The URL can be used to link to this page

Home My WebLink About94-01834 '''''''''''t-' ~" . ... ~ ' ~' Ci:) (-I 1 ;] . ~ r J ";-r . ......< -"-' ,~, ,~""'-"'- 1%8~ 9fL IN THE COMMONWEALTH COURT OF PENNSYLVANIA BIG SPRING EDUCATION ASSOCIATION, Appellant v. BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. AND JAMES SHOWVAKER No. 1430 C.D. 1994 BIG SPRING EDUCATION ASSOCIATION . . v. . . . . . . BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. AND JAMES SHOWVAKER, : . . . . : No. 1312 C.D. 1994 : Argued: December 6, 1994 . . . . Appellants : BEFORE: HONORABLE DORIS A. SMITH, Judge HONORABLE SANDRA SCHULTZ NEWMAN, Judge HONORABLE CHARLES A. LORD, Senior Judge OPINION NOT REPORTED MEMORAltDUM OPINION BY JUDGE NEWMAN FILED: January 26, 1995 Big Spring Education Association (Association) and the Big Spring school District (District), along with its Board of Directors (Board), appeal from an order of the Court of Common Pleas of cumberland County (trial court), which held, inter AliA, that the Association had standing to bring a declaratory judgment 2 action concerning the voting rights of certain Board members. We t ," reverse. FACTS The Association is the exclusive bargaining agent for the professional employees of the District. In November of 1991, the Association and the District began negotiations for a labor contract to cover the 1992-93 school year. On June 30, 1992, the collective bargaining agreement, which had encompassed school years 1989 through 1992, expired. Although the contract expired, the parties continued to negotiate without a work stoppage. Because the parties were unable to reach an agreement, they submitted the matter to fact-finding in January 1993 as provided in section 1122- A of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 403, No. 88, S 1, ~ amended, 24 P.S. S 11-1122-A.' 1 Article XI-A of the Code sets forth a procedure aimed at achieving a settlement if the pa~ties reach an impasse in negotiations. The provision provides that either party may request the Pennsylvania Labor Relations Board (PLRB) to order fact-finding. Once the fact-finder renders his or her findings and recommendations, the parties must notify the PLRB within ten days if they accept the report. If the parties do not accept the report, it -1s-published. _ ..At_that point.,._the, parties must again notify the PLRB and each other, not less than five days nor more than ten days after publication, whether they accept the recommendations of the fact-finder. If the parties accept the recommendations, the matter is resolved. Otherwise, the negotiations continue, and the Code provides for other possible methods for resolution of the dispute. On March 8, 1993, the fact-finder issued his findings of fact and recommendations, which the Association rejected. Negotiations after that continued until the parties again submitted the matter to fact-finding. This time, the Association accepted the fact- finder's report, but the District rejected it. Consequently, the fact-finder published his report in accordance with Section 1122- A(C) of the Code, 24 P.S. S 11-1122-A(c). As required, both parties had to vote to either accept or reject the fact-finder's recommendations. Within the ten-day period, the Association accepted the report: however, the District's Board rejected it. During the Board's vote, the District's solicitor a~vised three 'members of the Board, Kenneth Glotfelty (Glotfelty), Ashby Collins (Collins), and Robert Barrick (Barrick), that they should abstain from voting because they had a conflict of interest. According to the solicitor, Glotfelty's conflict arose from the fact that the District employed his wife as a teacher: Collins' conflict was predicated on the fact that he is a Pennsylvania state Education Association (PSEA) member as well as a teacher in another district: and Barrick's conflict was because that he is a teacher in another district and that his sister is a teacher within the District.2 On April 11, 1994, the Association filed a complaint with the trial court seeking a declaratory judgment concerning the voting rights of Glotfelty, collins and Barrick. within a week, the Association filed a motion for accelerated disposition of the 2 Barrick is not a member of the PSEA. 3 action to which the District, on April 19, 1994, filed a motion in opposition. The next day, the trial court held a hearing on the matter. By decision and order dated April 22, 1994, the trial court initially determined that the Association had standing to brinq the action. Specifically, the trial court reasoned that: [t]he Association obviously has a 'substantial, direct and immediate' interest in the Board of Directors['] vote on the fact- finder's report. The outcome of this vote directly affects the Association's members' contract and employment status. As such, the Association has standing. Trial Court Opinion and order, dated April 22, 1994, at 6. The trial court then concluded that the Association was entitled to accelerated disposition, because [t]he defendants will not be prejudiced in any manner, in fact, our determination today stems directly from the District's action in forbidding the three members of the Board of Directors from voting. The only entity prejudiced by accelerating the disposition of this matte~ is tile COUL~ which is required to give an immediate decision. Therefore, we believe acceleration of the disposition of this matter is proper. ~., at 6-7 (footnote omitted). Finally, the trial court held that the District should have permitted Glotfelty and Barrick to vote on the report because they did not have a conflict of interest. However, the trial court 4 concluded that Collins, because of his membership in PSEA, had a conflict of interest. Both parties filed cross-appeals with our court. ISSUES The District asks us to review the trial court's determinations that the Association had standing, that the Association was entitled to accelerated disposition of the matter, and that Glotfelty and Barrick did not have a conflict of interest. The Association asks us to review the trial court's conclusion that Collins had a conflict of interest because of his membership in PSEA.3 DISCUSSION DOES THE ASSOCIATION HAVE STANDING? The District contends that the Association lacked standing since it was not "aggrieved." Specifically, the District argues that the Association was not substantially, directly, and immediately affected by the District's action in precluding the three Board members from voting on the fact-finder's report. We agree. 3 Our scope of review is limited and a decree will not be , disturbed unless it is not supported by the evidence or demonstrably capricious. Tredvffrin-Easttown School District v. Vallev Forae Music Fair. Inc.. 156 Pa. Commonwealth ct. 178, 627 A.2d 814, 818 (1993), Detition for allowance of aDDeal denied, ___ Pa. Commonwealth ct. ___, 647 A.2d 513 (1993). 5 <, Our supreme Court set forth the requisite elements for standing in the seminal case of William Penn parkina Garaae. Inc. L... Ci~v of Pittsburah, 464 Pa. 168, 346 A.2d 269 (1975). Quoting K8v.~on. Racewav COrDoratlon v. state Harness Racina Commi8sion, 405 Pa. 1, 7-8, 173 A.2d 97, 100 (1961), the Court wrote: [The party] must have a direct interest in the subject-matter of the particular litigation, otherwise he can have no standing to appeal. And not only must the party desiring to appeal have a direct interest in the particular question litigated, but his interest must be immediate and pecuniary, and not a remote consequence of the judgment. The interest must also be substantial. William Penn, 464 Pa. at 191, 346 A.2d at 280. The Supreme Court proceeded to explain standing: [T]he requirement of a 'substantial' interest simply means that the individual's interest must have substance--there must be some discernible adverse effect to some interest other than the abstract interests of all citizens in having others comply with the law. . . . The requirement that an interest be 'direct' simply means that the person claiming to be aggrieved must show causation of the harm to his interest by the matter of which he complains. . .. The remaining requir~ments of the traditional formulation of the standinq test are that the interest be 'immediate' and 'not a remote consequence of the judgment.' As in the case of 'substantial' and 'pecuniary,' these two requirements reflect a single concern. Here that concern is with the nature of the causal connection between the action_complained .of _and _the_.in~ury _to _the person challenging it. ~. at 195-197, 346 A.2d at 282-283 (citations omitted). 6 t . . . After review of the instant record, we hold that the Association lacked standing to bring this action. We believe that the Association's interest was not substantial because the voting rights of Glotfelty, Collins and Barrick do not have a discernable adverse effect upon the rights of the Association. Moreover, we note that the Association, by bringing this action, was not seeking to determine its own legal rights. The Association was seeking to ascertain the voting rights of three Board members who are not within the ambit of the Association's zone of interest.' Finally, we conclude that the Association has failed to demonstrate a causal connection between the harm sustained by the District in precluding the three board members from voting and its interest in their votinq. Therefore, we hold that the Association lacked standing, and the appropriate persons to bring this action were the three Board members. Accordingly, we reverse the order of the trial court.5 ~~E , In William Penn, the Supreme Court wrote that the test for immediacy is whether the interest that the plaintiff seeks to protect is arguably within the zone of interests sought to be proteoted. ~ UDDer Bucks Countv Vocational-Technical School Education Association v. UDDer Bucks Vocational-Technical School Joint Commit~, 504 Pa. 418, 474 A.2d 1120 (1984) (where our Supreme Court-held ,that a.union did-not-havB, standing because any potential benefit to the teachers from the l8o-day instruction requirement wcs not within the zone of interest that the statute sought to protect.) 5 Be~ause of our disposition of the standing issue, we need not address the remaining issues. 7 . . . . IN THE COMMONWEALTH COURT OF PENNSYLVANIA BIG SPRING EDUCATION ASSOCIATION, Appellant . . . . . . No. qlf- /83lf ~ T~ v. : BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. AND JAMES SHOWVAKER . . . . . . . . : No. 1430 C.D. 1994 . . . . . . AND NOW, Januarv 26. 1995 , we reverse the order BIG SPRING EDUCATION ASSOCIATION v. . . . . . . : BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. AND JAMES SHOWVAKER, . . . . . . : No. 1312 C.D. 1994 . . . . Appellants . . . . ORDBR of the Court of Common Pleas of CUmberland County, dated April 22, 1994. U") ~ .- ~-~ ANDRA SC TZ NEn' , JUDGE - ~ f'-. '.' , , .'.'\.i.,J :'..1 . . . , -, J ^ t! .) r, :9~. II.' ." ) . '.c ~ . c . CL, (,VI,'I'I FI[';\TI, I\IHI 'l'h,\I/: .1'\/1"."", (Jlo' :".;('. )HI) t ,i-JI 11.:1\ 1'!':NN:;YI.Vr,!,II^ /:111.1'; (;j' ,\!'I'I',I,!.i.'i'l: I'lilH:I'.I'IIIII': 1'111 (0:) To I h: " ; , I I: '1"1\ ! , I , I l I , , : " ",i, . /; I II, '.t,'i t ldn 1l1i.11 t'r'l "I. ~ I ~ ~ ~' : ! " , ..' : ; COMMONWBA':I'II COil II'" 01" P":NNSYI.vANIA (;1 'lllE ";';:1;';1_'3; CUMOERI.ANU ,':1<1:. ~ ' I I: " t I' ) t ,1 r . , " -Ili I jl' ("litl:il{.(1 1')(.'11:'; ! I" i lj . J ,I (~'.i lJ i' t . f I',' t.;1 ~ y I; I 1 ,,' ,'I, , r rt:'C'("i['J., dd Ill'! (.;-,\: I.'," ~ ; CO:~rl~ct enl",.' 'lj ut +. he C,)tl!" t ",I,' ; ',";' : ,~,1 d II d ~.!~: 11 i i) i ! L , 1 1 .1 rl Y f it 1)(1 t lit' t: ,~t';. h '.:1, I i'i' ,:1,j .'11- !... I " ," trIll: i1nd ';, iii',' ~ I Ii I : I: I' ' , ' I l, II if. i j. j r I '1(' "J' Il,ll I..'.JI"" to I hi' ,I.!""'" t 1 ~l' J.; , II:.':! 1'1": I" , I. i: .. ~ . " . i I. I". ipl l<l 1.,',.1 Ii II:.\" ! II I", I, '!I"I'1 \ I,t I j, ,: il. " " , No. 94-1034 Civil Term; NOR. 1312 and 1430 C.D. 1994 (') Oig Spring Hduciltion Association Q:D x,.., vs. -0 ::~ Big Spring School District. Reginald lIawl':! 0 Ashby Collins. Ilobert Barrick. Eugene cromc?f, - Kenneth Glotfelty. Sandra Hockensmith. llichard'Meily. Robert Rouse. Jr.. ilnd James Showvaker ~ ~~ :::: ;;: c... c= :z: --. .- \.n - -n ;:z:. in (>.):lIp1idlll....l~ ,..,I'tl l't'\ h..\.I'. I'" .I c:..,. <:)! cr.l :;cc, -- - ~ Th~ dU~:dll:,_'llt~; l,utll;ll'i::;~;jq t 11\: (.. 1,,-1 11,1':~' 111:1';1 illPllt)('r-'~d f'I.OIll N.). 1 to ~:I.l. 160 ,':lICl .ltt,\"!J,'; L"lt."() 'L~ E:,:hi~l;l 1\ i;. d ll;~t 0: ::lC de'('\""I'nl.:; ! ,jl r,':;~"'Jlil~llj ;";" \...,ith It~~:!~(H"tb.J,: lit~'~ ilittl.':'!::,,~~, ill,'I. li'l'\ rioC'\1:~.pnl, t~l(' ;,l!111.r~':' ""I j;'lql::: (.'ll!r.P;;'lil :,1':" Ii'd <lllr! idl_'llf jtipd '..'; l ,I '::111>(:1. ~ rl (.tH'11 j I ;]f :11' 'u:I"',1 e Tlli! iJ,\pt:l1i1t(~ ddt,. <I i ','; ~ Ii \ : !J \ h,~ !f' \ '. \ I \; !"I' :\,' I r ,J:,',:l. I i li"l :" I! \f ~ ('CIl'! i~~ JUI1C 15, 1994 (Se.:tl of COUI'i , X'a~~t.1Y~~ p~ t,j-)lo!tol ',: \' ^n ddd i 1.: ion;) 1 cupy cf LId fi ~:(!rt 1. f _i l;it: I.~ i H .-"lJ:(:lo5ed. .Iml date eopv, Ihcn,lJy ,U:!'"')\'lleriqilllj n".:<.,;pl. 01 thin l~lp".lF.e ~; iqn r:{\, 'I'> rc1 ' r ,: #~. e ImCOIU> ,mCI,:JVIW: Dille: L :>-- ::..i.: (~-,iqndl.tiT'("". 1"i11l'f~ n: 1;'1' t FJ C^,,'I-; MIll 'I'HMI: :1.11 'I",'^" (lJo' IcI.:CI)JUJ 11101111':11 1\1'J'I':I.I,;,n: I'I/()CI':PI I 1/1'; I') \I 1'1':NN~Yl,VMlIA HLJI,I'; ell" (I:) 'I'D tel;" ....' i t II i n Inil t t P I i' ~&f) t II 'nc,l ! r',' ., I I, i It.' ~l ~, ' llel.'l i t I;'; I . J J \ t : ,'\1 IJ j .11 I ~ . I '1 1 . ! () '.dl it-I: III(' COMMONWEAI.'I'II coul~'r 01-' PI,NNSYI.vANIA 'lllE L'ND1';i'S !':,;NED. 1\,'r)1 h..iIH)l ,I"'" UL CUMBEllI.AND (",,,,,1), I"" I ~H' :' '1/1 t II' C'(lll:;+:( 1I 1l1.(~d~:; . ,t . ; I I" ,I : I 11:' i ! 1 J f 1 {~; ; J i. I ',' f l~('\~()rJ, do 11CJL'!.... l'('!fl'" ;!...l. ;I:il:' f..j ;,,!..:. '.; ,'. tll1l, ,p;.! correct CO!)j' '}' ih" \.,'ll"~' ;1111 !,;Il' ,",..1, ili":'lll;.." ,'j .,!,If,ll.i!1 (}f toe C\:Hn't. d,' :j'lr"~~t~(1 "\' ;',\ 1:.,'..,'. ,'I,'l,. :hi' "riIJlllfl! iJdP("'U (Jlltl ':::-:hiuit:t~, oIII\' !,Il ,; t'. II' I i 'II'"'" i pt 1.1 t t11' Pi 101'1'1"1 i 11'1.;, jl. dny, (Jilt! tln' r;'_ii'I..'t ('Ill ,'jl'.; li' '~, i,,:l"",I;\'; Il:dll'~j: No. 94-1034 Civil Term: Nos. 1312 and 1430 C.D. 1994 Dig Spring Education ^ssociation vs. Dig Spring School District. Reginald lIaw, Ashby Collins, Robert Darrick'. Eugene Cromer, Kenneth Glotfelty. Sandra Hockensmith, Richard Meily, Robert I~ouse, Jr., and James Showvaker in cO!1lpliancl' "':1'11 P,\ li..\.". l'IH (,). The dO(~ull:f:rltH comprt:::; i:lq 1li~~ J,'('( r"l 11;I\,f' 111:('11 ll111nbc'r.pd from No.1 to thl. 169.,._,.___ dud .Itti\r.IlI'1 i".~'t.'!n d:', E:<hihil 1\ i:j d .list of the dOCU1!'('l1tS {~nJ're~j,pnnd!n;ll,:, "'lH!L.,'I(~d dllrj ith'"!ntirit>d ,'lith rCdsondbJe dcfinit('ilC!.-]t), jlll.:ll~j:'\I' '..'ith r('~3pect !o cr:Jch i1octJmE.~nl, t!tf~ I1ultlbe~~ of PLI~F~~.; cUlr:p; i:~ in,} t,hc rJc~":umpri.t. The dill;;,: "Ii '.':!Ite!l ~h.~ 1:<:'C"ld l"l~; .'1''.:, tr',Jlj!.Il,ill,pl !rl till! iippelJat:c enlll'! 1" .June 15", 1994 (Sual 0 [' COli ('\' ~ltv'l4'~ .r. pl(J\"I'(lltlll" )1fd1h. / . ry~ IY !,n ildtlitiollill cupy c.f thin t~eL.1 .if ,1C:': f:! in "~I1<:l()setl. illld cJille copy. I hcn!by ,j(:I"lo\,:tccJ'liil~j n,\:e.ipl 01' llllH P.JP'H",~ ~;itjn rpGC r.eI. IWeO!!D REC~:JVED: Dille: {!'; i~phltllr40 I. i 11,.,) .-Jlig Sprinq J':Llucation Association l'lainlill.llnd I3iq sorinCl School District. et al - COl11l1\un\\'cuhh nf PCIII\\ylv:llIi.. Cnunl)' or Cumberlalld \ ,,: I, (,/Iwrence E. Welker .I'rolhonolllr)' ur Ihe Court of Common l'lea~ in ul1d for ~lIid C,mnl)', ,10 herehy cerlify Ihul Ihe foregoing i~ II full, Irue Ul1d currecl CUl')' oflhe whole record oflhe euse Iherein sluled, wherein I>dl'ndant _0 as the Silmc rcmilins or record Nos. l3l2 & 1430 C. D. 1994 befure Ihe said ('ourl al No. 94-lB34 of Civil Term. ^,D, 19_, In TESTIMONY WHEREOF. I hu\'\' hereunlu sel my huml and alTi~ed Ihe seul of suid Court Ihis Fifteenth da)' uf .June ^, D.. 19.2i-, IJ(lllhtlnlll;lr~ I. l1arold. E. Sheely ___ !'residelll Judge or Ihe Ninth Judieiul Dislricl, eumposed of Ihe CUll nil' uf Cumberland. do certify Ih:,1 ..1a\>'renc" E. ~Iplkpr, Jrnthnnnt"1JL- ____0' b)' ",hum Ihc allneseJ recllId, cerlilicalc und attestation were mi.uh." and given. and WlHI, in hi~ ,lWl1 pHlJ1cr handwriting, thereunto suhscrihcd his name and :tffixcd the seal uf the Court of Comlllon Pica' ,,[,aid Cnunly. was, al the limcufsndoing. amI nnw i!\ I'rolhonolur)' in ul1\l fur said ('OUIII)' ul "Cumberland in the COlTIl1lon\\'cahh of Pc:nnsyl\'anitl. duly l.:ol1l1ni"iol\l'd ami qualified In nil nfwho~c acts 11'\ ~uch full faith and credit urc and ought tn be gin:n as \\1.:11 in C'nUrls or ,iudi1.:altlfl..' as clscwhl"tt:. tIIul thill the said record. ecnificah,' and ancstatioll atl' in lIlIl' form of law and m:ulL' hy the proper nllic..:r. tl(\"llh:nt .Imll!1.' Commonwealth of I)ennsyl\'t\nia ('ounlY of Cumherland } ,,: I, Lawrence E. \~lker ._. I'rolhouolarv of the COUrl of ('ommon Pleas in and for lhe said Counl)'. do <erlify that the lfollum"le __ Harold E. Sheely hy \\'hom the furegoing ..nestalion w"s mllliL'. and who has thercunlu suhscrihed his mlmc. wns, nt the timc of milking thereof. and ..tilt is President .ludge or the CUUlt llf ("mnmon Picas. Orphl,"' Court ilnd Court uf Quarter Sessiuns of the Pl'.lce in and [or said County. duly Commissioned ami qualified: to all whose ncts ilS such full f.,ith and credit arc ilnd ought tn hc gi\'cn" .l\ \'.ell in Courts nf judicuture as elsewhere. IN TESTIMONY \\'IIERI'OF, 1 bal'.' he,,'unlll sel mv hand and :lffise.llhe seal 01 said COlin Ihi, 15th day 01 __,__,.:Jun~_ A,ll, 19_..2:~, ------.-.-------------------- 1"lllh,ltl11I.Il\ . . .... I l: U ;., C I ... In 'M C i- 0\ In 101 :1 . 0\ '" 0<: .... 0 C ~ In U '" c Q 0 E l: ,,-4 .c 0 Q cr: I c . ~ 0 Q u 'M il: . .!:r ..... ~ U '0 U 'M ro 0 ...: C > U 0 cr: ro I 0 'M =' ~, .c ,.. ..... :1 M U '0 ~ U r;:: 101 ~ ... W u Ul i:i: l:J V> ~ ... ;.. .c ] M l:ll - e - o.ll co C . =' ~ - ~ 'M - U N I 101 .., ." ...: c: ~ ... 0. ;.-: i ... i M 0\ Ul ..... ...: ] ..... ro II E '" 15 E - u C ci 'M 'M ..... 0 '" C III III ~ u 0 0 Z Z Cll u.. Q ~ U UJ ~ '- . v I'IIGE I'D. 1 - 16 17 - 20 21 - 39 40 - 58 59 - 63 64 - 70 71 - 7.1 /5 - 77 78 Among Ihe Itccoub ami IJrocccllinlt\ enrulled In the cuurt of Commun Picas in nod ror the county of CUlIberland Nos. 13J2 ilnd 1430 94-1834 Civil Tenll in the- ('ummonw,,'ulth of l'cl,"'ylvuniu c:'ij;''-FFir---'''.'., Tefm, 1'1_ is corlluincd the following: 10 No. COI'Y OF Appearance DOCK ET ENTRY Big Spnn~J r..ctucation Associat ion vs. Big Spring Schuol OiHt:rict" ct. ill. April ll, 1994, Ca11plaint:, riled, April 15, 1994, ~btion for Accelerated Disrosition, and Order, filed. fINO l'Od, lIl.is 15th dilY of April, 1994, pursuant to the attached Motion for Accelerated Dislxlsition, a hearing in the alJove-refcrencc.u matter is scheduled for 1:30 p.m. on April 20, 1994, in Courtroan No. 1. at the Clunb- erland County CourthouCle, Carlisle, PA. Plilintiff shall suhllit a Iwier at the !It..II'intl citing cases for the relief requested. By the Court. lIumld E. Sheely, P..J. April 19, 1994. Amended Conplaint in IX!cl ilratory Jud9llCnt. filed. April 22, 1994, ~btion in Opfositinn to Accelerated Di Sp:1S it ion , Opinion, and Order of Court, filed. fINO Na~, this 22nd day of April, 1994, .....e make the following order: 1. Big Spring Education Association hilS standing to bring the present action: 2. Plaintiff is entitled to accelerated disposition of this matter: 3. Mr. Glotfelty and Mr. Barrick arc not considered to have a conflict of interest ,,'hich "uuld precllKle either fnm voting on the re(X)rt of the fact finder. This docs not mean that either cannot abstain based on persona deference. 4. Mr. Collins is precluded fran voting on the rernrt of the fact finder due to a conflict of interest based on his lllC,nberShip in PSEA. Uy the Court, lIarold E. Sheely, P..l. May 2, 1994, IXlfendanl's l Preliminary Objections to Canplaint. filed. May ll, 1994, IXlfendants' MoLion for Post-Trial Relief. and Order of Court, filed. l\ND NC'W, this 11th day of M.1Y, lCJ(J4. defendants' motion for (X'lst-trial relief is hereby [lEIUEO. This Conrt's Order elated ^pril 22, l'I'J4 was intendErl as a final order (md Lldc~q\li1te.ly d_i~lcllssed il11 .issues raised in defendants I not ion. The defendants have nut presented any requirement darcnstrating the! need fOI' this conrt !ll Iiave iSSUL'!.! a deeree nisi. There- fore, defendants' 11.,t-ioll in denied. By the Court, lIil.-.,ld E. Sheely, P.,I. May 11, 1994, l'ldintilf's ,\nSWCI- to !)?feltol.lflts' PreLiminary Olljections. Ell May 11. 1994, P1dint i fl's r~ot ion lor Pm;t Trial Helief. fi .led. May 17, 1994. Order of Conrt, filc.'{l. In He: P.laintiff's Motion for Post- Trial !leI iet' NJIl N<J.'l, this 17th dilY "t ~lay, 1"')4, pj"inU,rf's nnl inn for p')st-trial reliet ,is I:ereby DENIED. This COllt'!'" old"l ,ldl('{l I\pr'il :.!). 1994 ""IS intend I as tl f.inal ord(~r l'ltld l.ld('qtldlel~' dh;Cll~,~il:'(1 Ul(~ t.\\\1 issues raised in .' PlIGE I'D. 78 79 - 84 85 - 88 89 - 92 93 - 96 97 138 139 - 160 plaintiff's rration. Therefore, plidnt.iff'n =tion is denied. Oy the COllrt, lIarold E. Sheely, P..J. Hay 20, 1994. Notice of Appeill, LInd Order for. Transcript. filed. Notice is hereby g.iVllll thnl Llig Spring School District and the several nanro nanbcrs of its Boilrd of School lli rectors collectively in their officia (not individual) c"l"lcities, l~fendants above niuned, her.chy aplX!Lll to the Carm:ll\~alth Court of Pennsylvania fI:'Un 1 he oroer entered in this matter on the 22nd day of Apri,l, 1994. This order hilS IXlen entered in the docket as evidenced by the attached copy of the docket entry. By: Richard C. Snelbaker, Esq. Atty for DeEts. Hay 26, 1994, C<~l1ron"'eLllth Courl: of Pennsylvania Offidul Ibckel: U 1312 C. D. 1994. June 2, 1994, Notice of Appeal. fil~~. Notice is hereby given that the Big SllJ-in~J Fducil!ion Associat ion, Plain- tiff in the above-cilptioned ;11:l:1on, hereby ilPIX""s to the Canron"'Jalth Court of Pennsylvaniil Eran the Onlel- entered ill this llIiltter on April 22, 1994. This Order llils been entered in the docket as evidenced by the attached copy of the docket entry. By: .J. Paul Helvy, Esq.. Atty for PUE. June 8, 1994, CanroOn,,~l1lth Court of Pennsylvania Offi.cial Dxket No. 1430 C. D. 1994. June lO, 1994, Trilnscript of proceedings, filed. Exhibits Superior Co Execution Date Sat/Dis/Gntd. . Jury Trial... . ******************************************************************************** General Index Attorney Info BIG SPRING EDUCATION ASSOCIA- PLAINTIFF HELVY J PAUL TION BIG SPRING SCHOOL DISTRICT DEFENDANT HAW REGINALD DEFENDANT COLLINS ASHBY DEFENDANT BARRICK ROBERT DEFENDANT CROMER EUGENE DEFENDANT GLOTFELTY KENNETH DEFENDANT HOCKENSMITH SANDRA DEFENDANT MElLY RICHARD DEFENDANT ROUSH ROBERT JR DEFENDANT SHOWVAKER JAMES DEFENDANT ******************************************************************************** * Date Entries * ******************************************************************************** Judge Assigned: Judgement: SHEELY HAROLD E PJ .00 0/00/00 0/00/00 PYS5l0 1994-0l834 Cumberland County Civil Case COMPLAINT Prothonotary's Office Page Inquiry 1 Filed. . . . . . . . . 4/11/94 3:55 04/11/94 COMPLAINT - CIVIL ACTION IN DECLARATORY JUDGMENT 04/15/94 MC:Il.1Q"",."'D"<AGa&ll1!RA'lBDId)LSDl'\l:T'l'TnN AND ORDER BY JUDGE HAROLD E SHEEI;Y- PJ - - 04/19/94 AMENDED COMPLAINT IN DECLARATORY JUDGMENT ******************************************************************************** * Escrow Information * * Fees & Debits Bea Bal Pvmts/Ad1 End Bal * ********************************f********~******'******************************* 35.00 35.00 .00 .50 .50 .00 5.00 5.00 .00 5.00 5.00 .00 ------------------------ ------------ 45.50 45.50 .00 ******************************************************************************** * End of Case Information * ******************************************************************************** COMPLAINT FILED TAX ON CMPLT SETTLEMENT JCP FEE . "':~:";:" <:,:?~~Ufi.~-;OJ,:-tt~t:'j;;:...;;~'. ,.:,~..,;:~~{t~~,'L~t'F,-<:_.:.~~.:,_.~;,~'-t>;j, .> , ; '_,,': ."'x....Uf.l;"g1.,.t1't-~F'-;':._- '. -;..- _:~~-~'tt:<_;t'11:'.:ji"~~<f;,.rr_~I.\-,-,i.1J:'h' . . /' ~lt~ifi~~t~;{~41! ..;,~.. HARRlIIURO;'PENN8YI.llANIA'17108-0S811" '.;~i:; ',,';'7.~!"';d':.,.i;;';'L','''11l'~:1'\ , - - - - - - - - - - , - '.. >-'-''''~-;'''''~',",7-,.t~.i;-':.,:_;:',_~~~:.-< ;;';:,~-,~:,J> -:'-;,1;,:~.:":'.":;i~~)J"'2_,~-~k:'j;:-:i;~";;iG.~':';j~~;;~ill:.:.'r;",j~)tp~/-;-..~~:'lli;+-!';-,{-_:i:'::'~::' "(~:;~;,. BIG SPRING EDUCATION ASSOCIATION and KENNETH GLOTFELTY, IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA plaintiffs . . . . v. : No. 94 - 1834 civil Term . . BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER,: KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. and JAMES SHOWVAKER, Defendants . . "",0 c= ."., ~. -I: -~ f'11"'- ;~. , ~'~'.l ~ ,~':1 " r v, ", ~..- . ~.~ 'tc\ ).. '..~.... -r C") (,) "1'1 ._.,~~... J'o, ( ~ ':; (".. ..e~i''l --l~ . ....n -< . . CIVIL ACTION - LAW .z:.. ~ - '-0 . . ~ I\) .... ~ . . HOT I B cO ..c:.. c YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (2D) days after this Complaint and Notice are served, by entering a written appearance personally or by an attorney and file in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse - Fourth Floor 1 Courthouse square Carlisle, Pennsylvania 17013-3387 Telephone (717) 240-6200 BIG SPRING EDUCATION ASSOCIATION and KENNETH GLOTFELTY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . plaintitts v. No. 94 - 1834 civil Term BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER,. KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. and JAMES SHOWVAKER, Defendants CIVIL ACTION - LAW . . aMENDED COMPLAINT IN DECLARATORY JUDGMENT AND NOW come the Plaintiffs, the Biq Spring Education Association and Kenneth Glotfelty, by and through Killian & Gephart, and do bring this Declaratory Judgment action pursuant to 42 Pa.C.S.A. S7531 ~ ~ I. The Parties 1. This Complaint seeks a declaratory judgment concerning the voting rights of members of the Big Spring Board of School Directors on matters related to collective bargaining under the Public School Code and the Public Employe Relations Act pursuant to the Declaratory Judgments Act, 42 Pa.C.S.A. S7531 ~~, together with other appropriate relief. 2. Plaintiff, the Big spring Education Association (hereinafter referred to as the "Association") is an elllployee . organization within the meaning of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563 as amended, 43 P.S. SSl101.101-1101.203. The Association nas been certified by the Pennsylvania Labor Relations Board as exclusive agent for collective bargaining for professional employees, including teachers, of the Big Spring School District. Numerous members of the bargaining unit represented by the Association are taxpayers and electors of the Big spring School District. The principle office of the Association is located at 3l East Main street, New Kingstown, Cumberland County, Pennsylvania. 3. Plaintiff, Kenneth Glotfelty is an adult individual, elector, and taxpayer of the Big Spring school District. He resides at 710 Meadowbrook Road, Carlisle, Cumberland County, Pennsylvania. 4. Defendant, the Big spring School District (hereinafter referred to as the "District") is a public employer within the meaning of PERA. Its principle office is located at 45 Mount Rock Road, Newville, Cumberland County, Pennsylvania. 5. Defendants, Reginald Haw, Ashby Collins, Robert Barrick, Eugene cromer, Kenneth Glotfelty, Sandra Hockensmith, Richard Meily, Robert Roush, Jr. and James Showvaker are members of the Big Spring school District Board of School Directors. Their address for School District business matters is 45 Mount Rock Road, Newville, Cumberland County, Pennsylvania. -2- I.~...'-:..I:"-<'!'Y.""""''''- " 11. The statute. to be CODsidered 6. section 301 of the Public School Code provides: The public school system of the Commonwealth shall be administered by a board of school directors, to be elected or appointed, as hereinafter provided. 24 P.S. !i3-301. 7. section 303 of the Public School Code provides: (a) ... in each school district of the second, third and fourth class, there shall be a board of nine (9) school directors.... 24 P.S. !i3-303. 8. Section 322 of the Public School Code provides: Any citizen of this commonwealth, having a good moral character, being eighteen (18) years of age or upwards, and having been a resident of the district for at least one (1) year prior to the date of his election or appointment, shall be eligible to the office of school director therein: provided, That any person holding any office or position of profit under the government of any city of the first class, or the office of ... teacher, or employe of any school district, shall not be eligible as a school director in this Commonwealth. This section shall not prevent any district superintendent, assistant district superintendent, supervisor, teacher, or employe of any school district, from being a school director in a district other than the one in which he is so employed. . . . 24 P.S. !i3-322. 9. Section 324 of the Public School Code provides: No school director shall, during the term for which he was elected or appointed, as a private person engage in any business transaction with the school district in which he is elected or appointed, be employed in any capacity by the school district in which he is elected or appointed, or receive from such school district any pay -3- for services rendered to the district except as provided in this act. ... 24 P.S. !i3-324. 10. Section 1801 of PERA provides: (a) No person who is a member of the same local, State, national or international organization as the employe organization with which the public employer is bargaining or who has an interest in the outcome of such bargaining which interest is in conflict with the interest of the public employer, shall participate on behalf of the public employer in the collective bargaining processes with the proviso that suoh p.rson may, wh.r. .ntitl.d, vote on the ratification of lUl aqr....nt. (emphasis added) 43 P.S. !i1101.1801. III. Paotua1 Baokaround 11. The Association has been certified by the Pennsylvania Labor Relations Board (PLRB) as the exclusive bargaining agent for the eligible professional employees of the District as certified by the PLRB in its order dated April 2, 1971 and coded PERA-R-302-C for wages, hours, and terms and conditions of employment. l2. The last bilaterally executed collective bargaining agreement entered into between the Association and the District expired on June 30, 1992. 13. In October 1991 the Association and the District commenced negotiations for a successor contract. 14. Al though the Association and the District engaged in mediation as required by PERA, no successor collective bargaining agreement was reached. -4- J".. '.. 15. On January 26, 1993 the PLRB ordered the Association and the District to submit to fact finding as required by Article XI-A of the Public School Code of 1949, as amended, 24 P.S. ~11-1122-A which became effective July 9, 1992. 16. On March 8, 1993 the fact finder issued Findings of Fact and Recommendations. l7. prior to the issuance of the fact finder's Findings of Fact and Recommendations, the District had sought and received its solicitor's opinion regarding the ability of three of the school board members to take part in the collective bargaining process due to potential conflicts of interest. 18. The aforesaid three school board members and the reasons their ability to take part in the collective bargaining process have been placed in question are as follows: a. Kenneth Glotfelty -- Mr. Glotfelty's wife is a member of the bargaining unit represented by the Association. b. Ashby Collins -- Mr. Collins is a professional employee and a PSEA member at the Scotland School, a school entity which is separate and apart from the Big Spring School District. c. Robert Barrick -- Mr. Barrick is a professional employee in the Carlisle School District, however, he is not a member of the Carlisle Education Association or the Pennsylvania State Education Association. Mr. Barrick has a -5- sister who is a member of the Big spring collective bargaining unit. 19. On or about March 4, 1993 the members of the District's school board were notified, by their solicitor, that Mr. Glotfelty, Mr. collins and Mr. Barrick were not entitled to receive a copy of the fact finder's Recommendations in advance of the meeting at which the board was to act on acceptance or rej ection o1! the recommendation, were not entitled to attend the school board meeting at which the fact finder's Recommendations were to be presented to the board, nor were they entitled to vote on the acceptance or rejection of the fact finder's Recommendations. 20. On or about March 4, 1993 the school board was also informed by its solicitor that although only 6 of the 9 school board members were eligible to vote, that a vote of 5 of the 6 eligible school board members would be required to accept the fact finder's report. 21. The District's school board never voted to accept or reject the fact finder's Findings of Fact and Recommendations which were issued in March of 1993. 22. The Association took no steps to compel the school board to accept or reject the Findings of Fact and Recommendations of the fact finder issued in March of 1993, since the Association rejected the determinations of the fact finder. -6- 23. On February 22, 1994 pursuant to Sll22-A of the School Code (24 P.S. Sll-l122-A), the PLRB appointed a second fact finding panel and ordered a second fact finding to ensue. 24. On April 4, 1994 the fact finder issued Findings of Fact and Recommendations. 25. Pursuant to 1122-A of the School Code (24 P.S. S11-1125- A) the Association and the District have no more than ten days after the Findings and Recommendations have been sent to notify the PLRB and each other whether or not they accept the Recommendations of the fact finder. 26. If the Recommendations of the fact finder are not accepted by both parties they are publicized. 27. The parties are then required in not less than five days nor more than ten days after the publication of the Findings of Fact and Recommendations to again inform the PLRB and each other whether or not they will accept the Recommendations of the fact finder. 28. On April 5, 1994 the Association became aware for the first time that the District would not allow the three aforementioned members of the school board to vote on the fact finder's Findings of Fact and Recommendations. IV. The DisDute 29. The Association believes and therefore avers that, absent the issuance of a declaratory judgment by this Court, the board -7- will adhere to the advice given by its solicitor in 1993 and only permit six of the nine elected members to participate in the consideration and vote on the fact finder's report, effectively disenfranchising one-third of the elected school board members on this issue. 30. within the last week it has come to the attention of the Association that the state Ethics commission has issued an advisory opinion regarding the ability of the aforementioned three board members to vote to accept or reject a non-binding arbitrator's report as provided by ~1125-A of the School code, 24 P.S. ~11-1125- A. 31. The state Ethics Commission has indicated that the ethics law would not prohibit or restrict the three board members from voting on this matter. (A copy of the state Ethics Commission Report is attached hereto and incorporated herein as Appendix A.) 32. The state Ethics commission'S decision is based upon the Van Rensler opinion, 90-017, wherein it was held that although the board members would be prohibited from negotiating, they are allowed to vote on a collective bargaining agreement and since voting on non-binding arbitration would be similar to voting on a final collective bargaining agreement the ethics law would not exclude them from voting on an arbitrator's award. 33. The statutorily created and regulated process for the negotiations of collective bargaining agreements set forth in Article XI-A of the public School Code creates three separate -8- methods for arriving at a collective bargaining agreement: (1) bilateral negotiation to the point of agreement by the parties, followed by ratification of the agreement by a majority of members of the school board and the Association; (2) Mutual acceptance of the report of a fact finder by a majority of both the school board and the Association: or (24 P.S. Sll-ll22-A) (3) Acceptance of (or failure to reject) the report of an arbitrator after statutory arbitration procedures have been concluded by a majority of both the school board and the Association. (24 P.S. Sll-1123-A - 1125- A) 34. The opinion of the state Ethics commission is consistent with 43 P.S. Sl101-1801 wherein members of an employee organization are prohibited from participating in the collective bargaininq process with the proviso that such persons may vote on the ratification of an aqre..ent. 43 P.S. Sl101.1801 (emphasis added). 35. A vote for or against the acceptance of the fact finder's Recommendations is the same as a vote on the arbitrator's award and is tantamount to a vote of the ratification of an agreement since if both parties accept, a collective bargaining agreement has been reached. WHEREFORE, the Plaintiffs respectfully request this Honorable Court to declare that Kenneth Glotfelty, Ashby Collins and Robert Barrick are entitled to participate in the discussion of and vote on the fact finder's report issued in the negotiations between the -9- Dated: April 19, 1994 . C l. /1 {YJ./':~ /' J~ Paul Helvy, Es'~re Killian & Gephart 218 pine street P.O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Atty. I.D. #53148 Attorneys for plaintiffs Big spring Education Association and the Big spring school District. Respectfully submitted, -10- ,~ "'.'--"'''' ?SEA-NEW ~INGSTaWN 7EL :10.717-697-4147 Apr 7.94 17:33 No.OOl P.09 -,- STATI! ETHICS COMMISSION 3011 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1710801470 TELEPHONE (717) 783-1010 ADVICE OF COUNSEL F.~ruary 10, 1994 Kenneth Glotfelty 710 Me.dowbrook~oad Carlisle, PA 17013 94-510 Rea Conflict, public Official/Employee, School Boa:rcl, Usa of Autho~ity of Office o~ Confidential Information, Immediate Family, Vote, Non-Binding Arbitration. Dea~ Mr. Glotfeltya Thi8 responds to your letter of January ~, 1994 in which you requested advice from the State Ethics Commission. ' laaue. Whethllr . the PubU.c Official anc1'Employee Ethics LAw presents any prohibition orreatd.ctiona upon a school board member with ~egud to voting on non-b1Dding arbJ.tz:ation where an immedJ.ate family is a teacher within the district. Facts: You are a member of the Big spring School District. Your wife i8 a teacher in the district . AShby Collins and Robert Bar~ick are a180 Members of the Big Spring School Distz:lct. Both are membe~s of the pennsylvania state Education Association (PSEA), although not in the Big Spring School Distz:ict; one has a sister who teaches in t!he Big spring School Distz:ict. Both have consented to your seeking advicB as to their conduct. You request an advisory from the State Ethics comnission as to whether you, Mr. Collins and Mr. Barrick may vote on non-binding arbitration. Discussion: It is initially noted that pursuant to sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 55407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does riot engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burdon of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. 