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Searching for a missing bit of law

By Len Rieser on May 6, 2009 10:55 AM
Photo: Keith Bernstein, via playbill.com, showing Jill Scott as Precious Ramotswe in "The Number 1 Ladies Detective Agency"

A Case for Mma Ramotswe?

So now we know, from the Inquirer and the Notebook, that the School District– involuntarily, to be sure – spends $4.56 million per year on salaries and benefits for 80 employees of the Bureau of Revision of Taxes. Which made me wonder: where's the law that gives the District the authority to spend all that money on these folks? 

A basic (and common-sense) principle of Pennsylvania school law is that school districts’ powers are not unlimited. Instead, the cases say, districts can do only those things that the law says, in so many words or by “necessary implication,” that they can do.

So, if it were revealed that the District was paying the salaries of (to pick a few possibilities from the Dictionary of Occupational Titles) 80 Baby-Stroller Rental Clerks, or 80 Rug Inspectors, or 80 Theatrical Variety Agents or Jugglers, most people would see a problem. And they’d be right, even if the District were to point out that there are great opportunities in the rug-inspecting business, or that jugglers are in desperate need of employment. The law just doesn’t give the District the authority to pay people to do things unrelated to educating children.

But, the Inquirer reports, the official line has been that these BRT employees are doing something related to educating children: they’re collecting taxes that help support the schools. One problem with this is that, as the Pennsylvania Supreme Court noted 30 years ago in Danson v. Casey, the School District has no power to levy (or collect) taxes, even for educational purposes, except to the extent that City Council authorizes it to do so. 

If City Council were to authorize the District to levy real estate taxes, therefore, Council could presumably also authorize – or even require – the District to collect (and pay people to collect) those taxes. But, so far as I know, Council has not empowered the District to get into the real-estate-tax-levying business. So how can the District legally pay people to do the work involved in carrying out that business?

Incidentally, as the Inquirer also reported, the District doesn’t actually hire or supervise the BRT employees whose salaries it’s paying – which means that my rug-inspector analogy is a little off. The proper comparison would be to a situation in which the District was paying the salaries of 80 rug inspectors hired and managed by the Philadelphia Bureau of Rug Inspections. Even more bizarre! 

Maybe I’m wrong about this – it’s not my field. But until someone tells us what law authorizes this arrangement, I’m going with Mayor Nutter’s view, which is that “the only people who should be on the School District payroll should be involved in educating children.”  Except that I would add that perhaps those are also the only people who can legally be on the District’s payroll.

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Comments (6)

Submitted by Helen Gym on May 6, 2009 12:40 pm

Definitely a question of interest Len. Though don't you think it could open up a bunch of other interesting contract questions (which I'm all for) even beyond the BRT?

Submitted by Helen Gym on May 6, 2009 12:27 pm

One more question Len: Do you think the claim that the District employees are "clerks" while the city employees are the assessors allows the city to weasel out of the Danson case?

Submitted by Len Rieser on May 6, 2009 9:00 pm

Good points. My own admittedly inexpert opinion, though, is that it doesn't matter whether these are clerks, assessors, or jugglers; the question, instead, is whether the District has the legal authority to be in the real-estate-taxing business. If it does, then it certainly has the authority to collect the taxes it imposes. If it doesn't (and my impression is that it doesn't), then I don't see where it gets the authority to collect (or determine, or process, or do anything else with respect to) taxes that are imposed by another agency. I'd feel the same way if the District were paying the salaries of clerks who collect state income taxes -- even though those taxes, like these, benefit the District.

This isn't to say that these BRT folks aren't doing something useful; let's assume they are. But the law says that school districts need statutory authorization to engage in the activities they engage in -- useful or not. (For an example, see the case I linked to in my post, where a school district created a tuition voucher program. The court didn't dislike the program, but nevertheless struck it down, stating that even “a very worthy objective does not justify the action of a . . . public school district, . . . unless that action is authorized by the Constitution or expressly or by necessary implication by an Act of the Legislature.")

Submitted by Dan U-A (not verified) on May 7, 2009 10:04 pm

Very interesting. Additionally, I think there is at least an argument to be made that these clerks are employees of the BRT, not the District. As I said to Helen on email:

Consider:

the district does not see them;
does not control their salary;
does not supervise them;
does not have the ability to evaluate them;
does not have the power change their job duties; and
does not have the ability to hire or fire them.

I think there is a good argument to be made that they are employees of the BRT, not the school district, and as such, the ethics rules have to apply.

Obviously, the converse is that they pay the salary. But, considering that really is it, I think there is a legit argument to be made here.

Submitted by Paul Socolar on May 8, 2009 1:37 am

So do any of you have an idea as to whether there is any legal recourse for private citizens to challenge BRT clerks' status as employees of the district or the right of the District to hire these jugglers?

Citizen action might prompt city and district official to move faster in dealing with this politically entrenched caste of characters.

Submitted by Michael Churchill (not verified) on May 11, 2009 3:21 pm

Len, as always, raises the right questions. I think he is right on point that there has to be some authorization for the expenditure. The difficulty is determining if there is any "implicit" authorization. I have done a quick look through the Code and the School District's Home Rule Charter. Both the Code and Charter would authorize payments to the City for tax collection activities. See 24 PS 6-659 and HRC Sec. 12-309. But in Pennsylvania tax assessment and tax collection are two seperate functions. I find no authorization for a district paying for tax assessments which historically have been done by the county or municipality. Section 6-656 of the Code provides that the BRT shall furnish the assessments of property to the school district for its use. There is no mention of any charge for this. I also note that in the statute creating the BRT it provides "All salaries provided for in this act and the proper expenses of the board shall be paid out of the treasury of the county." 72 PS 5341.21 In the provision for all other school boards, the school code says that assessment list shall be provided "at the expense of the county" or "at the expense of the city". 24 PS. 6-677(a), 677(b) and the assessment statute provides that "salaries [of clerks and other employees] shall be paid out of the county treasury." 72 PS 5345. Even though the Philadelphia section doesn't have that "at the expense of the county" provision, there is no argument why Philadelphia alone out of all other school districts should have to pay for the assessment function since it just takes whatever the BRT already uses for the City.
So I think Len is right that there is no authorization for this. I also like the suggestion that these are really BRT employees, not District Employees and the the payment is more like hiring an outside contractor, the BRT, since it supervises the employes, determines their jobs, etc.

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