Support

Backgrounder

February 23, 2016

Steven Ramos, et al. v. Allentown Education Association (“AEA”) et al.

EXECUTIVE SUMMARY

The Fairness Center represents Allentown taxpayers Scott Armstrong and Steven Ramos, and Public School Employees’ Retirement System ("PSERS") member James Williams, in a suit challenging the Allentown Education Association’s (“AEA’s”) practice of using taxpayer dollars to fund the salary and benefits of Allentown Education Association’s President. The AEA President receives taxpayer dollars for her position despite the fact that she works full-time for the AEA. 

Since 1990, teachers’ contracts between the Allentown School District (“District”) and the AEA have contained a provision entitling the AEA President to full release time from professional duties “to conduct Association business during the work day, without loss in wages, benefits or other contractual advantages.” (1) Since 2000, taxpayers have spent over $1.3 million to fund the employee of a private organization. The AEA’s current President left the classroom in 2009 to become the AEA President. While the President is on leave doing exclusively AEA work, the District has continued to pay the President’s salary, provided her with insurance and benefits, and allowed her to accrue seniority as if she were still working in a classroom. Additionally, the President continues to accrue pension credits in PSERS as if she were a public school employee.

The Fairness Center is filing suit to expose this misuse of taxpayer dollars and hold the District and the AEA accountable to the law.

THE PROBLEM

Introduction

The District is composed of 23 public schools serving 16,692 students in Allentown, PA. The District is the third largest school system in Pennsylvania, and employs a total of 2,166 people, of which 1,135 are teachers. Minority enrollment is 87% of the student body (Hispanics comprise 68.3%), significantly higher than the minority enrollment average of Pennsylvania of 31%. 88.7% of the families served by the District are denoted as “Low Income”. The Allentown School District was ranked 486th out of 498 Pennsylvania school districts, in 2013, by the Pittsburgh Business Times. In 2010, the dropout rate for high school students was nearly 40%.

The District has been in financial distress for many years. In 2011, the district laid off 112 teachers; two years later, 100 teachers lost their jobs, and in 2014, 60 teachers were handed pink slips.  Yet despite its financial woes, since 1990 the District has somehow had enough money to pay the salary and benefits of an individual who doesn’t work for the District.

In 2009, the AEA’s current President, Deb Tretter, left the classroom to become the AEA President. When she moved to the AEA, her salary jumped from $63,245 to $73,373, and she received a reclassification to a “Masters Equivalent” level teacher. Even though she is no longer a teacher, she still receives a salary, insurance and benefits, and accrues seniority as if she were still employed as a teacher.  She also has been receiving pension credits from PSERS as if she were still employed as a teacher.

Scott Armstrong and Steven Ramos are both taxpayers in Allentown. Scott Armstrong served as a member of the Allentown School Board from 2011-2015. Steven Ramos has children who previously attended schools in the District, and is himself a graduate of William Allen High School in the District. Both Scott and Steven have chosen to stand up to the AEA’s practice of siphoning precious taxpayer dollars for union use out of the financially impoverished district.

James Williams is as a member of PSERS with a substantial, direct, and immediate interest in the proper functioning and solvency of PSERS. That interest is jeopardized by the provision of pension credit and benefits to employees not permitted by law to receive them.

It’s time for the AEA President to either get back in the classroom or off the public dole.

THE LAW

The Education Code does not authorize teachers to take “release time” to work for a union. The release time policy contained in the teachers’ contract between the District and the AEA violates the Gift Clause of the Pennsylvania Constitution, the limited statutory authority given to unions under the law, and public purpose principles found in the Pennsylvania Constitution and the common law.

The Pennsylvania Constitution – Article VIII, Section 8

The Pennsylvania Constitution prohibits the Commonwealth from pledging or loaning the credit of the Commonwealth to an individual, a private corporation, or an association. PSERS has violated Article VIII, Section 8 (“Gift Clause”) by pledging the credit of the Commonwealth to the AEA and the AEA President and allowing her to accrue pension credit contrary to the law as if the AEA’s President were a public employee.

