School districts need not to be held hostage by a union’s refusal to sign off on an APPR plan. School districts around the state are keenly aware that Education Law §3012-c(2)(k) requires all districts to adopt and submit to the Commissioner by July 1, 2012 “a plan, on a form prescribed by the commissioner, for the annual professional performance review of all of its classroom teachers and building principals in accordance with the requirements of this section” for approval by the State Education Department by September 1, 2012. SED has created a web-based portal by which all districts are to submit their APPR plans. The hitch is that this portal will not, however, permit any submission that does not have a sign-off by union representatives acknowledging that they have agreed to all the terms of the APPR plan. This effectively eviscerates the possibility of a district using PERB’s decision in Wappinger’s Falls, 5 PERB 3074 (in which PERB held that a board of education, in an impasse situation, may be able to implement a new term and condition of employment while still continuing to bargain in good faith with the union) to submit a plan that has been negotiated to impasse with a union in order to meet the July 1 submission deadline. Thus, in some instances unions, with the apparent blessing, if not encouragement, from NYSUT, are unabashedly using the fact that a district needs their sign-off to submit an APPR plan through the SED’s web-based electronic portal as improper leverage to try to force districts to extend collective bargaining agreement or make concessions in bargaining that have nothing to do with the APPR plan.
Districts and BOCES need to know that Education Law §101-b provides a mechanism for cutting this Gordian knot. Section 101-b provides that: “The commissioner shall be authorized to receive and accept reports, plans, applications and all other information required to be reported by statute or regulation through electronic means. The commissioner shall accept hard copy non-electronic filings or submissions if the school district is able to demonstrate that complying with electronic submission requirements would create undue hardship for the school district or some other good cause exists that would make electronic submission extremely impractical for the school district. SED’s Counsel and Deputy Commissioner for Legal Affairs has confirmed that under Section 101-b, the Commissioner is required to accept hard copy non-electronic filings “where compliance with electronic submission requirements would create undue hardship or other good cause exists that would make electronic submission extremely impractical for the school district.” (A copy of a letter from the Counsel and Deputy Commissioner for Legal Affairs to Tom Volz, President of the New York State Association of School Attorneys is linked here). The requirement of certification by all parties in the SED’s electronic APPR submission form was simply a means by which SED could be assured that there was agreement on all aspects of the APPR that are subject to collective bargaining; nothing more. Thus, the Commissioner’s Counsel and Deputy Commissioner for Legal Affairs has stated that “The [electronic] APPR form was never intended, however, to address an impasse situation where the Taylor Law may authorize resolution of the terms of collective bargaining agreements that become embedded in the APPR. In such an impasse situation, the school district may seek to invoke its right under Education Law §101-b to submit a non-electronic form, make its arguments that the submitted APPR is approvable based on the Taylor Law, §3012-c and Subpart 30-2 of the Regulations, and SED will consider the submission.”
Bottom line: the statutory deadlines for filing your district’s APPR plan are real; the requirement of an electronic filing with the union’s sign-off is not real. What this means is that if a union intractably refuses to sign off on an APPR plan, particularly in instances in which the terms of the plan are agreed upon and the union is simply using the requirement of its sign-off as leverage to obtain some other objective not related to the APPR plan, it may be possible for the district to submit a hard copy of the APPR plan to the Commissioner for approval. This should only be done in conjunction with and on the advice of the school district’s counsel.