Now that the September budget season whirlwind is over, it’s time to turn our attention to October. We hope to see many of you at the Labor Relations Conference in Lincoln this week, because among other things, bargaining season is upon us. In that spirit, here are a few items to think about as the leaves change and harvest is in full swing.
Odds and Ends
Think ahead about option enrollment. Here’s a reminder that if your school plans to “close” any class, program, or building to option enrollment for the 25-26 school year, the board must act “before October 15.” You are not required to close anything to option. But, if your board chooses to do so, the deadline is October 14. Remember, no longer can you declare your special education program to be at capacity. Get that out of your option resolution! (As a reminder, if you don’t yet know what your capacity will be for specific programs and classes (e.g., 22 students per third grade class, etc.), you DO NOT have to set those capacities by October 14. The October 14 deadline only applies if your board is going to take action to categorically close a class, program, or building.)
Many schools conduct superintendent evaluations in the October-December window. Superintendents, confirm you are providing the board with the evaluation instrument on file with NDE. Board members, make sure you know the timelines and process you plan to use. And please, please do not assume you can always use closed session. In general, closed session is only appropriate to cover aspects of the evaluation that will “needlessly injure” the superintendent’s reputation. If your full board plans to review the evaluation with the superintendent, the non-injurious discussion should happen in open session.
Collective Bargaining
Under Nebraska’s collective bargaining laws, bargaining must begin on or before November 1. There are several things you should start now to be prepared for negotiations.
Nail down your array. Remember, CIR rules use the two criteria of size and distance. Schools in your array must be no more than half and no more than double your enrollment. From there, you expand out a perfect circle from your school until you have somewhere from 7-13 (ish) schools inside the circle. That’s your array. It’s also important to remember that the CIR will set your array based on these criteria, irrespective of whether the school board and the education association agree on a different array. Again, we recommend against getting creative.
Gather up negotiated agreements from your array schools. Things are happening fast as more and more schools use the bargaining process to find creative ways to attract and retain staff. Items that were not prevalent practices even a couple of years ago (like switching to PTO) may be now. The only way to know for sure is to look at the agreements from your array schools.
Review your agreement, and consider if you’d like your school attorney to review it. We don’t think you need a lawyer to review your negotiated agreement every year, but it’s a good investment to have it reviewed every few years to make sure it remains lawful and consistent with CIR rules and labor laws. Most agreements that we review have several items that can be clarified or improved and that are not necessarily “fighting issues” with the education association.
Make sure your comparability analysis is where it needs to be. Who the heck knows what the Unicameral is going to do with school funding in the next 365 days?! What will another year of significant teacher shortages mean for compensation increases? Do retention or hiring bonuses “count” in total compensation for bargaining purposes? Of all years, this is the one to make sure you are confident in your comp study.
One common question is how to handle situations where a board member may have a conflict of interest, such as a spouse who teaches for the school. The Nebraska Accountability and Disclosure Commission’s interpretation goes like this: A board member who has a spouse who is a member of the bargaining unit has a conflict of interest that prevents the board member from negotiating a tentative collective bargaining agreement. However, that same board member may vote to approve the CBA if the board member had no role in formulating the CBA, the classifications apply to all employees within that classification, and the CBA does not single out his or her spouse for special action. Also, a board member who is a coach has a conflict of interest that prevents him or her from negotiating a collective bargaining agreement and from voting on the CBA. Possible conflicts arise when a board member is acting on a contract that will affect a member of their “immediate family,” which includes their spouse, a child living in their household, or an individual claimed as a dependent for tax purposes.
Finally, make sure you are prepared for making and responding to initial offers by November 1. Constructing a lawful array, assessing prevalent items, knowing your comparability, and negotiating over only appropriate subjects of bargaining should all come together in real-time. Don’t fall into the trap of assuming it’ll just be about salary this year. We expect many boards and local associations will propose some unique items this fall. Remember that only items actually bargained in good faith are ripe for resolution/CIR intervention.
If you have any questions, contact your school lawyer or give us a call at 402-804-8000, shoot one of us an email, or send questions to all of us at ksb@ksbschoollaw.com.