Do teachers’ union agreements in Jefferson County comply with the law?

I wrote several days ago about some of the disturbing findings in a new report from the Kentucky Office of Education Accountability (OEA) concerning the Jefferson County Teachers Association’s (JCTA) union contract.

Today, I want to discuss OEA’s comments about the way modifications are made to the Jefferson County Teacher’s contract using a process called “Memorandum of Agreement” (MOA).

To briefly summarize, OEA says that the teachers’ union MOAs in Jefferson County Public Schools:

• May have bypassed the locally elected Jefferson County Board of Education’s statutory authority and responsibilities to negotiate and approve all contracts,

• Severely impair transparency of the true contract provisions for both Jefferson County Board of Education members and the general public,

• Remain in force, outside of board and public view, even after new contracts are negotiated, which can effectively alter the contract’s language even before the ink is dry,

• May have directly violated the law created in House Bill 176 in the 2010 Regular Legislative Session concerning a specific stipulation that union contracts could not impact the restaffing of teachers in Persistently Low-Achieving Schools.

• May have resulted in ineffective restaffing in those schools impacted by HB-176.

While there is nothing inherently illegal or improper about MOAs for union contracts – they are widely found in other areas such as the air transportation industry – the actual operation of MOAs in Jefferson County appears highly problematic and worthy of investigation and remedy in future law.

For details on the extraordinary OEA findings, click the “Read More” link below



General rules the contracting process must follow

On the first page of Chapter 2 in its report, OEA makes some general comments that bear on the following discussion. OEA says:

“A collective bargaining agreement cannot violate or contradict existing statutory law or constitutional provisions.”

“School teachers may organize themselves into labor unions and bargain in a collective manner with the Board of Education (emphasis added).”

“The opinion of the Attorney General indicates that Board of Education cannot divest itself of responsibilities which are its own while negotiating contracts.”

When these OEA comments are taken together, it looks like the union must bargain with the local Board of Education and not with another entity, such as the local school superintendent or a member of the superintendent’s staff.


Contract modifications used in Jefferson County

The OEA report discusses a process for creating and maintaining modifications to the teachers’ union contract known as “Memorandums of Agreement” (MOA). While MOAs are not illegal, and in fact are used in union contracts in other industries as an efficient way to adjust minor contractual issues in a timely manner, OEA’s report shows the Jefferson County MOA process looks very problematic.


Did a Jefferson County MOA violate Kentucky law?

One of the most serious issues raised in the OEA report concerns a possible violation of the law implemented by House Bill 176 in the 2010 Regular Legislative Session.

Section 1, Paragraph 10 of the bill stipulates that union contracts cannot take precedence over the process of staff changes in Persistently Low-Achieving Schools which are reorganized under the “Restaffing Option” in the act.

However, the OEA report says:

“JCPS leaders have chosen the restaffing option, requiring schools to hire at least 50 percent new staff, as per KRS 160.346. While the statute clearly stipulates that ‘professionally negotiated contracts by local board of education shall not take precedence over the requirements’ associated with the option selected, JCPS and JCTA entered into an (sic) MOA as to how the restaffing would take place.”

The OEA report thus implies the restaffing process in Jefferson County violated House Bill 176.

Even worse, the OEA report points out in considerable detail that the outcome of the union interference with the restaffing process led to many inexperienced teachers being assigned to the Persistently Low-Achieving Schools when those schools clearly needed more seasoned veterans. And, the report also says that teachers on tenure who were originally in the low-achieving schools were moved to other positions in the district, sometimes including a move to another Persistently Low-Achieving School! That could lead to what the movie “Waiting for ‘Superman’” calls “The Dance of the Lemons.”

Thus, the clear intent of the law to make meaningful staff changes in the Persistently Low-Achieving Schools was apparently violated in ways that have serious consequences for the children of Louisville. The final determination on the legal question will have to come from either the Attorney General’s office or the courts. However, there seems to be reason for serious concern because of the high level of teacher inexperience that resulted in a number of the Persistently Low-Achieving Schools in Jefferson County and the union’s clear involvement in that flawed process.