55407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facta. I\ppp.ndix A ,,' ?~E~-~EW ~INGSiOWN TEL tlo. 717-697-4147 Apr 7.94 17:38 No.OOl P.10 . Glotfolty, Kenneth, 94-510 February 10, 1994 page 2 As School Board Hemb~s for the B1q spr1nq school D1str1ct, you are public officials a. that tazm i. defined under the Ethics Law, Dna hence you ara sUbjec~ to the provisions of that law. Section 3(&) of the EthiCD Law providesl Section 3. R8B~rict8d Activities. (a) No public official or public _playae shaJ.l engage in cond.uct. that con.titute. a contliCt of 1ntere.~. I . 'l'he following t.eX1118 lU:e defined in the Ethics Lawall follows I SBetion 2. Definitions. "Conflict or conflict. of interest." Use by a pub11c offic1al or public employee of the authority of his office or employment or any confidential 1nfo:mAtion received through h1s hOldinq public office or employment for the private pecuniary benefit of hi.mllelf, a member of his .1.IIIIILediate fam1ly or a business with wh1.ch he or a lIL8IIIber of h1.s '......1IId1ate family i. a.asociated. "Conflict.- or .conflict of interest- doe. not include en action havinq a de ",h,h,," a ecoJ1Olllic impact or which affect. to the IllUIIe daqree a alalia conaistinq of the general public or a subclass consisting of an indUStry, occupation or other q:roup which includes the public official or public employee, a member of h1s immediate fam1ly or a bUlliness with which he or a member of his immediate family is associated. "Authority of office or employment. to 'l'he actual power provided by law, the elCercise of which ill necessary to the performance of duties and respon.ibilities unique to a particular public office or position of public employment. "IJllll\Bdiate fam1ly.. A parent, spouse, child, brother or aiator. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person ahall offer to a public official/employee anything of monetary value and no public official/employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the t.:.'..'~"'~'.'."Vj".""'~~ ?SEA-NEW KINGSTOWN TEL tlo, 717-697-4147 Apr 7.94 17:38 No.OOI P.ll ~ Glotfolty, Kenneth, 94-510 February 10, 1994 I'ACjle 3 publ1c official/employee would 110 1~flulanced theJ:eby. ReteJ:once io made eo the.e pJ:ovis10nl of the law not to imply that there has been OJ: will be any transqJ:ession theJ:eof but mez:ely to pJ:ovide a complete J:e.pon.e to the question pJ:..ented. Seceion 3(j) of the Ethics Law pz:ovide. AU follows I ( j ) WheJ:e votinq conflicte eu:e not otherw1se aelc1relllled by the constitution of PennsylvAnia OJ: by any law, rule, requlation, oJ:CleJ: or oJ:Clinance, the following pJ:ocedure shall be employed. Any pulllic official or public employee, who in the elilcharqe of his official dutie., would be requi:z:ed to vote on a matter that would :z:esult in a conflict of interest shall abstain f:z:om voting and, prior to the vote beinq taken, publicly announce and elisclose the natu:z:e of his inte:z:est as a public recoJ:Cl in a w:z:i tten memorandum filed with the person responsible for xecoxelinq the mJ.nutes of the llIeatinq at which the vote is talcan, provided that wheneve:z: a govez:ninq body would be unable to take any ac1:ioD on a matter befo:e it becauae the number of membeJ:s of the body requued to abstain from voting under the pxovisions of this section makes the majority or other legally J:equired vote of approval unattainable, then such memDers shall be pez:m1tteel to vote if diu closures are made as otherwise pJ:ovidlad heJ:ein. In the cale of a three.,membe:z: goveJ:ning body of a political subdivision, wheJ:e one member has abstained from votinq al a result of a conflict of interellt, and the J:lIIIIBininq two membeJ:u of the qoverninq body have cast opposing votes, the 1118111bllr who has abstained shall be pe:cmi.tted to vote to break the tie vote if discloauJ:e 11 lIIade as othlaJ:Wise provided heJ:ein. If a conflict exiltS, Section 3 ( j ) requiJ:es the public official/employee to abstain and to publicly disclose the abltent10n and J:l!laBOnS for same, both orally anel by filing a w:z:itten memoranelum to that effect with the person xecordinq the minutes OJ: supeJ:'VilloJ:. In the event that the required abstention results in the inab1lity of the govez:nmental body to take action because a majority is unattainable due to the abstention(s) from conflict Section 3. Restricted activities. PSER-NEW KINGSTOWN TEL ~:o, 717-697-.1147 Rpr 7.94 17:38 NJ.OOl P,12 . Glotfelty, Kenneth, ~4-S10 Februa~ 10, 1994 Pago 4 under the Etn1cs Law, then in that event participation i. permissible provided the d1Bclosuro requiromantB noted above are followed. ~ Mlllkar, Advice 91-S23-S. Au you are aware from Glotfeltv, Advice 93-609, the saminal CClllIIIIi.ssion decision which applies Section 3(1l) under similar facts is Van Rensler. Opinion 90-017. The issue there was whether the Btn1cs Law prohibited school board d1rector. from participating on negotiating teams and voting on collective bargaining agreement. whcm membUII of their imllllId1ate families were school district employees represented by the bargaining wu.ts. The Ethics Law does not restrict d!.rectors f:rom voting on final agreements, but d1rector., cannot take part in negotiationll, leading to final agreemants. It was held that directors could. vote on final agreements because of the exclullion in the definition of "conflict or conflict of interest" which applies if the 1mmediate family members are members of subclasses consisting of industries, occupations or other groups cont"".nhlg more than on. mlllDber and the family members would be affgcted exactly liB the other members of the subclassos. The Commission held that if these two prerequisites for applyinq the exclusion were met, school d1rectors could vote on final collective bargaining agreements. In this case, you 1ndJ.catG that your proposed vote is not on a finlll agreement, but on non-b1ncling Ilrbitration. P'ollowing the Commiesion decision in Van Rensler, voting on non-bindinq arbitrat1.on would be s1m1lar to vot1.ng on a f.1nal collective barqa1ninq aqreament. In both cases, the exclusion in the defini.tion of "conflict or conflict of interest" would apply provided the immediate family members are members of a subclass consisting of an occupation or group containing more than one member and the immediate family members would be affected exactly the eame as other mamberll of the subclass. Under these circWll8tances, tlhe proposed vote by the board members on non- binding arbitration would be permitted under the Ethics Law. The propriety of the proposed conduct has only been addressed under the Ethics Law, the e.pplicability of any other statute, cod., ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve Iln interpretation of the Bthics Law. Specifically not addressed herein is the applicability of the Public School Code. Conclull1.on: Aa Members tor the Big Spring School District, you are public officials subjoct to the provisions of the Ethics Lllw. Based upon the facts of this case, Section 3(a) of the Ethics Law would not prohibit or restrict you or the other Soard Members from voting on non-bindinq arbitration provided the exclusion in the definition of conflict of interest applies. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics PSEA-~EW KINGSTOWN TEL No,717-697-4147 Apr 7.94 17:38 No.OOl P.13 '-_........:-;.,.-,-... ~,~ ,.......-.- .....,..;';.<<<_.- .. Glotfelty, Kenneth, 94-510 Februa~ 10, 1994 pago 5 Law. pursuant to Section 7(11), this Advice is a complete defen.. in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has di.closed truthfully all the material facts and collllllitted the acta complained of in reliance on the Advice given. Thi. letter is a public record and will be made available a. such. I Finally, if you disagre. with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commis.ion. A per. anal appearance before the Commission will b. scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be In writing and must be ~ received at the Commission within fifteen (15) days of the date of this Advice pursuantto 51 Pa.Code S13.2(h). The appeal may, be received at the Commission by hand delivery, United states mall, delivery service, or by FAX transmission (717-787-0806). VC~lY' Vincent . Dopko Chief Counsel t,:"'-~"""'~');),_.d. ~_ ~_.r+~~;--- ftIlU%aA'l'%OK I hereby verify ~hat the .tatement. of fa~ .acte in the toraqainljJ d.ocument are t:r:ue and. ccrreat to the be.t of .Y knowle~ljJa, info~ation an~ balief. I und.er.tan~ that any fal.e statement. therein are subject to ~he penalties contained in 18 Pa.C.S. 14V04, relatinq to unsworn falsification to aU~larities. (J~ r: U~ ~>, Carlin L. Wenqer 0 Dat.~1 ~_.j ) I) ) 9'1 Y VBRtl'%CA'I'IOH I hereby verify that the statements of fact made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the penalties contained in 18 Pa.C.S. 54904, relating to unsworn falsification to authorities. Dated: April 19, 1994 . . CBRTIPICATB OP SBRVICB I, J. PAUL HELVY, ESQUIRE, do certify that I served a true and correct copy of the within document upon Richard C. Snelbaker, Esquire, via FAX transmission to number (717) 697-7681. A copy was also placed in the united states mail, postage prepaid, addressed as follows: Richard C. Snelbaker, Esquire Snelbaker & Elicker 44 West Main street P.o. Box 318 Mechanicsburg, PA 17055-0318 (V~ /' . Paul Helvy, re illian & Gephart 218 Pine street P.o. Box 886 Harrisburg, PA 17108 (717) 232-1851 Dated: April 19, 1994 Attorneys for Plaintiffs . ~ . .... ... -'. '.' .. ': ,,~~~~~,,~~~(~~:,i>\;<ct;i;~~~\0;;:fk#~~i" ','" KILLIAN: 81'GEPHAI'tT'.$, ~:,,;"';;",i"":':, 'c::':~'''',:''''l', , . .,\':~~1~~;f~t~~;~~',:~:~n;~~:,~;:i;~:~::~jj~~ ~;~~:- :, HARRISBURCIo PIlNNSVL,VANlA'1710s.0SSI",f,i,:' .' '.' . . - - ., -" ""'. ,'..~'l~(- BIG SPRING EDUCATION ASSOCIATION, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . plaintiff v. . . : No. 94 - 1834 Civil Term:c ..> s- ';~... -c BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. and JAMES SHOWVAKER, Defendants . ~, ~ . " - . . . . f.' ' - - <::> o ~ CIVIL ACTION - LAW"; ,,~, ,:- {,;.: l~' _. \ J'i. _t :r -( ..< - c..o ..... PLAZHTZPF'S MOTION FOR POST-TRIAL RELZEF Now comes plaintiff, the Big spring Education Association, by and through its attorneys, Killian & Gephart, and moves for post- trial relief from the Order of April 22, 1994 on the fOllowing grounds: 1. The Court's determination that "The vote on the fact finder's report cannot be considered a ratification of a collective bargaining agreement" is in error. 2. The Court's determination that Mr. Collins is precluded by the Public Employe Relations Act (PERA), 43 P.S. ~l101.101 gt ~, from voting on the fact finder's report is in error. WHEREFORE, the plaintiff respectfully requests this Honorable Court to modify that portion of the April 22, 1994 Order which ')1 1," ! " Mn IT\ 05 r" '9~ , \,;.11'" 0f '. '.',~'~'\h~ CUhl'" ' ,,\, ': '. fV p' .H~' -''j :,1,':, ~ M, ~ ~t!:'" l:~'; C:J. ;.. ...c;., . . ' states that Mr. Collins is precluded by the Public Employe Relations Actfrom voting on a fact finder's report. Respectfully submitted, Dated: May 9, 1994 . Paul Helvy, squire Killian & Gep art 218 Pine street P.O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorney I.D. #53148 Attorneys for Plaintiff ..;;:: , - CERTIPICATE OP SERVICE I, J. PAUL HELVY, ESQUIRE, do certify that I served a true and correct copy of the within document upon the following by depositing a copy of same in the united States mail, postage prepaid, addressed as follows: Richard C. Snelbaker, Esquire Snelbaker & Elicker 44 West Main Street P.o. Box 318 Mechanicsburg, PA 17055-0318 ~' Paul Helvy,!,Esquire Killian & Gep~rt 218 Pine Street P.o. Box 886 Harrisburg, PA l7108 (717) 232-1851 Dated: May 9, 1994 Attorneys for Plaintiff ~;_,Jdi,L:_ ,~..._-- . ..4 I ;.~ -... BIG SPRING EDUCATION ASSOCIATION IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA . . v : CIVIL ACTION - LAW . . BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER,: KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR., AND JAMES SHOWVAKER, Defendants NO. 94-1834 CIVIL TERM . . . . . . . . IN RE: PLAINTIFF'S MOTION FOR ACCELERATED DISPOSITION BEFORE SHEELY. P.J. ORDER OF COURT AND NOW, this ,.);j/l.,L day of 4\',.1 I, , 1994, we make the following order: l) Big Spring Education Association has standing to bring the present action; 2) Plaintiff is entitled to accelerated disposition of this matter; 3) Mr. Glotfelty and Mr. Barrick are not considered to have a conflict of interest which would preclude either from voting on the report of the fact finder. This does not mean that either cannot abstain based on personal deference. 4) Mr. Collins is precluded from voting on the report of the By the Court, fact finder due to a conflict of interest based on his membership in PSEA. J. Paul Helvy, Esquire, For the Plaintiff ~1"r'lu~~ '11"/;.'!.._ Richard C. Snelbaker, Es~uire For the Defendants ~1'7 'f"".... "/L</'1'1 :,~;.l. .... :sld r \ I ~- \ ;: - (",I,,;." 0~\ \- ',il/L.(~/ Harold E. Sheely~ P.J. BIG SPRING EDUCATION ASSOCIATION V : IN THE COURT OF COMMON PLEAS OF : CU~mERLAND COUNTY, PENNSYLVANIA . . . . CIVIL ACTION - LAW NO. 94-1834 CIVIL TEIUoI BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, : ROBERT BARRICK, EUGENE CROMER,: KENNETH GLOTFELTY, SANDRA : HOCKENSMITH, RICHARD MElLY, : ROBERT ROUSH, JR., AND : JAMES SHOWVAKER, Defendants . . IN RE: PLAINTIFF'S MOTION FOR ACCELERATED DISPOSITION BEFORE SHEELY, P.J. OPINION AND ORDER OF COURT The present action requires the determination of the following three issues: 1) Does the Big Spring Education Association (Association) have standing to bring the present declaratory judgment action? If the Association does not have standing, was plaintiff's amended complaint properly filed such that it must be considered as a pleading in this action? 2) Does the plaintiff have a cognizable legal right to an accelerated disposition of this action? 3) Does a conflict of interest exist as to any of the three members of the Big Spring Board of Directors who were previously advised to abstain from voting on the report of the fact finder such that they are required to continue to abstain from future votes on reports of the fact finder? - -- -., . NO. 94 - l834 CIVIL TERM FACTUAL BACKGROUND The plaintiff in the present action is the Big Spring Education Association (Association). By way of an amended complaint, the Association attempted to add Kenneth Glotfelty as a plaintiff. The Association is the exclusive bargaining agent for the eligible professional employees' of the Big Spring School District. The defendants in the present action are the Big Spring School District (District) and the individual nine members of the Big Spring Board of Directors. On June 30, 1992, the preceding collective bargaining agreement between the parties expired. This agreement encompassed the school years 1989-90, 1990-91, and 1991-92. Bargaining and negotiations for a successor contract began in November of 1991. The parties submitted the dispute to fact finding in January of 1993 as required by Article XI-A of the Public School Code.' On March 8, 1993 the fact finder issued findings of fact and recommendations which were rejected by the Association. As a result of the Association's rejection, the Board of Directors , "Professional employe" is defined in the Public School Code and includes "those who are certified as teachers, supervisors, supervising principals, principals, assistant principals, vice-principals, directors of vocational education, dental hygienists, visiting teachers, home and school visitors, school counselors, child nutrition program specialist, school librarians, school secretaries... and school nurses. 24 P.S. Sll- 1101 (l). '24 P.S. S 11-1122-A et sea. 2 NO. 94 - 1834 CIVIL TERM never voted either to accept or reject the report of the fact finder. Therefore, the eligibility of the three school board members in question to vote on the report of the fact finder never became ripe for determination. The bargaining system as established by Article XI-A is cyclical in nature and therefore repeats itself every school year until a collective bargaining agreement is reached. As a result, a second fact finder was appointed and issued his findings of fact and recommendations on April 4, 1994. On April 13, 1994, this report was accepted by the Association, but rejected by the Board of Directors. Because the report was not accepted, the findings of fact and recommendations were published in accordance with Section 1122-A(c) of Article XI-A. Both sides must now vote for a second time to accept or reject the report of the fact finder by April 24, 1994.3 At the vote of the Board of Directors, only six of the nine members participated in the vote.' The three members who did not vote abstained upon the advice of the District's solicitor.5 The solicitor determined that Kenneth Glotfelty, Ashby Collins, and Robert Barrick each had a conflict of interest that rendered 3 The Board of Directors has scheduled a meeting on April 22, 1994 for this purpose. The Association, through its bargaining agent Carlin Wenger, indicated at the hearing its intention to again accept the report. . These members voted 6-0 to reject. , See Petitioner's Exhibit l, March 4, 1993 Memorandum to Board of Directors 3 PROCEDURAL HISTORY NO. 94 - 1B34 CIVIL TERM them ineligible to vote on tho acceptance or rejection of a report of a fact finder. Mr. Glotfelty's alleged conflict stems from the fact that his wife is employed by the Big Spring School District as a teacher. Mr. Collins' alleged conflict is based on the fact that he is a Pennsylvania State Education Association (PSEA) member and employed as a teacher in a separ.ate and distinct district. Mr. Barrick's alleged conflict centers on the fact his sister is employed by Big spring School District as a teacher, and he himself is a teacher in a separate and distinct district, although he is not a member of PSEA. The plaintiff Association filed a complaint with this court on April 11, 1994, seeking a declaratory judgment concerning the voting rights of Glotfelty, Collins, and Barrick. On April lS, 1994, plaintiff Association filed a motion for accelerated disposition of the declaratory judgment action. In response, defendants filed a motion in opposition to accelerated disposition, dated April 19, 1994. A hearing was held on April 20, 1994 at which time both parties were given the opportunity to present testimony and argument. DISCUSSION Our determination today must begin by answering the question of whether the Association itself has standing to bring this . 4 , .-... ~~^'..- ..,.... NO. 94 - 1834 CIVIL TERM action in declaratory judgment. The essence of the standing requirement has been well established by our Supreme Court: "[a] plaintiff ... must allege and prove an interest in the outcome of the suit which surpasses 'the common interest of all citizens in procuring obedience to the law'... To surpass the common interest, the interest is required to be, at least, substantial, direct, and immediate." Application of Biester, 487 Pa. 438, 442-43, 409 A.2d 848, 851 (l979), citinq Wm. Penn parkinq Garaqe v. city of pittsburqh, 464 Pa. l68, 346 A.2d 269 (1975). Upper Bucks County Vocational - Technical School Education Association v. U er Bucks Count vocational - Technical Schoo Joint Committee, 504 Pa. 4l8, 42l-22, 474 A.2d 1120, ll22 (l984). A substantial interest is one in which there is "some discernible adverse effect to some interest other than the abstract interest of all citizens in, having others comply with the law." A "direct" interest requires a showing that the matter complained of causes harm to the party's interest. An "immediate" interest is something more than a "remote consequence" and centers on the causal nexus and proximity between the action complained of and the injury to the party challenging it. The requirement that the interest be "immediate" is also met where it falls within the "zone of interests sought to be protected by the statute or constitutional guarantee in question." Finally, the rationale underlying the requirement that the party be "aggrieved" or "adversely affected" by the action at issue is to ensure 5 NO. 94 - 1B34 CIVIL TERM that a legal challenge is made by the appropriate party. (citations omitted). Pittsburah Trust for Cultural Resources v. Zonina Board of Adiustment of the citv of pittsburah, 145 Pa. Commw. 503, 514-15, 604 A.2d 29B, 303-304 (1992). Applying the facts of the present case to this standard, we believe it is clear that the Association has standing to bring this action. The Association otviously has a "substantial, direct, and immediate" interest in the Board of Director's vote on the fact finder's report. The outcome of this vote directly affects the Association's members' contract and emploYlnent status. As such, the Association has standing. Because we have found that the Association has standing to bring the present action, we need not consider the question of whether or not the amended complaint was properly filed. The next issue for our determination concerns the Association's right to an accelerated disposition of this matter. The defendants have opposed the motion for accelerated disposition based on the contention that they will be unfairly prejudiced by such a disposition. We disagree. The issues presently before this court are identical to the issues that will eventually ripen for determination under the declaratory judgment action. We fail to recognize any new facts or information which would come to light between now and the time we would rule on the declaratory judgment action. The defendants 6 r-.~_. -..-.- NO. 94 - l834 CIVIL TERM will not be prejudiced in any manner; in fact, our determination today stems directly from the District's action in forbidding the three members of the Board of Directors from voting.' The only entity prejudiced by accelerating the disposition of this matter is the court which is required to give an immediate decision. Therefore, we believe acceleration of the disposition of this matter is proper. The final issue before this Court is the determination of whether a conflict of interest exists as to any of the three aforementioned members of the Board of Directors. This determination requires consideration of the applicable sections of (1) the Public School Code of 1949,' (2) The State Ethics Law,. and (3) The Public Employe Relations Act.' We turn our attention first to the State Ethics Law which provides in part that "no public official or public employee shall engage in conduct that constitutes a conflict of interest." 65 P.S. S 403 (a). The Ethics Law defines "conflict" or "conflict of interest" in the following manner: Use by a public official or public employee of the authority of his , The District's solicitor himself gave the opinion and advice that these three members could not vote. To claim now that the District needs more time to research and investigate is not persuasive. , 24 P.S. Sl 1-101 et sea. · 65 P.S. S 40l et sea. , 43 P.S. S 1101.101 et ~. 7 NO. 94 - 1834 CIVIL TERM office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.s. S 402. "Immediate family" is defined as "a parent, spouse, child, brother or sister." 65 P.S. S 402. The state Ethics Commission (SEC) has interpreted these provisions in an "Advisory opinion" dated April 20, 1994, and addressed to Kenneth GlotfeltylO (Glotfeltv, Advice 94-558). Glotfeltv, Advice 94-558, advised the three board members that they did not have a conflict under the Ethics Law which would prohibit or restrict any of the three from voting on the fact finder's report. After reviewing Glotfeltv, Advice 94-558, we believe the advice was rendered based on a truthful disclosure of all the material facts in the matter. Additionally, we believe the SEC 10 Mr. Glotfelty requested an advisory for himself, as well as on behalf of Mr. Collins and Mr. Barrick, pursuant to 65 P.S. S 407 (10), (11). 8 -.----.- ,. NO. 94 - 1834 CIVIL TERM to be a fully competent body to interpret the provisions of the State Ethics Law, and find its logic and reasoning persuasive. Therefore, accepting Glotfoltv, Advice 94-558, we do not believe members Glotfelty, Collins, or Barrick poosess a conflict of interest under the State Ethics Law which would prohibit them from voting on the fact finder's report. The advice of the SEC addressed this issue solely under the Ethics Law. Therefore, we must still consider the applicability of other statutes, codes, and the like. The Public School Code of 1949 contains no provision which would render any of these three members ineligible to vote for the approval or rejection of a fact finder's report. At hearing, both parties agreed that the Public School Code did not bar these members from voting. Therefore, we find that these three members of the Board of Directors do not have a conflict of interest which would render them ineligible to vote under the Public School Code of 1949. Finally, we consider the applicability of the Public Employe Relations Act (PERA) to the present matter. Mr. Collins, due to his membership in the Pennsylvania State Education Association (PSEA), is the only member to whom PERA is applicable. section 1801 of PERA provides the following: No person who is a member of the same local, State, national or international organization as the employe organization with which the public employer is bargaining or who has an interest in the outcome 9 NO. 94 - 1834 CIVIL TERM of such bargaining which interest is in conflict with the interest of the public employer, shall participate on behalf of the public employer in the collective bargaining processes with the proviso that such person may, where entitled, vote on the ratification of an agreement. 43 P.S. S 1101.1801 (a). As the Association aptly acknowledges, Mr. Collins is prohibited from being a member of a negotiating team or participating in any labor negotiations. The Association contends, however, that Mr. Collins is permitted to vote on the fact finder's report because it is "the ratification of an agreement. " We disagree. The vote on the fact finder's report cannot be considered a ratification of a collective bargaining agreement. The fact finder's report, if accepted by both sides, merely forms the basis for such an agreement, and cannot by itself be considered a collective bargaining agreement. Therefore, based on Mr. Collins' conflict of interest created by his union membership in PSEA, Mr. Collins is precluded from voting under PERA on the acceptance or rejection of the fact finder's report. ORDER OF COURT AND NOW, this the following order: l) Big Spring Education Association has standing to bring I;, I day of ,y i", '/' , 1994, we make the present action; 10 _._.]["~ NO. 94 - 1834 CIVIL TERM 2) Plaintiff is entitled to accelerated disposition of this matter I 3) Mr. Glotfelty and Mr. Barrick are not considered to have a conflict of interest which would preclude either from voting on the report of the fact finder. This does not mean that either cannot abstain based on personal deference. 4) Mr. Collins is precluded from voting on the report of the fact finder due to a conflict of interest based on his membership in PSEA. By the Court, /s/ Harold E. Sheelv Harold E. Sheely, P.J. J. Paul Helvy, Esquire For the Plaintiff Richard C. Snelbaker, Esquire For the Defendants 11 ,. ...-.... ._._. I CRITERYA PaR PRRJ.TMTNA.RY INJUNCTYON The general rule is as follows: Three criteria have been established for the granting of a preliminary injunction, which, as a harsh and extraordinary reaedy, is to be granted only when and if each criteria has been fully and completely established. (citation omitted) They are: (1) the preliminary injunction must be necessary to prevent immediate and irreparable harm which could not be compensated for by damages; (2) greater injury would result from the denial of the preliminary injunction than from the granting of it; and (3) it would operate to restore the parties to the status quo as it existed prior to the alleged wrongful conduct. In addition to meeting all three criteria, the court: must be convinced that [plaintiff's] right to a preliminary injunction is clear . . . and general equity jurisdiction must be warranted. Committee of Seventy. et a1. v. Albert. at a1., 33 Pa. Commw. 44, 49, 381 A.2d 188, 190 (1977). I ' Iy that after reuonable : without knowledge or' I rm a bellef 118 to thE, I have the effect of ., , I . f i .. ! :~ not exeule a (ailure to 'n when it Ie elear that the U'tleular allegation Ie true ',e, 254 Pa.Super, 381, 386 19 to which no respon. ~all be deemed to be , Jan, I, 1947, Amendtld 984, W MATI'ER :Iuding but not limited d satisfaction, arbitra. of the risk, consent, ,harge in bankruptey, >nsideration, fair com. ,ity from suit, impossi. :atian. laches, license. es judicata, statute of truth and waiver shall ,ading under the head. msy set forth 118 new tB which are not mere- f the preceding plead. e defense. of contributo- r1ak, Rule 1030 ehange. I Rule 1045(b), Jan, I, 1947, Amendtld " 1956; June :!1, 1969, 1983, er;...tlve July I, fTERCLAIM forth in the answer :Iaim" any cause of 18sumpsit or trespus intiff at the time of -nlng consolidation and t diminish or defeat -Iaintiff. It may de- AcnONB AT LAW Rule 1035 mand relief exceeding In amount or different In kind (rom that demandEd by the plaintiff. Idopted June 25, 1946. eff..tlve Jan, 1. 1947, Amendtld OK, 16, 1983, etf..tlve July I, 1984, Nole See Deftnltlon Rule 76 for detlnltlon of "attldavlL" I. ubeellle litigation, a motion for aummary Judgment tIJed by 008 defendant alleging a ground eomlllDn 10 one or more other defendanta 10 dl8med tlltld o. behalf of all auell def..daota. See Rule 1041,1(1). (b) The advene party, prior to the day of heB!' ing, may eerve opposing aCfidavita, The judgmant sought ahaIJ be rendered if the pleadings, depoal- tions, BDSwen to Interrogatories, and admlsalons on file, together with the affidavita, If any, show that there Is no genuine lsaue as to any material fact and that the moving party Is entitlEd to a judgment aa a matter of Jaw, A summary judgment, interlocutory In charac:ter, may be rendered on the lsaues of lisblllty alone although there la a genuine lsaue aa to the amount of damages, (c) If on motion under thla rule judgment la not rendered upon the whole caee or for all the rellef aakEd aDd a trlaI la neceB8ary, the court at the hearing of the motion. by examining the pleadings snd the evidence before It and by Interrogating counsel, shalllf practicable aacertaln what material facta exist without substantial controveny snd what materisl facta are actually and In good faith controverted. It shall thereupon make an order specifying the facta that appear without substantial controveny, including the extent to which the amount of damages or other relief la not in contro- veny and directing auch further proceedings in the action aa are jusL Upon the trlaI of the action the facta so specified shall be deemed establlahed, and the trial shall be conducted accordingly, (d) Supporting and opposing sffidavita shall be made on penonal knowledge, shall set forth euch facta aa would be admlaelble In evidence, and shall ehow aCflrllUltively that the signer Is competent to testify to the matten stated therein. Verified or certified copies of all papen or parle thereof re- ferred to In an affidavit shall be attachEd thereto or served therewith. The court may pennit affidavita to be supplemented or opposed by depositions, an. swen to Interrogatories, or further affidavita, When a motion for summary judgment la made and supported aa providEd in thla rule, an advene party msy not reet upon the mere allegations or deniale of hla ple!lding, but hie response, by affidavita or aa otherwise provided in thla rule, must set forth spe- cific fact.B showing that there la a genuine lasue for trial. If he does not so respond, summary judg. ment, if appropriate, shall be entered against him. (e) Should it appear from the affidavit.B of a party opposing the motion that he cannot for rea. sons stated present by affidavit fact.B essential to justify his opposition, the court may refuse the application for judgment or may order a continu- ance to pennit affidavit.B to be obtained or deposi. 65 RULE 1032. WAIVER OF DEFENSES. EXCEPI'IONS A party wsives all defenses and objections which he does not present either by preliminary objection, answer or reply, except (!) that the defense of failure to state a claim upon which relief can be granted, the defense of {ailure to join an indispensable party, and the objec- tion of failure to state a legal defense to a claim may also be made by a later pleading, If one is permitted, or by motion for judgment on the plead. ings or at the trial on the merit.B, and (2) that whenever it sppean by suggestion of the parties or otherwise that the court lacka jurisdiction of the subject matter or that there has been a {ailure to join an indlapensable party, the court shall dismiss the action, Adopted June 25, 1946, eltectlve Jan. I, 1947. RULE 1033. AMENDMENT A party, either by filed consent of the adverse party or by leave of court, may at any time change Ihe fonn of action, correct the nsme of a psrty or amend hie pleading. The amendEd pleading may aver transactions or occurrences which have hsp- pened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to confonn the pleading to the evidence offered or admitted. Adopted June 25, 1946, eltectlve Jan, I, 1947, RULE 1034. MOTION FOR JUDGMENT ON THE PLEADINGS (8) After the pleadings are closed, but within such time aa not to delay the trial, any party may move for judgment on the pleadings. (b) The court shall enter such judgment or order as shall be proper on the pleadings. Adopted June 25, 1946, effective Jan. I, 1947. RULE 1035. MOTION FOR SUMMARY JUDGMENT (a) After the pleadings are closed, but within such time aa not to delsy 1risl, any psrty may move for summary judgment on the pleadings and any depositions, answen to Interrogatories, admissions on file and supporting affidavita. """'1"~"':""".~"'" , ~ ,..' . ,l.:r\f 'fN~JI'1""-"" l ~ >-..... ~~IJi~i>I"7J.f"~~~~..-..~.'<";,:,,'" .... ,I.. ..~r'-';'i'Y;iI'-:1.~ ,!;\'I!":.'-~O::' _~.,~IV, e.1: -~,"': ,"f"", ?.t.J~. t: .'ii ;.'!~t;l""d"""-'llfif"."",~,..:1, 3 .. ~ ...;,."'" ~'Ij~"ji' '" "1l>-~ ::'l~t ! >, I CAW!', : ~~f }: '1:~V'1t'l1l:it~ft:J~Y ~&~: I~ ;i;?~f:i ~~.~.: '" ~',l' '<,,;- "A' N' ..:....,., E' . A' 'Tl'o'(', .~~~' :.~.'~, i'f,'r':'~~i~~-'~t:~~~'~. _,'_ " , t:~:,.~~'~;;:~.~r t ~ KILL,' h", ,~:~ I'!H ~ ,j " , ' ,', ':'.. ',', ' ",' ,--. ,,'.::f;:.,,:'"'' ',' clQlTJ, " . , { ':,,"."IlITll."", I ;.'. :' '. "~,., '-~ ~;Z1..' "~.,,"J.~r'rl'~~,,~,""~Jp.<~' .. ,:'j'"'~4f'\~;~~~1: I l'''''')'~~ ,,"~-,., 4 >~ " C.;.. to'. -.,;' "r;....;.:...:r_.~:.p1~,.,..\'t!~:"Pl'.~f'f." , ," ~:",'~,j..~":tf,(':<,.v...;;~:t ..,t.".'~!,,,.Ot;HJC'" 7"_ ',- . '," .,I.f.lt"Y:f,i_,.~.:t'r"~.:i3:I'.,Q..., '';.,l'Y'"'''' I ~':}.I,"r1;'~t~o/-\".t;,) HARRIBeiJ"a;'piNNBYLVANlA 17108.OeBI,- ','", .~-;', :, '1,',.'\': 't.:ll";~;,, --.' '-', " ,',' '... :., 'J~...,,,:,'~.. .i' ____ -_..'-'""-. .,.~.....!11..~1.~."",b~~.f.:;'>: _ -.r:.. _ ., -, . ..... BIG SPRING EDUCATION ASSOCIATION and KENNETH GLOTFELTY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . . . . . plaintiffs v. : No. 94 - 1834 civil Term . . BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, : ROBERT BARRICK, EUGENE CROMER,: KENNETH GLOTFELTY, : SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. and JAMES SHOWVAKER, Defendants :')';- "'~ ,"" :., CIVIL ACTION - LAW - c..o : . Ir'. . . (...) I\J "'" -~:J ::J:: ~ .---' ~.' .. -) ~ . 'f" -:-,;r ii' ;.. :.r . ~ '1- ...- -c " -: . . NOT I C B YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by an attorney and file in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse - Fourth Floor 1 Courthouse Square Carlisle, Pennsylvania 17013-3387 Telephone (717) 240-6200 .....'..,~<.~.-~.-"'''- --~_.- BIG SPRING EDUCATION ASSOCIATION and KENNETH GLOTFELTY, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA plaintiffs . . . . . No. . . . 94 - 1834 civil Term v. BIG SPRING SCHOOL DISTRICT, : REGINALD HAW, ASHBY COLLINS, : ROBERT BARRICK, EUGENE CROMER,: KENNETH GLOTFELTY, : SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. and JAMES SHOWVAKER, Defendants CIVIL ACTION - LAW . . . . : AMENDED COMPLAINT IN DECLARATORY JUDGMENT AND NOW come the Plaintiffs, the Big Spring Education Association and Kenneth Glotfelty, by and through Killian & Gephart, and do bring this Declaratory Judgment action pursuant to 42 Pa.C.S.A. !i'1S31 ~ ~ I. The Parties 1. This Complaint seeks a declaratory judgment concerning the voting rights of members of the Big Spring Board of School Directors on matters related to collective bargaining under the Public School Code and the Public Employe Relations Act pursuant to the Declaratory Judgments Act, 42 Pa.C.S.A. !i7S31 et ~, together with other appropriate relief. 2. Plaintiff, the Big spring Education Association (hereinafter referred to as the "Association") is an employee organization within the meaning of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563 as amended, 43 P.S. SSllOl.101-1l01.203. The Association has been certified by the Pennsylvania Labor Relations Board as exclusive agent for collective bargaining for professional employees, including teachers, of the Big spring School District. Numerous members of the bargaining unit represented by the Association are taxpayers and electors of the Big spring School District. The principle office of the Association is located at 31 East Main street, New Kingstown, Cumberland County, Pennsylvania. 3. Plaintiff, Kenneth Glotfelty is an adult individual, elector, and taxpayer of the Big spring School District. He resides at 710 Meadowbrook Road, Carlisle, Cumberland County, Pennsylvania. 4. Defendant, the Big spring School District (hereinafter referred to as the "District") is a public employer within the meaning of PERA. Its principle office is located at 45 Mount Rock Road, Newville, Cumberland County, Pennsylvania. 5. Defendants, Reginald Haw, Ashby Collins, Robert Barrick, Eugene Cromer, Kenneth Glotfelty, Sandra Hockensmith, Richard Meily, Robert Roush, Jr. and James Showvaker are members of the Big spring School District Board of School Directors. Their address for School District business matters is 45 Mount Rock Road, Newville, Cumberland County, pennsylvania. -2- II. The s~.~u~e. ~o he Considered 6. section 301 of the Public School Code provides: The public school system of the Commonwealth shall be administered by a board of school directors, to be elected or appointed, as hereinafter provided. 24 P.S. 13-301. 7. section 303 of the Public School Code provides: (a) . .. in each school district of the second, third and fourth class, there shall be a board of nine (9) school directors.... 24 P.S. 13-303. 8. section 322 of the Public School Code provides: Any citizen of this commonwealth, having a good moral character, being eighteen (18) years of age or upwards, and having been a resident of the district for at least one (1) year prior to the date of his election or appointment, shall be eligible to the office of school director therein: Provided, That any person holding any office or position of profit under the government of any city of the first class, or the office of ... teacher, or employe of any school district, shall not be eligible as a school director in this Commonwealth. This section shall not prevent any district superintendent, assistant district superintendent, supervisor, teacher, or employe of any school district, from being a school director in a district other than the one in which he is so employed.... 24 P.S. 13-322. 