King, Spry, Herman, Freund & Faul, LLC

Education Law Practice Group

Memorandum
ATTORNEY-CLIENT WORK PRODUCT CONFIDENTIAL MATERIAL
TO:
FROM:
RE:
DATE:

C. Russell Mayo, Superintendent and ASD Board of Directors

John E. Freund, Esquire and Keely Collins, Esquire
ASD - Tretter
October 21, 2015

We were requested to render an opinion and guidance on the viability of the District
paying salary and benefits for a professional employee who is on leave for union worker., as allowed by
the Districts collective bargaining agreement (CBA). The relevant provision states as follows:
Article 28 Association President Release Time. For the term of this Agreement, the President shall
be entitled to full released time from Professional duties to conduct Association business during the
work day, without loss in wages, benefits, or other contractual advantages. See CBA, p. 19.
1. Is it a violation of law for the District to pay a salary to the union president where she does
not perform the responsibilities of a professional educator?
This question is first answered by statute:
Under Section 8102 of the Pennsylvania Public School Code, paid leave may be granted to a
bargaining unit member for the purpose of working full time as an officer of the union, provided that, in
relevant part, the employee organization shall fully reimburse the employer for such salary, wages,
pension and retirement contributions and benefits and other benefits and seniority. 24 P.S.
8102. There is no statutory authority, however, for the District to pay the salary of the union president to
perform union responsibilities, absent reimbursement by the Association.
There are constitutional implication to this question as well. The powers of a municipal
corporation including a school district are guided by a well-established principal of common law: by
what is called the Rule in Dillon's Case, which is as follows:
Nothing is better settled than that a municipal corporation does not possess
and cannot exercise any other than the following powers: (1) those granted
in express words; (2) those necessarily or fairly implied in or incident to
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the powers expressly granted; (3) those essential to the declared objects
and purposes of the corporation, not simply convenient but indispensable.
Any fair, reasonable doubt as to the existence of power is resolved by the
courts against its existence in the corporation, and therefore denied....
In re Valley Deposit and Trust Company of Belle Vernon, 311 Pa. 495, 167 A.2d 42 (1933). Because
there is no reimbursement provision, the payment of a salary and benefits without expectation of
reimbursement is outside the Boards authority.
In addition to the absence of express statutory authority, full-time union employment is not,
according to case law, work relating to public school, thus is not impliedly authorized by the School
Code. Pennsylvanias appellate courts have held that the performance of union responsibilities during
the school day is not engaging in working relating to a public school. In Kirsch v. Pub. Sch. Employees'
Ret. Bd., 929 A.2d 663, 670-71 (Pa. Commw. Ct. 2007) aff'd, 603 Pa. 439, 985 A.2d 671 (2009), the
Pennsylvania Commonwealth Court, subsequently affirmed by the Pennsylvania Supreme Court, held
that the salary received by the plaintiffs for union responsibilities was earned while the plaintiffs were
not employed as a person engaged in work relating to a public school. The court, therefore, held that
the additional salary employees received for performing union responsibilities should not be computed
along with the employees final average salary for the purpose of PSERS. Similarly, in Pinto v. State
Civil Service Commission, 912 A.2d 787 (Pa. 2006), the Pennsylvania Supreme Court held that full-time
union service did not constitute a civil service position.1
Under 24 P.S. 11-1111-A, collective bargaining is a conference or negotiation between the
employer and employee representative with respect to the terms and conditions of employment. See
also 43 P.S. 1101.701. Additionally, the Board is required to employ the necessary qualified
professional employees, substitutes and temporary professional employees to keep the public schools
open in their respective districts in compliance with the provisions of this act. 24 P.S. 11-1106.
Therefore, because the Boards collective bargaining authority is limited only to public employment,
there is no implied authorization to justify the payment of a salary and a benefit for full-time union
work.
Moreover, the use of public funds to pay a full-time salary for an employee to be released from
duties may also be in violation of the Pennsylvania Constitution, particularly where the Association has
not reimbursed the District for salary and benefits. The Gift Clause, Pa. Const. art. VIII, 8, states,
1 Likewise, resulting in a denial of certiorari by the United States Supreme Court, the Supreme Court of Oregon,