Transparency of MOAs is a problem

In Chapter 2 of its report, in the section titled ‘Memoranda of Agreement,’ under the ‘Contract Modification’ section, OEA says several hundred MOAs have been negotiated in the district over the past three decades. Remarkably, the OEA says the MOAs generally remain in force even after a contract is renewed. That opens the door for problems.

The OEA says the MOAs for the JCTA contract are not easily accessible or well organized. This creates serious transparency issues not only for the general public, but also for the local school board which is ultimately responsible for that contract. In fact, the OEA indicates the board may not even know the older MOAs even exist! How can that be?


MOAs not always negotiated with the local school board

As pointed out above, the OEA report indicates the union is supposed to negotiate contractual issues with the locally elected Jefferson County Board of Education.

However, OEA’s report says that local policy in Jefferson County allows “the superintendent and/or designee to develop memorandums of agreement between the employee organizations and the superintendent.” That seems to directly violate the previously mentioned rules for contract negotiation that the OEA outlines on the first page of Chapter 2 in the report.


Contract negotiations hidden from Jefferson County Board of Education

Based on the foregoing discussion, OEA points out that it is quite possible the current Jefferson County Board of Education has no knowledge of some MOAs and their impacts on actual district policies today. After all, the current board didn’t negotiate them, and due to the transparency issues mentioned above, may not even know they exist. A MOA could have been negotiated between the union and Jefferson County Public School staff years before the current board was even elected.

Clearly, this situation is highly objectionable. MOAs should either sunset or be incorporated in the language of a new contract to maintain order and transparency in Jefferson County’s school business. So far, that isn’t happening.


OEA debunks nonsense language in JCTA MOAs

The OEA’s report shreds a fiction found in the MOAs used in Jefferson County.

The report says:

“MOAs typically include a disclaimer that states ‘this specific resolution/settlement is recognized as being no precedent, shall not be construed in any way to be a precedent or be used to substantiate any present or future claim by any party to rights by past practice’.”

OEA then correctly points out:

“An (sic) MOA without expiration date creates precedent and past practice, which has ongoing enforcement consequences.”

Basically, OEA correctly says the disclaimers are nonsense, and Jefferson County’s MOA policies create a very non-transparent precedent and continuing practice problem. This offers a ‘convenient,’ though possibly illegal, way for the union and the superintendent/district staff who might want to maneuver around what the elected school board wants.


MOAs impeded implementation of the GE Grants in Jefferson County

Aside from the restaffing issue with HB-176, JCTA’s MOAs interfere with school councils’ rights and responsibilities in Jefferson County to select curriculum in the school. The OEA makes this problem clear with a discussion of the General Electric Grants to Louisville and how teachers got to trump school council decisions on whether their school would participate.

By the way, a somewhat similar process may also be the vehicle keeping all Jefferson County schools from participation in the very effective Advanced Placement program run by AdvanceKentucky.

The JCTA is blocking AdvanceKentucky because this innovative and highly successful Advanced Placement Course program provides merit pay to teachers whose students score well on the exams. So, while the union selfishly impedes, perhaps improperly, the ability of local school councils to select the AdvanceKentucky curriculum for their schools, kids throughout Jefferson County suffer.


Some rules MOAs should follow

• MOAs should always be incorporated into new contracts. They NEVER should be allowed to continue in force as separate documents past the signing of those new contracts.

• MOAs should NEVER be allowed as secretive side agreements completed out of the view of the local board of education.

• When MOAs violate state law, it is incumbent on the Kentucky Department of Education and other appropriate state agencies to move quickly to correct the problem.

In closing, Louisville really needs to get its act together. Students there suffer because of selfishness, and possible violations of law, on the part of adults running the school system.