School Law Briefing A Publication of Ancel,
Glink, Diamond, Bush, DiCianni & Krafthefer, P.C.
Number 1--Autumn 1995
To view this edition in PDF format, click here.
School Code Preempts IELRA in
Teacher Discipline Matters
The Tax Cap Saga Continues
Waivers: New Possibilities for
Old Problems
School Code
Preempts IELRA in Teacher Discipline Matters
In January 1995, the Illinois
Supreme Court addressed the tension between the Code and the IELRA. In Board
of Educ. of Rockford School Dist. No. 205 v. Illinois Educational Labor
Relations Bd., 165 Ill.2d 80, a tenured teacher was issued a disciplinary
suspension after he was involved in a physical altercation with his students.
The District determined that, although the teacher’s conduct was cause
for dismissal, it was remediable and issued the teacher a formal “notice
to remedy” as required by the Code.
The teacher subsequently filed a grievance, claiming that he had been
disciplined without just cause in violation of the collective bargaining
agreement which covered him. The District filed a Motion to Dismiss the
grievance, citing its exclusive authority under the Code to determine the
propriety of the “notice to remedy.” The District argued that
its authority was nondelegable; therefore, the arbitrator had no jurisdiction
to issue an award on the grievance.
The arbitrator denied the Motion to Dismiss and issued his award, ruling
that the District had violated the labor agreement by disciplining the teacher
without just cause. Confident of its position, the Rockford School District
refused to comply with the award and the teachers’ union filed an unfair
labor practice charge with the IELRB. The IELRB found that the District
had violated the IELRA by refusing to comply with the arbitrator’s
award.
On appeal, the appellate court reversed the IELRB’s decision. On
further appeal, the Supreme Court ruled similarly. The Court ruled that
the IELRA prohibits the implementation of an arbitration award based on
a provision in a collective bargaining agreement which violates or conflicts
with any Illinois statute. Because the Code gives the school board the sole
power to dismiss teachers for cause and/or to issue notices to remedy, allowing
an arbitrator to decide whether a school board acted with just cause would
conflict with the School Code. Accordingly, the court held that the arbitrator
was without jurisdiction to make such a determination, and the District
had not violated the IELRA by refusing to comply with the award.
The Rockford decision is a significant development for educational employers
throughout the State. District officials are advised to review all of their
pending teacher discipline grievances and to invoke the protections that
the Rockford case affords to their statutory discretion.
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The Tax Cap
Saga Continues --Understanding the New Revisions
In 1991, the Illinois Legislature passed the Property
Tax Extension Limitation Act, commonly known as “tax caps” for
the “collar counties” (35 ILCS 245/1-1, et seq.). This law provided
that, before a tax rate is increased by more than 5% or the increase in
the consumer price index (“CPI”), whichever is less, the school
board shall submit the rate to a referendum.
This year, the General Assembly
broadened the tax cap landscape. Recent legislation extends tax cap limitations
to Cook County, and authorizes all local governments in Cook and the collar
counties to resume the issuance of Alternate Bonds and to issue Limited
Tax Bonds in lieu of general obligation bonds that have otherwise been authorized
by applicable law. (P.A. 89-385). Limited tax bonds will be secured by 1995
non-referendum bond debt. Each local government's full base amount for issuance
of such bonds will again become available as existing non-referendum general
obligation bonds are paid or retired.
The Act also restores the power of local governments to issue alternate
or “double-barreled” bonds. Alternate bonds are general obligation
bonds payable from enterprise funds or from a special revenue source, or
both with the general obligation of the local government acting as a back-up
security for the bonds.
The Act defines the “debt service extension base” as an amount
equal to the portion of the 1994 extension for payment of interest in principal
and bonds issued by a taxing district without a referendum. The bill also
allows for a referendum for the establishment of a new debt service extension
base or an increase in the existing debt service extension base, if: (1)
the taxing district holds a referendum before the date on which the levy
must be filed with the county clerk, and (2) a majority of the District's
electorate voting on the referendum approve the question. The referendum
question must be on the ballot at a regularly scheduled election. The referendum
allowance would permit school districts who have paid off all their bonds
and interest payments and are now debt free to go to the voters to establish
a new debt base. This new base would represent what the district would be
allowed to issue in future levy years without referendum from the electorate.
