In Legislative Foray vs. Principals, School Custodians Gain a Short-Lived Victory

Friday, December 16, 2016

On December 1, both the Massachusetts House and Senate enacted a bill during informal sessions that would have made it harder for public school principals to fire custodians and other non-teaching employees for not doing their jobs right.

Eight days later, Governor Charlie Baker returned the bill unsigned, an action known as a pocket veto, having accepted the argument that the bill would weaken the authority granted to school superintendents and principals under the state’s momentous, acclaimed Education Reform Act of 1993.
Given the opposition of superintendents and principals to the bill -- House Bill 2319, An Act Relative to Protecting the Rights of Custodial and Other Non-Teaching Employees of School Districts -- I’m trying to figure out how the advocates for the bill got it passed during informal sessions. 

Only “non-controversial” measures are supposed to be taken up during “informals.”  Under the rules and customs of the Massachusetts legislature, if only one legislator present objects to voting on a bill in an informal session, the presiding officer must immediately table it for the entire session.  At that moment it is considered dead for the day.
The Republicans, as members of the minority party in the legislature, always send at least one member to every informal session whose specific job is to object if a controversial bill is unexpectedly brought up.  Controversial, in this context, means anything that does not enjoy unanimous support. 

It looks like the Massachusetts Association of School Superintendents was caught by surprise here. 
My guess is that the association, at the July 31 conclusion of formal legislative sessions, made the reasonable judgment that HB 2319 could not possibly get done during upcoming informal sessions; therefore, it did not see the need to impress upon sympathetic Republicans and Democrats alike the need to be on guard against it. 

Once the bill did slip across the legislative finish line, I surmise that the association swung into action in the governor’s suite, bringing about the pocket veto and quelling for now the rebellion of the custodians:  the governor’s action spelled the doom of HB 2319 because veto overrides are held only during formal sessions.
As just one result of the Education Reform Act of 1993, public school principals were given the power to “supervise the operation and management of their schools and school property, subject to the supervision and direction of the superintendent.” 

The law inserted a provision in Chapter 71 of the Massachusetts General Laws, Section 59B, stipulating that principals “shall be responsible, consistent with district personnel policies and budgetary restrictions and subject to the approval of the superintendent, for hiring all teachers, athletic coaches, instructional or administrative aides, and other personnel assigned to the school, and for terminating all such personnel…” 
Section 59B rather quickly became known as the “principal’s choice statute” in recognition of the significant additional power it had conferred upon school leaders.

HB 2319 seeks to diminish that power, which the Massachusetts Civil Service Commission has recognized as “broad” but not “unfettered.”  The bill would do that by amending the state’s civil service law, Chapter 31 of the general laws, to require that persons holding custodial, maintenance and other non-teaching positions be hired and fired in accordance with civil service rules if any given school department classifies those positions as civil service jobs.
The Association of Federal, State, County and Municipal Employees (AFSCME), the union representing non-teachers in many public school systems, has determined that a janitor in the crosshairs is going to do better before a civil service hearing officer who has never met him than a principal who knows him all too well. 

When testifying on behalf of HB 2319 at a hearing of the Joint Committee on Public Service on June 2, 2015, James Durkin, legislative director for Council 93 of AFSCME, said the bill “would correct the injustice of denying civil service rights to public school employees because they’re on a school budget and not a municipal budget.”
Gov. Baker, on the other hand, in his Dec. 8 letter to the legislature, made it clear that he sees the bill as a potential injury to the “managerial authority of public school principals.”  He wrote:

“That authority is at the heart of the Education Reform Act of 1993, which granted enhanced authority over internal school matters to the principals in order to increase their accountability in the preparation of our children to compete in the global economy.”
One public school superintendent I know says the power vested in principals by Section 59B “has absolutely helped to ensure the better performance of our public schools since the passage of the Education Reform Act.”  Here’s what this superintendent told me in an email earlier this week:

“In regard to the custodians, cafeteria workers and clerical help, these people are all major contributors to the schools and their ability to function well day to day.  The custodians not only clean the buildings, they also check all the time on the safety of the equipment used by the schoolchildren.  The cafeteria workers ensure proper nutrition and present the best foods in ways that are appealing to the students.  The clerical help are an integral part of the hour-to-hour operation of the schools and the school buildings; they are key to dealing effectively with parents and school personnel, as well as to maintaining student confidentiality and proper, accurate records.  
“The only sensible management approach is to have all teachers and non-teachers accountable to the principals, and solely to the principals, within the bounds of the law.”

The 2015-16 legislative session was the second one in a row where AFSCME fought for legislation taking away from principals the power to hire and fire non-teachers as they saw fit.  No doubt the union will be championing The Son of HB 2319 during the soon-to-be-upon-us 2017-18 session.   I’m no prognosticator.  But I don’t think the kid will do any better than dad or grandpa.



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