June 11, 2010

Of side deals, soup and sandwich, and prayers

A few days ago, the St. Petersburg Times uploaded all of the second-round RTTT local MOUs in Florida they had been able to acquire to one of the relevant blog entries, so I can talk about the elements that are common among them. First, a mea culpa: when reading the Broward document on Safari, the browser only showed the paragraph discussing impasse, and I wrote a blog entry based on that assumption. After seeing several of the MOUs, I checked the file format, realized it was not a PDF, and put it into a different app. So my erroneous description of Broward's and Hernando's MOUs as dramatically different is my fault. There are some interesting variations (as I explain below, Hardee should not be included in the broader list), but I'll stick with the commonalities.

I'm going to start with the local MOU signed in January by stakeholders in Hillsborough and other MOUs signed in a handful of other counties where locals of the Florida Education Association signed onto the first state application to Race to the Top. The Times blog entry at the time could be read to suggest that the Hillsborough Classroom Teachers Association (HCTA) wheedled the school board into the language. I suspect the reality is that HCTA asked FEA's bargaining support team to give them something that would allow HCTA to sign on and still secure them (or try to secure HCTA) against impasse proceedings and being locked into an experiment after the money ran out.

So what did the January MOU in Hillsborough include?

  1. The parties agreed to negotiate in good faith to allow them to participate in the state's RTTT program.
  2. The parties agreed that they would not take discretionary bargaining subjects to impasse even if that impeded participation in RTTT (and if the state rejected whatever was bargained, Hillsborough would not participate).
  3. Any contract modifications agreed to as part of bargaining with RTTT would cease either with the end of the grant or the end of the contract. (In Florida law, public-employee collective bargaining agreements can last no longer than three years.)
  4. The school district committed itself to finding non-general-fund sources of money "to continue implementation" if RTTT funding was insufficient.

Again, the effect of this agreement was to guard HCTA from being exposed to impasse proceedings and a default permanent commitment to contract provisions for a program that might not be fully funded after RTTT moneys ran out. The first protection was incorporated into the state-level MOU for the second RTTT application. It is not entirely clear that the state-level MOU addresses the second issue directly, though it does state that the MOU (and the commitments) end with the end of the grant, if the state receives the award. (I'll get a little more into the weeds on the doctrine of status quo below.) In any case, the new state-level MOU was sufficient for the vast majority of counties and local unions this time around, and FEA's leadership encouraged locals to participate (hedging that around a bit in public language).

The existence of local MOUs the second time around is an indication that the reassurances were not enough for at least 10 counties and their locals to sign on without a local MOU. (Stakeholders in the rural county of Hardee signed an MOU that essentially duplicated the state MOU: they'd attempt to bargain to meet RTTT requirements, but they wouldn't declare impasse. So I am not including Hardee in the group of other counties whose MOUs put a termination date on contract modifications.) Three of those counties have large populations: Duval (Jacksonville), Lee (Ft. Myers), and Broward (Ft. Lauderdale). The others are much smaller.

So what parts of the local MOUs match up to the MOU signed in Hillsborough in January? I'm going to match up some of the language of the Broward MOU (why? Broward's the largest system in the set, and I can copy and paste language from its MOU) against corresponding elements in the January Hillsborough MOU and see what remains:

  1. Good faith bargaining: The parties will use best efforts to develop a negotiated, mutually agreed upon implementation plan in the areas identified by the parties as part of the Plan (from item 2 of the Broward MOU).
  2. No impasse: Any items relating to the RTTT Application or Plan that are unsuccessfully negotiated between the parties specifically for the purpose of applying for or receiving the RTTT grant award will not be subject to the impasse procedures set forth in Chapter 447. The impasse procedure is herewith deemed waived by the parties as to negotiations which are for the specific purpose of applying for or receiving the RTTT grant award (item 4).... Should there fail to be a fully ratified MOU by the bargaining-unit and non-imposed agreements after good faith negotiations for RTTT, the parties are released from any obligation to continue participation in the Race to the Top Grant (item 8).
  3. Termination date for contract modifications: In the event that negotiations for RTTT result in modification to the existing CBA, such modifications will expire upon either the expiration of the RTTT grant or upon the expiration of the funding of the grant whichever occurs first (item 5).

