Obama Transparency Standard Challenges School Boards

Pennsylvania school boards have been presented an opportunity to measure up to the standard set by our new President. In his inaugural address, Barack Obama promised that public business would be done "in the light of day." By the first day in office, Obama initiated an executive order proclaiming open government.

Obama’s decision has the practical effect of allowing interested parties to obtain access to records of the previous administration. Ideally, it creates a presumption of openness. It says: "If it’s not specifically exempt from disclosure, the public has a right to see it." That’s vastly different from, "If it’s not specifically authorized for release, the public has no right to see it."

Thanks to Pennsylvania’s new Right-to-Know Law (Act 3 of 2008), a presumption of access is the rule now for public records at all levels of Pennsylvania government, including school boards. The rule applies to signed contracts with teacher unions allowing anyone to read them and even making them accessible on the web.

These contracts determine 50% of the costs of most school districts and directly affect about 20% more (in the form of matching pay raises and benefits for administrators and support staff). They lock in cost increases for 3-5 years, or sometimes 7 years, undermining other laws intended to give the public a voice on school budgets. They also affect educational options—for example, by limiting the ability of school districts to pay premium rates for teachers with the specific skills and experience in short supply locally.

The new Pennsylvania law may not apply to formal board contract proposals before they are signed by both parties. It exempts from public disclosure "a record pertaining to strategy or negotiations relating to labor relations or collective bargaining and related arbitration proceedings." Therefore, although school boards may voluntarily disclose the terms of contract proposals, they are not legally obligated.

Interpretation of the law depends on whether you think a public agency’s written contract offer to union officers should be understood as a bargaining position or as a legally binding bid solicitation. Likewise, the law may treat a union’s proposed contract as a ploy or as a serious bid from a would-be contractor to provide specified services for a specified amount of money. One reason to treat all written proposals as serious is that both sides have a legal obligation to negotiate "in good faith." School board negotiators are supposed to make offers that they expect their boards will approve if accepted by the union. Likewise, union negotiators should offer only terms that they think their membership will vote to approve. Either side may take the other party’s proposal back to the members they represent with no implied promise of approval, but both sides should be willing to stand by their own proposals.

Both boards and unions have a clear right to keep their "pre-decisional" strategy papers to themselves. The question is whether a potentially binding offer, once released, can still be considered "pre-decisional." Courts may have to answer that question.

Even if courts rule that potentially binding offers are exempt from mandatory disclosure, that doesn’t imply school boards should hide that information. School boards and unions, as well as all levels of government, should strive to follow the spirit of open government, not just the letter of the law. "Starting today," Mr. Obama said, "every agency and department should know that this administration stands on the side not of those who seek to withhold information, but those who seek to make it known."

What’s sauce for the goose is sauce for the gander. If records from previous presidential administrations are to be opened for criticism, surely the same principle applies to local school board officials. Taxpayers can demand copies of existing contracts. They can also ask school boards to release of written proposals for large, multi-year contracts—if not immediately, at least well in advance of board and union votes on final approval. Whether or not boards have a legal obligation to meet this standard of transparency, they have the legal authority to do it.

School boards should go above and beyond the legal requirements in opening up Pennsylvania government. With that mandate for open government in mind, the website SchoolBoardTansparency.org attempts to promote greater school board transparency. This site highlights some of the best practices and examples of transparency in school finance and school district labor negotiations.

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Fred D. Baldwin, a member of the Carlisle Area School Board, is the project manager of SchoolBoardTansparency.org, a website and blog dedicated to promoting greater transparency in school district labor negotiations. SchoolBoardTansparency.org is a project of the Commonwealth Foundation (www.commonwealthfoundation.org), an independent, nonprofit public policy research and educational institute based in Harrisburg.

Permission to reprint is hereby granted provided the author and affiliation are cited.

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