Statutorily Limited Authority

The AEA and the District are operating outside of their statutory authority for at least two reasons.

First, the Pennsylvania Public Employee Relations Act (“PERA”) grants specific authority to public sector unions, including the AEA, to act as public employee unions.  Under PERA, the AEA has only the authority to act as exclusive representative for “public employes” within the scope of their “public employment” under a “public employer.” (2)

The AEA President is working full-time for a non-public employer, and doing work outside the scope of public employment.(3) There is no statutory basis for allowing the AEA and the District to bargain collectively for the terms of an employee working for a private entity.

Second, cases interpreting PERA specifically limit a public employer’s ability to “bargain away” control over public employees.  These cases recognize the danger for the state and local governments of giving the union the sole discretion to judge employees’ duties and fitness for public work.

Here, the District no longer has control over the AEA President’s job title and job responsibilities, or supervision over work product or hours worked. The arrangement demonstrates a total lack of institutional control over an individual receiving a government salary.

Public Purpose Principles

There are also state constitutional and common law principles that mandate a “public purpose” for expenditures by the state and local government.  Here, the District and the Commonwealth are spending money to directly benefit the AEA, a private entity, with no return on their investment. The arrangement violates public purpose principles.

Conclusion

The release time policy arrangement is not authorized by statute and goes against long standing public purpose principles of both the Pennsylvania Constitution and the common law.

CASE LOGISTICS

Plaintiffs

  • Scott Armstrong, Steven Ramos, and James Williams

Defendants

  • Allentown Education Association
  • Public School Employees’ Retirement System
  • Allentown School District

Court

The Commonwealth Court of Pennsylvania

Judge

TBD

Relief sought

The Allentown taxpayers are requesting that the Court enjoin the provision of the teachers’ contract allowing for release time for the AEA President, and require the AEA to reimburse, with interest, the District and the Commonwealth for the salary, benefits, and pension credit provided illegally to the AEA President. 

Date filed

TBD

THE LEGAL TEAM

  • David R. Osborne is General Counsel and President of the Fairness Center, where he provides advice and counsel to clients, directs the Fairness Center’s legal strategy, and oversees all litigation efforts.  Before joining the Fairness Center, David litigated on behalf of healthcare providers and conducted organizational and lobbying efforts for a national trade association.  He previously worked as a judicial clerk to a Florida Supreme Court justice and served as official staff to a Member of Congress.  David graduated from the Florida State University College of Law.
  • Karin M. Sweigart is Assistant General Counsel of the Fairness Center, where she focuses on client interaction and litigation activities.  Before joining the Fairness Center, Karin served as Legislative Counsel for the Committee on House Administration in the United States Congress, and Counsel to Congressman Dan Lungren. She also served as a Jesse M. Unruh Fellow in the California State Assembly. Karin graduated from the University of St. Thomas School of Law.
 

1. Article 28 of the teachers’ contract effective 2012-2015 between the AEA and the ASD.
2.  43 P.S. § 1101.701.
3. Pennsylvania’s appellate courts have held that the performance of union responsibilities during the school day is not public employment. In Kirsch v. Pub. Sch. Employees' Ret. Bd., 929 A.2d 663, 670-71 (Pa. Commw. Ct. 2007) aff'd, 603 Pa. 439, 985 A.2d 671 (2009), the Pennsylvania Commonwealth Court held that the salary received by the plaintiffs for union responsibilities was earned while the plaintiffs “were not employed as a person engaged in work relating to a public school.” The court, therefore, held that the additional salary employees received for performing union responsibilities should not be computed along with the employees’ final average salary for the purpose of PSERS. Similarly, in Pinto v. State Civil Service Commission, 912 A.2d 787 (Pa. 2006), the Pennsylvania Supreme Court held that full-time union service did not constitute a civil service position.