the Top” which includes “Common Core” we are seeing Federal controls of State Education multiplying.

As a final note, our school district is not a governing body.  It is a body, or agency, of government.     Not  a  single  one  of  the  myriad  of  Departments,  Agencies  or Commissions at the state level has the authority to tax us.  Not a single body of government at the local level has the authority to tax us – not our Police Department, Fire and Safety, our county homes and prisons, etc.   The School Board is the only body of Government that has been granted a taxing authority and the constitutionality of such a privilege is questionable.

Article 9 of the Constitution of the Commonwealth of Pennsylvania clearly defines local government and the governing bodies within.  The School District is not among this  listing.    Every aspect of  Education is  regulated by  the  State.    Education is mandated and controlled by the state.  There is no real local control with education unless you think local control is a dog on a very short chain with more and more links being removed on a regular basis.

In my opinion, those who use the term local control to oppose HB/SB 76 mean the State’s ability to control the locals.  It is not what the general public thinks when they think in terms of local control.

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