Districts should review this option and consider establishing a new base
as soon as possible.
As noted above, the new Act extends tax cap limitations to Cook County
school districts for the first time. In 1994, the CPI for the year was 2.7%.
Therefore, in 1995, a school district may not levy tax dollars that are
more than 2.7% greater than the tax revenues received the previous year,
exclusive of debt. Thus, if a school district receives $1,000,000 in tax
revenues in a given year, then the most that they can receive in all funds,
exclusive of debt, the following year would be $1,027,000. However, if any
funds are not at the statutory maximum, a school district may under certain
conditions be able to “massage” the funds and move dollars from
one to the other. For example, if your transportation fund is in excess
of what you need for that year, you may be able to move those excess dollars
over to the education fund.
To further illustrate, if a district has a maximum rate of $2 for its
education fund, but its extension produces a levy rate that is less than
$2, the district can levy more dollars for the education fund, up to its
statutory limit, as long as this total tax increase does not exceed 2.7%
(or whatever the CPI is for that year) overall, exclusive of debt.
The only exception to the general tax cap structure is for new construction
projects. The tax cap limitations do not apply to a school district's tax
extension for new construction for that levy year. Therefore, if a district
has a new construction project, it can levy higher than the CPI increase
for that year. It is important that this be done in each year of the start
of a new construction project because, after the year of new construction,
the district will never again have the opportunity to increase its extension
relevant to that new construction. However, if the extension exceeds 5%,
a school district would still need to hold a “Truth in Taxation Hearing,”
even if the overage is attributable to new construction.
To sum, increases in tax levies by school districts affected by the Act
are limited to the CPI increase or 5%, whichever is less, exclusive of debt.
However, districts are authorized to increase the extension for new construction
within the boundaries of a school district without regard to the tax cap.
Tax caps can (and probably will) cause confusion and concern when establishing
your tax levy for any given year. School districts and their business managers
are advised to make sure they fully understand proper administration of
the property tax cap rules.
Return to Table of Contents
Waivers: New
Possibilities for Old Problems
Effective February 27, 1995, Public Act 89-3 grants
school boards the opportunity to seek modifications of State Board rules
or waivers of School Code provisions. The State Board was required to file
its first report with the General Assembly by October 1, 1995. It shows
that, since the effective date, there were 61 applications for waivers of
School Code sections, which can only be approved by the General Assembly,
and 31 applications for modifications to the School Code or State Board
rules and regulations, which can be approved by the State Board. The State
Board has acted on some of the applications before it but, as of now, the
General Assembly has not. The following is a brief summary of some of the
waivers placed before the General Assembly for approval, and of the modifications
already granted by the State Board.
1) Physical Education:
Most of the
applications for waivers before the General Assembly target physical education
requirements. There are six applications which seek to allow school districts
to conduct physical education classes every other day, three days a week
or two days a week. There are five applications which would exempt students
from taking physical education classes so that they could take other classes
or participate in other activities during the school day. Similarly, two
applications seek to waive all physical education requirements for a certain
time period so that students can take a course in computer technology.
Two applications seek to waive physical education classes for students who
have failed courses needed for graduation so that they make retake those
courses. In addition, one application seeks to extend the physical education
exemption for 11th and 12th graders to 9th and 10th graders, and another
one seeks to exempt students who participate in extracurricular activities.
Lastly, three applications seek a complete waiver from offering any physical
education classes.
As with applications for waivers, most of the applications for modifications
concern physical education requirements. The most popular application for
a modification was to offer physical education classes three or four days
a week. There were eight such requests. Five requests sought to count activities
such as R.O.T.C., marching band, cheerleading, and pom-pons as physical
education. Four applications sought to combine physical education in some
way with courses in sex, health or drug education.
2) School Days:
Four applications
for waivers seek to allow school districts to conduct a full day of teacher
in-service, rather than two half-days of school improvement activities.