Those pieces parallel three of the four elements of the January MOU in Hillsborough (and I've put the Broward MOU text in the same order as the list above). That doesn't mean that they don't have policy implications, but it's not as if this language came out of nowhere; the provisions clearly came from the January MOUs. (Discussion of policy below.) What's new?

  • Recognition that RTTT may require impact bargaining as well as mandatory subjects of bargaining: If an RTTT grant is awarded, any items in the Plan that impact wages, hours or terms and conditions of employment or that may modify the current CBA are subject to bargaining in accordance with Chapter 447 (item 3).... Portions of the RTTT Application and Plan implicate mandatory subjects of bargaining under the Florida Constitution and Chapter 447. The parties acknowledge that limited issues such as performance pay, salary schedules, and teacher placement can best and most effectively be addressed at the local level (item 7).
  • Agreement to the state MOU does not commit the parties to specific contract changes: [A local stakeholder's signature on the state MOU] does not constitute agreement to modify the existing CBA or to negotiate additional language consistent with all elements of the FLDOE Preliminary Scope of Work (item 1).... The signature of the Union President on the FLDOE MOU does not constitute an agreement to (a) reopen or otherwise modify the CBA, unless and until a subsequent negotiated time specific waiver or other agreement has been mutually agreed upon by the BTU and SBBC or (b) limit or waive its rights and protections under the Florida Constitution, the Florida Public Employees' Relations Act and other applicable laws (item 2).
  • Contract modifications for RTTT do not become the default contract language that extends beyond the end of a contract while negotiations continue: If bargaining according to this MOU results in any modification to the current CBA in order to comply with RTTT requirements, then such modification(s) will not operate as the status quo and shall have no precedent setting value, face or effect, unless to the extent agreed to be the parties therein (item 6).

The first topic is mundane and would probably be accepted as a statement of reality by most involved in Florida public labor negotiations. The second category protects parties (primarily unions) from the argument that a signature on the state MOU was the same act as signing a labor contract or a binding commitment on any specific element of a contract (from the first numbered paragraph of the MOU). More interesting is the language from the second numbered paragraph that refers to "a subsequent negotiated time specific waiver or other agreement" that results from bargaining. Any part of a collective bargaining agreement that includes a time-limited waiver of union rights (or agreement on a contract provision that is discretionary under Florida law) would satisfy that language. I am not a lawyer, but this may duplicate established protections that unions can assert at the table.

What appears to be truly new in comparison with the January Hillsborough MOU and also a potential substantive difference from anything else is the language clearly stating that contract modifications specifically for RTTT do not become the status quo that continues after the end of one contract if bargaining continues on a successor agreement. Here we're truly getting into the weeds on Florida labor law: A public-employee labor contract continues to operate after the last date if there isn't agreement on a successor, and the terms and conditions of employment continue as if the agreement had been extended. There is some controversy about whether and which waivers of rights by either party continue as the status quo, but the status-quo doctrine changes the nature of bargaining, as a deadline that might otherwise be facing one party at the end of a contract just does not exist, and that provision continues. If I understand correctly, the public-interest rationale for the status-quo doctrine is that maintaining the terms and conditions of employment during a contractual interregnum is easier to administer, and since the parties agreed to those terms and conditions at some point in the past, one can assume that the contract provisions are not contrary to the public interest. But it does theoretically remove bargaining leverage from a party who conceded a term that would otherwise cease at the end of the contract.

Given the language elsewhere in the Broward MOU (and others) that the RTTT-related contract modifications cease as of the end of the contract or RTTT funds, I'm trying to figure out what the additional language on status quo adds. Is this the legal equivalent of putting on long johns on a winter day in Philadelphia just in case the temperature drops another 40 degrees F.? It roughly parallels the same issue--"we're not locking ourselves into the experimental contract language we may agree to"--with different language.

The two questions that have been raised have been of process (transparency in the state's application: will federal reviewers see everything that's relevant?) and the substantive question of commitment to contractual changes after the grant money runs out.

