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SEE YOU IN COURT! - March 2011

March 1, 2011

Authors: Thomas B. Mooney

Nutmeg had been hit hard by the winter storms this year, and the Board of Education was scrambling to figure out how to make up eight snow days (and counting). Veteran Board member Bob Bombast had a number of ideas, but one was worse than the next. He suggested that school be held on Saturdays for the next six weeks, but the other Board members shot him down on that. Undaunted, he suggested that the Board add an hour to the school day for a month to make up for the lost instructional time. Mr. Superintendent told Bob and the Board that he did not believe that additional time would do the trick.

“Mr. Superintendent, you are awfully good at telling the Board what we can’t do,” Bob said in exasperation. “Isn’t this a time to dare to be great and make up the time without messing up family vacations? What do you suggest?”

“I have been in conversation with our different bargaining units, and I think that we should cancel April vacation. It rains a lot at that time of the year anyway.”

“Not in the Caribbean,” responded Bob. “We are taking one of those Disney cruises, and the outlook is sunny and warm. I don’t want my kids to miss out on class, but I am certainly not going to cancel our trip.”

In a rare show of independent thought, Board member Red Cent interjected, “Actually, Bob, I think that we are stuck. I think that they have Internet on those ships, so your kids can probably still send in their homework. But my email poll of the Board members shows that the vote is 8-1 in favor of cancelling April vacation. Once again, you are the odd man out.”

Having been prepared for this moment in a conversation the day before with Red, Mr. Chairperson quickly jumped in. “Do I hear a motion to cancel April vacation?” he asked. When Red so moved, and Penny seconded, Mr. Chairperson stated that further discussion would be pointless, given the results of Red’s poll. The Board promptly voted 8-1 in favor of cancelling April vacation.

The next day, Mr. Superintendent dutifully sent a letter out to all parents and staff in the school district, notifying them of the Board’s action. While there were a few expressions of dismay from parents, that was nothing compared to the reaction of the Nutmeg Union of Teachers. Bruno, NUTS President, called Mr. Superintendent up and read him the Riot Act. “Your Board has once again trampled on the rights of the dedicated teachers of Nutmeg. Bob is not the only one planning to go to the Caribbean, you know! We demand that you grant paid leave to any teacher who is planning to be away on April vacation.”

“Do you now?” asked Mr. Superintendent rhetorically. “Well you can tell your teachers that they had better be at work during the rescheduled days in April or they could lose their jobs. We will be watching very carefully.”

After that unpleasant exchange, Mr. Superintendent was not surprised a few days later to receive a copy of the unfair labor practice charge filed by NUTS with the State Board of Labor Relations. But Mr. Superintendent smiled as he remembered from his school law course that boards of education do not have to bargain over the “length of the student school year [and the] the scheduling of the student school year.”

Will the unfair labor practice charge from NUTS be dismissed?

*        *        *

Life is not as simple as Mr. Superintendent would hope. But before we review the Board’s obligations under the Teacher Negotiation Act, it may be helpful to consider some of the other issues here.

First, the Board was wise not to try to schedule Saturday sessions or to extend the school day to make up the lost time. In both cases, the Board confronts a statutory obstacle. Connecticut General Statutes Section 10-15 expressly provides that rescheduled school sessions may not be held on Saturday or Sunday. In addition, simply adding time to the remaining days in the school year will not work. The same statute requires that all school districts have at least 180 school “sessions” each year. In 1996, the General Assembly removed the requirement in Section 10-16 that a school day be at least four hours long to count. However, the minimum school year provision continues, and school districts are obligated either to hold at least 180 school sessions or obtain a waiver from the State Board of Education.
Pursuing a waiver of this requirement is generally not a fruitful course of action. On two separate occasions, the Commissioner of Education has sent out a Circular Letter emphasizing the importance of this requirement. While obtaining a waiver from the State Board of Education remains a remote possibility, school boards that may be forced to request such a waiver must take all reasonable action before a request would even be considered. Such action would include canceling school vacation periods.

In making changes to the school year, boards of education should also know of their right under Section 10-16l to schedule a firm graduation date, either by having scheduled at least five snow days originally, or by scheduling a firm graduation date after April 1 that will assure 180 days of instruction before graduation. Then, if additional snow days occur, graduation may still be held as scheduled. However, the Commissioner has also twice clarified that seniors must come back after graduation to complete their 180 days of instruction, an admonition requiring scheduling educational activities for such seniors. Whether they actually return, however, is a different story.

Given these imperatives, school districts are truly between a rock and a hard place in completing the school year in 2010-2011. Canceling or shortening April vacation may be the only possible way to reschedule the necessary make-up days.

Such action can have collective bargaining implications. To be sure, NUTS has no right to negotiate over the length or scheduling of the school year, as Mr. Superintendent recalled. However, NUTS’ “demand” was simply that teachers with vacation plans be excused with pay from working those days. While NUTS should have been more politic in its approach, it has the right to make such a proposal.

While the scheduling of the school year is a Board prerogative, the impact of any changes in the schedule is subject to negotiation. Thus, the Board should have responded to the NUTS demand by offering to negotiate. Whether and under what circumstances teachers will be released from duty is up to the parties to negotiate. However, school boards cannot simply refuse to bargain over the impact of changes.

Finally, Red was off base with his poll. Through his email poll, Red essentially led a Board “discussion” outside of a posted meeting, which violated the FOIA.

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