Five applications for modification are pending which, if granted, would
permit the school districts to recognize the contributions of Casimir Pulaski
or Abraham Lincoln through instructional activities rather than observing
the school holidays in their honor. In addition, one granted application
allows the school district to take attendance during the first period of
the day in junior high and at the beginning of the morning and afternoon
sessions in grades K through five instead of at the beginning of each scheduled
class.
A reduction in instructional time has also been the subject of several applications.
One application seeks to reduce the minimum hours of instructional time
for grades 1 through 5 from five hours per day to 4-1/2. Another application
seeks a waiver to provide a 216 minute instructional day instead of the
statutory 300 minutes on days when students are taking the IGAP test or
other tests. Lastly, one district received a modification which allowed
it to take three school improvement partial days at the start of the school
year and to make up the time later in the month of September.
3) Employment:
One application seeks
to eliminate the statutorily required rating system on tenured teacher evaluations
and replace it with an evaluation system created by the district administration
and teachers. Another application, if granted, would permit the district
to enter into a one, two or three year employment contract with its administrators.
One school district has applied for a waiver allowing it to assign teachers
with a grade 6-12 certificate to teach 5th grade up to one-half time.
The State Board has granted a waiver allowing a district to contract
the behind-the-wheel drivers' education instruction to a commercial driving
school and also the classroom instruction to a commercial driving school
if the teacher provided is certified. Lastly, three school districts are
seeking waivers that would allow them to serve reduction-in-force notices
to teachers by first-class personal delivery instead of certified mail.
4) School Accreditation and Assessment:
Three applications seek a complete waiver of the school accreditation process.
Two others seek a complete waiver of the requirements related to the Illinois
School Improvement Process. One application seeks to waive local assessment
and testing for certain 7th and 8th grade subjects.
The State Board has already granted applications seeking modifications
in school accreditation and assessment requirements, including: (a) eliminating
the Quality Review visit until the end of the 1999-2000 school year; (b)
modifying the time table for compliance with the school accreditation process;
(c) allowing a different assessment to be used in place of the one currently
required to meet the outcomes for certain areas; and, (d) granting an extension
until February of 1997 to complete outcomes for all six fundamental learning
areas.
5) Corporal Punishment:
Two school
districts seek a waiver allowing them to paddle students unless prohibited
by written parental objection. The State Board has granted an application
from the Chicago Board of Education allowing it to clarify that any individual
who violates the School Board’s corporal punishment policy or who uses
excessive force when force is permitted shall be deemed to be acting outside
of the scope of his or her duties. (Note: This clarification helps protect
the school district from lawsuits that result from such actions.)
6) Finance:
Three school districts
seek to waive the requirement that the school treasurer live in the district
so that they can appoint the chief school business official to serve as
the school treasurer. Three school districts seek a waiver to increase the
maximum debt limit above 13.8%. One school district seeks a waiver to allow
it to transfer funds from the bond and interest fund to the education fund,
operations and maintenance fund or transportation fund. Two school districts
seek waivers allowing them to establish different fiscal years.
7) Health Requirements:
Three applications for waivers seek to exclude students who have
not complied with the health examination and immunization requirements by
the first day of school instead of the statutory October 15th deadline.
One school district seeks a waiver that would allow it to require non-administrative
health aides to administer medication. The State Board has granted 4 modifications
allowing districts to employ registered nurses who do not hold school nurse
certification to perform professional nursing services in non-classroom
instructional related activities.
8) Life/Safety:
Life/safety waiver applications
currently before the General Assembly would waive the requirement of installing
sprinklers in new building additions due to excessive costs incurred with
well water systems. However, waivers of life/safety issues are not as frequently
sought, probably because their funding is from sources outside any tax cap
limitation.
The above examples show that many districts are already making creative
use of the waiver process to find more cost-effective ways of providing
educational services. As the General Assembly’s rulings provide guidance
in this area, we will keep our readers advised.
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@ ancelglink.com
School Law Briefing is published periodically by Ancel,
Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., as a service to our public
education clients and friends. It is intended to provide timely information
of interest but not as a substitute for legal advice. Be sure to consult
with an attorney before taking action based on the contents. We welcome
comments and questions. Permission to reproduce is granted provided credit
is given to Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., School
Law Briefing.
Editor: Timothy E. Guare; Design: Douglas M. Doty
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