9. Section 324 of the Public School Code provides: No school director shall, during the term for which he was elected or appointed, as a private person engage in any business transaction with the school district in which he is elected or appointed, be employed in any capacity by the school district in which he is elected or appointed, or receive from such school district any pay -3- for services rendered to the district except as provided in this act. ... 24 P.S. !3-324. 10. section 1801 of PERA provides: (a) No person who is a member of the same local, state, national or international organization as the employe organization with which the public employer is bargaining or who has an interest in the outcome of such bargaining which interest is in conflict with the interest of the public employer, shall participate on behalf of the public employer in the collective bargaining processes with the proviso that suoh person may, where entitled, vote on the ratifioation of an agreement. (emphasis added) 43 P.S. !1101.1801. III. Faotual Baokaround ll. The Association has been certified by the Pennsylvania Labor Relations Board (PLRB) as the exclusive bargaining agent for the eligible professional employees of the District as certified by the PLRB in its Order dated April 2, 1971 and coded PERA-R-302-C for wages, hours, and terms and conditions of employment. l2. The last bilaterally executed collective bargaining agreement entered into between the Association and the District expired on June 30, 1992. l3. In October 1991 the Association and the District commenced negotiations for a successor contract. 14. Although the Association and the District engaged in mediation as required by PERA, no successor collective bargaining agreement was reached. -4- ,t",~~",j"7!S~ 15. On January 26, 1993 the PLRB ordered the Association and the District to submit to fact finding as required by Article XI-A of the Public School Code of 1949, as amended, 24 P.S. Il1-l122-A which became effective July 9, 1992. l6. On March 8, 1993 the fact finder issued Findings of Fact and Recommendations. l7. Prior to the issuance of the fact finder's Findings of Fact and Recommendations, the District had sought and received its solicitor's opinion regarding the ability of three of the school board members to take part in the collective bargaining process due to potential conflicts of interest. 18. The aforesaid three school board members and the reasons their ability to take part in the collective bargaining process have been placed in question are as follows: a. Kenneth Glotfelty -- Hr. Glotfelty's wife is a member of the bargaining unit represented by the Association. b. Ashby collins -- Hr. Collins is a professional employee and a PSEA member at the Scotland School, a school entity which is separate and apart from the Big spring School District. c. Robert Barrick -- Mr. Barrick is a professional employee in the Carlisle School District, however, he is not a member of the Carlisle Education Association or the Pennsylvania state Education Association. Mr. Barrick has a -5- - f$<,~'~-cfr?1+;i~~~ sister who is a member of the Big spring collective bargaining unit. 19. On or about March 4, 1993 the members of the District's school board were notified, by their solicitor, that Mr. Glotfelty, Mr. collins and Mr. Barrick were not entitled to receive a copy of the fact finder's Recommendations in advance of the meeting at which the board was to act on acceptance or rejection of the recommendation, were not entitled to attend the school board meeting at which the fact finder's Recommendations were to be presented to the board, nor were they entitled to vote on the acceptance or rejection of the fact finder's Recommendations. 20. On or about March 4, 1993 the school board was also informed by its solicitor that although only 6 of the 9 school board members were eligible to vote, that a vote of 5 of the 6 eligible school board members would be required to accept the fact finder's report. 21. The District's school board never voted to accept or reject the fact finder's Findings of Fact and Recommendations which were issued in March of 1993. 22. The Association took no steps to compel the school board to accept or reject the Findings of Fact and Recommendations of the fact finder issued in March of 1993, since the Association rejected the determinations of the fact finder. -6- '"'~ 23. On February 22, 1994 pursuant to il122-A of the School Code (24 P.S. i1l-1122-A), the PLRB appointed a second fact finding panel and ordered a second fact finding to ensue. 24. On April 4, 1994 the fact finder issued Findings of Fact and Recommendations. 25. Pursuant to 1122-A of the School Code (24 P.S. ill-1125- A) the Association and the District have no more than ten days after the Findings and Recommendations have been sent to notify the PLRB and each other whether or not they accept the Recommendations of the fact finder. 26. If the Recommendations of the fact finder are not accepted by both parties they are publicized. 27. The parties are then required in not less than five days nor more than ten days after the publication of the Findings of Fact and Recommendations to again inform the PLRB and each other whether or not they will accept the Recommendations of the fact finder. 28. On April 5, 1994 the Association became aware for the first time that the District would not allow the three aforementioned members of the school board to vote on the fact finder's Findings of Fact and Recommendations. IV. The OisDute 29. The Association believes and therefore avers that, absent the issuance of a declaratory judgment by this Court, the board -7- t,. '^~"'~~ will adhere to the advice given by its solicitor in 1993 and only permit six of the nine elected members to participate in the consideration and vote on the fact finder's report, effectively disenfranchising one-third of the elected school board members on this issue. 30. Within the last week it has come to the attention of the Association that the state Ethics Commission has issued an advisory opinion regarding the ability of the aforementioned three board members to vote to accept or reject a non-binding arbitrator's report as provided by S1125-A of the School Code, 24 P.S. Sll-ll25- A. 31. The state Ethics Commission has indicated that the ethics law would not prohibit or restrict the three board members from voting on this matter. (A copy of the state Ethics Commission Report is attached hereto and incorporated herein as Appendix A.) 32. The state Ethics Commission's decision is based upon the Van Rensler opinion, 90-017, wherein it was held that although the board members would be prohibited from negotiating, they are allowed to vote on a collective bargaining agreement and since voting on non-binding arbitration would be similar to voting on a final collective bargaining agreement the ethics law would not exclude them from voting on an arbitrator's award. 33. The statutorily created and regulated process for the negotiations of collective bargaining agreements set forth in Article XI-A of the Public School Code creates three separate -8- methods for arriving at a collective bargaining agreement: (1) bilateral negotiation to the point of agreement by the parties, followed by ratification of the agreement by a majority of members of the school board and the Association; (2) Mutual acceptance of the report of a fact finder by a majority of both the school board and the Association; or (24 P.S. 511-l122-A) (3) Acceptance of (or failure to reject) the report of an arbitrator after statutory arbitration procedures have been concluded by a majority of both the school board and the Association. (24 P.S. 5l1-1123-A - 1125- A) 34. The opinion of the state Ethics commission is consistent with 43 P.S. 51101-1801 wherein members of an employee organization are prohibited from participating in the collective bargaining process with the proviso that such persons may vote on the ratification of an agreement. 43 P.S. 51101.1801 (emphasis added). 35. A vote for or against the acceptance of the fact finder's Recommendations is the same as a vote on the arbitrator's award and is tantamount to a vote of the ratification of an agreement since if both parties accept, a collective bargaining agreement has been reached. WHEREFORE, the Plaintiffs respectfully request this Honorable Court to declare that Kenneth Glotfelty, Ashby Collins and Robert Barrick are entitled to participate in the discussion of and vote on the fact finder's report issued in the negotiations between the -9- Big spring Education Association and the Big spring School District. Respectfully submitted, Dated: April 19, 1994 . /7 L .'/ t "C..f..-/ .~.~ ~' ~ J.,/paUl Helvy, ~rt'qu re Killian & Gephart 218 Pine Street P.o. Box 886 Harrisburg, PA 17108 (717) 232-1851 Atty. I.D. #53148 Attorneys for Plaintiffs -10- PSER-NEW KINGSTOWN TEL No.717-697-4147 Apr 7.94 17:39 No.OOl P.09 STATE ETHICS COMMISSION 3011 FINANCE BUILDING P.O, BOX 11470 HARRISBURG, PA 171D8-1470 TELEPHONE (717) 783-1810 ADVICE OF COUNSEL February 10, 1994 Kenneth Glotfelty 710 Meadowbrook~oad Carlisle, PA 17013 94-510 ReI Conflict, public offic.i.al/Employea, School Board, Uae of Author.i.ty of Office or Confidential Information, Immed.i.atB Family, Vote, Non-Binding Arbitrat.i.on. Dear Mr. GlotfeltYl This re.ponda to your letter of January ~, 1994 in which you requested advice frOM the state Ethics CoMmission. Issue. Whether' the Public Official and' EIIIployee Ethics LaW pre.ants any prohJ.bition or,reatr.i.ction. upon 'a school board member with reguc1 to vot.i.ng on non-binding arb.i.tration where an iIlllllediate family is a teacher within the di.trict. ' Facts: You are a member of the Big spring School District. Your wife is a teacher in the 'cU.strJ.ct. Ashby Collins and Robert Barrick are also Members of the Big spring School District. Both are members of the pennsylvan.i.a state Education Association (PSEA), although not in the Big Spring School District~ one has a sister who teaches in 1!he Big spring School Distr.i.ct. Both have consented to your seeldng advice as to their conduct. You request an adviSOry from the State EthicS ccmmission a. to whether you, Hr. Collins and Hr. Barrick may vote on non-binding arbitration. DJ.SCUBSJ.on: It is initially noted that pursuant to section. 7(10) and 7(11) of the Eth.i.cs Law, 65 P.S. 55407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Co~ssion doe. not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burdon of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 6S P.S. 55407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully discl060d all of the material facts. I\ppp.ndix A P~EA-~EW KINGSTOWN TEL No.717-697-4147 Apr 7.94 17:38 No.OOl P.lO ~ Glotfolty, Kenneth, 94-510 February 10, 1994 Page 2 Aa School DoA:d Hemb~s for the Big spring school District, you are public official. aa that ta:m ia defined under the Ethic. Law, and hence you Are sUbjec~ to the provisions of that law. Section 3(&) of the Ethics Law provides I Section 3. Restricted Activities. (A) No public officiAl or public amployee ahall engage in conduct that con.~tute. A conflict of inters.t. I . The following terms ll.re defined in the Ethics Law AS folloWSI Section 2. Definitions. "Conflict or conflict of interest." Use by a public of2:ic1Al or pub11c employee of the authority of his office or employment or any confident1al 1nformat10n received through his holcl1nq public oft1ce or employment for the private pecunicu:y benefit of himaelf, a member of his .1.mIIled1ata fam1.ly or II. business with wh1ch he or A member of his immediate family i. wsBociAted. "Conflict" or "conflict of interest" doe. not include An action having a de mf~fmf. economic impact orwh1ch Affect. to the slUlle degree a class consisting of the general public or A aubclass cODsisting of an induatJ:y, occupat1.on or other group which 1ncludes the public official or public employee, a member of his immediate fam1.ly or a business with wh1ch he or a member of his immediate fam1.ly is associAted. "Authority of office or employment." The actual power provided by law, the exorcise of which is neceseAry to the performance of dut1.es and respon.ibilities unique to a particular public office or position of public employment. "Iuunedill..te fam1ly." A parent, spouse, child, brother or aiater. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person ahAll offer to a public official/employee Anything of monetary value and no public official/employee shall solicit or accept anything of monetary value based upon the understanding thll..t the vote, official action, or judgement of the PSEA-NEW KINGSTOWN TEL No.71r-697-4147 Apr 7.94 17:38 No.OOl . Glotfelty, xanneth, 94-510 Feb~mry 10, 1994 I'm90 3 public official/8IIIployeo would be ~fluClnced the:reby. Reference is made to the.e provisions of the law not to imply that there has been or will be any transq:ression thereof but merely to provide a complete re.ponse to the question presented. Section 3(j) of the Ethics Law provides as followsa section 3. Restricted activities. ( j) Where voting conflicts axe not othe:rw1ae adcb:esaed by the constitution of pennsylvania or by any law, rule, regulation, orde:r o:r ordinance, the followinljJ procedw:e shall be 8IIlployed. 1\ny public official or public 8IIlployee, who in the discha:rge of his official dutj,.s, would be requUed to vote on a matte:r that would result in a conflict of inte:rest shall abstain from voting and, p:rior to the vote beinq taken, publicly announce and disclose the natw:e of his intuest as a public record in a written m8lllorandum filed with the person responsible fo:r recordinq the minutes of the meetj,nq at which the vote is taken, provided that whenever a qove:rninCjJ body woulc1 be \UUlble to take any action on a matte:r before it because the number of members of the body required to abstain from voting unde:r the provisions of this section makes the majority or othu leqally reqlU:red vote of approval unattainable, then such members shall be pexmitted to vote if disclosures are mmde as otherwise provided herein. In the ca.e of a three.,member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposinq votes, the member who has abstained shall be pe:rmi.tted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) require a the public official/employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filinq a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action, because a mmjority is unattainable due to the abstention(s) from conflict .~_.,.._"'"' P5EA-NEW KINGSTOWN 7EL ~lo. 717-697-4147 Apr 7.94 17:38 No.OOl P.12 ~ Glotfelty, Kenneth, 94-510 February 10, 1994 PCllJO 4 unaer the Ethics LAw, then in that event participation i. per.missible provided the disclosure requirements noted above are followed. ~ Mlakar, Advice 91-523-S. As you are aware from Glotfeltv, Advice 93-609, the seminal Commisaion decision which appl1es section 3(4) under s1m1lar facts is Van Rensler. Opinion 90-017. The issue there was whether the Ethics Law prohibited school board directors from participating on negotiating teams and voting on collective barqa~ng agreements when members of their iJImlediate families were school district employees represented by the bargaining units. The Ethics Law does not restrict d.1rectors fram voting on final agreements, but director., cannot take part in negotiations, leading to final agreUUilnts. It was held thAt directors could, vote on final agreement. because of the exclusion in the definition of . conflict or conflict of interest" which appl1es if the i.mmGcliate family members are members of subclasses consisting of industries, occupations or other groups containing more than one member anei the family mambers would be affected exactly as the other member. of the subclasses. The commission held that if these two prerequisites for applying' the exclusion were met, school directors could vote on final collective bargaining agreements. In this calle, you indJ.catG that your proposed vote 1s not on a final agreement, but on non-binding arbitration. P'ollowinq the Commission decision in Van Rensler, voting on non-bindinq arbitrat.1on would be similar to voting on a final collect.1ve barqaininq agreement. In both cases, the exclusion in the definition of. .conflict or conflict of interest" would apply provided the immediate family members are members of a subclass consisting of an occupation or group containing more than one member and the immediate family members would be affected exactly the Dame as other members of the subclass. Under these circumstances, 11he proposed vote by the board members on non- binding arbitration would be permitted under the Ethics Law. The propriety of the proposed conduct has only bllen addressed under the Ethic. Law, the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not add%:essed herein is the applicability of the Public School Code. Conclullion: As Members tor the Big Spring School District, you are public officialD subject to the provisions of the Ethics Lllw. Based upon the facts of this caBe, Section 3(A) of the Ethics Law would not prohibit or :restrict you or the other Board Members from voting on non-binding arbitration provided tha exclusion in the definition of conflict of interest Gpplilils. Lastly, the propriety of the proposed conduct hilS only been addressed under the Ethics .,..-- PSF.A-MEW KINGSTOWN TEL No.717-697-4147 Apr 7.94 17:38 No.OOl P,13 .. Glotfelty, Kenneth, 94-510 F.bruA~ 10, 1994 Paqe 5 LAW. Pursuant to Section 7(11), this Advice io a complete defen.. in any enforcemen1;. proc..din9 initillt.d by the Commission, and evidence of qoocl fllith conduct in Ilny other civil or criminal proceeclinlJ, providinq the requestor has disclosed truthfully Illl the material facts and committed the Ilcts complained of in reliance on the Advice qiven. ~his letter io a public record and will be made GVGilllble aa such. ' FinAlly, U: you disagr.. with this Advice or if you hllve any reason to challenqe same, you may appeal the Advice to the full Commission. A per.onal appeGrance before the coMmission will b. scheduled and Il fOrmAl Opinion will be issued by the Commission. Any such appeal must be In writing and must be ~ received at the Commission within fifteen (15) days of the date of this Advice pursuantto 51 Pa.Code i13.2(h). The appeal may,be received at the Commission by hand delivery, United States mall, delivery service, or by FAX transmission (717-787-0806). {2cerolY' Vincent . Dopko Chief Counsel ,- VIIR!I'!aJ.'l'!OB I hereby verify that the etat8Jllents of fact made in the foreqoinq document are true and. correct to the best of 'fAy knowledqe, information and belief. I understand that any fal.. Itat8JllantB therein are .ubject to the penalties oontained in 18 Pa.C.S. 14g04, relatinq to unsworn falsification to aU~loriti.s. (Jpf2 rt: U ~>, carlin L. wanqer 0 Dateel: Ap_ '/ ) I) ) 9'1 'T . VJlRl:PICJI.'l'l:OIf I hereby verify that the statements of fact made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any fal.. statements therein are subject to the penalties contained in 18 Pa.C.S. 54904, relating to unsworn falsi ication to authorities. .... Dated: April 19, 1994 , CBRTIPICATB OP SBRVICB I, J. PAUL HELVY, ESQUIRE, do certify that I served a true and correct copy of the within document upon Richard C. Snelbaker, Esquire, via FAX transmission to number (717) 697-7681. A copy was also placed in the United states mail, postage prepaid, addressed as follows: Richard C. Snelbaker, Esquire snelbaker & Elicker 44 West Main street P.O. Box 318 Mechanicsburg, PA 17055-0318 Dated: April 19, 1994 y . Paul Helvy, Ksquire illian & Gephart 218 pine Street P.O. Box 886 Harrisburg, PA l7108 (717) 232-1851 Attorneys for Plaintiffs - qLf-1 ~3Lfc.. T, RE: BIG SPRING SCH. et al. v. BIG SPRING ED. Lower Court No: 94-l834CIV Appealed Date: April 22, 1994 County: CUmberland commonwealth Docket #: 1312 C.D. 1994 1430 C.D, 1994 IN THE COMMONWEALTH COURT OF PENNSYLVANIA CERTIFICATE OF CONTENTS OF REMANDED RECORD AND NOTICE OF REMAND UNDER PENNSYLVANIA RULES OF APPELLATE PROCEDURE 2571 AND 2572(e) THE UNDERSIGNED, prothonotary or Deputy Prothonotary of the commonwealth Court of Pennsylvania, the said court being a court of record, does hereby certify that annexed to the original hereof is the whole and entire record as remanded from the Commonwealth court, in compliance with pennsylvania Rules of Appellate Procedure 2571 and 2572 (e) . An additional copy of this certificate is enclosed with the original hereof and the clerk or prothonotary of the lower court or the head, chairman, deputy or secretary of the government unit is hereby directed to acknowledge receipt of the remanded record by executing such copy at the place indicated and by returning the same IMMEDIATELY. Office of the Chief Clerk commonwealth Court of Pennsylvania P.O. Box 11730 South Office Building Harrisburg, PA 171D8 (717) 783-3215 or 783-7058 ,eRff~k~ Deputy Prothonotary/Ch1ef Clerk (Seal of Court) Record Received: ar~Ad1;~j,a7r~lflh1 ~ ~te~~M7A,! Reason for Remand Date record Remanded Reversed March 30, 1995 MfC , '11-a. 9'-1- / 't3 '+ C . T, IN THE COMMONWEALTH COURT OF PENNSYLVANIA BIG SPRING EDUCATION ASSOCIATION, Appellant . . . . v. : : BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. AND JAMES SHOWVAKER . . . . . . , , I ;;' ~,\t\'~~ r....'. . -'", ... '-~~-"_."""" ',~'"" I '- _ r . . : . . BIG SPRING EDUCATION ASSOCIATION . . : v. : . . BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHB1( COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. AND JAMES SHOWVAKER, . . . . . . : Argued: Dece~er 6, 1994 . . : Appellants : BEFORE: HONORABLE DORIS A. SMITH, Judge HONORABLE SANDRA SCHULTZ NEWMAN, Judge HONORABLE CHARLES A. LORD, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE NEWMAN FILED: January 26, 1995 Big Spring Education Association (Association) and the Big Spring School District (District), along with its Board of Directors (Board), appeal from an order of the Court of Common Pleas of CUmberland County (trial court), which held, inter AliA, that the Association had standing to bring a declaratory judgment action concerning the voting rights of certain Board members. We reverse. FACTS . The Association is the exclusive bargaining agent for the professional employees of the District. In November of 1991, the Association and the District began negotiations for a labor contract to cover the 1992-93 school year. On June 30, 1992, the collective bargaining agreement, which had encompassed school years 1989 through 1992, expired. Although the contract expired, the parties continued to negotiate without a work stoppage. Because the parties were unable to reach an agreement, they submitted the matter to fact-finding in January 1993 as provided in Section 1122- A of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 403, No. 88, S 1, ~ amended, 24 P.S. S 11-1122-A.' 1 Article XI-A of the Code sets forth a procedure aimed at achieving a settlement if the parties reach an impasse in negotiations. The provision provides that either party may request the Pennsylvania Labor Relations Board (PLRB) to order fact-finding. Once the fact-finder renders his or her findings and recommendations, the parties must notify the PLRB within ten days if they accept the report. If the parties do not accept the report, it -1s-published. _ -At-that, point.,.-the parties must again notify the PLRB and each other, not less than five days nor more than ten days after publication, whether they accept the recommendations of the fact-finder. If the parties accept the recommendations, the matter is resolved. otherwise, the negotiations continue, and the Code provides for other possible methods for resolution of the dispute. 2 '~'---"'''!~,~~ , , On March 8, 1993, the fact-finder issued his findings of fact and recommendations, which the Association rejected. Negotiations after that continued until the parties again submitted the matter to fact-finding. This time, the Association accepted the fact- finder's report, but the District rejected it. consequently, the fact-finder published his report in accordance with section 1122- A(c) of the Code, 24 P.S. I 11-1122-A(c). As required, both parties had to vote to either accept or reject the fact-finder's recommendations. Within the ten-day period, the Association accepted the report; however, the District's Board rejected it. During the Board's vote, the District's solicitor ~dvised three members of the Board, Kenneth Glotfelty (Glotfelty), Ashby Collins (Collins), and Robert Barrick (Barrick), that they should abstain from voting because they had a conflict of interest. According to the solicitor, Glotfelty's conflict arose from the fact that the District employed his wife as a teacher; Collins' conflict was predicated on the fact that he is a Pennsylvania state Education Association (PSEA) member as well as a teacher in another district; and Barrick's conflict was because that he is a teacher in another district and that his sister is a teacher within the District.2 On April 11, 1994, the Association filed a complaint with the trial court seeking a declaratory judgment concerning the voting rights of Glotfelty, Collins and Barrick. within a week, the Association filed a motion for accelerated disposition of the 2 Barrick is not a member of the PSEA. 3 ,. action to which the District, on April 19, 1994, filed a motion in opposition. The next day, the trial court held a hearinq on the matter. By decision and order dated April 22, 1994, the trial court initially determined that the Association had standinq to bring the action. specifically, the trial court reasoned that: [t]he Association obviously has a 'substantial, direct and immediate' interest in the Board of Directors['] vote on the fact- finder's report. The outcome of this vote directly affects the Association's members' contract and employment status. As such, the Association has standing. Trial Court opinion and order, dated April 22, 1994, at 6. The trial court then concluded that the Association was entitled to accelerated disposition, because [t]he defendants will not be prejudiced in any manner: in fact, our determination today stems directly from the District's action in forbidding the three members of the Board of Directors from voting. The only entity prejudiced by accelerating the disposition of this matter is the court which is required to give an immediate decision. Therefore, we believe acceleration of the disposition of this matter is proper. ~., at 6-7 (footnote omitted). Finally, the trial court held that the District should have permitted Glotfelty and Barrick to vote on the report because they did not have a conflict of interest. However, the trial court 4 concluded that Collins, because of his membership in PSEA, had a conflict of interest. Both parties filed cross-appeals with our court. ISSUES The District asks us to review the trial court's determinations that the Association had standing, that the Association was entitled to accelerated disposition of the matter, and that Glotfelty and Barrick did not have a conflict of interest. The Association asks us to review the trial court's conclusion that Collins had a conflict of interest because of his membership in PSEA.3 DISCUSSION DOES THE ASSOCIATION HAVE STANDING? The District contends that the Association lacked standing since it was not "aggrieved." Specifically, the District argues that the Association was not substantially, directly, and immediately affected by the District's action in precluding the three Board members from voting on the fact-finder's report. We agree. 3 Our scope of review is limited and a decree will not be disturbed unless it is not suppod:ed by the evidence or demonstrably capricious. Tredvfl'rin-Easttown School District v. Vallev Forae Music Fair. Inc.. 156 Pa. Commonwealth ct. 178, 627 A.2d 814, 818 (1993), netition for allowance of anneal denied, ___ Pa. Commonwealth ct. ___, 647 A.2d 513 (1993). 5 - r' ........... r- Our Supreme Court set forth the requisite elements for standinq in the seminal case of William Penn parkina Garaae. Inc. v. citv of Pittsburah, 464 Pa. 168, 346 A.2d 269 (1975). Quoting Kevstone Racewav COrDoration v. State Harness Racina commi..ian, 405 Pa. 1, 7-8, 173 A.2d 97, 100 (1961), the Court wrote: [The party] must have a direct interest in the subject-matter of the particular litigation, otherwise he can have no standing to appeal. And not only must the party desirinq to appeal have a direct interest in the particular question litigated, but his interest must be immediate and pecuniary, and not a remote consequence of the judgment. The interest must also be substantial. William Penn, 464 Pa. at 191, 346 A.2d at 280. The Supreme Court proceeded to explain standing: [T]he requirement of a 'substantial' interest simply means that the individual's interest must have substance--there must be some discernible adverse effect to some interest other than the abstract interests of all citizens in having others comply with the law. . . . The requirement that an interest be 'direct' simply means that the person claiminq to be aggrieved must show causation of the harm to his interest by the matter of which he complains. . .. The remaining requirements of the traditional formulation of the standing test are that the interest be 'immediate' and 'not a remote consequence of the jUdgment.' As in the case of ' substantial' and 'pecuniary,' these two requirements reflect a single concern. Here that concern is with the nature of the causal connection between the action_complained .of _and _the_.injury, _to .:the person challenging it. ld. at 195-197, 346 A.2d at 282-283 (citations omitted). 6 .' After review of the instant record, we hold that the Association lacked standing to bring this action. We believe that the Association's interest was not substantial because the voting rights of Glotfelty, Collins and Barrick do not have a discernable adverse effect upon the rights of the Association. Moreover, we note that the Association, by bringing this action, was not seekinq to determine its own legal rights. The Association was seeking to ascertain the voting rights of three Board members who are not within the ambit of the Association's zone of interest.' Finally, we conclude that the Association has failed to demonstrate a causal connection between the harm sustained by the District in precludinq the three board members from voting and its interest in their votinq. Therefore, we hold that the Association lacked standing, and the appropriate persons to bring this action were the three Board members. Accordingly, we reverse the order of the trial court.5 , In William Penn, the Supreme Court wrote that the test for immediacy is whether the interest that the plaintiff seeks to protect is arguably within the zone of interests sought to be protected. ~ UDDer Bucks Countv Vocational-Technical School Education Association v. UDDer Bucks Vocational-Technical School Joint Committee, 504 Pa. 418, 474 A.2d 1120 (1984) (where our Supreme Court-held,that a.union did-not-hava.standinq because any potential benefit to the teachers from the 180-day instruction requirement was not within the zone of interest that the statute sought to protect.) 5 Because of our disposition of the standing issue, we need not address the remaining issues. 7 ~ - . . IN THE COMMONWEALTH COURT OF PENNSYLVANIA BIG SPRING EDUCATION ASSOCIATION, : Appellant . . . . v. . . . . BIG SPRING SCHOOL DISTRICT, . . REGINALD HAW, ASHBY COLLINS, . . ROBERT BARRICK, EUGENE CROMER, . . KENNETH GLOTFELTY, SANDRA . No. 1430 C.D. 1994 . HOCKENSMITH, RICHARD MElLY, . . ROBERT ROUSH, JR. AND JAMES . . SHOWVARER . . BIG SPRING EDUCATION ASSOCIATION . . . . v. . . : BIG SPRING SCHOOL DISTRICT, . . REGINALD HAW, ASHBY COLLINS, . . ROBERT BARRICK, EUGENE CROMER, . . KENNETH GLOTFELTY, SANDRA . No. 1312 C.D. 1994 . HOCKENSMITH, RICHARD MElLY, . . ROBERT ROUSH, JR. AND JAMES . . SHOWVARER, . . Appellants : ORDBR AND NOW, Januarv 26. 1995 , we reverse the order of the Court of Common Pleas of cumberland County, dated April 22, 1994. ~~ " j ~ r""'.:..~_.jn:::1!-~:t ---..-- , ' ^' .. ...~ f"4. CIW'(') f') CM'I': ^NIJ 'l'1l^N:.f4/'I"I'Al, OJ' IH':COIUl l/NUI-:Jl PENNSYYV:/\~Ih!l.!lI,(,~l::"'I\PI'''I..!~^:I:!':, ~~~IOC('~nU/lE 19]1 (c) To the Prothonotary r)f the ^PIl" II ill.. Court to which the within matter hilS been appealed: COMMONWEALTH COURT OF PENNSYLVANIA TIll:: UNDEHS1GNF:D, Prothonolo1ry o! 1 he ('Ollrl: lit' Conullon Pleas Ol _~gf!!!EJ!,~,~~,D_______,_,_ CO\lnty, th(' :>,Jid '~O)lll'l: hcln'J " C':r)url: of record, do hereby certify thilt ttrIIH.;-{pd 11f.~lt~1() in II t:r.uc and correct copy r)~ l~hc: \'lho.lt' .Hld enl.irl' r~ '('nrd, incJlIdi.llq (In opinion of the court iJ~: l'f,:qll-~red hy Pl\ H.t\. i'. I(J.~C'"), t.IIl' orilJinill pdpCrt3 iJnd exhibits, .11 i1ny Cd1 fi 1(~, I.he' I r,ltPa:! ipt of the proc~eedingG, jf any, and tile docl.I!\: eti1ries ill lite' fullo\.;i:tCj lIlatter: No. 94-l834 Civil Term; Nos. l3l2 and l430 C.D. 1994 Big Spring Education Association vs. Big Spring School District. Reginald Haw, Ashby Collins. Robert Barrick, Eugene Cromer, Kenneth Glotfelty, Sandra Hockensmith, Richard Meily, Robert Rouse, Jr., and James Showvaker in compliance .lith Ph 1l.1\.P. 1')31 (e). The document5 comprisinCJ the J'o>cflnl have been numbered from No.1 to Ntl. _.1'60____, i1nd olttachl'tI hereto iJS Exhihit h is il list of the documents corre!;pond lllHly numbered <Inti identified with reasonable definiteness, illcludinlJ lvith respect 1:0 each document, the llumber of pages comprising the document, The date on '.':hich the recnnl hil>-l 11(~Cll lrallsmi ltC'd 1.0 llle appella te court i!'1 ____~un.!!_,l5.,_~~~~__ ___ (Sea] of Court) _~~ t. )'V~~41-~ Prothonotary I~ dd' 0 1 fl' Of' 0 VIliV^li '::I~lJtl . An a 1t1onu copy 0' tl15 cert1lC':ute lS anc osed. Plcu~c s~gn and date copy. thereby dcknOldedging L<l~Q1pt: of tn~ooccord. w:'" .")JU RBCOHl) RECEIVED: Illlte: I." HJII~ i LI Wi[' -_.,--~_...._~._-_..~ -----._-_.---------- .---.--.---- (SigllolturC' & l:it1e) ,.. . Commonwealth of Pennsylvania Counly of Cumberland 1 ss: I, Lawrence E. Welker . Prolhonolary of Ihe Court of Common Pleas in and for said Counly. do hereby cerlify Ihal Ihe foregoing is a full. Irue and correel copy ofthe whole record ofthe case therein slaled, wherein Bia Sorina Education Association Plainliff, and Bia Sorina School District. et al In TESTIMONY WHEREOF. I Ihis Fifteenth Defendanl _. as Ihi: same remains of reeord before Ihe said Courl 01 No. 94-1834 of Civil Term, A,D, 19_. have hereunto sel my hand and affixed Ihe seal of said COUrl day of June A, D.. 19..21-, Nos. l3l2 , 1430 C.D. 1994 5\\..,:0.. (1. ~~ ~ [::) ~. I'rnlhnnnulry I. Harold E. Sheely Presidenl Judge of Ihe Ninth Judicial Dimict. composed of Ihe County of Cumherland. do certify Ihat r.Awrf!"'''' E. W..l k"r. P,.,..,t-hnnnt-A'Y . hy whom Ihe annexed reeord. cerlilicate and allcslalion were made and given. and who. in his own proper hand....riling, Ihereunto subscribed his name and affixed the seal of Ihe Court of Common Pleas of said County. was, allhe time of so doing. and now is Prolhonolary in and for said Counly of Ctll1lhPrl And in Ihe Commonwealth of Pennsylvania. duly commissioned and qualified to all ofwhoseaclsassuch full failh and credil arc and oughlto he given as well in Co uris of judicature as elsewhere, and Ihatlhe said reeord. cerlificate and alleslalion arc in due form of law and by Ihe pr per officer, Commonwealth of Pennsylvania Counly of Cumberland } ss: I, Lawrence E. Welker . Prolhonotary of Ihe Court of Common Pleas in and for the said Counly, do cerlify thallhe Honorahle Harold E. Sheely by whom the foregoing alleslation was made. and who has thereunto subscribed his name. was.allhetime of making thereof, and slill is PresidentJudge oflhe Courl of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose aclS as such full failh and credit arc and ought 10 be given. as well in Courls of judicalure as elsewhere. IN TESTIMONY WHEREOF. I have hereunto sel my hand and affixed Ihe seal of said Courl Ihis 15th day of June A,D. 19-2!, ~ Cl.. 'f2..,':...u o " JJ~. I'r"lhllnul;lf~ . . . ~ I c u >. oJ J ... III '.t - .s to c 0\ III Iol :I i 0\ 2: .c ~ e .-l III Q 0 E C '.t ... . 0 Q = 1! Q ~ '.t Q ... . ~ .-l I.J 'C U ..t III 8 III C > U = III Cl '.t ::l ~ .c Q .-l t"l U is r:! U III Iol ... u en - Q) .... "'" .-l ... > - S 'B t"l ..; if III lI:l a. .-l :e U ... N I III c .-l ... ~ .. t"l 0\ .-l III ~ .-l III E . ~ - E u '.t '.t ~ e ... 8 c 0;; 0;; l!S Q :z :z III III Q) "'" .: w -- w . . Among the Records and Proceedings enrolled in the court of Common Pleas in and for the CuTberland Nos. l3l2 and l430 C.D. 94-1834 Civil Term counly of in Ihe Commonwea\lh of Pennsylvania 1994 Term, 19 10 No. is contained the following: Appearance COPY OF DOCKET ENTRY Big Spring Education Association VB. 1 - 16 April. 11, 1994, Canplaint, filed. 17 - 20 April. 15, 1994, Motion for Accelerated Disposition, and Order, filed. AND NCM, this l5th day of April, 1994, pursuant to the attached Motion for Accelerated Disposition, a hearing in the above-referenced matter is scheduled for l:30 p.m. on April 20, 1994, in Courtroan No. l, at the CUnb- erland County Courthouse, Carlisle, PA. Plaintiff shall sul:mit a brief at the hearing citing cases for the relief requested. By the Court, Harold E. Sheely, P.J. April. 19, 1994, Amended Canplaint in Declaratory Judgnent, filed. April. 22, 1994, Motion in Opposition to Accelerated Disposition, Opinion, and Order of Court, filed. AND NCM, this 22nd day of April, 1994, we make the following order: 1. Big Spring Education Association has standing to bring the present action: 2. Plaintiff is entitled to accelerated disposition of this matter: 3. Mr. Glotfelty and Mr. Barrick are not considered to have a conflict of interest which would preclude either fran voting on the report of the fact finder. This does not mean that either cannot abstain based on persona deference. 4. Mr. Collins is precluded fran voting on the report of the fact finder due to a conflict of interest based on his membership in PSEA. By the Court, Harold E. Sheely, P.J. May 2, 1994, Defendants' Preliminary Objections to Canplaint, filed. May 11, 1994, Defendants' Motion for Post-Trial Relief, and Order of Court, filed. AND NCM, this llth day of May, 1994, defendants' motion for post-trial relief is hereby DENIED. This Court's Order dated April 22, 1994 was intended as a final order and adequately discussed all issues raised in defendants' motion. The defendants have not presented any requirement daronstrating the need for this court to have issued a decree nisi. There- fore, defendants' motion is denied. By the Court, Harold E. Sheely, P.J. May 11, 1994, Plaintiff's Answer to Defendants' Preliminary Objections, fil May 11, 1994, Plaintiff's Motion for Post Trial Relief, filed. May 17, 1994, Order of Court, filed. In Re: Plaintiff's Motion for Post- Trial Relief AND NCM, this 17th day of May, 1994, plaintiff's motion for post-trial relief is hereby DENIED. This Court's Order dated April 22, 1994 was intend as a final order and adequately discussed the two issues raised in PAGE w. 2l - 39 40 - 58 59 - 63 64 - 70 71 - 74 75 - 77 78 . . r"""\ r-. Among the Records and Proceedings enrolled in the court of Common Pleas in and for Ihe counly of CUnberland Nos. 1312 and l430 C.D. 94-l834 Civil Term in Ihe Commonweallh of Pennsylvania 1994 Term. 19 is contained Ihe following: to No, COPY OF _ Appearance DOCKET ENTRY Big Spring Education Association VB. Big Spring School District, et. al. . o '" 78 plaintiff's rrotion. Therefore, plaintiff's rrotion is denied. By the Court, Harold E. Sheely, P.J. 79 - 84 H!Iy 20, 1994, Notice of Appeal, and Order for Transcript, filed. Notice is hereby given that Big Spring School District and the several named members of its Board of School Directors collectively in their officia (not individual) capacities, Defendants above named, hereby appeal to the Commonwealth Court of Pennsylvania from the order entered in this matter on the 22nd day of April, 1994. This order has been entered in the docket as evidenced by the attached copy of the docket entry. By: Richard C. Snelbaker, Esq. Atty for Defts. 