Part 1 of 2

Two students lead teachers and protestors in chants at a recent teacher rally in Frankfort. | Photo by Olivia Krauth

Threats of a state takeover of Jefferson County Public Schools are rising just as the district and the local teachers union are about to start negotiations on a new labor contract.

And while a local union leader said that state and federal laws — and the existing contract — protect local teachers from a state manager meddling in their collective bargaining, events in other states  — and last week’s developments in Kentucky — show that contracts can be voided and changed with surprising swiftness.

Brent Mckim

The current five-year contract between the district and teachers ends June 30, and Jefferson County Teachers Association President Brent McKim told Insider that he expects negotiating teams from both sides to begin exchanging proposals soon.

“The clock is ticking,” he said.

Negotiations are getting underway as the district is awaiting the outcome of the state’s comprehensive management audit, which could have far-reaching consequences for local schools — and possibly the negotiations as well.

The audit began in 2016 after the state uncovered deficiencies in the district’s reporting of physical restraint data, but escalated into a comprehensive look at JCPS management. Once the audit is completed, Kentucky’s interim education commissioner, Wayne Lewis, is expected to recommend some level of state oversight of the local district. That could involve Kentucky Department of Education staffers assisting JCPS to address challenges uncovered by the audit, or it could mean the appointment of a state manager whose authority would supersede those of the locally elected board and their chosen superintendent.

Until last week, local education leaders expected then-Commissioner Stephen Pruitt to recommend only limited state intervention. However, on April 16, Gov. Matt Bevin, a frequent JCPS critic, appointed six new members to the 11-member Kentucky Board of Education, which, on the same day, called for a special meeting for April 17, during which Pruitt was forced to resign.

Local district leaders and a former state board chair have told Insider that they believe the moves point to Bevin pushing the board and interim commissioner for a state takeover of JCPS, reinforcing local teachers’ fears about the extent to which the audit will blame the district’s deficiencies on teachers.

The fears surfaced in May 2017, when the state wrote in a request for proposal that it was looking for a law firm that, in cooperation of KDE attorneys, would help determine whether teacher contracts were contributing “to critically ineffective or inefficient management of the JCPS.”

An excerpt of the JCPS audit-related RFP.

For former Commissioner Pruitt, the analysis of the union contract played a significant enough role to warrant delaying the release of the audit — though his successor, Wayne Lewis, said he will release the audit this month, regardless of the availability of that analysis.

Union criticism, too, would align with Bevin’s assessment of what ails Kentucky. Last year, when he signed so-called right-to-work legislation, the governor said the law would bring “incredible new opportunities” to the commonwealth.

Despite the prominent role that the JCTA union contract seems to have played in the JCPS audit, McKim said that such agreements cannot be changed unilaterally.

He said the union’s legal counsel told him that both the U.S. and state constitutions say “that no state law may impair the obligations of a contract.”

“I believe that these constitutional provisions mean that an existing labor agreement between JCTA and the (Jefferson County Board of Education) will remain in effect for JCTA members if the JCPS were to fall under state management,” the union’s attorney said.

McKim said that if the state identifies collective bargaining-related problems that contribute to the ineffectiveness of JCPS, the union and the state manager could make alterations to any contract contract through a memorandum of understanding, a process the union and JCPS have employed in the past.

Broad powers

However, an attorney who represented a school district under state management in Michigan, said that the appointed managers generally have very broad powers, and some have unilaterally made changes to teacher contracts — or dismissed teachers altogether.

Gary Britton

“Most of these laws allow the emergency manager to modify … any provision of a collective bargaining agreement” that he or she deems to not be supportive of improving education, said Gary T. Britton, a Muskegon, Mich.-based labor law attorney.

Britton represented the Muskegon Heights Public Schools when an emergency manager dismissed the entire teaching staff and hired a charter school operator to take over.

Kentucky’s management audit law, too, gives the state-appointed manager sweeping authority: He or she “shall make the administrative appointments as necessary to exercise full and complete control of all aspects of the management district … (and) may make any and all decisions previously made by the local school board and the local superintendent,” it reads.

The Kentucky Department of Education would not specifically say whether a state-appointed manager can void collective bargaining agreements, demand that they be renegotiated or halt ongoing negotiations. Some of this is new territory for the state, which has taken over management primarily of smaller districts without union representation.

A KDE spokeswoman told Insider via email that, “Under state management, the KDE/KBE, acting through the state manager, have all the authority of the district and local board.”

Other states, too, equip state appointed managers with significant powers: In Massachusetts, in severe cases, a manager can make “substantial changes to the collective bargaining agreement, and the obligation to bargain over those changes is greatly diminished.”

In Philadelphia, a three-member School Reform Commission canceled a teacher contract in 2014 and required union members to pay more for health insurance. A judge a few months later reinstated the contract, saying that although the state takeover law gave the commission broad powers, “elements of state labor law still apply.”

Education Commissioner Stephen Pruitt, only hours before his forced resignation.| Photo by Olivia Krauth

Actions by the Kentucky Board of Education last week reinforced the tenuous nature of employment contracts: On the evening of April 16, then-Commissioner Pruitt told Insider that whatever action the board planned to take the following day, he would remain commissioner for 90 days, as required by his contract.

Less than 24 hours later, Pruitt, under pressure from the board, agreed to amend his contract and to vacate his position immediately.

McKim maintains that local teachers are protected by state and federal laws, and the current contract itself. That agreement requires, for example, that a “successor agreement” be negotiated, meaning a state manager could not simply refuse to deal with the union should the district and JCTA be between contracts.

However, Britton, the Michigan lawyer, warned that given the vagaries of some of the laws and the lack of precedent, either parties’ interpretations of the laws likely won’t be settled without third-party input.

“Let the litigation begin, because it will,” he said.

Only losers

McKim said that whatever the judicial entanglements, it would make little sense for a state manager to unilaterally try to dismantle the contract and torpedo the relationship between the district and its teachers — if the goal is to improve educational outcomes.

“I think it would be incredibly disruptive and counterproductive for the state to take that sort of approach,” he said.

Research shows that high levels of collaboration between employees and management creates stability and benefits kids, McKim said.

Having “an objective and reasonable process for how the district engages with employees … actually helps us to have more experienced teachers in our most challenging schools and it reduces the turnover at our most challenging schools,” he said.

Children at school. | Courtesy of Wikimedia Commons.

Britton said that when state officials have to battle the local district, or teachers union, or a divided community — think ‘war on Louisville’ — state-led improvement efforts, even when well-intentioned, usually end in failure.

The state may have good insights into the district’s challenges, he said, but without local support, state representatives’ fight will be, at best, quixotic.

“As far as providing day-to-day changes in academic performance, in overall management performance, it’s a really daunting task that they are not really equipped, in my estimation, to handle,” he said.

“You just end up with an incredible brouhaha, all of which doesn’t have anything to do with the education of children … You lose two or three years of kids in the process, and people don’t realize that.”

Coming soon: Fiscal constraints, too, threaten to make negotiations challenging.