in Dinicola v. State, Dep't of Revenue, 268 P.3d 632 (Or. 2011), held that, while an employee, ordinarily a state
tax auditor, was on release time to perform union responsibilities, he was not an employee of the state, for
purposes of the Fair Labor Standards Act (FLSA), and was, instead of a tax auditor, an administrative employee
of the union. See id. at 641.
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The credit of the Commonwealth shall not be pledged or loaned to any individual, company,
corporation or association nor shall the Commonwealth become a joint owner or stockholder in any
company, corporation or association. Because the District is paying public funds for the union president
to serve the purposes of the union, as opposed to the District, Article 28 could be viewed as a violation
of the Gift Clause. Further, Pa. Const. art. III, 14, states, The General Assembly shall provide for the
maintenance and support of a thorough and efficient system of public education to serve the needs of the
Commonwealth. In light of both of the above, Article 28 may be void under the Pennsylvania
Constitution, particularly because the employee, a professional educator, is performing no professional
functions but paid a full-time salary by the District.
A recent challenge was made to a similar situation in the Philadelphia School District where
teachers were released full-time for the purpose of working for the teachers union, the Americans for
Fair Treatment, Inc. (AFT), on May 22, 2015, filed a complaint against the Philadelphia Federation of
Teachers (PFT) and the School District of Philadelphia, seeking to invalidate the CBA between the
PFT and the District to the extent that it authorizes union work on school time. The AFT alleged that,
because full-time union employees are not public school employees, the school board lacked the
capacity to enter into a CBA for the employment of teachers as full-time union employees. Further, the
AFT alleged that school-paid union work is against public policy: Union work on school time takes
teachers out of classrooms, decreases the number of teachers interacting with students, and obliges the
District and/or the Commonwealth to spend funds on activities not advancing public policy concerns.
See Case No. 02928, Compl. 61. Additionally, the AFT alleged that [a]llowing employees performing
union work on school time to accrue seniority, potentially keeping their positions over less senior
employees, who have spent their time honing their skills, is contrary to public policy. See id. 62.
Moreover, the AFT alleged that [a]llowing an employee who has been performing union work on
school time for extended periods of time to re-enter teaching ranks once his or her work for PFT
concludes, is contrary to public policy. See id. 63. Also, with respect to the doctrine of public trust,
which requires the government to use resources in a way that does not impair public use, the AFT
alleged that [u]nion work on school time represents a misuse for private gain, in violation of the
Districts duty under the public trust doctrine. See id. 80.2
The counter-argument to the above is that courts have held that Section 701 of the Public
Employee Relations Act (PERA) requires public employers to bargain over paid leave for service with
an employee organization. Further, the PERA authorizes agreements on such leave between public
employers and employee organizations. See 43 P.S. 1101.701; see also Commonwealth of
Pennsylvania v. Pennsylvania State Troopers Assn, 611 Pa. 56. (2011). However, as set forth above,
2 Because the case was brought by a special interest group, as opposed to being brought by aggrieved teachers or
tax payers, the court dismissed the case on grounds of standing. Although the defendants also raised the argument
of legal insufficiently, the courts decision was not based on a finding that the legal arguments were legally
insufficient.
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because school districts were created by statute, they have no power except that which is conferred by
statutory grant and necessary implication. See Burger v. Bd. of Sch. Directors of McGuffey Sch. Dist.,
839 A.2d 1055, 1061-62 (Pa. 2003). Notwithstanding the PERA, the School Code only authorizes paid
union work on school time where the union reimburses the school for salary and benefits.
Because the Boards authority is limited to bargaining for paid leave only when reimbursed by
the Association, entering into a contract for the performance of full-time union responsibilities, absent
reimbursement, is ultra vires. Moreover, such an agreement may be in violation of the Pennsylvania
Constitution and void as against public policy.
2. Can a full-time union president maintain tenure status?
Because union responsibilities do not satisfy the statutory criteria, tenure status is probably lost
when an employee performs full-time union president responsibilities.
Tenure may not be conferred absent statutory authority, even where the parties have contracted
otherwise. See also Rosenberg v. S. Allegheny Sch. Dist., 432 A.2d 654, 656 (Pa. Commw. Ct. 1981)
(The form of the employment contract is not dispositive of her status because no valid professional
employee contract can be made if these qualifications are not met.) For an individual to achieve tenure,
each of the statutory criteria for a professional employee must be satisfied. See 24 P.S. 11-1121; and
see Appeal of Spano, 267 A.2d 848, 850 (Pa. 1970) (Section 1101(1) of the Code defines the term
professional employee, and if an individual desires that designation, he must show that he fits within one
of the categories created by the legislature.). There are two criteria to establish professional employee
status: certification and employee classification. See 24 P.S. 11-1101.
24 P.S. 11-1101 defines professional employee as follows:
The term professional employe shall include those who are certificated
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 specialists, school librarians, school secretaries the
selection of whom is on the basis of merit as determined by eligibility lists
and school nurses.
Under 24 P.S. 11-1141, teacher is defined as follows:
Teacher shall include all professional employes and temporary
professional employes, who devote fifty per centum (50%) of their time,
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or more, to teaching or other direct educational activities, such as class