85 - 88 H!Iy 26, 1994, Commonwealth Court of Pennsylvania Official Docket H l3l2 C. D. 1994. 89 - 92 June 2, 1994, Notice of Appeal, filed. Notice is hereby given that the Big Spring Education Association, Plain- tiff in the above-captioned action, hereby appeals to the Carmonwealth Court of Pennsylvania from the Order entered in this matter on April 22, 1994. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. By: J. Paul Helvy, Esq., Atty for Plff. 93 - 96 June 8, 1994, Commonwealth Court of Pennsylvania Official Docket No. l430 c. D. 1994. 97 - 138 June lO, 1994, Transcript of Proceedings, filed. 139 - l60 Exhibits , - , "', '.->>;:A~~ijj~ ' KIL~;~~~; ?J~'~~r~~I(~ -/ :i'~:;"~ \:;;;'.'.;~~:t.~~;:~{~~~~tt1: ,lWiftitillURlI;IPINNlIYLvANlA;rj,(' .-. , '. ,::,,''''~'~''~''''''': ._.,\.~.:~_:~~=---..:_.::~_,.:::.:..:._.::.;.{j:"~.t'.t~'~ BIG SPRING EDUCATION ASSOCIATION, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA plaintiff v. No. qi/- J'gJtj Ct'Vi) TerrY1 BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. and JAMES SHOWVAKER, Defendants CIVIL ACTION - LAW 110'1' I C B YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by an attorney and file in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed with"ut you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse - Fourth Floor 1 Courthouse square Carlisle, Pennsylvania 17013-3387 Telephone (717) 240-6200 I . . BIG SPRING EDUCATION ASSOCIATION, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . . . plaintiff : v. . . . No. BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. and JAMES SHOWVAKER, Defendants CIVIL ACTION - LAW . . . . COMPLAXII'l' XII DECLARATORY J1JDCDIB1I'l' AlfD 110. comes the Plaintiff, the Big Spring Education Association, by and through its attorneys, Killian & Gephart, and does bring this Declaratory Judgment Action pursuant to 42 Pa.C.S.A. 17531 ~ ~ I. The Parti.. 1. This Complaint seeks a declaratory judgment concerning the voting rights of members of the Big Spring Board of School Directors on matters related to collective bargaining under the Public School Code and the Public Employe Relations Act pursuant to the Declaratory Judgments Act, 42 Pa.C.S.A. !i7531 ~~, together with other appropriate relief. 2. The Plaintiff, the Big Spring Education Association (hereinafter referred to as the "Association") is an employee .z. flit . J organization within the meaning of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563 as amended, 43 P.S. 111101.101-1101.203. Its principle office is located at 31 East Main street, New Kingstown, CUmberland County, Pennsylvania. 3. Defendant, the Big spring School District (hereinafter referred to as the "District") is a public employer within the meaning of PERA. Its principle office is located at 45 Mount Rock Road, Newville, CUmberland County, Pennsylvania. 4. Defendants, Reginald Haw, Ashby Collins, Robert Barrick, Eugene Cromer, Kenneth Glotfelty, Sandra Hockensmith, Richard Meily, Robert Roush, Jr. and James Showvaker are members of the Big spring School District Board of School Directors. Their address for School District business matters is 45 Mount Rock Road, Newville, CUmberland County, Pennsylvania. II. '1'he statute. to be con.idered 5. Section 301 of the Public School Code provides: The public school system of the Commonwealth shall be administered by a board of school directors, to be elected or appointed, as hereinafter provided. 24 P.S. !i3-301- 6. section 303 of the Public School Code provides: (a) ... in each school district of the second, third and fourth class, there shall be a board of nine (9) school directors.... 24 P.S. !i3-303. -2- ft . 7. Section 322 of the Public School Code provides: Any citizen of this Commonwealth, having a good moral character, being eighteen (18) years of age or upwards, and having been a resident of the district for at least one (1) year prior to the date of his election or appointment, shall be eligible to the office of school director therein: Provided, That any person holding any office or position of profit under the government of any city of the first class, or the office of ... teacher, or employe of any school district, shall not be eligible as a school director in this Commonwealth. This section shall not prevent any district superintendent, assistant district superintendent, supervisor, teacher, or employe of any school district, from being a school director in a district other than the one in which he is so employed.... 24 P.S. 13-322. 8. section 324 of the Public School Code provides: No school director shall, during the term for which he was elected or appointed, as a private person engage in any business transaction with the school district in which he is elected or appointed, be employed in any capacity by the school district in which he is elected or appointed, or receive from such school district any pay for services rendered to the district except as provided in this act. ... 24 P.S. 13-324. 9. Section 1801 of PERA provides: (a) No person who is a member of the same local, State, national or international organization as the employe organization with which the public employer is bargaining or who has an interest in the outcome of such bargaining which interest is in conflict with the interest of the public employer, shall participate on behalf of the public employer in the collective bargaining processes with the proviso that suoh p.rson _7, wh.r. .ntitl.d, vote on the ratification of aD aqr....nt. (emphasis added) 43 P.S. 11101.1801. -3- '/ " ',.,., . III. ..a~u.l Baakaround 10. The Association has been certified by the Pennsylvania Labor Relations Board (PLRB) as the exclusive bargaining agent for the eligible professional employees of the District as certified by the PLRB in its Order dated April 2, 1971 and coded PERA-R-302-C for wages, hours, and terms and conditions of employment. 11. The last bilaterally executed collective bargaining agreement entered into between the Association and the District expired on June 30, 1992. 12. In October 1991 the Association and the District' commenced negotiations for a successor contract. 13. Although the Association and the District engaged in mediation as required by PERA, no successor collective bargaining agreement was reached. 14. On January 26, 1993 the PLRB ordered the Association and the District. to submit to fact finding as required by Article XI-A of the Public School Code of 1949, as amended, 24 P.S. 111-1122-A which became effective July 9, 1992. 15. On March 8, 1993 the fact finder issued Findings of Fact and Recommendations. 16. Prior to the issuance of the fact finder's Findings of Fact and Recommendations, the District had sought and received its solicitor's opinion regarding the ability of three of the school board members to take part in the collective bargaining process due to potential conflicts of interest. -4- 5' ~'Y1' 7r- ~ -- 17. The aforesaid three school board members and the reasons their ability to take part in the collective bargaining process have been placed in question are as follows: a. Kenneth Glotfelty -- Mr. Glotfelty's wife is a member of the bargaining unit represented by the Association. b. Ashby Collins -- Mr. Collins is a professional employee and a PSEA member at the Scotland School, a school entity which is separate and apart from the Big spring School District. c. Robert Barrick -- Mr. Barrick is a professional employee in the Carlisle School District, however, he is not a member of the carlisle Education Association or the Pennsylvania state Education Association. Mr. Barrick has a sister who is a member of the Big spring collective bargaining unit. 18. On or about March 4, 1993 the members of the District's school board were notified, by their solicitor, that Mr. Glotfelty, Mr. Collins and Mr. Barrick were not entitled to receive a copy of the fact finder's Recommendations in advance of the meeting at which the board was to act on acceptance or rejection of the recommendation, were not entitled to attend the school board meeting at which the fact finder's Recommendations were to be presented to the board, nor were they entitled to vote on the acceptance or rejection of the fact finder's Recommendations. -5- ~ . ,..,_"M._ o . 19. On or about March 4, 1993 the school board was also informed by its solicitor that although only 6 of the 9 school board members were eligible to vote, that a vote of 5 of the 6 eligible school board members would be required to accept the fact finder's report. 20. The District's school board never voted to accept or reject the fact finder's Findings of Fact and Recommendations which were issued in March of 1993. 21. The Association took no steps to compel the school board to accept or reject the Findings of Fact and Recommendations of the fact finder issued in March of 1993, since the Association rejected the determinations of the fact finder. 22. On February 22, 1994 pursuant to !i1122-A of the School Code (24 P.S. !i11-1122-A), the PLRB appointed a second fact finding panel and ordered a second fact findinq to ensue. 23. On April 4, 1994 the fact finder issued Findings of Fact and Recommendations. 24. Pursuant to 1122-A of the School Code (24 P.S. 111-1125- A) the Association and the District have no more than ten days after the Findings and Recommendations have been sent to notify the PLRB and each other whether or not they accept the Recommendations of the fact finder. 25. If the Recommendations of the fact finder are not accepted by both parties they are publicized. -6- 7 o o 26. The parties are then required in not less than five days nor more than ten days after the publication of the Findings of Fact and Recommendations to again inform the PLRB and each other whether or not they will accept the Recommendations of the fact finder. 27. On April 5, 1994 the Association became aware for the first time that the District would not allow the three aforementioned members of the school board to vote on the fact finder's Findings of Fact and Recommendations. IV. '1'he DisDute 28. The Association believes and therefore avers that, absent the issuance of a declaratory judgment by this court, the board will adhere to the advice given by its solicitor in 1993 and only permit six of the nine elected members to participate in the consideration and vote on the fact finder's report, effectively disenfranchising one-third of the elected school board members on this issue. 29. within the last week it has come to the attention of the Association that the state Ethics commission has issued an advisory opinion regarding the ability of the aforementioned three board members to vote to accept or reject a non-binding arbitrator's report as provided by !i1125-A of the School Code, 24 P.S. !i11-1125- A. -7- g o <<I 30. The state Ethics commission has indicated that the ethics law would not prohibit or restrict the three board members from voting on this matter. (A copy of the state Ethics Commission Report is attached hereto and incorporated herein as Appendix A.) 31. The state Ethics Commission's decision is based upon the Van Rensler opinion, 90-017, wherein it was held that although the board members would be prohibited from negotiating, they are allowed to vote on a collective bargaining agreement and since voting on non-binding arbitration would be similar to voting on a final collective bargaining agreement the ethics law would not exclude them from voting on an arbitrator's award. 32. The statutorily created and regulated process for the negotiations of collective bargaining agreements set forth in Article XI-A of the Public school Code creates three separate methods for arriving at a collective bargaining agreement: (1) bilateral negotiation to the point of agreement by the parties, followed by ratification of the agreement by a majority of members of the school board and the Association: (2) Mutual acceptance of the report of a fact finder by a majority of both the school board and the Association: or (24 P.S. !i11-1122-A) (3) Acceptance of (or failure to reject) the report of an arbitrator after statutory arbitration procedures have been concluded by a majority of both the school board and the Association. (24 P.S. !i11-1123-A - 1125- A) -8- 9 o o 33. The opinion of the state Ethics Commission is consistent with 43 P.S. 11101-1801 wherein members of an employee organization are prohibited from participating in the collective bargaining process with the proviso that suoh psrsoDs aay vote OD the ratification of aD aqr....nt. 43 P.S. !i1101.1801 (emphasis added). 34. A vote for or against the acceptance of the fact finder's Recommendations is the same as a vote on the arbitrator's award and is tantamount to a vote of the ratification of an agreement since if both parties accept, a collective bargaining agreement has been reached. WllBRBFORB, the Plaintiff respectfully requests this Honorable Court to declare that Kenneth Glotfelty, Ashby Collins and Robert Barrick are entitled to participate in tho discussion of and vote on the fact finder's report issued in the negotiations between the Big spring Education Association and the Big Sprinq School District. Respectfully submitted, . Paul Helvy~ Esqu re illian & Gephart 218 pine Street P.o. Box 886 Harrisburg, PA 17108 (717) 232-1851 Atty. 1.0. #53148 Attorneys for Plaintiff Dated: April 11, 1994 -9- Iv PSEA-NEW KINGSTOWN TEL No.717-697-4147 '""' Apr 7,94 17:38, No.QOl P.09 "" ;. 7.::.\: "." 'J' '.;."....1\.\ - ~',"r.";'I,., ~. /too ,1'I'.PI". ", t~ <';",~:'~ , ......,;,'~.:-... '!!' STATE ETHICS COMMISSION 3011 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783-1010 ADVICE OF COUNSEL February 10, 1994 Kenneth Glotfelty 710 Meadowbrook 'Road Carlisle, PA 17013 94-510 Re: Conflict, public Official/Employee, School Boa:rd, Us. of Authority of Office or Confidential Information, Immediate Family, Vote, Non-&inding Arbitration. Dear Hr. Glotfelty: This :responds to you~ letter of January ~, 1994 in which you requested advice from the S~ate Ethics Commission. Issue. Whether' the Public Official and' Employee Ethics Law pre.ents any prohibition' or ,restriction. upon 'a school board member with :rega:rcl to voting on non-binding arbitration where an immediate fDJl\ily is a teacher within the dietrict. ' Facts: You are a member of the Big Spring School District. Your wife is a teache:r in the 'district. Ashby collins and Robert Barrick are also Members of the Big Spring School District. Both are members of the pennsylvania state Education Association (PSRA), although not in the Big Spring School District; one has a sister who teaches in 1!he Big spring School District. Both have consented to your seeking advice as to their conduct. You request an advisory from the State Ethics commission as to whether you, Hr. Collins and Hr. Barrick may vote on non-binding arbitration. DiSCUSSion; It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 6S P.S. 55407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission doe. not engage in An independent investigation of the facts, nor does it speculate as to facts which have not been submitted. Xt is' the burden of the requestor to truthfully disclose all of the'material fActs relevant to the inquiry. 6S P.S., 55407(10), (11). An adviSOry only affords a defense to the extent the :requestO:r has truthfully disclosed all of the material facta. I\ppp.nclix 1\ II f~" ..........'-::~';'I;~c-""~';::' PSEA-NEW KINGSTOWN TEL No.7l7-697-4l47 t" Apr 7.94 l7:38,No.Opl P.10 ,... ..' Glotfelty, Kenneth, '4-510 Februaxy 10, 1994 page 2 ~ School DOaxd Kember. for the B1g spring School D18trict, you are public officials .s that t8%m is defined under the Ethics uaw, and hence you are 8Ub~ec~ to the provisions of tha~ law. Section 3(.) of the Ethics Law provides. Section 3. Re.tricted Act~lt18B. (a) No 1)Ublic, official or public employse shall engage in conduct that con.titute. a conflict: of 1nterest. , The follow.f.ng terms are defined in the Ethics Law as follows: Seet:ion 2. Definitions. "Conflict or conflict of interest." Use by a public otficial or pUblic employee of the author.f.ty of his office or employment or any confidential info~tion received through hiB holding public office or employment for the private pecunilu:y benefit of himself, a mllDlber of hia 1mmediate fllJllily or a businesB with which he or a Dl81IIber of his immediate family .f.s ..socuted. "Conflict. or "conflict of .f.nterest. does not .f.nclude an action hav.f.ng a de minimis econamic impact or which affect8 to the a_e degree a clallll consisting of the general public or a subclass conBiBting of an inc1\Utry I occupation or other group which includes the public official or public employee, a member of his immed1ate family or a business with which he or a mllDlber of h1s immediate family i. associated. "Authority of office or employment."' The actual power provided by law, the exerc1se of wh1ch is necesBaxy to the performance of duties and r&Bpon8ibilitiell unique to a particular public office or position of public employmsnt. "Immed1ate family." A parent, BpouBe, child, brother or sister. In addition, SectionB 3(b) and 3(c) of the Eth1cs Law provide 1n part that no person ehllll offer to a publ.f.c official/employee anything of monetary value and no public official/employee shall Bolicit or accept anything of monetary value ba8ed upon the understanding that the vote, official action, or judgement of the /.2- PSEA-NEW KINGSTOWN TEL No.717-697-4147 t"'I Apr 7.94 17:38_No.~Ol P.ll "" .. Glotfelty, Kennet~, 94-510 ~ebruaxy 10, 1994 l'e.qe 3 publ1c officie.l/_ployee would be 1pfluencec1 thereby. Reference ie made to the.e provision. of the law not to imply that there he.s been or will be e.ny tre.nsqrassion thereof but merely to provide e. complete re.ponse to the quaetion pre.ented. Section 3(~) of the Ethics Law provide. as follows I Section 3. Restricted ac~iy~tieB. ( ~ ) Where voting- conflict. uo not otherw1se adch::e18ed by the constitution of pennsylve.nie. or by any law, rule, regule.tion, omer or ominance, the followinq procedure shall be employed. Any public official or publio employe8, who in the discharge of his official d.utie., would be requi.rec1 to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly e.nnounce and disclolle the natura of his interest as a public recom in a written memorandUl1l filed with tha person responsible for recording the minutes of the meeting at which the vote is te.ken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body refZ\11red to abste.in from voting under the provisions of this s.ction makes tha ma~ority or other leg-ally reqllired vote of approval unatte.inable, than' such members shall be pe~tted to vote if disclosures are made as othexwise provided herein. In the case of a three.,member governing body of a political subdivision, where one member has abstained from votinq as a result of a conflict of intereet, and the remaining two members of the qove:rn1ng body have cast opposing vote., the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a confJ.ict exists, Section 3 ( j ) requires the public official/employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandUl1l to that effect with the person recording the minutes or supeJ:Visor. In the event that the required abstention results in the inability of the governmental body to take action, becau.e a majority ia unattainable due to the abstention(s) from conflict p .. ..,-.. ~ PSEA-NEW KINGSTOWN TEL No.717-697-4147 1""'1 Apr 7.94 17:38.No.Opl P.12 I"" .. Glotfelty, Kenneth, 94-510 February 10, 1994 Pago 4 ' under the Ethics Law, then in that event pa:ticipllotion i. per.missible provided the disclosure :equirement. noted above are followed. ~ Mlakar, Advice 91-S23-S. Au you a:e aware fram Glotfeltv, Advice 93-609, the sem1na~ Commission decision which applies Section 3(a) unde: similar facts is Van Rensler, Opinion 90-017. The issue there was whether the Ethics Law prohibited school board directo:cs from participating on negotiating teams and voting on collective bargaining agreements whcm members of their immediate families were school district employees represented by the bargaining uiUts. '1'he 1:thica Law does not restrict d!.rectore fram voting on final agreementB, but directors, cannot take part in negotiations. leadinIJ to final agreemants. It was held thAt directors could, vote on :Una~ agreement. because of the exclusion in the definition of "conflict or conflict of interest" which applies if the immediatll family membe:c. are members of subclAsses consisting of industries, occupations or other gJ:'oups containing more than one mlllllber and the family membe:a would be affected exactly aa the othor membexs of the subclAsses. The ColDllliss1on held that if thess two prerequiaites for applying the exclusion were met, echool directors could VOtll on final collective bargaining agJ:'eements. In this case, you 1ndiCAUI that you:c proposed vote is not on a Unal agreement, but on non-binding axbitration. Fol~owin9 the Commission decision in Van Rensler, voting on non-binding arbitration would be s.imilax to voting on a final collective blU:gaining agrellJllent. In both cases, the exclusion in the definition of "conflict ox conflict of inteJ:'eet" would aiPly p:covided the immediate family members are members of A subc ABa consisting of an occupation or group containing mo:ce than one member and the immediate family members would be affected exactly the same as othe:c membe:ca of the subclass. Under the8e Ci:ccWll8tance8, 1Ihe proposed vote by the boa:cd members on non- binding arbitration would be permitted under the Ethics Law. , The prop:ciety of the p:copo.ed conduct has only been Addre...d under ,the Ethics Law, the applicability of any other statute, COde, o:cdinance, :cegulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not add:cessed he:cein is the a~liCability of the Public School Code. Conclusion: As Members for the Big Spring School District, you are public officials subject to ths provisions of the Ethics Law. Based upon the facts of this case, Section 3(a) of the Ethic. Law would not prohibit or :ceatrict you or the other Board Hembers fxom voting on non-binding arbitration provided the exclu.ion in the definition of conflict of interest Applie.. Lastly, the p:copriety of the proposed conduct has only been addressed under the Ethics d PSEA-NEW KINGSTOWN TEL No.717-697-4147 ~ Apr 7.94 17:38.No.~Ol P.13 ,.., 4 Glotfelty, Xenneth, 94-510 Februa~ 10, 1994 Page 5 Law. Pursuant to Section 7(11), this Advice is a complete defen.. in any enforcement proce.ding inJ.tioted by the Co:ami.s1on, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facte and committed the acta complained of in reliance on the Advice given. Thi. letter ia a public record and will be made available a. such. ' Pinally, if you disagx.. with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commis.ion. A personal appearance before the Commission will b. scheduled and a foxmal Opinion will be 18sued by the Commission. Any such appeal must be In writing and must be ~ received. at the Commission within fifteen (15) days of the date of this Advice purauantto 51 Pa.Code 513.2(h). The appeal may. be received at the Commission by hand delivery, United States mall, delivery service, or by FAX transmission (717-787-0806). {t"'Y' Vincent . DopJco Chief Counsel IS ",:14 111,.:H'1 K!L.L!J.I'l l!. GEPHFtl r fII\ '"...,-"""""~;",, P.2 ".",."",...,,,,,,', ~ PIlJ:.%MIfIJ:C. I ~el'ebY verifY t:hat the atatUl8nt. of tact made in the toraqoinq dOClUlllent are tX'Ue and correct to the b..t of my knowledqe, intormation and belief. atatement. therein are subject to Pa.C.S. 14V04, relatinq to un.warn t under.tand that any tala. t:he penaltie. contain.d in 18 falaitication to .u~loriti.a. (J~ ,r: Un?!" Carlin L. Wanqer Datedl &_.j ) I) ) 9 'l 'f ;.....J ",) ... t'........ ;;:c -- ~ )(.. c ~ c>o \J) - ()o t- ('l) 1\ :\\. . ~ .::.l. u <..J ~ -::r .... - f, ~; = , ~~ ;,.- ..,'" <'; Ui.~;:~~t ~:!;4:~:'::i U..t:) . l-:CO ;.. ">,._.. _J . ,:,-,..: . . ...: ~..~ " (,'-- \uz. ~'.' .,:.,~I t.'!" ::> '0<"> c 0 \[) .;) c:3 v.; :::J ~ ~ Ii) I.r) '::J- 's s: -- U'l. U'l C"'), - - "'-' '-' Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BIG SPRING EDUCATION ASSOCIATION, v. No. qL/- ,83L/ BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. and JAMES SHOWVAKER, Defendants CIVIL ACTION - LAW ORDI!IR C;~,} TtffYl AND NOW, this /,j,t:A day of April, 1994, pursuant to the attached Motion for Accelerated Disposition, a hearing in ~he 1;1 ) -'- ~ /"~ above-referenced matter is scheduled for" .VIIO ./l..m. ~n I tyJJ?1 j ~ CUmberland )..() , 1994 in courtroom no. County Courthouse, Carlisle, Pennsylvania. BY THE COURT: , at the ~\(~, -\ [- .\~// J. c'- f.5,-,,-~.-{...... \ (( ~,-) \> ~' \' \ \, " ..~ C\..-L( ',:> L ,::S /--.,/, , ( / -( ,,'-~.... ~ () '-., . .\. {, .,\0 (\..."-",, '-,\ (' \ T ( 1-./ "1 l.~' ~ . · " '7- '\ _ . 0 .") ,,'-.-c:. 'tf.A......(' I --<v . A--y"' \~ .'-'~ ,......, - I ~-: ," / I( ./ cl.<--J ( -,' Jl. , ! , . tI~ J ~~. f; f1f · f'\lP I ~," 17 ---.; - .. -, ' hrl\ \5 3 36 ?~ '9~ , ~rHCE !Ji 1 !, ~'1I0tl')i~"Y f)lj~:l.-~i~t~Hn ~'='J~rt tthf4.~'tL'f:'I'~.," , , ',", '-' L:;:~:~~_.,.._~", . . ... . BIG SPRING EDUCATION ASSOCIATXON, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA plaintiff v. No. BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. and JAMES SHOWVAKER, Defendants CIVIL ACTION - LAW . . MO'1'IOll ~R ACCBLBRA'1'BD DISPOSI'1'IOll AKD 110. comes the movant, the Big spring Education Association, by and through its attorneys, Killian & Gephart, and does respectfully represent the following: 1. The Big Spring Education Association (hereinafter referred to as the "Association") is an employee organization within the meaning of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563 as amended, 43 P.S. 111101.101-1101.203. Its principle office is located at 31 East Main Street, New Kingstown, CUmberland County, Pennsylvania. 2. Respondent, the Big Spring School District (hereinafter referred to as the "District") is a public employer within the meaning of PERA. Its principle office is located at 45 Mount Rock Road, Newville, Cumberland County, Pennsylvania. 3. Respondents, Reginald Haw, Ashby Collins, Robert Barrick, Eugene Cromer, Kenneth Glotfelty, Sandra Hockensmith, Richard jf - . t.~~"!""~~!~".z;>1I:~ -- . Meily, Robert Roush, Jr. and James Showvaker are members of the Big spring School District Board of School Directors. Their address for School District business matters is 45 Mount Rock Road, Newville, CUmberland County, Pennsylvania. 4. Concurrent with the filing of this Motion the movant has filed a Complaint in Declaratory Judgment requesting this Court to enter an Order pursuant to 42 Pa.C.S.A. li7531 At ~ confirming the legal right of three school board members of the Big spring school District to vote on the acceptance or rejection of a fact finder's report. 5. As stated in the aforesaid Complaint in Declaratory Judgment, a fact finder who was appointed by the Pennsylvania Labor Relations Board (PLRB), issued Findings of Fact and Recommendations on April 4, 1994. 6. The new amendments to the School Code, which became effective July 9, 1992 require both the Association and the District to notify the PLRB whether or not they accept the Recommendations of the fact finder within ten days of its issuance. 24 P.S. li11-1122-A(c). Consequently the school board of the Big Spring school District must vote on whether or not they accept the fact finder's report on or before Thursday, April 14, 1994. 7. If either party rejects the fact finder's determination the Findings of Fact and Recommendations are then publicized. 24 P.S. lill-l122-A(c). -2- 1'7 o ~ . . 8. The Association and the District must then again inform the PLRB whether or not they will accept the Recommendations of the fact finding panel not less than five days nor more than ten days after the publication of the Findings of Fact and Recommendations. s. Based upon the above it is believed and therefore averred that the school board of the Big spring school District will be required to vote on the faot finder's report for a final time no later than Friday, April 22, 1994. 10. Due to the fact that the District is taking the position that three of the nine school board members cannot vote on the fact finder's report and that five of the remaining six school board members must vote to accept the fact finder's Recommendations, the issues presented in the Complaint for Declaratory Judgment are ripe for immediate adjudication and will become moot if this Court does not make a determination prior to Monday, April 25, 1994. 1IJIBRBNRB, the movant respectfully requests this Honorable Court to schedule a hearing and to dispose of this issue in an accelerated fashion. Respectfully submitted, Dated: April 11, 1994 jWh- fJ. Paul H~, Esquire Killian & Gephart 218 Pine street P.O. Box 886 HarriSburg, PA 17108 (717) 232-1851 Atty. 1.0. '53148 Attorneys for Plaintiff -3- ,2.J ~?-t.J\~"', _._+_,,~';~_ ..,-,....~:~~}\jt'{~0,',:~~1~~;q_;f' .'0 ..c .~: KILLI~~~.:rGiia~~~c';:.~~t~;).,,;;::t~:':1"" _ ' ~;},....:L~!c~~~~'~.~?;~: BIG SPRING EDUCATION ASSOCIATION and KENNETH GLOTFELTY, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA plaintiffs v. No. 94 - 1834 Civil Term BIG SPRXNG SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MEXLY, ROBERT ROUSH, JR. and JAMES SHOWVAKER, Defendants CIVIL ACTION - LAW 11 0 '1' I C B YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by an attorney and file in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse - Fourth Floor 1 Courthouse square CarliSle, Pennsylvania 17013-3387 Telephone (717) 240-6200 ../1 ~ o BIG SPRING EDUCATION ASSOCIATION and KENNETH GLOTFELTY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANXA plaintiffs v. No. 94 - 1834 civil Term BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLXNS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. and JAMES SHOWVAKER, Defendants CIVIL ACTION - LAW AMBlfDED COMPLAIII'l' III DECLARATORY JUDGMBII'l' AlfD 110. come the Plaintiffs, the Big Spring Education Association and Kenneth Glotfelty, by and through Killian & Gephart, and do bring this Declaratory Judgment action pursuant to 42 Pa.C.S.A. !i7531 ~ ~ I. '1'he Parties 1. This Complaint seeks a declaratory judgment concerning the voting rights of members of the Big Spring Board of School Directors on matters related to collective bargaining under the Public School Code and the Public Employe Relations Act pursuant to the Declaratory Judgments Act, 42 Pa.C.S.A. !i7531 ~~, together with other appropriate relief. 2. plaintiff, the Big spring Education Association (hereinafter referred to as the "Association") is an employee . ,).2, ,., t\ organization within the meaning of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563 as amended, 43 P.S. 111101.101-1101.203. The Association has been certified by the Pennsylvania Labor Relations Board as exclusive agent for collective bargaining for professional employees, including teachers, of the Big spring School District. Numerous members of the bargaining unit represented by the Association are taxpayers and electors of the Big spring School District. The principle office of the Association is located at 31 East Main street, New Kingstown, CUmberland County, Pennsylvania. 3. Plaintiff, Kenneth Glotfelty is an adult individual, elector, and taxpayer of the Big spring School District. He resides at 710 Meadowbrook Road, Carlisle, CUmberland County, Pennsylvania. 4. Defendant, the Big spring School District (hereinafter referred to as the "District") is a public employer within the meaning of PERA. Its principle office is located at 45 Mount Rock Road, Newville, CUmberland County, Pennsylvania. 5. Defendants, Reginald Haw, Ashby Collins, Robert Barrick, Eugene Cromer, Kenneth Glotfelty, Sandra Hockensmith, Richard Meily, Robert Roush, Jr. and James Showvaker are members of the Big spring School District Board of School Directors. Their address for School District business matters is 45 Mount Rock Road, Newville, CUmberland County, Pennsylvania. -2- ,2-1 " " II. The 8~.~u~.. ~o b. Con.idered 6. section 301 of the Public School Code provides: The public school system of the Commonwealth shall be administered by a board of school directors, to be elected or appointed, as hereinafter provided. 24 P.S. !i3-301. 7. section 303 of the Public School Code provides: (a) ... in each school district of the second, third and fourth class, there shall be a board of nine (9) school directors.... 24 P.S. !i3-303. 8. section 322 of the Public School Code provides: Any citizen of this Commonwealth, having a good moral character, being eighteen (18) years of age or upwards, and having been a resident of the district for at least one (1) year prior to the date of his election or appointment, shall be eligible to the office of school director therein: Provided, That any person holding any office or position of profit under the government of any city of the first class, or the office of ... teacher, or employe of any school district, shall not be eligible as a school director in this Commonwealth. This section shall not prevent any district superintendent, assistant district superintendent, supervisor, teacher, or employe of any school district, from being a school director in a district other than the one in which he is so employed.... 24 P.S. !i3-322. 9. Section 324 of the Public School Code provides: No school director shall, during the term for which he was elected or appointed, as a private person engage in any business transaction with the school district in which he is elected or appointed, be employed in any capacity by the school district in which he is elected or appointed, or receive from such school district any pay -3- .1y ...,.."-"~,.,,,,~_.., 0, " -- for services rendered to the district except as provided in this act. ... 24 P.S. !i3-324. 10. Section 1801 of PERA provides: (a) No person who is a member of the same local, state, national or international organization as the employe organization with which the public employer is bargaining or who has an interest in the outcome of such bargaining which interest is in conflict with the interest of the public employer, shall participate on behalf of the public employer in the collective bargaining processes with the provi.o that .uoh per. on may, where .ntitl.d, vote on the ratifiCl.tion of aD .qr....nt. (emphasis added) 43 P.S. !i1101.1801. III. ~aCltu.l B.Clkaround 11. The Association has been certified by the Pennsylvania Labor Relations Board (PLRB) as the exclusive bargaining agent for the eligible professional employees of the District as certified by the PLRB in its Order dated April 2, 1971 and coded PERA-R-302-C for wages, hours, and terms and conditions of employment. 12. The last bilaterally executed collective bargaining agreement entered into between the Association and the District expired on June 30, 1992. 13. In October 1991 the Association and the District commenced negotiations for a successor contract. 14. Al though the Association and the District engaged in mediation as required by PERA, no successor collective bargaining agreement was reached. -4- .;j' o ", 15. On January 26, 1993 the PLRB ordered the Association and the District to submit to fact finding as required by Article XI-A of the Public School Code of 1949, as amended, 24 P.S. lill-1122-A which became effective July 9, 1992. 16. On March 8, 1993 the fact finder issued Findings of Fact and Recommendations. 17. prior to the issuance of the fact finder's Findings of Fact and Recommendations, the District had sought and received its solicitor's opinion regarding the ability of three of the school board members to take part in the collective bargaining process due to potential conflicts of interest. 18. The aforesaid three school board members and the reasons their ability to take part in the collective bargaining process have been placed in question are as follows: a. Kenneth Glotfelty -- Mr. Glotfelty's wife is a member of the bargaining unit represented by the Association. b. Ashby Collins -- Mr. Collins is a professional employee and a PSEA member at the Scotland School, a school entity which is separate and apart from the Big Spring school District. c. Robert Barrick -- Mr. Barrick is a professional employee in the Carlisle School District, however, he is not a member of the Carlisle Education Association or the Pennsylvania State Education Association. Mr. Barrick has a -5- ...(. ,--~.._>...,.>."._-_.- ~ ~ sister who is a member of the Big spring collective bargaining unit. 19. On or about March 4, 199J the members of the District's school board were notified, by their solicitor, that Mr. Glotfelty, Mr. Collins and Mr. Barrick were not entitled to receive a copy of the fact finder's Recommendations in advance of the meeting at which the board was to act on acceptance or rejection of the recommendation, were not entitled to attend the school board meeting at which the fact finder's Recommendations were to be presented to the board, nor were they entitled to vote on the acceptance or rejection of the fact finder's Recommendations. 20. On or about March 4, 1993 the school board was also informed by its solicitor that although only 6 of the 9 school board members were eligible to vote, that a vote of 5 of the 6 eligible school board members would be required to accept the fact finder's report. 21. The District's school board never voted to accept or reject the fact finder's Findings of Fact and Recommendations which were issued in March of 1993. 22. The Association took no steps to compel the school board to accept or reject the Findings of Fact and Recommendations of the fact finder issued in March of 1993, since the Association rejected the determinations of the fact finder. -6- .J'J o ~ 23. On February 22, 1994 pursuant to lil122-A of the School Code (24 P.S. lill-1122-A), the PLRB appointed a second fact finding panel and ordered a second fact finding to ensue. 24. On April 4, 1994 the fact finder issued Findings of Fact and Recommendations. 25. Pursuant to 1122-A of the School Code (24 P.S. 111-1125- A) the Association and the District have no more than ten days after the Findings and Recommendations have been sent to notify the PLRB and each other whether or not they accept the Recommendations of the fact finder. 26. Xf the Recommendations of the fact finder are not accepted by both parties they are publicized. 27. The parties are then required in not less than five days nor more than ten days after the publication of the Findings of Fact and Recommendations to again inform the PLRB and each other whether or not they will accept the Recommendations of the fact finder. 28. On April 5, 1994 the Association became aware for the first time that the District would not allow the three aforementioned members of the school board to vote on the fact finder's Findings of Fact and Recommendations. IV. '1'he DisDute 29. The Association believes and therefore avers that, absent the issuance of a declaratory judgment by this court, the board -7- ,;;4 ~ o will adhere to the advioe given by its solicitor in 1993 and only permit six of the nine elected members to participate in the consideration and vote on the fact finder's report, effectively disenfranchising one-third of the elected school board members on this issue. 