Clarification of Act 93
By Donna Weldon, PA Principals Association Chief Counsel, and Thomas Shivetts, PA Principals Association Executive Director
Curley v. Johnstown (1994) specifically differentiates between “Meet & Discuss” under Act 195 and “Meet & Discuss” under Act 93. Act 93 is a hybrid between Act 195’s collective bargaining and Meet and Discuss under Act 195. Essentially, collective bargaining (Act 195) minus the necessity of agreement equals good faith meet and discuss under Act 93. Short the point of agreement, the processes should be similar in terms of presentation and explanation of positions, opportunities for response, sincerity and authority in establishing the respective positions, and the establishment of a written compensation plan containing all the elements required by law.
Confusion between the meanings of meet and discuss under Act 195 and Act 93 – in spite of the findings of Curley – has caused the most practical problems for administrators and boards in the process. Both groups frequently view the traditional meaning of meet and discuss under Act 195 as the model for meet and discuss under Act 93. Act 195’s meet and discuss is intended to deal with policy/personnel issues that are not violations of the collective bargaining agreement and therefore not grievable. There is no obligation for there to be agreement to the points of discussion. Act 93’s good faith meet and discuss is an entirely different animal.
What does “good faith” mean in the Act 93 process? Essentially, the following test questions – answered affirmatively – would establish a “good faith” process:
- Is the final administrative compensation plan complete – terms, salaries, benefits, administrative evaluation (if it affects compensation) and early retirement incentive programs, process for determining salary?
- Would a rational man have proposed the plan submitted by the board?
- Is there a reasonable factual basis for the proposals made by the board and have the facts been presented at a meeting?
- Did the board representatives present the written proposal at a meeting before its adoption by the full board?
- Did the board plan and schedule sufficient meetings to discuss the issues to enable timely adoption of the plan?
- Do the representatives of the board have authority to negotiate and discuss proposals and have the discussed parameters for salaries and benefits with the full board?
- None of the board decisions regarding the plan were contrary to the law – board policy – or the facts?
- Did the board deal with administrators in a non-discriminatory manner as compared to teachers or classified employees?
- If the plan expires and there will be a lapse, has the board sought agreement from administrators of an interim plan?
Further confusion also arises relevant to the remedies available to administrators when “good faith” meet and discuss does not occur – or – when an adopted plan is not followed. Mandamus action may be forced if:
- The board refuses to meet and discuss after a request by the majority of the administrators.
- The board unilaterally changes the terms and conditions of the ACP during its term.
- The board refuses to implement or breaches terms and conditions of the ACP.
- The board refuses to meet and discuss in good faith.
- The board refuses to include an appropriate (by law) administrator in the ACP.
Additionally, a grievance process may be utilized with the assistance of the Department of Education as provided for in the 1947 Anti-Strike Act.
A Solid Process
Ideally, administrators should request meet and discuss sessions with the board early enough so that their frequency and length provide a full hearing and response time for both employer and employees. Establish the number, dates and times of meetings up front. Early in the meeting sequence the board should provide a written explanation of what they plan to provide administrators, with rationale and facts that the administrators may respond to at subsequent meetings. Finally, both groups should strive to create certain language that is not ambiguous and completely understood by the parties prior to the adoption of the ACP.