room teachers, demonstration teachers, museum teachers, counsellors,
librarians, school nurses, dental hygienists, home and school visitors, and
other similar professional employes and temporary professional employes,
certificated in accordance with the qualifications established by the State
Board of Education.
Where an employee transfers from a tenured to a non-tenured position, the employee does not
carry his or her tenure into the new position. See Sch. Dist. of Philadelphia v. Brockington, 511 A.2d
944 (Pa. Commw. Ct. 1986). For example, a tenured principal who is transferred to the position of
administrative assistant loses his professional status on the transfer. See Narducci v. Sch. Dist. of City of
Erie, 285 A.2d 888 (Pa. Commw. Ct. 1971).
Here, the union president performs administrative functions. The Commonwealth Court has held
that the performance of administrative functions is not sufficiently connected to educational activities to
bring an employee performing these duties within the definition of teacher. See McCracken v. Central
Susquehanna Intermediate Unit, 382 A.2d 1293 (Pa. Commw. Ct. 1978)(educational program liaison not
professional employee); see also Rhee v. Allegheny Intermediate Unite Number 3, 315 A.2d 644 (Pa.
Commw. Ct. 1974)(library office workers not professional employee). There is, therefore, a strong
argument that the employee has lost her tenure status as a professional employee.
Conclusion:
In light of the above, it appears that Article 28 of the CBA, although long-lived, is ultra vires a
School Boards express statutory authority. The non-reimbursable aspect of the leave also is in direct
violation of Section 8102 of the School Code. While school boards have the authority to bargain for
leave for union officers, there is no authority, expressed or implied, that would justify the payment of a
salary and a benefit for full-time union work, in the absence of reimbursement by the Association. A
contrary, although we believe a less appealing argument, is that the PERA, 43 P.S. 1101.70, which gives
the district the right to collectively bargain terms and conditions of employment, is that such constitutes
an express power. However, this does not completely solve the requirement for reimbursement in
section 8102.
Moreover, a full-time union president without teaching assignments stands at considerable risk of
losing her tenure. Clearly, the AEA presidents position, as currently constituted, is not categorized as a
professional employee, according to statute. The lack of tenure in the positon begs the question of
whether there is tenure protection in the return to teaching.

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To ameliorate both legal concerns, the District and Association could compromise the position to
a reduction to half-time teaching with the union paying the costs of salary and benefits for the half-time
devotion to union duties.

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