30. Within the last week it has come to the attention of the Association that the state Ethics commission has issued an advisory opinion regarding the ability of the aforementioned three board members to vote to accept or reject a non-binding arbitrator's report as provided by li1125-A of the School Code, 24 P.S. lill-1125- A. 31. The State Ethics commission has indicated that the ethics law would not prohibit or restrict the three board members from voting on this matter. (A copy of the state Ethics commission Report is attached hereto and incorporated herein as Appendix A.) 32. The State Ethics commission's decision is based upon the Van Rensler opinion, 90-017, wherein it was held that although the board members would be prohibited from negotiating, they are allowed to vote on a collective bargaining agreement and since voting on non-binding arbitration would be similar to voting on a final collective bargaining agreement the ethics law would not exclude them from voting on an arbitrator's award. 33. The statutorily created and regulated process for the negotiations of collective bargaining agreements set forth in Article XI-A of the Public school Code creates three separate -8- J? t:;"":'...,.~~.,!~ '~:--"C':1!.~;:;t o " methods for arriving at a collective bargaining agreement: (1) bilateral negotiation to the point of agreement by the parties, followed by ratification of the agreement by a majority of members of the school board and the Association; (2) Mutual acceptance of the report of a fact finder by a majority of both the school board and the Association: or (24 P.S. lill-1122-A) (3) Acceptance of (or failure to reject) the report of an arbitrator after statutory arbitration procedures have been concluded by a majority of both the school board and the Association. (24 P.S. li11-1123-A - 1125- A) 34. The opinion of the state Ethics Commission is consistent with 43 P.S. lil101-1801 wherein members of an employee organization are prohibited from participatinq in the collective bargaining process with the proviso that suoh p.rsons may vote on the ratifioation of an aqr....nt. 43 P.S. 11101.1801 (emphasis added). 35. A vote for or against the acceptance of the fact finder's Recommendations is the same as a vote on the arbitrator's award and is tantamount to a vote of the ratification of an agreement since if both parties accept, a collective bargaining agreement has been reached. WBBRBFORB, the Plaintiffs respectfully request this Honorable Court to declare that Kenneth Glotfelty, Ashby Collins and Robert Barrick are entitled to participate in the discussion of and vote on the fact finder's report issued in the negotiations between the -9- .~ ,-50 o o Big spring Education Association and the Big spring School District. Respectfully submitted, Dated: April 19, 1994 J/i,:,~Z Killian & Gephart 218 Pine street P.O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Atty. I.D. '53148 Attorneys for Plaintiffs -10- . . .3/ PSEA-NEW KINGSTOWN TEL~O.717-697-4147 Apr~7.94 17:38 No.OOl P.09 STATE ETHICS COMMISSION 3011 FINANCE BUILDING P.O. BOX 11470 HARRISBURG. PA 17108-1470 TELEPHONE (717) 783-1010 ADVICE OF COUNSEL February 10, 1994 Kenneth Glotfelty 710 Meadowbrook 'Road Carlisle, PA 17013 94-510 Re. Conflict, public Official/Employee, School Board, U.e of Authority of Office or Confidential Information, Immediate Family, Vote, Non-Binding Arbitration. Dear Mr. Glotfelty. ~his responds to your letter of January ~, 1994 in which you requested advice from the S~t. Ethics commission. Issuel Whether' the Public Official and' Employse Ethics Law presents any prohibition' or ,restrictions upon 'a school boa:d mambe: with regard to voting cn non-binding arbitration where an immsdiate family is a teacher within the district. ' Facts: You are a member of the Big Spring School District. Your wife is a teacher in the ,district. AShby Collins and Robert Barrick are also Members of the Big Spring School District. Both are members of the Pennaylvania State Education Association (PSEA), although not in the Big Spring School Districti one has a siste: who teaches in llhe Big spring school District. Both have consented to your seeking advice as to their conduct. You request an advisory from the State Ethics commission aa to whether you, Mr. Collins and Mr. Bar:ick may vote on non-binding arbitration. Discussion: It is initially noted that pursuant to sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 55407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the adviSOry baaed upon the facts which the requBsto: has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclos. all of the material facts relevant to the inquiry. 65 P.S., 55407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. I\ppp.ndix A jJ.., . ... '~'-"".~ . "...,~..,<~ PSEA-NEW KINGSTOWN Apr ,.-\,94 17:38 No ,001 P.l0 TEL ~,717-697-4147 . Glotfolty, Kenneth, 94-510 February 10, 1994 PAlle 2 Aa School Doard Kembers for the Big spring School Diatric~, you are public official. a. that tar.m i. defined under the Ethic. Law, Qn~ hence you are .Ub,ec~ to ~he provisions of that law. Sec~ion 3(a) of the EthicD Law providoD' Section 3. Restricted Activities. (a) No PUblic officiol or public employee .hall engAge in conduct that con.e1~u~e. a conflict of in~ere.~. I The following terms are def$.ned in the Ethics Law as follows: S8etion 2. Definitions. "Conflict or conflict of interest." U.e by a public official or public employee of tho authority of his office or employment or any confi~en~ial info:mation receive~ through his holcUnq public oUice or employment for the private pecuniaz:y benefit of himBelf, a membeJ: of his 1mmecUate family or a business with which hQ OJ: a member of his 1mmBd1ato family i. associated. "Conflict. or .conflict of interest" doe. not include AD action having a de "'1I:h"(8 ecooamJ.c impact or which affect. to the same de;:ee a class consisting of the general public or a subclass consisting of an ind.wl1:z:y, occupae1on OJ: other group which inoludes the public OfficiAl OJ: public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by lAW, the exercis. of which is necessary to the perfo~ce of duties and responsibilities unique to a particular public office or position of public employment. "Im:nediate family." A parent, spouse, child, brother or sister. In addition, Sections 3(b) And 3(c) of the Ethics Law provide in part that no person ahall offer to a public official/employee anything of monetaz:y value and no public official/employee shall solicit or accept anything of mone~az:y value based upon the understanding that the vote, official action, or judgement of the j:' PSEA-NEW KINGSTOWN TEL ~. 717-697-4147 , Apr r\ .94 17 :38 No .001 P.11 . Glotfelty, ~nnet~, 94-510 February 10, 19'4 page 3 public official/emJilloyee would bo ipfluonced theraby. Reference io made to tha.a p~ovision. of tha law not to imply that there has baen o~ will be any t~ansqx.Dsion tha~eof but meraly to p~ovida a complate raaponsa to tha question pra.entad. Section 3(j) of the Ethice Law provide. aD followo: Section 3. Restricted activities. (j) Whera vetinq conflict. are not otherwise add.z:eseed by the constitution of pennsylvania o~ by any law, rule, regulation, order or ordinance, the followlng procedure shall be employed. Any publ.i.c official or public employe., who in the discharga of his official dutie., would ba required to vota on a matter that would result in a conflict of lnterest shall abstain from voting and, prior to the vote beinq taken, pu))licly announce And disclolse the nature of his interest as a publ.i.c record in a written memorAndum filed with the perSon reDponDible for recordinq the minutes of tha meetinq at which the vote is taken, provided that whenever a govarning body woulcl be unable to take AnY action on a matter before it because the number of member. of the bocly required to abstaln fJ:CDI vetlng under the provisions of this .ection makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if discloeures are made as otherwise providod hereln. In the caee of 11 three.,member governing body of a political eubdivision, where one member has abstained from voting as a reeult of a conflict of intereat, and the rSIIIAininq two JIIembars of the governing body have caat opposlng vote., the JIIember who has abstainod shall be pe~1tted to vote to break the tie vote if disclosure is made ae othorwise provided hereln. If a conflict existB, Section 3 ( j) requires the public official/employee to abstain and to publicly disclose the abetention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results In the inability of the governmental body to take action becau.e a majority is unattainable due to the abBtention(s) from conflict 3'1 PSEA-NEW KINGSTOWN TEL ~. 717-697-4147 Apr ~.94 17:38 No.OOl P.12 4 Glotfelty, Kenneth, 94-510 Pebrua~ 10, 1994 PAIJO 4 under the Ethics Law, then in that event participation i. per.missible provided the disclosure requirements noted above are followed. ~ Mlakllr, Advice 91-523-5. AD you Are aWAre from Glotfeltv, Advice 93-609, the seminal Commission decision which applies Section 3(a) under similar facts is Van Rensler. Opinion 90-017. The issue there was whether the Ethics Law prohibited school board director. from participating on negotiating teams and voting on collective barqaining agreements when members of their .immediate families were school district employees represented by the bargaining uiUts. The Ethic. Law does not restrict directors from voting on final a9reements, but director., cannot take part in negotiations. leading to final agrsSIII8nts. It was held that dixectors could, vote on final agreement. because of the exclusion in the definition of .conflict or conflict of interest" which applies if the immediate family members are members of subclasses consisting of industries, occupations or other groups containing more than one member and the f~ly members would be affected exactly a. the other member. of the subclasDos. The CommiDsion held that if theDo two prerequisites for applying' the exclusion were met, school directors could vote on final collective bargaining agreements. In this caee, you iDdicAte that your proposed vote is not on a final agreement, but on non-bincUnq arbitration. Following the CommiDsion decision in Van Renslar, voting on non-binding arbitratJ.on would be similar to votJ.ng on A final. collectJ.ve bargaining agreement. In both cases, the exclusion in the definition of "conflict or conflict of J.nterest" would apply provided the immediate family members are members of a subclass consisting of an occupation or group containing more than one member and the immediate f~ly members would be affected exactly the same as other members of the subclass. Under these circumstances, tlhe propoDed vote by the boaxd members on non- binding arbitration would be permitted under the Ethics Law. The propriety of the proposed conduct has only been addre..ed under the Ethic. Law, the applicability of any other statute, code, ordinance, reljJUlation or other code of conduct other than the Ethics Law has not been considered in that they do not involve on interpretation of the Ethics Law. Specifically not adcb:essed herein is the applicability of the Public School Code. Conclusion: All Members for the Big Spring School District, you are public officialu Bubjoct to the provisJ.onu of the Ethics Law. Based upon the facts of this case, Section 3(A) of the Ethics Law would not prohibit or restrict you or the other Board Members frOll\ voting on non-binding arbitrAtion provided the exclusion in the definition of conflict of interest applies. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics <,' ,> PSEA-NEW KINGSTOWN TEL ~. 717-697-4147 Apr M'94 17:38 No.OOl P.13 ~ Glotfelty, ~enneth, 94-51D F.bruary lD, 1994 page 5 Lllw. pursuant to section 7(11), this Advice is a co~plet. defen.. in any enforc_ent proceeding initiated by the Co:amis.ion, and evidencs of good fAith conduct in Any other civil or criminal proceeding, providing the requestor has eli.closed truthfully All the material facts and committed the Acta complained of in reliance on the Advice given. Thi. letter i. a public record and will be made AVAilable a. such. ' Finlllly, if you disagr.e with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A per.onal Appearance before the Commission will be scheduled And a formal Opinion will be issued by the Commission. Any such appeal must be In writing and must be ~ received. at the Commission within fifteen (15) days of the date of this Advice pursuantto 51 Pa.Code S13.2(h). The appeal may. be received at the Commission by hand delivery, United States mall, delivery service, or by FAX transmission (717-787-0806). VCere1Y' vincent . copko Chief counsel J<.. ,.-,.. ~~,-~..,,-~ - -~"'-N'I"i..t~ ~ t'!t ftllUfCA'l':l:OB :t hereby verify that the statement. of fa~ made in the toreqoinq document are true and correat to the be.t of my knowlec1qe, information and belief. I underatand that any fal.e .tatemant. therein are subject to the penalties contained in 18 Pa.C.S. 14g04, relatinq to un.warn falsitication to au~\ariti... ct:.-1?_C U(J>' Dated: ~_./ ) /) J 9 ? 'f ", . VlIRI.ICA'1'IOR I hereby verify that the statements of fact made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the penalties contained in 18 Pa.C.S. !i4904, relating to unsworn f~lsification to authorities. Dated: April 19, 1994 -w '-t.,..-.,,:~.,::..,,:>,. .,-'..b..no::o.;'lt..... " .. . . CBR'1'I.XC.TB O. SBRVICB I, J. PAUL HELVY, ESQUIRE, do certify that I served a true and correct copy of the within document upon Richard c. Snelbaker, Esquire, via FAX transmission to number (717) 697-7681. A copy was also placed in the united states mail, postage prepaid, addressed as follows: Richard c. Snelbaker, Esquire Snelbaker & Elicker 44 West Main street P.o. Box 318 Mechanicsburq, PA 17055-0318 '.:'<.1. . Paul Helvy, squ re illian & Gephart 218 pine street P.O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorneys for Plaintiffs .-,;.... Dated: April 19, 1994 3'] ":P ' ~ =1: "'- .... ..., <"') ~... ~.. ....~ ...,..:-'lI~" '?a <";);,,; l.I...o'\.,)~i -):Q.~ '-, -:r... .~, f'""1.:,,~ .o..,.;.;wr. ..~ ',. :r: t '. ~ l6J ~'. U. ....-. 0'" C") - ... "- """ v '-" ',_.v 1. ".:I.'1f{ ~ e . BIG SPRING EDUCATION ASSOCIATION V : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA . . : CIVIL ACTION - LAW : BIG SPRING SCHOOL DISTRICT, : NO. 94-1834 CIVIL TERM REGINALD HAW, ASHBY COLLINS, : ROBERT BARRICK, EUGENE CROMER,: KENNETH GLOTFELTY, SANDRA : HOCKENSMITH, RXCHARD MElLY, : ROBERT ROUSH, JR., AND I JAMES SHOWVAKER, : Defendants : III RB: PLAIN~IFF'S HO'1'ION POR ACCELERA'1'ED DISPOSITION BEPORB SHEELY. P.J. ORDER OP COUR'1' AND NOW, this .1.J.. [1,.1 day of /'V),i:/ L, 1994, we make the following order: 1) Big Spring Education Association has standing to bring the present action; 2) Plaintiff is entitled to accelerated disposition of this matter; 3) Mr. Glotfelty and Mr. Barrick are not considered to have a conflict of interest which would preclude either from voting on the report of the fact finder. This does not mean that either cannot abstain based on personal deference. 4) Mr. Collins is precluded from voting on the report of the '10 --~.,t,.:...~"",.'""",,,.,~ ~"'-.... '.'..,... ~k",,,,~~;'4_ C'>,' " r~--:;:::-: ~rR ZZ II 51 AH '9~ , " "diM I)F 1 "" '". HI\1H"r~~Y CUl";t'" l>'in C(','~ f1 f'Ch...~fC.. :.'1;\ \.,J ",1 V (."j'- ,.~ ",--~.' o ~ fact finder due to a conflict of interest based on his membership in PSEA. By the Court, J. Paul Belvy, Esquire, For the Plaintiff ~~~ 'fluff" - -, I hI.io-- Richard C. Snelbaker, Es~uire For the Defendants ~,........ 'tILL/,'! I....~ :sld '1/ o o BIG SPRING EDUCATION ASSOCIATION V : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBBRT BARRICK, EUGENB CROMER, KENNETH GLOTFBLTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR., AND JAMES SHOWVAKBR, Defendants NO. 94-1834 CIVIL TBRM . . . IN RBI PLAINTIFF'S MO'1'ION FOR ACCELERA'1'BD DISPOSI'1'IOII BBFORE SHEELY. P.J. OPINION AND ORDER OF COURT The present action requires the determination of the following three issues: 1) Does the Big Spring Education Association (Association) have standing to bring the present declaratory judgment action? If the Association does not have standing, was plaintiff's amended complaint properly filed such that it must be considered as a pleading in this action? 2) Does the plaintiff have a cognizable legal right to an accelerated disposition of this action? 3) Does a conflict of interest exist as to any of the three members of the Big Spring Board of Directors who were previously advised to abstain from voting on the report of the fact finder such that they are required to continue to abstain from future votes on reports of the fact finder? 'f.J- t"\ "'" NO. 94 - 1834 CIVIL TERM FACTUAL BACKGROUND The plaintiff in the present action is the Big Spring Education Association (Association). By way of an amended complaint, the Association attempted to add Kenneth Glotfelty as a plaintiff. The Association is the exclusive bargaining agent for the eligible professional employees1 of the Big Spring School District. The defendants in the present action are the Big Spring School District (District) and the individual nine members of the Big spring Board of Directors. On June 30, 1992, the preceding collective bargaining agreement between the parties expired. This agreement encompassed the school years 1989-90, 1990-91, and 1991-92. Bargaining and negotiations for a successor contract began in November of 1991. The parties submitted the dispute to fact finding in January of 1993 as required by Article XI-A of the Public School Code.2 On March 8, 1993 the fact finder issued findings of fact and recommendations which were rejected by the Association. As a result of the Association's rejection, the Board of Directors 1 "Professional employe" is defined in the Public School Code and includes "those who are certified as teachers, supervisors, supervising principals, principals, assistant principals, vice-principals, directors of vocational education, dental hygienists, visiting teachers, home and school visitors, school counselors, child nutrition program specialist, school librarians, school secretaries... and school nurses. 24 P.S. 511- 1101 (1). 224 P.s. 5 11-1122-A ~ sea. 2 'f~ ._- r"'~~"'"i!!''7:([''\~~ fI\ '" NO. 94 - 1834 CIVIL TERM never voted either to accept or reject the report of the fact finder. Therefore, the eligibility of the three school board members in question to vote on the report of the fact finder never became ripe for determination. The bargaining system as established by Article XI-A is cyclical in nature and therefore repeats itself every school year until a collective bargaining agreement is reached. As a result, a second fact finder was appointed and issued his findings of fact and recommendations on April 4, 1994. On April 13, 1994, this report was accepted by the Association, but rejected by the Board of Directors. Because the report was not accepted, the findings of fact and recommendations were published in accordance with Section 1122-A(c) of Article XI-A. Both sides must now vote for a second time to accept or reject the report of the fact finder by April 24, 1994.3 At the vote of the Board of Directors, only six of the nine members participated in the vote.. The three members who did not vote abstained upon the advice of the District's solicitor.5 The solicitor determined that Kenneth Glotfelty, Ashby Collins, and Robert Barrick each had a conflict of interest that rendered 3 The Board of Directors has scheduled a meeting on April 22, 1994 for this purpose. The Association, through its bargaining agent Carlin Wenger, indicated at the hearing its intention to again accept the report. · These members voted 6-0 to reject. 5 See Petitioner's Exhibit 1, March 4, 1993 Memorandum to Board of Directors 3 '(I' ~ ~ NO. 94 - 1834 CIVIL TERM them ineligible to vote on the acceptance or rejection of a report of a fact finder. Mr. Glotfelty's alleged conflict stems from the fact that his wife is employed by the Big Spring School District as a teacher. Mr. Collins' alleged conflict is based on the fact that he is a Pennsylvania State Education Association (PSEA) member and employed as a teacher in a separate and distinct district. Mr. Barrick's alleged conflict centers on the fact his sister is employed by Big spring School District as a teacher, and he himself is a teacher in a separate and distinct district, although he is not a member of PSEA. PROCEDURAL HISTORY The plaintiff Association filed a complaint with this court on April 11, 1994, seeking a declaratory judgment concerning the voting rights of Glotfelty, Collins, and Barrick. On April 15, 1994, plaintiff Association filed a motion for accelerated disposition of the declaratory judgment action. In response, defendants filed a motion in opposition to accelerated disposition, dated April 19, 1994. A hearing was held on April 20, 1994 at which time both parties were given the opportunity to present testimony and argument. DISCUSSION Our determination today must begin by answering the question of whether the Association itself has standing to bring this 4 ~( ~ ..,... 'r;' NO. 94 - 1834 CIVIL TERM action in declaratory judgment. The essence of the standing requirement has been well established by our Supreme Court: "[a] plaintiff ... must allege and prove an interest in the outcome of the suit which surpasses 'the common interest of all citizens in procuring obedience to the law'... To surpass the common interest, the interest is required to be, at least, substantial, direct, and immediate." Application of Biester, 487 Pa. 438, 442-43, 409 A.2d 848, 851 (1979), citino NmL Penn Parkino Garaoe v. Citv of Pittsburoh, 464 Pa. 168, 346 A.2d 269 (1975). Upper Bucks Countv Vocational - Technical School Education Association v. Upper Bucks Countv Vocational - Technical School Joint Committee, 504 Pa. 418, 421-22, 474 A.2d 1120, 1122 (1984). A substantial interest is one in which there is "some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law." A "direct" interest requires a showing that the matter complained of causes harm to the party's interest. An "immediate" interest is something more than a "remote consequence" and centers on the causal nexus and proximity between the action complained of and the injury to the party challenging it. The requirement that the interest be "immediate" is also met where it falls within the "zone of interests sought to be protected by the statute or constitutional guarantee in question." Finally, the rationale underlying the requirement that the party be "aggrieved" or "adversely affected" by the action at issue is to ensure 5 '1(" ~ . NO. 94 - 1834 CIVIL TERM that a legal challenge is made by the appropriate party. (citations omitted). Pittsburah Trust for Cultural Resources v. Zonina Board of Ad;ustment of the Citv of pittsburah, 145 Pa. Commw. 503, 514-15, 604 A.2d 298, 303-304 (1992). Applying the facts of the present case to thls standard, we believe it is clear that the Association has standing to bring this action. The Association obviously has a "substantial, direct, and immediate" interest in the Board of Director's vote on the fact finder's report. The outcome of this vote directly affects the Association's members' contract and employment status. As such, the Association has standing. Because we have found that the Association has standing to bring the present action, we need not consider the question of whether or not the amended complaint was properly filed. The next issue for our determination concerns the Association's right to an accelerated disposition of this matter. The defendants have opposed the motion for accelerated disposition based on the contention that they will be unfairly prejudiced by such a disposition. We disagree. The issues presently before this court are identical to the issues that will eventually ripen for determination under the declaratory judgment action. We fail to recognize any new facts or information which would come to light between now and the time we would rule on the declaratory judgment action. The defendants 6 ~1 ~ " NO. 94 - 1834 CIVIL TERM will not be prejudiced in any manner, in fact, our determination today stems directly from the District's action in forbidding the three members of the Board of Directors from voting.' The only entity prejudiced by accelerating the disposition of this matter is the court which is required to give an immediate decision. Therefore, we believe acceleration of the disposition of this matter is proper. The final issue before this Court is the determination of whether a conflict of interest exists as to any of the three aforementioned members of the Board of Directors. This determination requires consideration of the applicable sections of (1) the Public School Code of 1949,' (2) The State Ethics Law,' and (3) The Public Employe Relations Act.' We turn our attention first to the State Ethics Law which provides in part that "no public official or public employee shall engage in conduct that constitutes a conflict of interest." 65 P.S. 5 403 (a). The Ethics Law defines "conflict" or "conflict of interest" in the following manner: Use by a public official or public employee of the authority of his , The District's solicitor himself gave the opinion and advice that these three members could not vote. To claim now that the District needs more time to research and investigate is not persuasive. , 24 P.S. 51 1-101 et sea. · 65 P.S. S 401 et sea. , 43 P.S. S 1101.101 ~ A!S. 7 4b '" ~ NO. 94 - 1834 CIVIL TERM office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. S 402. "Immediate family" is defined as "a parent, spouse, child, brother or sister." 65 P.S. S 402. The state Ethics Commission (SEC) has interpreted these provisions in an "Advisory Opinion" dated April 20, 1994, and addressed to Kenneth GlotfeltylO (Glotfeltv, Advice 94-558). Glotfeltv, Advice 94-558, advised the three board members that they did not have a conflict under the Ethics Law which would prohibit or restrict any of the three from voting on the fact finder's report. After reviewing Glotfeltv, Advice 94-558, we believe the advice was rendered based on a truthful disclosure of all the material facts in the matter. Additionally, we believe the SEC 10 Mr. Glotfelty requested an advisory for himself, as well as on behalf of Mr. Collins and Mr. Barrick, pursuant to 65 P.S. S 407 (10), (11). 8 '1~ NO. 94 - 1834 CIVIL TERM to be a fully competent body to inte~pret the provisions of the State Ethics Law, and find its logic and reasoning persuasive. Therefore, accepting Glotfeltv, Advice 94-558, we do not believe members Glotfelty, Collins, or Barrick possess a conflict of interest under the State Ethics Law which would prohibit them from voting on the fact finder's report. The advice of the SEC addressed this issue solely under the Ethics Law. Therefore, we must still consider the applicability of other statutes, codes, and the like. The Public School Code of 1949 contains no provision which would render any of these three members ineligible to vote for the approval or rejection of a fact finder's report. At hearing, both parties agreed that the Public School Code did not bar these members from voting. Therefore, we find that these three members of the Board of Directors do not have a conflict of interest ~ ~ which would render them ineligible to vote under the Public School Code of 1949. Finally, we consider the applicability of the Public Employe Relations Act (PERA) to the present matter. Mr. Collins, due to his membership in the Pennsylvania State Education Association (PSEA), is the only member to whom PERA is applicable. Section 1801 of PERA provides the following: No person who is a member of the same local, State, national or international organization as the employe organization with which the pUblic employer is bargaining or who has an interest in the outcome 9 ~J fI\ Ill' NO. 94 - 1834 CIVIL TERM of such bargaining which interest is in conflict with the interest of the public employer, shall participate on behalf of the pUblic employer in the collective bargaining processes with the proviso that such person may, where entitled, vote on the ratification of an agreement. 43 P.S. S 1101.1801 (a). As the Association aptly acknowledges, Mr. Collins is prohibited from being a member of a negotiating team or participating in any labor negotiations. The Association contends, however, that Mr. Collins is permitted to vote on the fact finder's report because it is "the ratification of an agreement. It We disagree. The vote on the fact finder's report cannot be considered a ratification of a collective bargaining agreement. The fact finder's report, if accepted by both sides, merely forms the basis for such an agreement, and cannot by itself be considered a collective bargaining agreement. Therefore, based on Mr. Collins' conflict of interest created by his union membership in PSEA, Mr. Collins is precluded from voting under PERA on the acceptance or rejection of the fact finder's report. ORDER OF COURT AND NOW, this ,":";( /)1/ day of 1>,1",'1..... , 1994, we make the following order: 1) Big Spring Education Association has standing to bring the present action; 10 Sf ~ ~ . . NO. 94 - 1834 CIVIL TERM 2) Plaintiff is entitled to accelerated disposition of this matterJ 3) Mr. Glotfelty and Mr. Barrick are not considered to have a conflict of interest which would preclude either from voting on the report of the fact finder. This does not mean that either cannot abstain based on personal deference. 4) Mr. Collins is precluded from voting on the report of the fact finder due to a conflict of interest based on his membership in PSEA. By the Court, /s/ Harold E. Sheelv Harold E. Sheely, P.J. J. Paul Helvy, Esquire For the Plaintiff Richard C. Snelbaker, Esquire For the Defendants 11 1~ LAW al'I'ICtS SNELBAKER a BRENNEMAN ,'. ,.., ~ BIG SPRING EDUCATION ASSOCIATION, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . . . Plaintiff . . . . vs. : NO. 94-1834 CIVIL TERM : BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR., and JAMES SHOWVAKER, Defendants : CIVIL ACTION - LAW . . . . . . . . ORDER AND NOW, this day of April, 1994, after consideration of the attached Motion in opposition to Accelerated Disposition, it is ordered and directed that the hearing previously scheduled for 1:30 p.m. on April 20, 1994 in Courtroom No. 1 at the Cumberland County Court House, Carlisle, Pennsylvania is hereby cancelled. BY THE COURT: J. / ,.. .1::3 ,., ., BIG SPRING EDUCATION ASSOCIATION, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA plaintiff . . . . vs. NO. 94-1834 CIVIL TERM : CIVIL ACTION - LAW BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR., and JAMES SHOWVAKER, Defendants : . . MOTION IN OPPOSITION TO ACCELERATED DISPOSITION AND NOW, come the Defendants, Big Spring School District and the members of its Board of School Directors, by and through their Attorneys, Snelbaker & Brenneman, P.C., and respectfully represent and move as follows: 1. There is no authority or precedent for the accelerated disposition of the declaratory judgment action. LAW OI",ICEa SNELBAKER .. BRENNEMAN 2. An accelerated disposition of this declaratory judgment action would deny Defendants the right to: a. thoroughly investigate the contentions asserted by the Plaintiff; b. thoroughly research the applicable law; c. test the legal sufficiency of the complaint by preliminary objections; ~;'I ".-...........,,, r, " d. test the standing of the Plaintiff to bring this action by preliminary ojections, motion for judgment on the pleadings, or other pleading; e. prepare and file an appropriate response to the Complaint; and f. prepare properly for a hearing (including but not limited to the opportunity to pursue discovery procedures). 3. There is no legally cognizable case or controversy presented in this action between the Plaintiff Association and the Defendants. 4. This declaratory judgment action is an unauthorized intrusion into the Defendant School Board members' discretion and function as the governing body of a governmental entity. 5. This case is an unprecedented attempt by a labor union to invade the decision-making process of management which constitutes unlawful interference with the employer's rights in the collective bargaining process. LAW Ol""Cl:tJ SNELBAKER .. BRENNEMAN 6. This case is a disguised effort to unlawfully coerce a public employer to make a decision in the collective bargaining process and may be an unfair labor practice under the Pennsylvania public Employee Relations Act ("Act 195", 43 P.S. 51101.101 et sea.). -2- 5-{' ~ - "'" WHEREFORE, for all of the reasons set forth hereinabove, Defendants respectfully request your Honorable Court to cancel the accelerated disposition hearing scheduled in this matter. Respectfully submitted, By , p.e. rd C. Snelbaker hilip H. Spare 44 West Main street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendants Date: April 19, 1994 LAW O,.'ICt:8 SNELBAICER .. BRENNEMAN -3- 5'" n . "" CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the foregoing Motion in opposition to Accelerated Disposition ~y sending the same by facsimile transmission and first-class mail postage paid addressed as follows: J. Paul Helvy, Esquire Killian & Gephart 218 Pine street P. o. Box BB6 Harrisburg, PA 17108 Attorneys for Plaintiff , chard C. Snelbaker Philip H. Spare SNELBAKER & BRENNEMAN, P.C. Attorneys for Defendants Dated: April 19, 1994 LAW o,.,lcr. SNELDAKER a BRENNEMAN fl ..'. .---','--~'-,P"".' __ o . BIG SPRING EDUCATION ASSOCIATION, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff . . . . . . . . v. No. 94 - 1834 civil Term BIG SPRXNG SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR., and JAMES SHOWVAKER, Defendants CIVIL ACTION - LAW . . NOTICE TO PLEAD TO: J. Paul Helvey, Esquire and Big spring Education Association You are hereby notified to plead to the enclosed Defendants' Preliminary Objections to Complaint within twenty (20) days from service hereof or a default judgment may be entered against you. .C. By ~ Defendants .\''i r- _jr~l~ . ,-~,:,," " A BIG SPRING EDUCATION ASSOCIATION, . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff . . . . . . v. : No. 94 - 1834 Civil Term BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBI:.:'T BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR., and JAMES SHOWVAKER, Defendants . . : CIVIL ACTION - LAW . . . . DEFENDANTS' PRELIMINARY OBJECTIONS TO COMPLAINT AND NOW come the Defendants, Big spring School District and the several named members of its Board of School Directors collectively in their official (not individual) capacities, by and through their Attorneys, Snelbaker & Brenneman, P.C., and preliminarily object to Plaintiff's Complaint in the following particulars: LAW O"ICES SNELBAKER a BRENNEMAN Lack of Standinq 1. The Complaint should be dismissed pursuant to Pennsylvania Rule of civil Procedure (hereinafter Pa. R.C.P.) No. 1028(a) (5) because the Plaintiff lacks standing to sue for the relief requested. WHEREFORE, objecting Defendants respectfully request this Honorable Court to dismiss the Complaint and enter judgment in favor of Defendants and against the Plaintiff. Demurrer as to School District 2. The Complaint should be dismissed pursuant to Pa. R.C.P. No. 1028(a) (4) because the averments contained in the Complaint (..0 ~ o fail to state a cause of action against Defendant Big spring School District. 3. A school district does not and cannot determine whether or not the members of its board of school directors will participate in a vote on various issues. WHEREFORE, Defendant Big spring School District respectfully requests this Honorable Court to dismiss the Complaint and enter judgment in favor of Big Spring School District and against Plaintiff. Demurrer as to Members of Board of School Directors 4. The Complaint should be dismissed pursuant to Pa. R.C.P. No. 1028(a) (4) because the averments contained in the complaint fail to state a cause of action against the Defendant members of the Board of School Directors. 5. This matter is an unauthorized attempt by a labor union to intrude into the Defendant School Board members' discretion and function as the governing body of a governmental entity. WHEREFORE, Defendant members of the Big Spring Board of School Directors respectfully request this Honorable Court to dismiss the complaint and to enter judgment in favor of said Defendants and against Plaintiff. Respectfully submitted, NEMAN, P.C. , By LJl,W o",ctS SNELDAKER a BRENNEMAN card C. Snelbaker Philip H. Spare 44 West Main Street Mechanicsburg, PA 17055-0318 Attorneys for Defendants ~ , o o CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the foregoing Preliminary objections to complaint by sending the same by first class mail postage prepaid as follows: J. Paul Helvey, Esquire Killian & Gephart 218 Pine Street P. o. BOK 886 Harrisburg, PA 17108 ard C. Snelbaker Philip H. spare SNELBAKER & BRENNEMAN, P.C. 44 West Main street Mechanicsburg, PA 17055-0318 Attorneys for Defendants Dated: May 2, 1994 u.w On-ICE. SNELBAKER a BRENNEMAN (.,2.. ~'.I/.?'I ~ ,... BIG SPRING EDUCATION ASSOCIATION : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA . . V : CIVIL ACTION - LAW . BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR., AND JAMBS SHOWVAKER, Defendants NO. 94-1834 CIVIL TERM . . . . III RE: DEFERDAN'1'S' HOTIOII FOR POST-'1'RIAL RELIEF BEFORE SHEELY, P.J. ORDER OF COURT AND NOW, this ~ rr ~I day of hy\v-..l.. , 1994, ( defendants' motion for post-trial relief is ~e DENIED. This Court's Order dated April 22, 1994 was intended as a final order and adequately discussed all issues raised in defendants' motion. The defendants have not presented any requirement demonstrating the need for this court to have issued a decree nisi. Therefore, defendants' motion is denied. By the Court, r---. J. Paul Helvey, Esquire For the Plaintiff Richard C. Snelbaker, Esquire For the Defendant :sld ~ .. , \\b,WiO':\\ . \ ,.. \ \ ~ ~".I. - t-'f t"';;'''''~~;';J,'~ ... e BIG SPRING EDUCATION ASSOCIATION, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff . . . . v. : No. 94 - 1834 Civil Term : BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR., and JAMES SHOWVAKER, Defendants . . . . : . . : CIVIL ACTION - LAW . . . . . . DEFENDANTS' MOTION FOR POST-TRIAL RELIEF AND NOW, come the Defendants, Big Spring School District and the several named members of its Board of school Directors LAW OFFICES SNELBAICER .. BRENNEMAN collectively in their official (not individual) capacities, by and through their Attorneys, Snelbaker & Brenneman, P.C., pursuant to Pa. R.C.P. No. 227.1 and move for post-trial relief from the Order of April 22, 1994, on the following grounds: 1. The "accelerated disposition" of this declaratory judgment action is contrary to law. 2. The "accelerated disposition" of this declaratory judgment action has denied the moving Defendants the right to: a. Thoroughly investigate the contentions asserted by the Plaintiff; b. Thoroughly research the applicable law; c. Test the legal sufficiency of the Complaint by preliminary objections; d. Test the standing of the Plaintiff to bring '-S , ,., " this action by preliminary objections, motion for judgment on the pleadings, or other pleading; e. prepare and file an appropriate response to the complaint; and f. prepare properly for a hearing (including but not limited to the opportunity to pursue discovery procedures). 3. The testimony at the "accelerated disposition" hearing revealed that there is no legally cognizable case of controversy presented in this action between the Plaintiff Association and the moving Defendants. Any controversy was limited to the individual school directors inter se in disagreeing with their Solicitor'S opinion and advice. 