I don't think the transparency issue is affected by the language about impasse, since I'm persuaded that the local MOUs' language effectively duplicates the state MOU language on the issue without adding anything substantive. And the state has the authority to include or exclude specific counties based on information state officials have; remember that this is an application by the state for money, not an application by individual school districts. So we're down to one issue: does 10 local unions' unwillingness to be locked into specific contractual language in advance of the grant directly contradict the application's claims of stakeholder buy-in?

Well, that's not quite it, either, because I don't think the other locals want to be locked in either, but they didn't sign local MOUs with language on the issue. So it's really whether the application reviewers have the information they need to decide if the state as a whole has sufficient stakeholder buy-in to earn the relevant points in that part of the evaluation. Suppose for an instance that we should wipe out those ten counties from buy-in based on signing the local MOUs; would Florida lose any points? Perhaps a few.

So a man walks to the corner deli to get lunch and orders a soup and sandwich. He pays and waits at the pickup counter. When the short-order cook rings the bell and puts the tray on the counter with the order, the customer asks the cook, "Did you pray while putting together my meal?"

The cook squints a bit. "Did I pray?"

"Yes. Did you pray for me while putting together my meal?"

The cook thinks. The customer's a stranger, there are seven billion people in the world, and she's busy making lunches. Should she pray for all the strangers in the world or make sure she doesn't cut her fingers off? But the customer's always right, the boss says. "Sure, I prayed."

"What'd you pray for me?"

"I prayed for you to give me a good tip."

Now for the big picture on transparency: you can't read minds. At most what we know is that officials in these ten counties are more suspicious of the state MOU than FEA President Andy Ford and other members of the governor's task force. Do you think that local officials in other states are equally suspicious? Is there a way for a state to suss that out? Officials in every state have assumed that a signature on an MOU is a legal commitment, and the same has been true in Florida. There could be all sorts of local agreements of the nudge nudge, wink wink variety in multiple states, and that's true of every grant program where the state is the applicant and locals participate. If someone wants Florida to be penalized because state officials were unaware of local suspicions and we now know about it because the local stakeholders put those suspicions in writing, do we need to set up mechanisms to find any agreements that are unwritten?

There may be one other issue in the grant application development playing into this: the state asked local stakeholders to sign the MOU before the state application was finished, and there is a section of the state MOU that allows local districts to back out if they discover after having signed the MOU that they don't have the capacity to follow through. (That's shortly after the zipper clause that lets the state exclude local districts.) A few national stakeholders have pointed out that RTTT required states to buy into the common core standards before they were finalized, and the development of the Florida RTTT application had a parallel problem of asking local stakeholders to sign on before knowing all of the details of the state plan. Given the escape clause in the MOU, that shouldn't have fed into discussions about any local MOU, but I wouldn't be surprised if that upped the suspicion level.

The policy question remains the same: what happens after RTTT funding runs out? There are (at least) two ways to look at this, if you're a supporter of the RTTT program. One is to see the state application as a way to lock in certain policies that can't be undone. The January MOU in Hillsborough and the ten MOUs that the Times has uncovered would greatly irritate anyone with that view, because it's evidence that local unions and possibly school boards are going to want to backtrack just as soon as the legal commitments for RTTT evaporate. But there's a second way to look at RTTT: they force states and local districts to experiment in certain ways and have certain experiences. If you think that the experiences with different policy structures are going to change the conversation and loosen up opposition to a bunch of things, you're going to trust that the proof of the pudding is in the eating. Or you have to think that at some level, you can't force local districts to behave in a certain way forever and stakeholders have to agree with you at some point.

I think the first way of viewing RTTT is incompatible with its being a voluntary grant program. If you want to force certain behavior, you can't hide it behind a temporary pot of money, and people are going to seethe and figure out ways to undo it if you try. If you want to be top-down, you have to be top-down and open about it, and limit it to things you are reasonably certain you can control. If you want to encourage experimentation, you need to acknowledge that some of the experiments will absolutely fail and let local districts escape from those failed experiments.

One other matter I haven't been able to resolve: I vaguely remember some of the news coverage this month reporting that both the first and second Florida applications for Race to the Top mentioned at least a few of the local MOUs, but I couldn't find any reference to the local MOUs in either (at least by searching within the PDF files). For the record, can anyone tell me whether my memory is going, or if I just missed everything?

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Posted in Education policy on June 11, 2010 8:38 AM |