4. This declaratory judgment action is an unwarranted and unauthorized intrusion into the Defendant School Board members' u.w O,,,CI. BN[LDAKl:n . BRENNCMAN discretion and function as the governing body of a governmental entity. 5. This case is an unprecedented attempt by a labor union to invade the decision-making process of management which constitutes unlawful interference with the employer's rights in the collective bargaining process. 6. This case is a disguised effort to unlawfully coerce a public employer to make a decision in the collective bargaining process under the Pennsylvania Public Employee Relations Act ("Act 195", 43 P.S. S1101.101 et sea.). 7. The grounds asserted in paragraphs 1 through 6 -2- " ~G, ........"..~...~...... , ,., " hereinabove were asserted by Defendants in a written Motion in Opposition to Accelerated Disposition which was presented to this Honorable Court on April 19, 1994. 8. The Court erred in conducting an evidentiary hearing on the merits before the pleadings were closed. 9. plaintiff Association lacks standing to initiate and maintain this declaratory judgment action. 10. The "accelerated disposition" of this declaratory judgment action is contrary to the applicable Rules of civil Procedure. 11. The "accelerated disposition" of this declaratory judgment action is contrary to the provisions of the Declaratory Judgments Act, 42 Pa. c.s. 57531 gt ~. 12. The testimony presented at the hearing does not support the Court's finding that the School District took action to forbid the three members of the Board of school Directors from voting. The testimony indicated that the three Board members in question voluntarily abstained from voting on the fact-finder's report based on the opinion and advice of the Solicitor. 13. The Order of Court is contrary to the public Employe Relations Act (PERA), 43 P.S. S1101.101 et sea. The conflict of interest provisions within PERA is not limited to members of the same employe organization. In addition to barring union members, LAW O,.,lcn SNELDAKER 6 BRENNEMAN section 1801 of PERA provides, in pertinent part, . . . or who " has an interest in the outcome of such bargaining which interest is in conflict with the interest of the public employer, . . .". -3- '. t..7 I ~ ~ Therefore, the portion of the Order of Court with regard to Mr. Glotfelty and Mr. Barrick is contrary to said 51801 of PERA. 14. The grounds asserted in paragraphs 8 through 13 hereinabove were asserted at the hearing. 15. The Court erred by failing to enter a decree nisi as required by the applicable Rules of civil Procedure. 16. Pursuant to Pa. R.C.P. No. 227.3, moving Defendants hereby request that the record of the April 20, 1994 hearing be transcribed in order to enable your Honorable Court to decide this Motion. WHEREFORE, moving Defendants respectfully request this Honorable Court to order the following relief: A. Vacate the Order of April 22, 1994, and dismiss the Complaint in exercise of the Court's discretion to refuse to take jurisdiction, refuse to hear and otherwise refuse to decide the alleged issues raised in the Complaint; Or, in the alternative, B. Vacate the Order of April 22, 1994, and direct that the case proceed in accordance with the Declaratory Judgments Act and applicable Rules of Court. SNELB ~ , p.e. , By , R chard C. Snelbaker Philip H. Spare 44 West Main Street Mechanicsburg, PA 17055-0318 Attorneys for Defendants LAW O,Flcts SNELBAKER a BRENNEMAN -4- ",r J " . o CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the foregoing Motion for post-Trial Relief upon the following persons and in the following manner: Bv Hand Deliverv to: The Honorable Harold J. sheely, P.J. Cumberland County Court House carlisle, PA 17013 Bv First Class Mail. Postaae prenaid to: J. Paul Helvey, Esquire Killian & Gephart 218 Pine street P. o. Box 886 Harrisburg, PA 17108 ~ R chard C. Snelbaker Philip H. Spare SNELBAKER & BRENNEMAN, P.C. 44 West Main street Mechanicsburg, PA 17055-0318 Attorneys for Defendants Dated: May 2, 1994 LAW O,.'ICt8 SNELDAKER a BRENNEMAN ~fj '-- --~ ,- -l ,"'" -"/,:.'; .a;Ni/~"';:JJ,.;:~,,-;.r..""fi~#i~',;r:~'~';l{Pi.~;~~..;t;t-t~.~j -~.d'~>~~M:ff-~'Y~'>i'~,;~:j.f.,,~~,;,,~:::,:. -~ ~.;._-jl/f. y' " .r~~~j:A~:~~~:~~\t~~~1W>:iSWij:~;Y?i'f~~~t~~~Jf~~i;. '~~J~iW~~;;~i;J:r,,;.;) KI LLIAN' 'a"G~PHART~ ,'>.;.' ,"''!-,..:.,;: :.,,'.;,,~' '...'.~,~",.)!:'7;,:" ~ 'CIllri'1..JIIl COllY ' , ,':,:c;f~~:r.~'lj';ji~1;"t~i~tt":.~)t~.:.u.~:\i:~.:~:;":C1;;\::")~~:;:"~~:'i.:Jg!!'N,.'Sc';'(:i';':" ",.. - .":;,,-.,..,,-,~....,,~,~t,,...-'ll;,.~.. ",.~,J"~~/~"i-~ -~t1b}\,r. 1:; ...' F.o\.J_-.",..., .,': _' _ _", . - . HARIU8~!-I~ r~~~~YM!-~':'~~_~~~~'i~~i~ttr~~.-: ~,.,_:.,(;J.~-t1~f!r~!~;i;'_-~_~:;7.::::(\tf.,~~~,~~:,,?:; f::," ::.;'-"'- ";.-'.!":,': i '- ~ BIG SPRING EDUCATION ASSOCIATXON, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 94 - 1834 civil Term BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. and JAMES SHOWVAKER, Defendants CIVXL ACTION - LAW PLAIII'l'II'I" S ANSWER TO DBI'BlfDAHTS' PRBLIMIlIARY OBJBCTIOllS Now comes Plaintiff, the Big Spring Education Association, by and through its attorneys, Killian & Gephart, and does hereby respond to the Defendants' Preliminary Objections in the above- captioned action. 1. Denied. It is specifically denied that the Plaintiff's Complaint should be dismissed pursuant to Pa.R.civ.p. 1028(a) (5) or any other Rule of civil Procedure. By way of further answer, it is specifically denied that the Big Spring Education Association lacks standing to sue for the relief requested. WBBRBI'ORB, the Plaintiff respectfully requests this Honorable Court to dismiss Defendants' Preliminary Objections to the Plaintiff's standing. 2. Denied. It is specifically denied that the Plaintiff's Complaint should be dismissed pursuant to Pa.R.civ.p. 1028(a)(4). By way of further answer, it is specifically denied that the ;-.. ' ..;~tJ ,<<--~ 'I,.'. 1 ( a ~ .. averments contained in the Complaint fail to state a cause of action against the Big Spring School District. 3. Admitted in part and denied in part. It is admitted that school districts should not determine whether or not the members of their board of school directors will participate on a vote on various issues. It is specifically denied that the Big Spring school District, and more particularly its Solicitor, did not prohibi t three school board members from voting on the fact finder's report in this particular instance. By way of further answer, it should be noted that if the District indeed believes that it did not preclude three of the school board members from voting on this particular issue, the Association would invite the District to formally notify the three board members who were precluded from voting on this issue that they may now vote, and then allow the school board membe~s to conduct a free and fair vote on the ratification of the fact finder's report. WHEREFORE, the Plaintiff respectfully requests this Honorable Court to dismiss Defendants' Preliminary objections in the form of a demurrer as to the School District. 4. Denied. It is specifically denied that the Plaintiff's Complaint should be dismissed pursuant to Pa.R.civ.p. 1028(a) (4) or any other Rule of Civil Procedure. By way of further answer, it is specifically denied that Plaintiff's Complaint failed to state a -2- "/.2-- o (!"t\ - cause of action against the Defendant members of the Board of School Directors. 5. Denied. It is specifically denied that this "matter is an unauthorized attempt by a labor union to intrude into the Defendant School Board members' discretion and function as the governing body of a governmental entity." To the contrary, the Plaintiff's Complaint is an attempt to insure that a large portion of the taxpayers in the Big Spring school District are not disenfranchised as a result of erroneous legal advice given to the School Board by its Solicitor. WBBRBI'ORB, the plaintiff respectfully requests this Honorable Court to dismiss Defendants' Preliminary Objections in the form of a demurrer as to members of the School Board of Directors. Respectfully submitted, aul Helvy, illian & Gep 218 Pine Street P.O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorney I.D. #53148 Attorneys for Plaintiff Dated: May 9, 1994 -3- .,~ o '" , . - CBR'1'I.ICA'1'B O. SBRVXCB I, J. PAUL HELVY, ESQUIRE, do certify that I served a true and correct copy of the within document upon the following by depositing a copy of same in the United states mail, postage prepaid, addressed as follows: Richard C. Snelbaker, Esquire Snelbaker & Elicker 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 . ',' J Paul Helvy, Esqu llian & Gephart 218 pine Street P.o. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorneys for plaintiff Dated: May 9, 1994 . . '71 ."I<-~^. .-- -:r ~ ;.....~ - "'".- ., :c <It o Q I!', <.; .~ 1.-' , '" "';0 - ... :s::: \6- ~~. '-, - ~ ,",,' '~1Y 'i t.' \~ ..'C"'r :.il"$l?~-'li'".~~-\!f~:~~ '.' ;----'l;..\t'.,i<.~_:.,,1.'h.'i;I! .,;"lA};~~""k>.'':'-5': THI U.W "!'~'OP, ,?ai;~R:~:t1q{It~: KILLIAN a GEPHART, _:;:"''';~'')i' " 'i'~ :7:D~";:;~it';f~:J~i;~%;,:~l~~~;l~;t~~hi1 HARRISBURG.' PINNs:n-,,~I~'!:J:!9.':~~IL':";"\;:""~;"'1'Hf:!.1lii'IC~"'", BIG SPRING EDUCATION ASSOCIATION, . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . Plaintiff . . . . v. : No. 94 - 1834 civil Term . . BIG SPRING SCHOOL DISTRICT, : REGINALD HAW, ASHBY COLLINS, : ROBERT BARRICK, EUGENE CROMER,: KENNETH GLOTFELTY, : SANDRA HOCKENSMITH, : CIVIL ACTION - LAW RICHARD MElLY, : ROBERT ROUSH, JR. and : JAMES SHOWVAKER, : Defendants : PLAIlfTIPP'S MOTIOll POR POST-'1'RIAL RBLIBP Now comes Plaintiff, the Big Spring Education Association, by and through its attorneys, Killian & Gephart, and moves for post- trial relief from the Order of April 22, 1994 on the following grounds: 1. The Court's determination that liThe vote on the fact finder's report cannot be considered a ratification of a collective bargaining agreement" is in error. 2. The Court's determination that Mr. Collins is precluded by the Public Employe Relations Act (PERA), 43 P.S. !i1101.101 ~ ~, from voting on the fact finder's report is in error. WBBRBPORB, the Plaintiff respectfully reques~s this Honorable Court to modify that portion of the April 22, 1994 Order which 7 )' o. ." o ".. ... states that Mr. Collins is precluded by the Public Employe Relations Actfrom voting on a fact finder's report. Respectfully submitted, . Paul Helvy, re Killian & Gep rt 218 pine street P.o. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorney I.D. *53148 Attorneys for plaintiff Dated: May 9, 1994 ]t, o e , . "",' . - CBRT%~!CaT. O. BBRVrCB I, J. PAUL HELVY, ESQUIRE, do certify that I served a true and correct copy of the within document upon the following by depositing a copy of same in the united states mail, postage prepaid, addressed as follows: Richard C. Snelbaker, Esquire Snelbaker & Elicker 44 West Main street P.o. Box 318 Mechanicsburg, PA 17055-0318 , Dated: May 9, 1994 Paul Helvy, illian & Gep rt 218 Pine street P.O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorneys for Plaintiff ; 77 ..". 01t - ~:-~ :z: <Z o ':;l .- ,., :::J-.'._, -. ';'" ., -.-. " - :;~ :~i: - - v \-- 5.17- ?'I fII\ ,.., BIG SPRING EDUCATION ASSOCIATION V : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW . . BIG SPRING SCHOOL DISTRICT, : NO. 94-1834 CIVIL TERM REGINALD HAW, ASHBY COLLINS, : ROBERT BARRICK, EUGENB CROMER,: KENNBTH GLOTFBLTY, SANDRA : HOCKENSMITH, RICHARD MElLY, : ROBERT ROUSH, JR., AND : JAMES SHOWVAKER, : Defendants : IH RE: PLAIII'l'IFF ' S MO'1'IOll FOR POS'1'-!rRIAL RELISF BSFORE SBSELY, P.J. ORDSR OF COUR'1' AND NOW, this I -) r 1(- day of I'I'~ --:~, 1994, plaintiff's motion for post-trial relief is hereby DENIED. This Court's Order dated April 22, 1994 was intended as a final order and adequately discussed the two issues raised in plaintiff's motion. Therefore, plaintiff's motion is denied. By the Court, JJL(~( f' (rl~L Harold E. Sheely, P.U. J. Paul Helvey, Esquire For the Plaintiff Richard C. Snelbaker, Esquire For the Defendant :sld : ~ I 7~' ~,.;o:::' , Hu \1 I 56 PM '9~ ;: ~ ,\: t '.~ , ;,,~~-';.'r\'1 (,UV', . -, ",\i\ C'. ',j,; 't l'E,,;l: H_', ~hr:. '-' '-' ,., ~ BIG SPRING EDUCATION ASSOCIATION, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . Plaintiff v. : No. 94 - 1834 Civil Term . . BXG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR., and JAMES SHOWVAKER, Defendants . . : . . . . : CIVIL ACTION - LAW . . . . . . : NOTICE OF APPEAL Notice is hereby given that Big Spring school District and the several named members of its Board of school Directors collectively in their official (not individual) capacities, Defendants above named, hereby appeal to the Commonwealth Court of Pennsylvania from the order entered in this matter on the 22nd day of April, 1994. This order has been -red......"'d Lv j...d':jIl,,,,..L a..J entered in the docket as evidenced by the attached copy of the docket entry. , p.e. LAW O"ICr:. SNELDAKER " BRENNEMAN By ~ rd P . Sup. ct. I.D. #06355 44 West Main street Mechanicsburg, PA 17055-0318 Attorneys for Defendants VI'I'!..l', ,;;;13<1 .": .tHI"~~ ' CT 116. HJ 5~ .. ,;:10:1 '):-:a 'Iltl' , i. ,It I .' 71 PYS510 1994-01834 cumb~and county Civil Case COMPLAINT pr~thonotarY'~ffice Page 1 Inquiry Filed........ . 4/11/94 3155 Superior Co Execution Date sat/Dis/Gntd. . Jury TriaL... ******************************************************************************** General Index Attorney Info BIG SPRING EDUCATION ASSOCIA- PLAINTIFF HELVY J PAUL TION BIG SPRING SCHOOL DISTRICT DEFENDANT HAW REGINALD DEFENDANT COLLINS ASHBY DEFENDANT BARRICK ROBERT DEFENDANT CROMER EUGENE DEFENDANT GLOTFELTY KENNETH DEFENDANT HOCKENSMITH SANDRA DEFENDANT MElLY RICHARD DEFENDANT ROUSH ROBERT JR DEFENDANT SHOWVAKEfi JAMES DEFENDANT *******....********.**.**.............***.*****************....******.*******... * Date Entries * ******************************************************************************** SHEELY HAROLD E PJ .00 Judge Assigned 1 Judgment 1 0/00/00 0/00/00 COMPLAINT - CIVIL ACTION IN DECLARATORY JUDGMENT MOTION FOR ACCELERATED DISPOSITION AND ORDER BY JUDGE HAROLD E SHEELY PJ AMENDED COMPLAINT IN DECLARATORY JUDGMENT OPINION AND ORDER IN RE: PLAINTIFFS MOTION FOR ACCELERATED DISPOSITION BY JUDGE HAROLD E SHEELY DEFENDANTS PRELIMINARY OBJECTIONS TO COMPLAINT DEFENDANTS MOTION FOR POST TRIAL RELIEF AND ORDER BY JUDGE HAROLD E SHEELY PLAINTIFFS ANSWER TO DEFENDANTS PRELIMINARY OBJECTIONS PLAINTIFFS MOTION FOR POST TRIAL RELIEF ORDER OF COURT IN RE: PLAINTIFFS MOTION FOR POST-TRIAL RELIEF BY JUDGE HAROLD E SHEELY ******************************************************************************** * Escrow Information * * Fees & Debits Beq Ba1 Pvmts/Ad1 End Bal * *****************************************w******,******************************* 04/11/94 04/15/94 04/19/94 04/22/94 05/02/94 05/11/94 05/11/94 05/11/94 05/17/94 35.00 35.00 .00 .50 .50 .00 5.00 5.00 .00 5.00 5.00 .00 ------------------------ ------------ 45.50 45.50 .00 ******************************************************************************** * End of Case Information * ******************************************************************************** COMPLAINT FILED TAX ON CMPLT SETTLEMENT JCP FEE TRUE COPY FROM RECORD tn Testimony wheril'll. I here Wlto set my hand ~/1tJ tho seal of Soli.;! Court ii! Cilrhe~. Pa;/ 'r",I::. '&t ft(ja~ oI.J!i,)!,i._. 19'1., , () /.J (,; )}, ~"'; ~' -- Prolllonotary S'D ,., BXG SPRING EDUCATION ASSOCIATION, . . . . . . Plaintiff . . ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : No. 94 - 1834 civil Term v. BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR., and JAMES SHOWVAKER, Defendants . . . . . . . . : CIVIL ACTION - LAW . . . . . . : TO: Court Reporter Cumberland County Courthouse Carlisle, PA 17013 Thomas Cheffins Court Administrator cumberland County Courthouse Lawrence Welker Prothonotary Cumberland County Courthouse Carlisle, PA 17013 Office of the Prothonotary Commonwealth Court of Pennsylvania P. o. Box 11730 Harrisburg, PA 17108 ORDER FOR TRANSCRIPT AND NOW come the Defendants in the above captioned matter, by and through their Attorneys, SNELBAKER & BRENNEMAN, P.C., and hereby request and order a transcript of the hearing held on April 20, 1994 in this matter. This requect and order is presented pursuant to Pennsylvania Rule of Appellate Procedure No. 1911 and the Pennsylvania Rules of Judicial Administration Nos. 5000.1 et sea. Respectfully submitted, LAW o,,'CtS SNELBAKER .. BRENNEMAN By , P.c. ~ C. Snelbaker Pa. sup. ct. I.D. #06355 44 West Main Street Mechanicsburg, PA 17055-0318 Attorneys for Defendants 'if ., ' ,., ~ . CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the foregoing Notice of Appeal and Order for Transcript to be served upon the persons and in the manner indicated below pursuant to the requirements of Pa.R.A.P. No. 906: POSTAGE PREPAID. FIRST CLASS MAIL The Honorable Harold E. Sheely, P.J. Cumberland County Courthouse Carlisle, PA 17013 J. Paul Helvey, Esquire Killian & Gephart 218 Pine Street P. o. Box 886 Harrisburg, PA 17108 Court Reporter Cumberland County Courthouse Carlisle, PA 17013 Thomas Cheffins Court Administrator Cumberland County Courthouse Carlisle, PA 17013 R co Philip H. Spare SNELBAKER & BRENNEMAN, P.C. 44 West Main Street Mechanicsburg, PA 17055-0318 Attorneys for Defendants Dated: May 20 , 1994 LAW O'''CEIJ SNELDAKER a BRENNEMAN p.. ""'" BIG SPRING EDUCATION ASSOCIATION, Plaintiff v. BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR., and JAM~~ SHO"-~AKER, Defendants {'I . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . . . . . : No. 94 - 1834 civil Term . . . . . . . . . . : CIVIL ACTION - LAW : . . : . . Lawrence Welker Prothonotary Cumberland County Courthouse Carlisle, PA 17013 Office of the Prothonotary Commonwealth Court of Pennsylvania P. O. Box 11730 Harrisburg, PA 17108 ORDER FOR TRANSCRIPT TO: Court Reporter Cumberland county Courthouse carlisle, PA 17013 Thomas Cheffins Court Administrator Cumberland County Courthouse AND NOW come the Defendants in the above captioned matter, by and through their Attorneys, SNELBAKER & BRENNEMAN, P.C., and hereby request and order a transcript of the hearing held on Apri~ 20, 1994 in this matter. This request and ,order is presented pur~~ant to Pennsylvania Rule of Appellate Procedure No. 1911 and the Pennsylvania Rules of Judicial Administration Nos. 5000.1 et sea. &.AW O"ICU SNELBAKER a BRENNEMAN , P.C. '://"'/.<J c C. Snelbaker Pa. SUp. ct. 1.0. #06355 44 West Main Street Mechanicsburg, PA 17055-0318 Attorneys for Defendants ~'f . I~E COMMONWEALTH COURT OF 1f"-NSYLVANIA NOTICE OF DOCKETING APPEAL Docket No: 1312 C.D. 1994 Filed Date: OS/20/94 S-/J.'/(l'f Re: BIG SPRING SCH. et al. v. BXG SPRING ED. Lower Court No.: 94-1834CIV A Notice of Appeal, a copy of which is enclosed, from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The docket number in the Commonwealth Court is endorsed on this notice. The Commonwealth Court docket number must be on all correspondence and documents filed with the Court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial jUdge, should be f?rwarded to the Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa. R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court is to transmit the record is set forth on page 2 of this notice. NOTICE TO COUNSEL A copy of this notice is being sent to all parties or counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa. R.A.P. 907(b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court ~re set forth on Page 2 of this No~ice. If you have special needs, please contact this court in writing as soon as possible. Lower Court Judge: Honorable Harold E. Sheely Attorney: RiChard C. Snelbaker Attorney: J. Paul Helvey Notices Exit: OS/25/94 Prothonotary ~~"1": .- ... r-, , '.. , . => <.~ 'lo.oi.J "-~ =>:: .' ,. ...:; - U2 ..c.. , ~~ . t) r'\ Address all written communications to: Office of the Prothonotary Commonwealth Court of Pennsylvani~ P. o. Box 11730 Harrisburg, PA 17108 Filings may be made in Derson at the following address (except on Saturdays, Sundays and legal Holidays observed by Pennsylvania Courts) between 9:00 a.m. and 4:00 p.m. Otfic' of the Chief Clerk Commonwealth Court of Pennsylvania Room 624 Sixth Floor South Office Building Harrisburg, PA 17120 Pleadings and similar papers (but not paperbooks or certified records) may also be filed in Derson onlY at: Office of the Prothonotary Commonwealth Court of Pennsylvania Filing Office suite 990 The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 560-5742 The hours of the Philadelphia Filing Office are 9:00 a.m. to 4:00 p.m. Under PA. R.A.P. 3702, writs or other process issuing out of the Commonwealth Court shall exist only from the Harrisburg Office and shall be returnable thereto. b<' BIG SPRING EDUCATION . . ASSOCIATION, : Plaintiff . . : v. . . . . BIG SPRING SCHOOL DISTRICT, . . REGINALD HAW, ASHBY COLLINS, : ROBERT BARRICK, EUGENE . . CROMER, KENNETH GLOTFELTY, : SANDRA HOCKENSMITH, . . RICHARD MElLY, : ROBFRT ROUSH, JF" and : JAMES SHOWVAKEn, . . Defendants . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 94 - 1834 Civil Term J 3/ ;) 01 (/ /~ CIVIL ACTION - LAW -~ NOTICE OF APPEAL " -- Notice is hereby given that Big Spring school District and the several named members of its Board of School Directors collectively in their official (not individual) capacities, Defendants above named, hereby appeal to the commonwealth Court of Pennsylvania from the order entered in this matter on the 22nd day of April, 1994. This order has been red.......d Lou juagmellL ....d entered in the docket as evidenced by the attached copy of the docket entry. LAW O""'C~. SNELDAKER a BRENNEMAN By ~ . rd . P . Sup. ct. I.D. #06355 44 West Main Street Mechanicsburg, PA 17055-0318 Attorneys for Defendants TRi,lt:. CCP'" ,.t:1m.r. RECORD In Te""'''''l' "\"1 ..' '" '^ ....j~ ""t Iny .~_.. . .....hl.\; I) ,~.,., .....,.: ~ ,.;:i,_, ...flu...u I ....tu ar.u thll 8ei.!1 (Jl :~Ia G\)i'r! al C;:rli~. PII. Th!:; ~,. K a~y of mc} , 19yjl' ~ J 7: .. - ",lL" J}, (/~',111' '/ C ("::" Prothonotary ~ 1 o ~ . ~ 1I0'1'ICB The Commonwealth Court is instituting a new service in order to speed copies of orders and opinions to attorneys litigating cases in this Court. We will FAX copies of all orders and opinions in a given case to counsel upon written request and the payment of a $50.00 service charge. If you wish to avail yourself to this service, please fill out and return the information below and attach a check made payable to the Commonwealth Court of Pennsylvania in the amount of $50.00. BE SURE TO INCLUDE THE DOCKET NUMBER OF THE CASE. ------------------------------------------------------------------- x desire to have all orders or opinions in the below captioned case faxed to me. , Esq. Name Docket Number FAX Number Caption Signature rt BIG SPRING EDUCATION ASSOCIATION, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . Plaintiff . . . . . . v. . . . . No. 94 - 1834 Civil Term 110. /1./30 t"D. I 'If/If BIG SPRING SCHOOL DISTRICT, : REGINALD HAW, ASHBY COLLINS, : ROBERT BARRICK, EUGENE CROMER,: KENNETH GLOTFELTY, : SANDRA HOCKENSMITH, : RICHARD MElLY, : ROBERT ROUSH, JR. and : JAMES SHOWVAKER, : Defendants : CIVIL ACTION - LAW 1I0'1'IOB OP APPBAL Notice is hereby given that the Big Spring Education Association, plaintiff in the above-captioned action, hereby appeals to the Commonwealth court of Pennsylvania from the Order entered in this matter on April 22, 1994. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. Respectfully submitted, Dated: June 2, 1994 Helvy" Esquire illian & Ge art 218 Pine Street P.O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorney I.D. #53148 Attorneys for Plaintiff o BIG SPRING EDUCATION ASSOCIATION, Plaintiff v. BIG SPRING SCHOOL DISTRICT, REGINALD HAW, ASHBY COLLINS, ROBERT BARRICK, EUGENE CROMER, KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MElLY, ROBERT ROUSH, JR. and JAMES' SHOWVAKER, Defendants ..---........ ' I'. ,..., .., . . . . . . . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : No. 94 - 1834 civil Term . . CIVIL ACTION - LAW ORDBR I'OR '1'RAlfSCRXP'1' AND NOW comes the Plaintiff in the above-captioned action, the Big spring Education Association, by and through its attorneys, Killian & Gephart, and hereby requests and orders a transcript of the hearing held on April 20, 1994 in this matter. This request and order is presented pursuant to Pennsylvania Rule of Appellate Procedure No. 1911. Respectfully submitted, Dated: June 2, 1994 ~J} t/t aul Helvy, E i: lian & Gepha 218 pine Street P.O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorney I.D. *53148 Attorneys for Plaintiff qo o 4\ r-.. ... CBR'1'I~ICA'1'B o~ SBRVICB I, J. PAUL HELVY, ESQUIRE, do certify that I served a true and correct copy of the within document upon the following by depositing a copy of same in the United States mail, postage prepaid, addressed as follows: Richard C. Snelbaker, Esquire Snelbaker & Elicker 44 West Main street P.O. Box 318 Mechanicsburg, PA 17055-0318 The Honorable Harold E. Sheely CUmberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Court Reporter CUmberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Thomas Cheffins, Court Administrator CUmberland county Courthouse 1 Courthou&e Square Carlisle, PA 17013 Dated: June 2, 1994 J Paul Helvy, Es Killian & Gephar 218 Pine Street P.O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorneys for Plaintiff q/ (-"'~--~' PYS510 1994-01834 Cumbe~nd County Prothonotary's ~ivi1 Case lnquiry COMPLAINT ~ice Page, 1~ Filed. . . . . . . . . 4/11/94 3:55 CD 1994 0/00/00 0/00/00 Superior Co1312 Execution Date Sat/Dis/Gntd. . Jury Trial. . . . ..........................***...*..*.*..*......*..*.....*..*..**..*.....**.*..*. General Index Attorney Info BIG SPRING EDUCATION ASSOCIA- PLAINTIFF HELVY J PAUL TION BIG SPRING SCHOOL DISTRICT DEFENDANT HAW REGINALD DEFENDANT COLLINS ASHBY DEFENDANT BARRICK ROBERT DEFENDANT CROMER EUGENE DEFENDANT GLOTFELTY KENNETH DEFENDANT HOCKENSMITH SANDRA DEFENDANT MElLY RICHARD DEFENDANT ROUSH ROBERT JR DEFENDANT SHOWVAKER JAMES DEFENDANT ..........*.......*****..**.*.*...........................**.*...**.*.*.*.**..*. · Date Entries · ......................................*......................*.....**.....**..** Judge Assigned: Judgment: SHEELY HAROLD E PJ .00 04/11/94 COMPLAINT - CIVIL ACTION IN DECLARATORY JUDGMENT 04/15/94 MOTION FOR ACCELERATED DISPOSITION AND ORDER BY JUDGE HAROLD E SHEELY PJ 04/19/94 AMENDED COMPLAINT IN DECLARATORY JUDGMENT 04/22/94 OPINION AND ORDER IN RE: PLAINTIFFS MOTION FOR ACCELERATED DISPOSITION BY JUDGE HAROLD E SHEELY 05/02/94 DEFENDANTS PRELIMINARY OBJECTIONS TO COMPLAINT 05/11/94 DEFENDANTS MOTION FOR POST TRIAL RELIEF AND ORDER BY JUDGE HAROLD E SHEELY 05/11/94 PLAINTIFFS ANSWER TO DEFENDANTS PRELIMINARY OBJECTIONS 05/11/94 PLAINTIFFS MOTION FOR POST TRIAL RELIEF 05/17/94 ORDER OF COURT IN RE: PLAINTIFFS MOTION FOR POST-TRIAL RELIEF BY JUDGE HAROLD E SHEELY OS/20/94 NOTICE OF APPEAL TO COMMONWEALTH COURT OF PENNSYLVANIA 05/26/94 COMMONWEALTH COURT OF PENNSYLVANIA OFFICIAL DOCKET # 1312 CD 1994 ******************************************************************************** . Escrow Information · * Fees & Debits Boa Bal Pvmts/Ad1 End Bal * .........*....*..**.............*...............,................**...***....... COMPLAINT FILED TAX ON CMPLT SETTLEMENT JCP FEE APPEAL 35.00 .50 5.00 5.00 30.00 35.00 .50 5.00 5.00 30.00 .00 .00 .00 .00 .00 ------------------------ ------------ 75.50 75.50 .00 ....*..............*..................*.****.***********************.*********** * End of Case Information * ***********.*********.*..........**...*.............*..................********* TRUE COPY FROM HECORD In TflSllrnlJllj' w~,areol. 1111)f(I Un{(l r::t my hand 2r.d Ih1' ~;t'al !II SJid C{lurl i!\ Ci\rH~, Pi!, "ill!:; y' 0' dil'J 01 -.)u..u. _,19 <(4 "-A~\:~') '\, \l..l; ..~\:..',....., _1 ")"t; Prothonotary :::-:::: ~ ';::f ~ ] <:> , 'lj ~ ut ;:1 ... . - .(3 a: ... .... "- '1. " -::r ~ en ;..- )- - ~~:; :> - , ,., ~ ,,- \d. .a .('() ~) ,-,..~ m .,-' N ,. :::.., ~ ........ .' - tJ i ,::I: - : * " .JJ -:lI <--J !,".,,-' ~ .. q.. :z: ;,J ~ (.I => ~"_~ r_:. --. .' "';j- 0-. I " ~ v - v , .. IN ~E COMMONWEALTH COURT OF P("rSYLVANIA NOTICE OF DOCKETING APPEAL Docket No: 1430 C.D. 1994 Filed Date: 06/02/94 Re: BIG SPRING ED ASSO v. BIG SPRING SCH DIST Lower Court No.: 1834CIVIL94 A Notice of Appeal, a copy of which is enclosed, from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The docket number in the Commonwealth Court is endorsed on this notice. The Commonwealth Court docket number must be on all correspondence and documents filed with the Court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. . The complate record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa. ,R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court is to transmit the record is set forth on page 2 of this notice. .NOTICE TO COUNSEL . A copy of this notice is being sent to all parties or counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa. R.A.P. 907(b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on Page 2 of this Notice. If you have special needs, please contact this court in writing as soon as possible. Lower Court Judge: Honorable Harold E. Sheely Attorney: J. Paul Helvy Esq. Attorney: Richard C. Snelbaker Notices Exit: 06/07/94 Prothonotary '-. c.:~ "" c~< c;;,;;.~ r." co . . -',-. ., . " - u:> ..c.. q3 ~ ,-, f', Address all written communications to: Office of the Prothonotary Commonwealth Court of Pennsylvania P. O. Box 11730 Harrisburg, PA 17108 Filings may be made in Derson at the following address (except on Saturdays, Sundays and legal Holidays observed by Pennsylvania courts) between 9:00 a.m. And 4:00 p.m. Office of the Chief Clerk Commonwealth Court of Pennsylvania Room 624 sixth Floor South Office Building HarriSburg, PA 17120 Pleadings and similar papers (but not paperbooks or certified records) may also be filed in Derson onlY at: Office of the Prothonotary Commonwealth Court of Pennsylvania Filing Office Suite 990 The Widener Building One South Penn Square Philadelphia,' PA 19107 (215) 560-5742 The hours of the Philadelphia Filing Office are 9:00 a.m. to 4:00 p.m. Under PA. R.A.P. 3702, writs or other process issuing out of the Commonwealth Court shall exist only from the HarriSburg Office and shall be returnable thereto. q'f ,... .-1. ':"'~ "".1:"":: ,'~:~';".'(' TH&LAWl'1ftMO~ '.', " KILLIAN ""'''PHAR~' , : , a'8 PINK .".In' ... o. .OX ... HARRIS.URG. PKNNIIYL.VANIA ,~'o...o..e BIG SPRING EDUCATION ASSOCIATION, plaintiff v. BIG SPRING SCHOOL DISTRICT, : REGINALD HAW, ASHBY COLLINS, : ROBERT BARRICK, EUGENE CROMER,: KENNETH GLOTFELTY, SANDRA HOCKENSMITH, RICHARD MEILY, ROBERT ROUSH, JR. and JAMES SHOWVAKER, Defendants - I' , -.~ -"''1-, '" 'j , ".",' ',' ,.., ,,', ,.... :::+'," ': ":." ,. t;!\~ ;, .. ':i '::' ;. ,"t \ ~ . ",...;. CIERTlP'IED COPY . . . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . : No. 94 - 1834 civil Term 1~3oLl)/?f1- . . CIVIL ACTION - LAW . . : . . NOTICE OP APPEAL Notice is hereby given that the Big spring Education Association, plaintiff in the above-captioned action, hereby appeals to the commonwe~lth Court of Pennsylvania from the Order entered in this matter on April 22, 1994. This order has been entered in the docket as evidenced by the attached copy of the docket entry. Dated: June 2, 1994 Respectfully submitted, ~~ {:}- Paul HelvY~iEsquire illian & Gepl'1art 218 pine Street P.O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorney I.D. #53148 Attorneys for Plaintiff TRUE COpy FROM RECORD I.. Testim(':w wlierl!'JI, I here unto set my iWld " ~ l;-,o sail ~ !laid Comt at (:iirli:de. Pa. i ..is ~f',1 dilY of ..Jl.'0\o!, 19,;<1 - \u.A",D ,'"\"..:.J:r<\o.,<" ,~)"c Prothonotary s q~ -',r"" ,......-.. """" -. KOTICB The Commonwealth Court is instituting a new service in order to speed copies of orders and opinions to attorneys litigAting cases in this Court. We will FAX copies of all orders and opinions in a given case to counsel upon written request and the payment of a $50.00 service charge. If you wish to aVAil yourself to this service, please fill out and return the information below And attach a check made payable to the Commonwealth Court of PennsylvAnia in the amount of $50.00. . BE SURE TO INCLUDE THE DOCKET NUMBER OF THE CASE. ------------------------------------------------------------------- I desire to have all orders or opinions in the below captioned case faxed to me. Name , Esq. Dod;et Number FAX NUJl!ber Caption Signature q6 . ~ o ...p' o BIG SPRING EDUCATION ASSOCIATION, plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . . . . . v. . . . . . . BIG SPRING SCHOOL DISTRICT, : REGINALD HAW, ASHBY COLLINS,: ROBERT BARRICK, EUGENE : CROMER, KENNETH GLOTFELTY : SANDRA HOCKENSMITH, RICHARD : MEILY, ROBERT ROUSH, JR., : and JAMES SHOWVAKER, : CIVIL ACTION - LAW Defendants NO. 94-1834 CIVIL TERM IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the Honorable HAROLD E. SHEELY, P.J. Cumberland county courthouse, carlisle, Pennsylvania on Wednesday, April 20, 1994, commencing at 1:30 p.m. in Courtroom Number Five APPEARANCES: J. Paul Helvy, Esquire For the Plaintiff Richard C. Snelbaker, Esquire For the Defendants q7 ~~~.;.-,...,.'"'.;..:..,,--<.- Ju~ 10 10 IlZ 4H '9~ I.; . , f If' p" i.o;: tf';',;"J.rt't ~ ~; \(, " ~ ,'! . fr ;'1:,.,,:,(* .".'. .. . '-" ........ " . . ~ - ~. - ...,. --, - , ~ 1"""\ INDEX TO WITNESSES FOR THE PLAINTIFF Kenneth Glotfelty Carlin Wenger DIRECT CROSS 5 22 40 23 INDEX TO EXHIBITS FOR THE PLAINTIFF MARKED ADMITTED Ex. No. 1 - memorandum 10 40 Ex. No. 2 - advice of counsel 19 40 Ex. No. 3 - fact-finder's report 38 40 ,'t.'~'_o>:"'-il~~.~_ 18 "'~. !.:..~;t .:_~~ ~ r-. 1 THE COURT: I think I'm well aware of the 2 issues here. The issue is whether or not the members of the 3 Big spring School Board should be permitted to vote on this 4 fact-finder's report, and that issue will eventually be 5 decided in the declaratory judgment action, and the issue 6 today is whether or not I should decide this issue now on a 7 motion for accelerated disposition. 8 I thought what I would do today is give either 9 side an opportunity to present any factual testimony that 10 either side wants to present on this issue, and when that's 11 over, I'll give each side an opportunity to argue your 12 position and then I'll decide this matter very quickly, 13 probably tomorrow, and go from there. 14 So, Petitioner, you're Mr. Helvy? 15 MR. HELVY: Yes, I am, Your Honor. 16 THE COURT: Do you have any factual testimony 17 you want to present at the hearing today? 18 MR. HELVY: Yes, Your Honor. 19 THE COURT: Okay. You may proceed. 20 MR. HELVY: A quick inquiry, Your Honor. 21 When you do receive argument, would you like to hear 22 argument only on the motion for accelerated disposition or 23 would you like to hear argument on both the motion and 24 the-- 25 THE COURT: I think I'll hear argument on 3 ~ ~ -- n 1 both of them it you're going to present it. 2 MR. HELVY: Okay. Thank you, Your Honor. 3 The tirst witness we would like to call is Mr. Kenneth 4 Glotfelty. 5 MR. SNELBAKER: If the Court please, before 6 we start the testimony may I just have one moment to make a 7 brief introductory matter? 8 THE COURT: Go ahead. 9 MR. SNELBAKER: Yesterday we were served with 10 a document which is entitled amended complaint in 11 declaratory judgment. 12 13 THE COURT: I saw one was filed on the 19th. MR. HELVY: Yes. 14 MR. SNELBAKER: Now, we did not agree to that 15 and there has been no leave of Court granted for it and for 16 that reason we will oppose any of the matters which are set 17 forth in the complaint or, I'm sorry, the amended complaint. 18 I don't believe that the amended complaint is properly among 19 the pleadings in this case. 20 THE COURT: Okay. Well, that will be another 21 matter I'm going to have to do something on. I'm going to 22 have to resolve that issue, too. Your objection is on the 23 record. 24 Whereupon, 25 KENNETH GLOTFELTY 4 /00 ~ ~ ~ 1 having been duly sworn, testified as follows: 2 DIRECT EXAMINATION 3 BY MR. HELVY: 4 Q Could you state your full name for the 5 record, please. 6 A Kenneth Glotfelty. 7 Q And where do you reside? 8 A 710 Meadowbrook Road, Carlisle. 9 Q And are you a member of any school boards? 10 A Yes, sir, Big Spring school Board. 11 Q And how long have you been a member of that 12 school board? 13 A Just a little over two years. 14 Q Mr. Glotfelty, have you had the opportunity 15 to review the caption of the complaint in declaratory 16 judgment that was filed in this matter, and specifically I'm 17 referring to the individual school board members who are 18 named as Defendants? 19 A Yes, sir. 20 Q Have we correctly named the nine school board 21 members of the Big Spring school District Board of 22 Directors? 23 A As I recall, yes, sir. 24 Q Thank you. Mr. Glotfelty, do you recall when 25 the last collective bargaining agreement that was agreed to 5 . ~ .,,,-,.- (".. 1 by both the education association and the school district 2 expired? 3 4 5 6 A I believe it was for the '91/'92 school year. At the end of the '91/'92 school year? Q A Yes, sir. 7 started -- did it start before or after that? Q And negotiations for a new contract 8 9 A I think that it started before that. Q Okay. Now, did those negotiations lead to a 10 resolution of the collective bargaining agreement? 11 12 A No, sir. Q The parties were not able to reach a 13 collective bargaining agreement, right? 14 15 16 mediation? 17 18 A No, sir. Q Do you know whether the parties engaged in A They engaged in fact-finding. THE COURT: Okay. I'm not up to date on 19 these fact-finding differences and mediation. 20 21 you-- 22 23 24 MR. HELVY: Your Honor, I'd be happy to give THE COURT: But it is different? MR. HELVY: Yes, it is. Would you like -- THE COURT: No, not now, but that's -- the 25 question was did they engage in mediation. No, they engaged 6 10).. . ~ ~~~ ~ 1 in fact-finding, is that it? 2 MR. HELVY: I believe the answer was I'm not 3 sure but they did engage in fact-finding. That's the heart 4 of the issue anyway, Your Honor. 5 6 BY MR. HELVY: 7 Q 8 took place? 9 A 10 Q THE COURT: Okay. Do you recall when the first fact-finding I believe it was March of 1993. And was it in March of 1993 that the 11 fact-finder issued a report and recommendation? 12 A 13 Q Yes, sir. Now, did the school board prior to voting on 14 that fact-finder's report and recommendation have any 15 concerns regarding the ability of any of its board 16 members -- regarding the ability of them to vote on this 17 fact-finder's report? 18 19 A Yes, sir. Q Did they seek an opinion from any attorneys 20 or anybody regarding this concern? 21 22 consulted. 23 Yes, as far as I know Mr. Snelbaker was A Q Do you know if Mr. Snelbaker ever issued an 24 opinion regarding whether it was appropriate for any members 25 of the school board to vote on the fact-finder's report? 7 /~ . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 o t:""I A Yes, he did. Q Okay. Now, how many members are we talking about here? A There were three members excluded from the fact -- from voting. There were three members excluded from seeing the fact-finder's report prior to its public presentation, and there were three members who were advised -- who abstained from voting on the fact-finder's report. Q Was it the same three members? A Yes, sir. Q All right. Could you name those three school board members? A Myself, Mr. Ashby Collins, and Mr. Robert Barrick. Q Could you tell us what the basis for the, I guess, concern over whether these people have a conflict of interest was? A Well, I'm married to a teacher in the district. Q Let me stop you there. Is that the sole source of the concern regarding your potential conflict of interest? A As far as I know, yes, sir. Q How about the next person? 8 lot{- . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 c I"'. A Mr. Collins is a member of PSEA. Q Is he also a teacher? A Yes. Q Now, is he a teacher in the Big Spring School District? A No, sir. And Mr. Q Before you go on, to the best of your knowledge is that the extent of Mr. Collins's potential conflict of interest? A To the best of my knowledge, yes, sir. Q All right. And you were about ready to mention Mr. Barrick? A And Mr. Barrick is also a teacher, but he is -- but his sister is a teacher in the Big Spring District. Q Okay. Now, you said Mr. Barrick was a teacher. He's a teacher in the Big spring School District? A No, sir. Q All right. But he has a sister who does teach in the Big Spring School District? A Yes. Q Now, do you know whether Mr. Barrick is a PSEA member or not? A I do not think he is. Q Now, did the school board ever receive any 9 IO!" . t'""'\ r- . 1 written opinion from its director or from any member of the 2 district administration regarding whether they could vote or 3 not? 4 A I'm not -- are you saying did we receive 5 anything in writing telling us not to vote? 6 Q Yes. 7 A Yes, sir. 8 MR. HELVY: May I approach the witness? 9 THE COURT: Sure. 10 (Whereupon, Petitioner'S Exhibit No. 1 was 11 marked for identification.) 12 BY MR. HELVY: 13 Q I'm going to show you what is going to be 14 marked as Petitioner's Exhibit No. 1 and I ask you to 15 identify that document. 16 A This is a memorandum to the board of 17 directors from stephen Angle, business manager, subject to 18 solicitor'S response to an inquiry about voting with 19 conflict of interest. 20 Q And what is the date of that memorandum? 21 A March 4th, 1993. 22 Q And does that memorandum Bet forth or comport 23 with your prior testimony that you were told that you could 24 not review the fact-finder's report or vote on the 25 fact-finder's report? 10 lote -.>._-,...,.'.'''.~' ~..g"~h' . ~ r.. 1 A Yes, it does. 2 Q I would like to refer you to the second pAge 3 of that memorandum. Was the school board ever advised as to 4 how many votes would be required to accept the fact-finder's 5 report? 6 A Yes. It says five votes. 7 Q And now how many members are there on the 8 school board? 9 A Nine. 10 Q And how many members were excluded as a 11 result of that opinion? 12 A Three. 13 Q So that would have left six? 14 A That's correct. 15 Q And would it be accurate to say that you were 16 told that you needed five of the remaining six eligible 17 school board members to vote in favor of the fact-finder's 18 report in order for it to be passed? 19 A That's what it says here, yes, sir. 20 Q Now, did the school board ever vote on that 21 1993 fact-finder's report? 22 A Not to my knowledge. 23 Q Can you tell us why? 24 A I'm not really sure except that I think the 25 weather had an effect on whether they could vote in the 11 107 , ~ ::-.."'~ ("'I 1 first time period when they were supposed to vote on it, and 2 then I think the teachers turned it down and they just 3 decided it was sort of a mute point to vote on it the second 4 time. 5 Q So to the best of your knowledge, and I guess 6 you would know since you're on the school board, the school 7 board never voted one way or another on the 1993 8 fact-finder's report? 9 10 A Right. Q Now, after that came and went did you ever go 11 to the ethics commission and seek an opinion regarding your 12 ability to do certain things as a school board member? 13 14 15 that? 16 Yes, sir. A Q Do you recall during what time frame you did A The -- well, I did -- I asked them a question 17 which had nothing to do with negotiations on one occasion 18 last fall then early this spring. 19 Let me stop you there. We might as well get Q 20 a complete record here. You said you had asked them 21 something else. What did you ask them? 22 A I had asked them if I could make a motion 23 which would pertain to the possible make-up of the 24 negotiating team and to force the negotiations into a more 25 regular pattern than I had seen up to that point. 12 IO~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 __~."~......, ..r.........'___ ~ "'" Q commission? A Q Did you ever get a response from the ethics Yes, I did. Can you tell us what the ethics commission told you? A Well, in essence they said that yes the way I had worded the motion that I could present that to the school board. Q So there would be no conflict of interest in you presenting a motion to the school board or to the school board's negotiating team on how negotiations ought to be conducted? A Well, it had to be presented to the entire board. It was something that needed to be voted on by the entire board. Q Would you be allowed to vote on that motion once it was made? A Yes. Q And is that set forth in the opinion? A Yes, it is. Q Now, that was the first time you talked to the ethics commission, correct? A Right. Q You sought another opinion from the ethics commission, though? 13 o t:"". 1 A Yes, sir. Early this year I asked the ethics 2 commission whether I could be excluded from voting if we 3 came to non-binding arbitration. 4 Q Let me stop you there. 5 A Yes. 6 Q You asked about non-binding arbitration as 7 opposed to fact-finding, correct? 8 A That's correct. 9 Q Why did you ask about non-binding arbitration 10 and not about fact-finding? 11 A Well, because I really thought that was going 12 to be possibly the next step. 13 Q Okay. And did you get a response from the 14 ethics commission regarding your ability to vote on 15 non-binding arbitration? 16 A Yes, I did. 17 Q Again let me stop you there. 18 A Yes. 19 Q In your request to the ethics commission did 20 you also ask regarding the ability of any other school board 21 member to vote on non-binding arbitration? 22 A Yes, I did. I told Mr. Barrick and Mr. 23 Collins that I was doing this, and they asked me to include 24 them in the request. 25 Q Did you provide the facts regarding not only 14 o ('I, 1 yourself but also Mr. Barrick and Mr. Collins to the ethics 2 commission? 3 A Yes, I did. 4 Q Now, you received A response from the ethics 5 commission? 6 A Yes, I did. 7 Q Can you tell us what the ethics commission 8 said regarding your ability to vote on non-binding 9 arbitration? 10 A In essence they said that the non-binding 11 arbitration, when that is brought back to the board and the 12 members of the union, that it is a contract, so, therefore, 13 I should be able to vote on it. 14 Q Okay. How about Mr. Barrick and Mr. collins? 15 A Also said that they could vote on it. 16 Q Did you ever show this opinion to the school 17 board? 18 A I gave it to our superintendent who passed it 19 on to our solicitor. 20 Q To the best of your knowledge did the 21 solicitor alter his opinion in any way based upon the 22 receipt of the ethics commission's opinion? 23 A No, sir. 24 Q Now, there was a second fact-finder appointed 25 in this case, was there not? 15 (I( ,. V~ r'O"" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 o ,..... A Yes, sir. MR. SNELBAKER: If Your Honor please, I'm going to interpose an objection before this Court. The issue before the Court now is whether or not this particular fact-finding -- I know Mr. Glotfelty is going to refer to this -- which is the basis of the present action, of the declaratory judgment action. THE COURT: How could they appoint a second fact-finder when this issue hasn't been decided yet? MR. HELVY: Your Honor, the issue that is before the Court today is on the second fact-finder's report. THE COURT: Well, if it's on it, I'll permit him to testify to that then. MR. HELVY: Thank you. MR. SNELBAKER: I don't want to -- I didn't quite finish with what I was in the process of saying. THE COURT: All right. MR. SNELBAKER: This raises the very essence of what we're talking about here as to whether or not the Court should exercise its discretion to undertake this matter, and here is where we have submitted in our motion in opposition to this proceeding today at least some of the arguments and some of the reasons why we don't believe that this is an appropriate thing for the jUdicial system to 16 10- ,., ~ 1 become involved in where the legislative and administrative 2 body of a municipality of a school district in this case is 3 being asked to exercise its discretion in any particular 4 given way. 5 THE COURT: I understand that and I've read 6 your objection for that reason, but I think I'm willing to 7 hear what he has to say and I'll certainly consider that as 8 a reason when we come to making a decision on this case. Go 9 ahead. I forgot what the last question was. 10 MR. HELVY: We had asked about the second 11 fact-finding. 12 BY MR. HELVY: 13 Q Was a second fact-finder appointed to get 14 involved in this dispute between the Big spring Education 15 Association and the Big Spring school District? 16 A Yes, sir. 17 18 19 20 21 22 23 24 25 Q Did that fact-finder issue a fact-finding report? A Q Yes, sir. Do you know about when that fact-finding report was issued? A I think it was around -- it was the beginning of this month. I don't remember the exact day. Q Does April 4th ring a bell? A That would be close. 17 1(3 ---... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 c o MR. HELVY: Can we stipulate to that? MR. SNELBAKER: I've never seen it. THE COURT: Is that correct? Can somebody tell me? MR. HELVY: THE COURT: April 4th. April 4th. BY MR. HELVY: Q Now, at what point did you learn that a second fact-finder was going to be appointed, about what point in time? A The middle of last month. Q Did you have any further communication with the ethics commission once you found out that you were going to fact-finding as opposed to non-binding arbitration? A Yes, sir, I did. I requested their opinion again on whether myself, Mr. Barrick, and Mr. Collins could vote on a fact-finder's findings report. Q And did you receive a response from your inquiry? A Today I did, yes, sir. MR. HELVY: May I approach the witness, Your Honor? THE COURT: Let me just ask you, what binding authority does the ethics commission have on the jUdiciary as far as -- I mean is there anything in the statute that 18 ~,,-'" ,,~...' (""") "" ,......, 1 says we're bound by the ethics commission, how they 2 determine an issue? Do you have any cases on that? 3 MR. HELVY: Y~s, Your Honor. 4 THE COURT: All right. Let's go on. I'll 5 take a look at that and then hear from you later on. 6 (Whereupon, Petitioner's Exhibit No. 2 was 7 marked for identification.) 8 BY MR. HELVY: 9 Q I show you what's been marked as Petitioner's 10 Exhibit 2 and I ask you to identify that document. 11 A This is advice of counsel from the state 12 Ethics commission dated April 20th. 13 Q When did you receive this document? I saw it at about quarter after one. Have you had an opportunity to review that 14 15 A Q 16 document? 17 A Yes, I had an opportunity to scan it. I 18 really did not have an opportunity to read it thoroughly. 19 Q And I'm not going to ask you what the 20 reasoning is, but do you know what the final determination 21 of the ethics commission was? 22 A The final determination of the ethics 23 commission is that under the ethics commIssion's rules that 24 I and Mr. Barrick and Mr. Collins will be able to vote on 25 the fact-finder's report. 19 lIS 1 2 3 4 5 6 7 8 9 it' 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 o ~ o Thank you. Now, did the school board vote on the second fact-finder's report? A Yes, they did. o And can you tell me how many people voted on that? A six voted. o So three didn't, correct? A Three abstained. o Which three would that be? A That was Mr. Collins, Mr. Barrick, and myself. o Why did you abstain? A Because we were advised to abstain. o If you had your druthers in this matter, would you vote? A Yes, sir. Q And will the school board have an opportunity to vote on this matter again? A Yes, sir. Q Can you tell us when? A Friday. Q Friday night, the meeting for Friday night? A Friday evening, yes, sir. Q Do you know when the last day the school board can vote on this matter is? 20 II fa 1 2 ~ ....... o A No, sir, I do not. Now, as A school board member is it your Q 3 desire to have everybody vote on this matter? 4 5 6 7 A Yes, sir. Q A And is that why you joined in this action? Yes, sir. Q And by this action I mean the complaint in 8 declaratory judgment or the amended complaint in declaratory 9 judgment? 15 16 17 18 19 district? 20 21 23 24 A Yes, sir. 10 11 12 BY THE COURT: 13 MR. HELVY: I have no further questions. Q I'm sure everyone else knows all this, but 14 your wife is a teacher at Big Spring? A Yes, sir. Q What grade? Fourth grade, sir. And how long has she been a teacher in the A Q A About twenty-seven years, sir. Q And you're elected from what portion of the 22 Big spring School District? From Lower Frankford Township. A THE COURT: That's all I have. Mr. 25 Snelbaker. Cross-examine. 21 //7 -", .', ,",' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 o I"'. CROSS-EXAMINATION BY MR. SNELBAKER: Q with regard to Mr. COllins, is it your understanding that Mr. Collins was a member of PSEA At the time that he was elected? A Yes, sir. Q It would be correct -- would I also be correct that Mr. Barrick's sister was a teacher at Big spring School District when he was elected to this board? A Yes, sir, as far as I know. Q Was the vote that was taken on the second fact-finding report last week I believe, has that been made public? A Yes, sir. Q And can you tell the Court what the vote was on that? A That was six to zero. Q And that was to do what? A That was to deny or turn down the fact-finder's report. Q Now, you indicated that you were advised to abstain at the vote last week? A Yes, sir. Q And who advised you to abstain? A We had asked -- we had asked the business 22 ~ t""\ 1 manager and he said there was no change from your prior 2 statement in 1993. 3 Q So it was based on what Mr. Angle, the 4 business manager, told you? 5 A Yes, sir. 6 MR. SNELBAKER: That's all. 7 THE COURT: Any other questions of Mr. 8 Glotfelty? 9 MR. HELVY: I have no further questions, Your 10 Honor. 11 THE COURT: I have none. Thank you, sir. 12 You may step down. 13 MR. HELVY: The Big Spring Education 14 Association would like to call Carlin Wenger. 15 Whereupon, 16 CARLIN WENGER 17 having been duly sworn, testified as follows: 18 DIRECT EXAMINATION 19 BY MR. HELVY: 20 Q Would you please state your full name for the 21 record. 22 A Carlin Wenger. 23 Q Where are you employed? 24 A I'm employed by the Pennsylvania State 25 Education Association. 23 (/1 o ~ 1 Q What is your capacity with the Pennsylvania 2 state Education Association? 3 A I'm a field representative assigned to work 4 with the local education associations in Cumberland and 5 Perry counties. 6 Q Is the Big spring Education Association one 7 of your associations that you're responsible for? 8 A Yes, sir, it is. 9 Q Can you tell us what the Big Spring Education 10 Association is in less than five minutes? 11 A It's an organization that is affiliated with 12 the Pennsylvania state Education Association and the 13 National Education Association, who is the authorizing 14 bargaining representative for the unit of employees that 15 it includes the professional non-management level of 16 employees in the Big Spring School District. We represent 17 teachers, nurses, guidance counselors, librarians. 18 Q Now, is the education association the 19 exclusive bargaining agent for those individuals who it 20 represents? 21 A That is correct, it is. 22 Q Have you heard the testimony? 23 THE COURT: Excuse me, gentlemen. Guidance 24 counselors also are permitted to be a part of bargaining? 25 THE WITNESS: In all places that I've worked 24 /20 t:) r": 1 except Mechanicsburg. They have joined at Mechanicsburg but 2 initially they were excluded, but since I'va been in the 3 job, as you know, since 1979 I've been in the same 4 bargaining unit. 5 THE COURT: I just asked that as a matter of 6 information. 7 BY MR. HELVY: 8 Q Have you had the opportunity to listen to Mr. 9 Glotfelty's testimony? 10 A Yes, sir, I have. 11 Q Do you have any factual disagreement with any 12 of his testimony? 13 A No, I do not. 14 Q I'd like to just fill in a few gaps from the 15 association's perspective. The 1993 fact-finder's report, 16 that's the first one. 17 A Correct. 18 Q Does the association accept or reject that? 19 A They voted unanimously to reject it. 20 Q And did the board ever vote on that first 21 fact-finder's report? 22 A To my knowledge they did not. From copies of 23 communications that they forwarded to the labor board that 24 they copied me on, they did not ever vote on it. 25 Q Now, did the association ever file any formal 25 /2/ ~ (:'1 1 complaint or objection to the school board's failure to vote 2 on the fact-finder's report? 3 A No, we did not. 4 Q Can you tell me why? 5 A The labor board accepts lack of action as a 6 no vote, so it was marked down, if you will, in the register 7 of the labor board as a rejection from the school board 8 since the association voted twice to reject any 9 determination by the board; however, their vote to reject 10 was consistent with our position so we saw no reason to 11 proceed to challenge it. 12 Q I guess you're as good a person to do this as 13 anyone. Can you very briefly describe the difference 14 between mediation and fact-finding and arbitration? 15 A I will attempt to. It has become more 16 complicated with the addition of Section 11(a) to the school 17 code which was incorporated as part of Act 88 of July of 18 1992, and in essence it requires school employees to begin 19 bargaining no later than the beginning of January prior to 20 the expiration of a contract. 21 They need to -- they are required to bargain for a 22 period of time on their own. They are then obligated to be 23 involved with the use of mediation, which means applying to 24 the state Bureau of Mediation and having a mediator 25 assigned. 26 Il.l... o ~ Q Just so I can keep up with you here. The first thing they have to do is negotiate, correct? A Correct. Q And if you can't clear a collective bargaining agreement by just negotiation, then Act 88 or Article 11(a) of the school code requires them to do 1 2 3 4 5 6 7 something else, and I believe you mentioned, was that 8 mediation? 9 A That is correct. 10 Q What is mediation? 11 A Mediation is a proceeding to negotiate 12 between the parties but under the auspices of a state 13 mediator where the mediator facilitates the workings between 14 the parties either by being physically present in the 15 courtroom or going back and forth between rooms or a variety 16 of ways but in essence very similar for bargaining except 17 the mediators are in charge. 18 Q Now, if mediation doesn't result in a 19 collective bargaining agreement, does Article 11(a) of the 20 school code require the parties to engage in any other 21 procedures? 22 A It doesn't specifically require it but allows 23 for the option of proceeding into another process called 24 fact-finding. 25 Q Tell us about that. 27 Ik~ F-...."--,,..... ~ ^ 1 A Fact-finding is a process where it can be 2 selected or requested jointly by the parties, it can be 3 requested by either party unilaterally, or it can be ordered 4 by the labor board on their own Action. 5 It involves the appointment of -- the law allows a 6 panel of up to three, but as a practical matter, in my 7 experience, it's only ever been one person who's identified 8 as a fact-finder from a list of individuals that the labor 9 board has and people who do this kind of work, labor 10 attorneys, college professors, retired mediators. 11 They appoint a person who comes in as a 12 fact-finder and has a forty-day period of time to come in, 13 meet with the parties, ascertain the position of the 14 parties, hold formal hearings to get any of the facts that 15 the parties wish to present, and then render a decision in 16 writing with a report and recommendations within that 17 forty-day time period. 18 Q So what happens is the fact-finder renders a 19 decision or determination? 20 A When the parties receive that decision, 21 within ten days of when the fact-finder issues it, within 22 ten days, they are required to meet and consider whether or 23 not they would accept that fact-finder's recommendation in 24 total, not as partial, not with the acceptance of some part 25 and rejection of the others, not with any clarification, you 28 o f"" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 accept it or reject it in total. Q And that's within ten days of its issuance? A Within ten days of its issuance. Q Now, let's say that both parties don't accept it. What happens then? A If either or both parties act to reject it during that first ten-day consideration period, then the labor board releases the report to the press. The press publishes it, if you will, and then there's a five-day waiting period after the time of publication during which either party is not to take any action. Then there's a next five-day period, and during that next five-day period any party that rejected it is required to consider it again following its publication to see if on a second consideration they accept or reject the fact-finder's report. Q So they, both the association and the district, get to vote on it a second time after it's been publicized? A That's correct. Q And there's a time frame for them accepting or rejecting it? A That's correct. Q And that is how many days? A Well, it starts counting from the date of 29 o ~ 1 pUblicAtion. Whenever the labor board publishes it, there's 2 a five-day waiting period during which they don't take 3 action, and then the next five days following it they need 4 to take action the second time. 5 Q So they have to respond to it within ten days 6 of publication? 7 A That's correct. S Q And then both parties either accept or 9 reject, is that correct? 10 A That's correct. 11 Q Now, let's go through the various 12 possibilities, too. One party accepts and one rejects. You 13 don't have an agreement. 14 A If it happens during both times of 15 consideration, then, in fact, you're back in mediation. 16 Q And obviously if both parties reject you 17 don't have an agreement. 18 A That's correct. 19 Q What happens if both parties accept the 20 fact-finder's report and recommendation? 21 A Then -- 22 MR. SNELBAKER: I would object to this. This 23 calls for an opinion where the law will state what happens. 24 THE COURT: I agree, but I'm going to let him 25 render his opinion. I'll make my own judgment about it. 30 o ~ 1 This is all new to me, so I'm happy to hear at least one 2 person say what happens. Go ahead. 3 THE WITNESS: I will clarify it by saying 4 having been involved with this, I feel I have an 5 understanding of this case. 6 If both parties accept a fact-finder's report, 7 then, in fact, you have a collective bargaining agreement. 8 The prior collective bargaining agreement together with 9 whatever mediation may be bilaterally agreed to in the 10 interim together with the mutually accepted fact-finding 11 report is, in fact, the essence -- 12 THE COURT: Is that what the statute says? 13 THE WITNESS: Well, ~our Honor, that was in 14 my opinion on a case out of West Shore where we were not, in 15 fact, necessarily on that side of the issue but that's what 16 the labor board told us it means. 17 BY MR. HELVY: 18 Q All right. Well, when I had you talk about 19 all this we were just kind of giving an outline, 20 negotiation, mediation, and fact-finding. If you don't 21 resolve the case in fact-finding, what happens then? 22 A If the case isn't resolved by fact-finding, 23 you can be back in mediation for a period of time and the 24 law also provides for an additional option of non-binding 25 arbitration. 31 "- ._. - i~- o f"'., 1 Q Now, you said thAt is an option. You don't 2 have to go to non-binding arbitration? 3 A That's correct. 4 THE COURT: Does this mean that you can never 5 get it resolved? 6 MR. HELVY: We're going to get to that. 7 BY MR. HELVY: 8 Q What happens if you go through a school year 9 and you've engaged in negotiations, you've engaged in 10 mediation, you've engaged in fact-finding, and either you 11 have or you haven't engaged in arbitration and the next 12 school year rolls around? What happens then? Do you do it 13 allover again? 14 A That is correct. The cycle renews itself 15 every school year because the law is predicated upon budget 16 submission dates, and assuming each school district needs 17 to, the process recycles itself every year. 18 THE COURT: What salary are the Big Spring 19 teachers? 20 THE WITNESS: The teachers at Big spring are 21 continuing to be paid the salary they received in 1992. 22 They have not received a raise since September of '91. 23 THE COURT: They're sort of like the Judges 24 used to be in a way in '91, '92. 25 MR. HELVY: Your Honor, that's the law that 32 l2.ff ~ r--, 1 we're operating underneath, and that's why we ended up 2 having two fact-finder's reports here. 3 THE COURT: Okay. 4 BY MR. HELVY: 5 Q Well, we've explAined what happens up to 6 fact-finding. After fact-finding do you necessarily have to 7 go to arbitration? 8 A No, you do not. 9 Q How do you get to go to arbitration? 10 A There are two ways to embark on non-binding 11 arbitration. The first way is for both parties to mutually 12 agree, the one party to propose it to the other and the 13 other to accept, and the law sets forth how that has to be 14 done in writing, as an offer in writing with copies to the 15 labor board and so forth. If the other party agrees, then 16 you're in arbitration. If they refuse, then you're not. 17 Q What's the other one? 18 A The other option is specified in the law, and 19 that's if the employee's group would choose to withhold 20 their services or go on strike for a period of time 21 sufficient to make it not possible to get their required 22 days of instruction in by the 15th of June. 23 Q Now, is that what happened to the Carlisle 24 School District? 25 A That is correct. That is exactly what 33 o t"". 1 happened to the Carlisle Education Association when they 2 went on strike and ended up currently in non-binding 3 arbitration. 4 Q So you go through the process, you don't get 5 the contract resolved, and you've completed fact-finding. 6 The teachers then go on strike. Are you telling us that 7 they can then be required to return to work on the day on 8 which if they stayed on strike any longer they would not be 9 able to get 180 days of instruction in by June 15th? 10 A That's correct. 11 Q And the secretary of education requires them 12 to come back? 13 A The secretary of education issues a date 14 certain by which they have to return, and that's the date 15 the teachers have to return. I'm not sure if I can say the 16 secretary requires it. 17 Q All right. And when they return, do they 18 then go to arbitration? 19 A That is correct. They immediately enter into 20 a set time line for the non-binding arbitration. 21 Q So they go to arbitration and an arbitrator 22 issues his award. What happens if both parties accept the 23 arbitrator's award? 24 A Well, in arbitration it's different ~ecause 25 in arbitration either party has to accept an award. Once 34 {3D ~ A Q A continued to mediator. Q employed by A 35 ~ 13/ . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .~"""";'-'l",'..,; o ~ pursue, And the association requested it, and the labor board, in fact, appointed a second fact-finder. Q Did a fact-finder issue an opinion? A Yes, he did. It was dated April 4th, and my assumption is that Mr. Angle and I both received it on April 5th. Q At some point in time did the association learn that there were certain members of the school board who were not going to be allowed to vote on the fact-finder's report? A Yes, they did. Q Can you tell me when that was? A Officially and formally with something to base it on, on AprilS, at a school board meeting on the evening of AprilS of this year, of 1994. Q And it was six days later that the declaratory judgment action was filed? A That's correct. Q Now, let's go through the time lines as you have explained them. April 4 fact-finder issues his report? A Correct. Q The parties then have ten days to respond, correct? A Correct. Q The association, did they accept or reject? 36 . . 1 o o A The association met on the 13th and voted to 2 Accept the report. 3 4 Q A How about the school board? The school board met during that same time 5 period and as reported by Mr. Glotfelty those who were able 6 to vote voted to reject. 7 8 that correct? 9 Q All right. So then it gets published, is A That is correct. I received notice from the 10 labor board that it was published on the 14th of April. 11 Q And then the parties have to vote on it 12 within ten days, correct? 13 14 15 More than five, less than ten. A Q All right. THE COURT: You say this was published. 16 Where is this published? 17 THE WITNESS: The labor board has interpreted 18 the publication to be released in the form of a press 19 release. They do not print it in the legal notices, they 20 release it so that the press has it and the press prints 21 whatever parts of it they choose to print. 22 BY MR. HELVY: 23 Q So the deadline would be April 24th for both 24 parties to respond? 25 A That would be my counting of it, yes. 37 /B ".' ~ . ~ o , 1 Q Now, has the association responded? 2 A The association Acted at their initial 3 meeting that since they had accepted it, they authorized me 4 to notify the labor board during the second time period that 5 they, in fact, would accept it again rather than have the 6 two hundred people come together to vote. They believe that 7 since they've accepted it once, it would serve no necessary 8 purpose to say yes, we accept it again. 9 Q So as the authorized agent for the 10 association, you plan on accepting? 11 A That is correct. 12 Q Now, we've been talking about this 13 fact-finder's report. I guess we ought to introduce it into 14 evidence. 15 (Whereupon, Petitioner's Exhibit No. 3 was 16 marked for identification.) 17 BY MR. HELVY: 18 Q I show you what has been marked as 19 Petitioner's Exhibit 3. Could you identify that document 20 for us? 21 A Yes, I can. This is the fact-finder's report 22 as issued by Dr. Arnold Hillman on April the 4th and 23 received in my office on April the 5th. 24 Q Now, this is your copy? 25 A That is correct. 38 ~y . o n ""~~~ .' . 1 MR. HELVY: Your Honor, can we make 2 arrangements 3 4 BY MR. HELVY: MR. SNELBAKER: I have an additional copy. 5 Q Mr. Wenger, have you had the opportunity to 6 verify that fact-finder's report? 7 A Yes, sir, I have. 8 Q Does the fact-finder's report have a salary 9 schedule? 10 A Yes, it does. 11 Q Rather than going through everything that a 12 collective bargaining agreement contains 13 THE COURT: Really what the contents are are 14 of no particular meaning to me. I don't think we need to 15 get into that. 16 MR. HELVY: Your Honor, I asked that for the 17 purpose of lending credence to his testimony that the 18 fact-finder was, in fact, accepted by both parties as a 19 collective bargaining agreement. 20 THE COURT: That's what he said, so I accept 21 that. 22 MR. SNELBAKER: We object to his conclusion. 23 MR. HELVY: I have no further questions, Your 24 Honor. 25 THE COURT: Cross-examine. 39 . ~ ~ . . 1 CROSS-EXAMINATION 2 BY MR. SNELBAKER: 3 Q Is there any member of the Big spring 4 Education Association present today, Mr. Wenger? 5 A Is there any member of the Big spring 6 Education Association present today? No, not to my 7 knowledge. I assume they're all employed teaching. 8 Q Is this action brought by the Big Spring 9 Education Association on behalf of the Pennsylvania State 10 Education Association? 11 A No, the other way around. The Pennsylvania 12 State Education Association as an affiliate is acting on 13 their behalf to do this. It was the president of the Big 14 spring Education Association that authorized this action. 15 MR. SNELBAKER: I have no other questions. 16 THE COURT: I have no questions. 17 MR. HELVY: I'd like to move for the 18 admission of Petitioner's Exhibits 1 through 3. 19 THE COURT: They're admitted. 20 (Whereupon, Petitioner's Exhibits 1 through 3 21 were admitted into evidence.) 22 THE COURT: Everyone through with Mr. Wenger? 23 MR. HELVY: Yes. Thank you. Your Honor, the 24 association has no further witnesses to present at this 25 time. 40 I~ . o ,.... . 1 2 Honor. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SNELBAKER: We hAve no testimony, Your (Whereupon, argument WAS held.) (Whereupon, the above proceeding concluded.) 41 .'. ..','....' , ^ f". CERTIFICATION I hereby certify that the proceedings are contained fully and accurAtely in the notes taken by me on the above cause and that this is a correct transcript of the same. ~aU(Q r \-tandle.~ Laura F. Handley Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. ~ I U I /9r "5 ./ .J~ 13f{ - " /"" /'-., MEMORANDUM Data: March~, 1113 To: Board of Dtractor. From: Stephan F. Angl~ Bua1ne.. Managar SUbJ.ct: soltcitor'. reapon.a to February 20, t913 inqutry Mr. Snelbaker ha. re.ponded to the Que.tions reteed in my latter of February 20, 1993 (attached) and wtll have hi. written res pons. prepared before ths spacial board meeting of March to. Hi. re.pon... are: 1. Doe. Mr. Collins have a conflict of tntsre.t becauae of hi. emp 1 oymant ? #IIr. Co" 1 ne, aa a INmber of PSEA, ha. a conf 1 1 ct of 1nta,...t (with re.pact to negotiation.), not becau.. of hie .-plo~nt a. a t.acher. 2. Are mambar. (of the Board) with a conflict of intereat ant1tl.d to r.c.iv. a copy of the fact finder's r.comMendat1on. in advanca of the maat1ng at which the Board will act on acc.ptanc. or r.Ject1on ? NO. The fact finding pro c... 1. a part of the cOll.ctiv. bargaining proce... "'r.on. with a confHct of 1nCere.t should be .xcluded in Ch. inC.re.t of pre..rv1ng the conf1d.nt1al1ty of the bargaining proce.. IM1ng olJllerved by oCh.r _ber. of the Board. 3. Can a ma.t1ng at which the n.got1ating committea wtll pre.ent the fact findar's r.c0mm8ndat1on. to the other Board mamber. be conduct.d tn .xecutiv. ....1on and are Board members with a conflict of interest entitled to attend the maet1ng and participate in the dtacuaa10n ? Y.., the Board can con.1d.r the fact finder'. recommendation. in executtv. ....1on. No, per.one with confl1cCa .hould not attend and should not participate. Again, the con.ideration of a fact f1nd.r'. .ugg..tione i. part of the bargaining proce.., and the e&me rule. should 1M ob.erv.d a. in the traditional bargaining tabl. .ituation. /31 . ...1" I~ ^.-"< ('"'\ 4. Ar. Ioard ..-ber. wi~h a confl1c~ of inter.a~ .n~i~l.d ~o vote on the acc.ptenc. or r.J.c~ion of the fact find.r'. r.c~ndation ? No. Th. ~ect ~lnd.r'. recOtmlendetlona .r. ".rt o~ the ".,.,.1"'"11 "roc..., which I vl.w In ....ntl.77y the .- 1111ht .. . "ro,,0..7 In b.rgalnin, - to be accept.d or r.J.cted by the IkMrd .. in a 77 oCller propo.a 7. COIIIln, ~r~ .nother party. Since the ,..cOlJ/ttrlflndation. do not con.tltut. a fln.' contract, the .cceptanc. or r.J.ction of a f.ct fl11d.,.'. r.cQutend.tlon. wou7d be mer.7y on. mor. int.rmediat. .t." in the coll.ctiv. b.r,.ininll proc.... (Thi. Qu..tion rai.ed in a .ub..Quant ~.l.phon. conv.r..tion) With only six memb.r. able to vote on the fact find.r. r.port. what constitute. a majority vote. four or fiv. votea ? Fivs vot.. - . majority of th. Board. I~O . 1'"'\ ~ /...fH "":\ STATE ETHICS COMMISSION 309 FINANCE BUILDING P,O. BOX 11470 HARRISBURG, PA 17108.1470 TELEPHONE (717) 783,1610 ADVICE OF COUNSEL April 20, 1994 Kenneth Glotfelty 710 Meadowbrook Drive Carlisle, PA 17013 94-558 Re: Conflict, Public Official/Employee, School Board Member, Use of Authority of Office or Confidential Information, vote, Immediate Family, Fact Finder's Report. Dear Mr. Glotfelty: This responds to your letter of April 7, 1994 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a School Board Member. Facts: You are a Member of the Big Spring School Board. Your wife is a teacher in the district. Mr. Robert Barrick and Mr. Ashby Collins are also Members of the Big Spring School Board. Hr. Barrick has a sister who is a teacher in the Big Spring School District and Mr. Collins is a Member of the pennsylvania State Education Association. They have authorized you to request this advisory on their behalf, A fact finder has been requested by Big Spring Education Association and has been appointed by the pennsylvania Department of Labor. The fact finder receives input from both sides of the labor dispute and then brings back his opinion of a reasonable settlement. The board and the union must both vote for the agreement for it to be accepted. The fact finder has brought back his proposal on April 4, 1994 and it must be voted on by April 14, 1994. You believe that this is not negotiation but is a contract settlement if both parties vote yes. A subsequent discussion with Attorney Paul Helvy, who is representing you in a declaratory judgement action in the Court of Common Pleas of Cumberland County, confirmed that when the fact finder's report is returned and voted upon, if both sides vote in favor of the report, it is a final agreement. ._~.:""~,..., . . ,-, (\ Glotfelty, Kenneth, 94-558 April 20, 1994 Page 2 Based upon the above, you request an advisory from the State Ethics Commission as to whether you, Mr. Barrick and Mr. Collins may vote on the fact finder's report. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. SS407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 p, S. 55407 (10) , (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As School Board Members for the Big Spring School District, you are public officials as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3, Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2, Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated, "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. A 1""\ 0- '->, ; Glotfelty, Kenneth, 94-558 April 20, 1994 Page 3 In addition, sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official/employee anything of monetary value and no public official/employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official/employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities uniquq to a particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. Section 3, Restricted activities. (j) Where voting conflicts are not otherwise addressed by the Constitution of pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee, who in the discharge of his official duties, would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three-member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of il..{ 3 ~ (-.. Glotfelty, Kenneth, 94-558 April 20, 1994 Page 4 interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official/employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor, In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed, See, Mlakar, Advice 91-523-5. You are further advised that the use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. ~, Juliante, Order No. B09. Use of authority of office includes discussing, conferring with others, lobbying for a particular result and/or any other use of the authority of office in which the result would be a private pecuniary benefit to a business with which a public official or a member of his immediate family is associated. As you are aware from Glotfeltv, Advice 93-609, and Glotfeltv, Advice 94-510, the seminal Commission decision which applies Section 3(a) under similar facts is Van Rensler," Opinion 90-017. The issue there was whether the Ethics Law prohibited school board directors from participating on negotiating teams and voting on collective bargaining agreements when members of their immediate families were school district employees represented by the bargaining units. The Ethics Law does not restrict directors from voting on final agreements, but directors cannot take part in negotiations leading to final agreements. It was held that directors could vote on final agreements because of the exclusion in the definition of "conflict or conflict of interest" which applies if the immediate family members are members of subclasses consisting of industries, occupations or other groups containing more than one member and the family members would be affected exactly as the other members of the subclasses. The Commission held that if these two prerequisites for applying the exclusion were met, school directors could vote on final collective bargaining agreements. In this case, you indicate that your proposed vote is not on 1""'\ """ Glotfelty, Kenneth, 94-558 April 20, 1994 Page 5 a final collective bargaining agreement, but on a fact finder's report. Following the Commission decision in Van Rensler, voting on a fact finder's report would be similar to voting on a final collective bargaining agreement. This conclusion is based upon the factual assumption that the fact finder's report, if approved by both sides, is a final, binding agreement. In both cases, the exclusion in the definition of "conflict or conflict of interest" would apply provided the immediate family members are members of a subclass consisting of an occupation or group containing more than one member and the immediate family members would be affected exactly the same as other members cf the subclass. Under these circumstances, the proposed vote by the board members on the fact finder's report would not be prohibited under the Ethics Law. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Public School Code. Conclusion: As Members for the Big Spring School District, you are public officials subject to the provisions of the Ethics Law. Based upon the facts of this case, Section 3(a) of the Ethics Law would not prohibit or restrict you or the other Board Members from voting on the fact finder's report provided the exclusion in the definition of conflict of interest applies. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law, Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actuallv received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code ~13.2(h). The appeal may be received at the Commission by hand delivery, United States mall, delivery service, or by FAX transmission (717-787-0806). . . . . ~ Glotfelty, Kenneth, 94-558 April 20, 1994 paqe 6 in erely, ncen ~Jf: Chief co~~~kO o 11./(,; ,,~< , ,------.... .,.....,,- . ' t""'\ 1"'. COMMONWEALTH OF PENNSYLVANIA PENNSYLVANIA LABOR RELATIONS BOARD FAcr FINDING IN THE MATTER BETWEEN THE BIG SPRING EDUCATION ASSOCIATION PSEAlNEA and BIG SPRING SCHOOL DISTRICT FACT FINDING REPORT CASE NO.ACT 88.93.6.E HEARING: March 23, 1994 Newville, PA FACT FINDER: Arnold Hillman, D.Ed. FOR THE EMPLOYER: FOR THE ASSOCIATION: Mr. Paul Rogers Mr. Carlin Wenger Dr. DavId Wazeter 14-7 '.""","-^ ,- ~ f" LEGAL PROCESS Pursuant to Act 88 of 1992 and the Public Employees Relations Act of 1970, Act 195, the undersigned was appointed by the Pennsylvania Labor Relations Board by letter, on February 22,1994, as Fact Finder In the Impasse between the Big Spring Education Association (hereinafter known as the Association) and the Big Spring School District (hereinafter known as the District). The t"o parties have been unable to reach an agreement In their negotiations that began on November, 1991. The parties were duly notified, by letter, of the date, time and place of the hearing. The hearing was held on March 23, 1994, at the Big Spring School District Administration Offices. At that time, both parties were given the opportunity to present facts, give testimony, Introduce documentary evidence, examine and cross-examine witnesses In support of their positions, As a result of the hearing, the following report Is Issued. The current dispute may be divided Into Individual Issues, The report contains recommendations for each of these Items, It Is hoped that this report will lead to a mutually satisfactory conclusion to the negotiations process. The object of this report Is to further the process of negotiations to an acceptably crafted contract. Pursuant to the law, the report will be released to the public, If not accepted, An acceptance of this report does not necessarily Imply an acceptance of the rationales herelnunder outlined, but rather an agreement to settle Issues by adopting the report. The parties are directed to review the Report and, witllin ten days of its issuance, notify the Pennsylvania Labor Relations Board of their decision to either accept or reject the recommendations. BACKGROUND The preceding collective bargaining agreement between the parties ended on June 30, 1992. The contract was for the school years of 1989-90, 1990-91, and 1991-92. Bargaining for a successor contract began In November of 1991. The following recommendations are based on a list of 9 Issues submitted to this fact finder In documents submitted by Mr.Paul Rogers, negotiator for the District and Mr.Carlln Wenger, Unl-Serve Representative of the Association. The dental Issue was settled at fact finding, The remaining Issues are: 1. Extra Duty Salaries 2. Term of Agreement and Waivers 3. Term of Contract 4. Health Insurance 5. College Credit Reimbursement 6. Salaries beyond the school year 7. Vision Insurance 8. Salaries ISSUES, DISCUSSION AND RECOMMENDATIONS Issue # 1- Extra Duty Salaries Position of the District In Its proposal the District has suggested an overall Increase In the Extra Duty compensation plan that would hold salaries In the 1992-93 years to the same /!fg ""'" "" level as 1991.92 and to Increase the total amount of dollars by 2% In 1993.94, 2.25% In 1994-95, 2,50% In 1995-96 and 2.75% In 1996.97 (all presumptive of a five year contract). Because of the Involved nature of the method of computing each salary for each extracurricular advisor, the District has not Included an Increase In the value of experience points. The value Is then presumed to remain at 8 for the duration of the contract. Position of the Association The Association has presented a series of Increases that appear to be a 0% Increase In the 1992-93 year, a 2.63% Increase In 1993-94, a 2,56% Increase In 1994-95 and a 2.43% Increase In 1995-96. These Increases are expressed In dollar values per point for each position at $3.80 In 1992.93 (same as 1991-92), $3.90 In 1993-94, $4.00 In 1994-95 and $4.10 In 1995-96. The Association Is further requesting a change In the experience value of 8 to 10 In the 1992-93 and In subsequent years for the duration of the contract. Discussion and Recommendation The Issue of extra duty salaries Is often a very difficult Issue within a school district. These activities are often the highlights of the school year and the Internal clock of the school district. Fortunately, the Association and the District are reasonably close In their proposals. In this Instance It Is my judgement that the 1992-93 values per point remain at $3,80 as both sides have agreed. In the 1993-94 year the value of each point to go to $3.90, In 1994.95 $4.00 per point , In 1995.96 $4.05 per point. The experience value per point seems to run In cycles of either 3 or 4 years over the past 10 years of contracts, other than 1985-86. It Is my recommendation that the value per point remain at 8 for the 1992-93 school year and be Increased to 10 In 1993-94 and for the duration of the contract. Issue # 2- Term of Agreement and Waiver Position of the District The District proposes to modify this agreement to clarify, In Its own words, ''the Incomplete statements" In the previous agreement. Position of the Association The Association wishes to retain the language in the previous contract. Discussion and Recommendation During the fact finding hearing there appeared to be a rationale that would preclude retroactivity If the following language, constructed by the District would be allowed to replace the current language." The parties agree that all Items to be negotiated have been discussed during the negotiations leading to this agreement and that no additional negotiations on this agreement will be conducted on any Item, whether contained herein or not, during the life of the agreement." It Is this fact finder's impression that to conclude that this section would preclude any retroactivity would not be present, This proposed section would be restrictive to the point that It would not allow any discussion on issues that might come up outside of the scope of this agreement, It would be difficult for this fact finder to believe that the parties could have thought of all possible contingencies that might occur and would want to restrict themselves by contractual agreement to so closely bound a set of statements, Therefore the present contract language should continue. The Issue of retroactivity will be discussed at the end of the findings .I'i (\ Issue # 3- Term of Contract Position of the District The District's position Is that It proposes a nve year contract to Include the 1996.97 year, that would be effective with the date of signing. The District would be w1l11ng to make any accommodation In the signing to accomplish this section. Position of the Association The Association proposes a four year contract to end on June 30,1996.The Association proposes that all parts of the contract be retroactive They are certain that a lack of retroactivity would create disputes about salaries, homebound Instruction, summer school salaries, personal days, leaves, 1I1nesses and many others. Discussion and Recommendation The Issue of term Is generally a double edged sword. In some cases, the two sides are anxious to have a contract of a duration that w1l1 not necessitate the onset of new negotiations for a long period. There are however, some who would argue that the vagaries of our economy mitigate against long settlements. This fact nnder believes that a four year contract Is long enough for the economy to play out and to get some feeling about local conditions. Even though two years have elapsed (92-93 and most of 93-94), a contract that ends In 1995-96 w1l1 give the necessary hiatus and allow for planning. The Issue of retroactivity will be discussed at the end of the nndlngs Issue #4- Health Insurance Position of the District The Issue of health care Is of serious concern to the District. Although the current health care cost declined In 1993-94 by 4%, It Is the considered opinion of the District that this came as a result of the District's open threat to move to another carrier. Further, the District claims that many of Its residents do not have the equivalent health care coverage that the professional staff Is getting, Increasing health care coverage costs over the past 10 years have been a particular burden to the District and Its taxpayers, The District's proposal Is to limit the district's payment for such coverage to the current costs of j $123.72 for single coverage, $320.68 for two person coverage, and $330,82 per month for family coverage. Any Increases for the duration of the contract would be paid by the employees. The District points to some neighboring districts and others across the state who are now going to some sort of co-payment, The District would further limit the coverage of spouses who both work in the district to one of the spouses and place the other spouse on family or two person coverage. The District has also proposed that the coverage not be limited to Blue Cross or Blue Shield and that a committee composed of one board member and one association representative jointly evaluate the possibility of obtaining a health plan that would be equivalent in all material respects to those provided by the current Blue Cross and Blue Shield coverage. The District further proposes to elevate the deductible on Major Medical from the current $100 for each family member (3 persons) to $500 for each family member (3 persons), Position of the Association The Association claims that the reduction In this year's rates for health care Insurance Is not a result of any threat to leave the carrier, but a result of a good f'I .'} experience ractor. It points out that nearby districts have threatened to leave Blue Cross and Blue Shield and their rates have risen In the neighborhood or over 20%. According to the Association, lis members enjoy no better benefits than any or the districts In the Capital Area Intermediate Unit. Any change according to the Association would result In a lowering or the standard or coverage and would probably have a minimal effect on the costs ror such coverage. The Association offers to keep the coverage the same as In the rormer contract, with no additional benefits, and that the major medical deductible be raised to $150 per person (limit or three to a rsmlly).The Association asks what company, other than Blue Cross Blue Shield can supply such coverage. Discussion and Recommendation It Is true that the health care question has attained national status as a problem. The Big Spring School Is correct when It says that there are problems with the costs or heallh Insurance. The Association does agree with this statement, but wants no diminution or lis benefits. They point to many local districts who may, In ract, have greater benefits than they. They only ask that they continue with the current benefits and are willing to lower costs by taking an Increased deductible ror major medical. The District has opened the door wllh Its proposal to sit down with the Association and explore the Issue or the carrier. This appears to this ract finder to be a beginning. Thererore, the rollowlng Is a suggestion ror creating a committee to explore the broad aspects or cost containment and the Issue or the carrier and materially equivalent coverage. Tile District sllall pro~lde IIealtll Insurance (as In ti,e current cOlltract) tllrougll Blue Croll and Blue SIIleld, A committee of tl/Tee persons from tile Alloclatlon and tltree persons from tile District (could be board members or admilllllrat/on) to explore lell expensi~e insurallce, alleT1lati~e carriers, materially eqlli~alent, and otller coli conlaillmellt items, A report sllaU be made to tile District alld Allociatioll no laler tllan four mOlltl1l after tile signing of tills agreemellt, Agreement on cllallges sllall be made by ~ole of tile Association members and Scllool Board, For the 1992.93 and 1993.94 school years coverage shall remain as II was In the previous contract. For the 1994.95 and 1995.96 school year major medical deductible shall be at $250 per person (IImll or three per ramlly). Beginning with the 1994.95 school year a co-payment or $5 per pay shall be paid by the employee. The Issue or excluding spouses rrom coverage and placing them on a ramlly or two person plan Is rraught with pernicious legal entanglements, Discrimination could be claimed by the offended spouse. However, Ir a spouse would voluntarily go onto a Joint coverage plan, the District might affect some savings. Issue #5- College Credit Reimbursement Poslllon or the District The District's philosophy Is that tuition reimbursement was not meant to cover the complete cost or the courses taken by employees. It Is the District's opinion that II Is already subsidizing staff and giving employees credit ror additional course work through the salary schedule. The Idea or allowing the reimbursement ror eredlts to be determined by the cost or credlls at the State University System will allow other organizations to control the cost, The District Is offering a rate or $135 per credit reimbursement ror 60 credits ror the entire contract. The District will not pay ror graduate courses not In employees neld or teaching and will not pay ror credits earned prior to the first working day.Long term substitutes and In .~ /"'. those not contraded for the following year will not be reimbursed for courses taken. Those who voluntarily leave the employ of the Dlstrld shall repay 100% of the tuition reimbursement for the prior year's courses and afier two years repay 50% of the tuition reimbursement. Position of the Association The Association would modify the language of the contrad to continue the rate of reimbursement at $129 for each credit In 1992.93, Increase to $150 per credit In 1993.94, $160 for 1994.95 and the State University charges for 1995.96. Discussion and Recommendation Tuition reimbursement has been a source of starr development within many districts In the Commonwealth. The large Increases In college costs has begun to weigh heavily on Individuals and organizations. The Dlstrld's position that It would be difficult to allow the State University System to determine Its course per credit rate does not fall on deaf ears with this Fad Finder. The rate for each college credit of tuition reimbursement shall be $129 for the 1992.93 year, $129 for the 1993.94 year, $135 for the 1994.95 year and $150 for the 1995.96 year. In the case of yearly long term substitutes who are not rehired for a second year, no tuition shall be reimbursed. Those who are rehired for at least two consecutive years shall have their tuition reimbursed. Graduate courses that begin prior to the adual nrst day of work, shall not be reimbursed. Those employees who voluntarily leave the employ of the dlstrld shall repay 100% of the tuition reimbursement for the prior semester's courses. Many times employees will take courses In good faith In the semester prior to their leaving. Ofitlmes situations arise at the end of a semester which cause an employee to change hls/her mind. However, the Dlstrld has a right to ask for the last semester's tuition reimbursement. One of the thorniest Issues In credit reimbursement Is the nature of courses taken. Should a dlstrld pay for courses so that someone should become a lawyer, an engineer or other non.educatlon career. The problem of choosing which courses are adual neld of teaching courses Is a mine neld of decision making. One could, In fad, take courses In mathematics, be a math teacher and adually be working towards a degree that would help one to become an aduary or other math related position. There would have to be some decision making mechanism that would allow the dlstrld to protect Itself from helping an employee to go Into another neld. The notion of excluding education related courses that are not necessarily teaching courses ( methods, subject matter) will stunt the homegrown nature of development of staff. Such positions as librarian, guidance counselor, psychologist, home and school visitor, administrator, are ofien those who have been In the district and have taken advantage of tuition reimbursement to augment their payments, Therefore, It would be a negative step to restrict courses to only those In a teaching neld. Payment of tuition shall be made to those submitting proof of course taking and completion for courses In an education related neld. Prior approval of the Superintendent Is necessary . Such approval Is nnal and binding. #6. Salaries Beyond the School Year Position of the District The District believes that the work performed by counselors and librarians, both prior to and afier the school year are less arduous than those performed 1~2- r:....,.."'~.,.;..."".,.,.,~,",..^~ 1"'\ " during the school year. Therefore they are asking that the hourly rate of all of the employees working In these positions be pegged at the hourly rate of the average teacher's salary and not at the per diem rate of those working In the Job currently. Position of the Association The Assoclstlon believes that It would be a discriminatory practice to pay some of the more senior starr fewer dollars and the more Junior starr more money than their per diem rate. They would like the language of the contract to remain the same so that all those working beyond the school year be paid at their per diem rate. Discussion and Recommendations The District Is once again Interested In cost containment In this area. At this time there are 11 employees who benent from this extra work, The nature of the work mayor may not be more arduous than the regular school year. However, there must be a desdllne Involved. Since the District already has the capab11lty of restricting the days, this Fact Finder asks that the current language be maintained. Issue #7. Vision Insurance Position of the District It Is the position of the District that cost sharing In benefits Is a normal happening within the business community. According to the District, the growing cost of health benefits has exacerbated the rise In tsxatlon and that there must be a sharing of the costs If there Is to be any cost containment. In a survey of private employers, the District has demonstrated that there are a number of private employers that do hold to a fixed cost per month or other time period and that the employees pick up the remaining costs of the Insurance. The District's position Is that the current cost for vision at $2.61 per month for single coverage and $7.03 per month for family coverage be the district's obligation for the duration of the contract and that any other costs be borne by the employees, The District further Includes the same stipulations as with the general health benefits that there be no duplicate coverage for a spouse employed by the district and that equivalent coverage from other than the present carrier be arrorded the district. Position of the Association The Association's position Is that the present coverage remain as It Is In the current cllntract and that, In fact, the cost for this coverage has gone down over the course of the previous contract. The Association points out that no district In the I.U. IS service area has a co-pay for vision coverage. Discussion and Recommendation The cost of the vision care Is Indeed a small one In comparison to other costs of the District. However, the District continues to make a point that the uncontrolled costs of health Insurance, big or small, Is of Importsnce to them. Therefore, the same committee referred to In Issue # 4 Health Benefits w1l1 serve to review the vision Insurance. The language of the current contract w1l1 be maintained. (<)3 ""'" t""\ Issue #8- Salaries Position of the District The District has made a detailed analysis of the economy of the Big Spring School District and Its environs. Their quintessential point Is that "Teacher salaries be kept In balance with those who support those salaries." The Information presented was done In that spirit. The nature of Increases In the private sector, the District believes, has caused a discrepancy between the community residents and the teachers, According to the District a beginning teacher earns more than 66% above the average taxpayer, that the average teacher earns over 86% more than the average taxpayer and the average teacher earns more than 95% more than the average taxpayer. For their calculations those who were earning less than $5000 and those earning more than $80,000 were removed. The District points out that among the school districts In Cumberland County, they are the least able to pay for Increases In salaries. They point to their positions ( exclusive of West Shore and Shlppensburg who are In more than one county) In assessed value per W ADM (7 of 7), last In personal Income per W ADM ( 9 of 9), low position with respect to Market Value per WADM and the nature of the community, less commercial and more residential ( making taxables lower In the amount of dollars per ratable). The District points out that staff has received Increases In salaries over the past years that are greater than the cost of living Increases and that the burden of taxation on local residents cannot be exacerbated. It points out than Increases In expenditures are tied to Increases In salaries, both because of Increases In social security and retirement, Increases In health care and other staff related expenditures. The District believes that the community has grown staunch In their opposition to Increases for teachers and Increases In taxation, They feel that they have enough qualified applicants for open positions that belles the theory that they cannot meet the competition of other districts that pay more than Big Spring District does, The District believes that the Association proposal wlll be too much for the taxpayers to bear and that the millage needed to sustain such an Increase would be exorbitant and would not be tolerated by the community. They believe that the staff does do a good job, but the time for the large Increases of the past are gone.Therefore, the District has offered the following Increases for a 5 year contract, 1992.93 a wage freeze and a maintaining of the step, 2% for 1993.94, 2.25% Incrcase for 1994.95, 2.5% for 1995.96 and a $500 Increase for the 1996. 97 year. The District would further propose a perfect attendance bonus of $350 for no absences, $240 for 1.2 days of absence and $120 days for 3.4 days absence. A merit pay scheme would be Instituted In 1996.97 that would provide $500, $350 or $125 based on criteria to be determined, Position of the Association The Association presents Its case In light of many other school districts who are as wealthy (poor) as Big Spring, both within the Capital Area I.U, and within the Commonwealth. The Association claims that the Big Spring School District Is ranked 9th In wealth within the Intermediate Unit out of the 24 school districts (based on aid ratios) and that many of those districts have higher salaries and have given larger increases than has the District offered, Big Spring, according to the Association is ranked 272nd in the state on market value tax effort and 235th on tax errort based on the personal Income of the residents, The experience level of the stafT In the district ranks them 4th In the I.U. and their educational 1""'\ r--, experience ranks them 3rd In the I.U, area. According to the Association, with the Association's proposal, the district would go from s 197th ranking In salaries In 1991-92 to 300th In 1992-93. They believe that this would put the district at a disadvantage when competing for new starr. The Association point out that teachers In the Big Spring District do have a ratio of pupils per teacher that Is higher than all of the other districts In the I,U.They demonstrate that each year the district receives more revenue than It expects and spends less than It expects; leaving It with a sizeable fund balance, of $1,771,286 at the end of the 1992-93 school year. The average fund balance of the District over past five years has been $846,489. This fund balance enabled the district to actually lower millage for the 1993-94 school year. Using Innatlon adjusted figures, the Association claims that the average teacher In the Big Spring District has actually Increased by $6,900 since 1975. They believe that this eompares them poorly with other districts across the state. In comparisons with districts of similar size and wealth, the Association claims that It Is well below the average and that to put them even further below would Jeopardize the future of the starr, The Association Is convinced that their orrer Is a fair one when compared, not only to districts that surround Big Spring, but with districts of similar size and wealth across the Commonwealth. Their orrer Is an Increase of 5.5% for the 1991.92 starr or $1,949 for the 1992-93 year (the Increase for the total staff would be 1.9% because of an Increase of 13.9 new starr mostly at beginning or low salaries, or $676), for 1993-94 an Increase of 6.1 % or $2,286 for remaining starr and a 2.5% Increase or $918 for the entire starr, for 1994-95 7% Increase for the entire starr or $2605, and 6,5% Increase or $2,577 for the 1995-96 year, Discussion and Recommendation The negotiations process In the Big Spring School District has bcen a 26 month long process that has seen an elimination of many Items from the table, The dawning of Act 88 has created a system that has many milestones along the way. During that entire 26 month period there have been advances and retreats from a settlement. The present fact finding Is designed to speed up the proccss of settlement, rather than be a basis for additional negotiations or the bcglnnlng of a new series of discrepancies between the two parties. There are truths to be found on both sides of the Issue. This fact nnder can find little to choose from In the arguments on either side. Big Spring is, In fact , different from districts In both Cumberland County and the rest of the Commonwealth. It does have a % of residential parcels In excess (,f 75% which when compared to the Cumberland County average of 62% and the state average of 68% makes It essentially a residential community and not a commercial one. The figures quoted by the District and by newspaper surveys and reports stresses the point that the average working citizen In thc community earns far less money than Is made by the teaching starr. Big Spring's population Is not as old (with a % of those 65 and older ranked 476th In the state) and Is younger (having 27.5% of Its population under 18 ranked 49th In the Commonwealth) The Association's point is that It Is unfair to compare the teaching starr, with its educational attainment with the avcrage worker In the community, 11 would be fairer to compare It to some of the professional workers therein. In faet, the Association has stated that although comparison's with Cumberland County, may be show Big Spring to be poorer, It compares favorably with the rest of the Intermediate Unit Area, Many of the points made by both sides can be countered by the other. When comparing mlllages, one cannot help but ask what the relationship Is between '1 (""I millage and assessment. In fact, Is there a difference between districts In Cumberland County on the basis of assessment. The answer Is yes, If one were to look at assessment ratios In Cumberland County one would find that Big Spring with Its 11.12% Is more than Camp Hili Borough, so that an assessment on a house of $100,000 ( to use a round number) would be $11,120 In the Big Spring District and at 100 mils $1,112 In taxes, while In Camp Hili with an assessment ratio of 10.76% 100 mils would cost a taxpayer $1,076 yet on this same 100 mil tax the residents of East Pennsboro pay $1218. This makes comparisons of mlllages within counties and certainly between counties very specious. The Issue of market value per W ADM and personal Income per W ADM In a comparison to statewide statistics shows Big Spring below the mean In both. This Indicates that statewide comparisons, In general, without knowing more specific facts about each district may yield Information that could be site specific. In the case of the Mlllersburg school district, It Is truly difficult to discern why they have an AIE/W ADM that Is so out of kilter with district of the same order of magnitude, Yet there Is value In comparisons. Big Spring Is a district of 17,348 people, as of the 1990 census, The district has approximately 79 residents per square mile and can be rightly called rural, although there Is some Indication that It msy yet become a quasi bedroom community. From 1983 to 1991 (the last year certified for personal Income by the Department of Revenue to this point) the personal Income of all the residents of the Big Spring School District Increased by 86.4%, while the state aversged an Increase of 62.2%. However, during that time the district rose on both measures of tax effort from 437th on market value equalized mills to 267th In the state and from 432nd on personal Income equalized mills to 232 In the state. So they have Increased their tax effort while also Increasing the personal Income of the residents. At this point the district resides In the middle of all districts In the state In tax effort. The many Income statistics that can be use, median taxable Income, per capita Income can be used In many ways to describe the earnings of community residents, After reviewing the statistics available to this fact finder, I find the Department of Revenue's personal Income statistics and tax returns to be more convincing. For each tax return submitted to the state In 1991 the taxable Income for the resident's of the Big Spring School District was $23,136, In comparison, Shlppensburg School District's Is $22,359. All other districts In Cumberland County are higher. There are a number of other I,U. 15 area school districts such as Upper Dauphin and Harrisburg City that are lower. In comparing salaries for all of those districts, there appear to be anomalies In what teachers are paid, In general, It appears that the district, In an effort to contain costs has tried to come to the table with an orrer that it considered to be appropriate to the times and conditions, It put the Issue of salary In context of local workers and the local economy, That Is as it should be, However, In comparing local salaries of all workers, It does not consider the relationship between jobs In the community and compensation. In any comparison between teacher salaries and others, there must be a fair comparison of types of jobs. The District has not excised those sorts of professionals, It Is possible that this Information Is not available because of the private nature of the compensation of other professionals. The taxing situation In Big Spring has seen a large Increase over the past four ycars, with a decline In the 1993.94 ycar, The unencumbered fund balance that has accumulated over the past number of years Is a result of overestimation of expenses of underestimation of revenues. There may well be a further Increase at the end of the 1993.94 year. The retirement of many starr members because of the Mellow Bill has enabled the district to affect additional cost savings, The Association's proposal does not fit well within the confines of the ability '""' ('\ of the district's taxation scheme and the eurrent state funding seheme. At some point, that may ehange. The unfortunate part of the eurrent negotiations Is that a number of dlstrlets In the I.U. 15 area settled for an average of 8.59% Inereases In the 1992.93 year, most at the end of multl.year eontracts, raising their salaries an aversge of over $2,900 per staff member In that year.1t Is not possible under the cresent elreumstanees to approaeh those Inereases, n light of this fact.Onder's reJeetlon of eaeh of the two proposals, the following proposal Is made In an effort to eome to a mutually aeeeptable eoneluslon to thesc negotiations. For the 1992-93 sehool year, based on numbers available to me at the time of fact.Ondlng, an average InereBse for those staff members who were In the employ of the district In 1991.92 and who eontlnued employment In 1992.93, of $1100 or a 3.1 % Inerease. For the entire staff, beeause of an Inerease In number from 192 staff to 205.9, the average Inerease per staff member was ($958) or a (2.6%) deerease. For the 1993-94 year an Inerease of $1965 or 5.66% based on a staff to staff eomparlson of 205.9. For 1994.95 a $1699 Inerease of 4.64% and In 1995- 96 a $1906 Inerease or 4,97%. The salary sehedules are attaehed, as are the step sequenee for determining years of servlee. As for the two Issues of attendanee bonuses and merit pay bonuses, there has been severe eontroversy In both the private and publle sector over these two Issues. This fact Onder does Ond merit In the perfect attendanee suggestion. However, It must be a Joint effort on the Assoelatlon and District's part to eo me to a mutually satlsfaetory method to do either of these things. It Is not within the scope of this contraet, as this faet Onder sees It. Retroactlvltv It Is this fact Onder's notion that all the salary Increases are retroactive. Many of the Ondlngs begin new Issues In particular years making the point of retroactivity moot. Since this fact-Onder has little knowledge of all of the other issues that have been settled, he can not aet with respeet to the retroactivity of those issues. c..Q~ Arnold Hillman, D.Ed, Fact Finder 157 . Iol Iol Iollll: ..It:) :llol QQ Iol = III U. IIllll: o :>o..l ~lil ..lU << IIllXl ~ ~ ., ell , ... ell ell - ... ell , ... ell ell - ... ell , - ell ell - t' i Do .. .. .. i Do .. .. .. t' . i il' - .. ~ i il' - .. to .!l :I I) r-. OH.~~ON.W~O".w~o".wm ~____NN"NH~~~~~~.... ~e~~~~~~~~~~~~~~~~~~ ~W~~O_N~.~.~~O-N~.~W HH""~~~~~"~~~....... O_N1f'l"a...&nW.....OOOt.O _H"...~W~DOOt.----------H _O~DO~'O~."N-O~~~'O~."N "~...OWNDO.O.N~~~&n-.....~~. .....Nf'l")....&n&nW..........~e~~O--NH" ~~~~~O~N~.~W~~O~"~.~ NNNNNf'l")f'l")~"""f'l")f'l")f'l")...... O_NffI.In.......aoO\O _Nf'l").&n~.....DO~----------N f'l").&n..~DOOt.O-Nf'l").II).......DOOt.O-N O"O~._DOW"O......_DO&nNOt......._ ...f'l")f'l")f'l")NNNN---OOOOt.Ot.Ot.~ ~~~~~O~N~.~~~~~OO~N~ NilNlMH"""""""""""..... O_Ntf).&nW.....CIOOt.O .Nf'l"a.tn.......CIOOt.----------N O~_f'l")II).....Ot._f'l")II)~Ot.-f'l")&n.....Ot.-f'l")II)~ _DONII)DO_.CIO_......0......0"~Of'l")~~ OIl)f'l")N__OOt.Ot.~............II)II).""N-O ~~~~~~CO~~~~~~~e~C~H~ NNNNNN""f'l")f'l")f'l")f'l")f'l")MM~".."'. a_N,.,..."w,...CIOo\O- _Nf'l"a.In.......CIOOt.__________NN .......II).NII)Ot.f'l")..._Ot.~OO--NNf'l") .f'l")_Ot.~~~~N~.~~CCCCO=O ~~-~fl~C.e~~.~~N_C~~~ ~~W~~~C~~~~~~~~~~~O~ NN~NNN~~~~~~~~~~~".~ O_N~.,&I)'Or--OOO\ .......,..,.".J1...~.."'..""_ . . I") ....,."". o ~ to . i weO".W~ON.WC-~~~.-~~ ~~wwwww~~~~~eec.e~w~ O-N~.~W~C~O-N~.~w~e~ - - - - . . . . . . . . . . . . . - . . ~C~O_N~.~WC~O_N~.~W~ NNN~~~~~~~~~........ Do II - .. O-N ""..., '0 1"'-10 0. 0 -N"'.IInW~ClOo.__________N ~ to . - . .. ~."'N-Oo.e~WIln."'N-Oo.et--w ~t--IIn-~"'ClO.OWNClO.OWNt--"'o.. IInIlnWt--t--ClOClOo.OO__N"'~..IInIlnW . . . . . . . . . . . . . . . . . . . . W~ClOo.O-N"'IInWt--ClOo.O-N"'.IInW NNNN..,..,..,..,..,..,..,..,""....... Do II - .. O-M..,.IIa'O.....OOo.O -N""...,,o.....IOO'__________.... IlaW......O'O_N""...,W......O'O_N"". ~ .i -ClOIlaNO'......-ClOIlaNO''OI''aOClOIlaNo.,o .....w'O'OIIaIlaIlaIln.....,..,..,..,NNN__ W~~~O~N~~~w~e~O~N~~~ III ... :l NNNN..,..,..,..,..,..,..,..,..,..,...... ~ ... . Do I'l ... "'Ill ... Do -. - II O-N..,.lI)lO.....OOo\ ... III a: - .. -N"".&nW....ClOo\ ---------- '" ~5 !!l" a: a: lolO lollol 1;;1&0 ~lol ~... Pa: ~ ~-..,In.....O\-..,In.....O\-..,In.....O\_..,In.....O ,.... Q~ ~ClO_......O......O..,IrOO..,WO\IrOIrOO\NInO '" lollol . 1r01n1n...,""N--Oo\o\ClO.....IrONIn..""C a: lit =Q ;; ~w~~~O~~~~~~W~~~O~N~. ~~ tJ I'l VI NNNNN""..,..,..,..,..,..,..,..,..,""..... III III 01 ...Z >~ . '" "'0 a:j:! 01 "'- 01 lit I: ~1Il - QQ ~~ ~,. Do o-....~ ""'1)\01'000\- ... - QQ II -....~"1"VI\Or--OOO\ ---- '" f'4 ~~ - ------ VI ~ ~ . '3 r--'I).~-..,.OO....'I)~OOOOOO\O\OO--" ~-O\r--~N--O~N~~r--r--OOOOoooo~ -~NOO.OON\OO'l)-\OVI~~N_OO\-~ ~~~~~~~N..~~~~~~O~~~ NN................~~~~~~~~~~.... Do .!I VI O-Nf'a~VI'lOr--OOO\O -N~.VI'lO~OOO\__________.... 15"9 . . , , . e o ... ~ !:! ~"...__. Q f""', III Co II .. III C....Nl'l..,IIlIOr-OOCl'lC _N~~~~~~~__________N 10 Cl'I . III Cl'I Cl'I .... III .. . II ~ N.., III =......_ N \000.... .. .. ..+ ~..""l'lIllIOr-OOCl'lC""Nl'l"'1O _N~~~~~"""""""",,__"""_NNNNNN III Cl'I . .., Cl'I Cl'I .... III Co II .. III C....Nl'l..,IIlIOr-OOCl'lC _N~~~~~~~______......___N ....l'l ..,10 ......... NN 11)1'0\.... ....+ ...CN..,IIlIOr-OOCl'lC....Nl'lIllr- _N~~\OOO......_______NNNNNN III .. . II ~ III Co C....Nl'l..,IIlIOr-OOCl'lC.... ~ _N~~~~~OOO\............____......__......NN .. III .., Cl'I . l'l Cl'I Cl'I .... N l'l1llr-Cl'I C.... NNNN ..,.\000.... .. .. .. .. ..+ .............~~~\O~OOO\=.....N~\OOO= .....N~II)~O\........._..........................NNNNNN~ III .. . II ~ l'l Cl'I . N Cl'I Cl'I .... III Co II .. III C....Nl'l..,IIlIOr-OOCl'lC _N~~~\O~OOO\"""",,,,,,,,,,,,,,,,,,,,,,""''''''''''''''''''N .... N..,I000 .... NNNN C'f') II) t"'- 0\ .. .. .. .. .. + ~...CNl'l"'IIlIOr-OOCl'lC""l'lIllr-Cl'I ......N..,.\oOO.....................................NNNNNN