2018-06-15 / Community

Attorney: Disclosure would disrupt negotiations

By Duke Harrington Staff Writer

RSU 21 recently refused a Kennebunk Post request to review the teacher contract and salary schedule ratified by the school board June 4 that contains pay raises of more than 11 percent.

In responding to the Post’s request, filed under Maine’s Freedom of Access Act, RSU 21 attorney Bruce Smith, of Portland firm Drummond Woodsum, said the contract represented a negotiating instrument that could not be released to the public until after the teachers union voted on it June 13.

“To disclose any documents that are proposals not yet accepted by the other party would defeat the purpose of conducting negotiations in private, which is to facilitate efforts to reach an agreement without undue distraction or outside influence,” Smith wrote on June 7. “In the field of labor law, a proposed contract that negotiators have agreed to present to their principals for ratification is known as a “tentative agreement.” It is not a contract and is not binding on either party until accepted by both parties. By accepting the tentative agreement at its meeting on June 4, the school board has made an offer — a proposal — to enter into a contract on those terms with the Association.

“In this case, the Association has not agreed to make the tentative agreement public prior to its ratification vote,” Smith said. “Premature disclosure of the tentative agreement risks disruption of the negotiations and could be deemed to be bad faith bargaining under the bargaining statue. Negotiations do not conclude until both parties ratify. If the association were to decline to accept the proposed tentative agreement, negotiations will continue.”

Sigmund Schutz, a former attorney for the Maine Press Association who still represents many media clients, offered a different opinion. Schutz is also a long-time board member of both the Maine Freedom of Information Coalition and the New England First Amendment Coalition, as well as co-author of the 2011 Maine Open Government Guide.

After reviewing a recording of the June 4 board meeting available online, Schutz pointed out that school board member Maureen King of Kennebunkport, who chairs the board’s negotiations sub-committee, announced that an agreement had been reached with the teachers union.

“If they were having a negotiating session and trading written proposals that would be a different story,” Schutz said in a June 7 email. “ If they are going to vote again, that also might be a different story. But they didn’t vote to make an offer. They voted to accept a final agreement. And, they aren’t voting again. Arguing that a final agreement is somehow just an offer doesn’t make sense. A final agreement ratified by the school board is not mere negotiating material.

“By not releasing the approved contract,” Schutz said, the RSU 21 Board of Education is, “effectively blocking the public from knowing anything about the expenditure of millions of dollars of taxpayer funds until it’s too late for the public to weigh in. That’s not how democracy’s supposed to work. The public is supposed to be able to find out what public officials are approving at or before the time they approve it. This is exactly the sort of thing that FOAA (Maine’s Freedom of Access Act) was enacted to prevent.”

Maine’s Public Access Ombudsman Brenda Kielty declined to weigh in on the disagreement, responding to a Post request for clarification by writing on June 8, “I am unable to provide legal advice to individuals and suggest the assistance of a private attorney for questions about personal legal rights or actions.”

According to Kielty, there is no provision in Maine law for actual enforcement of FOAA requirement, short of incurring the time and expense to file a lawsuit.

“Only a superior court has the power to compel the production of records after a FOAA request has been denied,” she said.

Asked if the board would vote again to approve a final written contract following the June 13 union vote, Superintendent Katie Hawes said in a June 6 email, “I do not know. We have not yet set future board agendas and I defer to our lead negotiator (King) and attorney.”

Another RSU 21 attorney, Michael Buescher, acknowledged the Post’s additional FOAA filing to the current salary of all RSU 21 teachers and nurses (who are also covered under the contract), and how much each will earn once the new contract goes into effect Sept. 1. He said it would take two weeks to compile the current salaries, while production of prospective earnings could not be honored until after the union vote.

Buescher did not respond when asked via email if the school board will vote on a final contract in written form. King also did not respond to a request for clarification.

King said in that unveiling of the agreement both sides had been working on since January, that starting pay for new teachers will get a boost $36,771 to $41,055. Currently, a teacher in RSU 21 does not get above $41,000 until their fourth year, by which time they are paid $42,286.

King also noted that the starting pay will increase in each year of the three-year contract. New, inexperienced teachers hired for the 2020-2021 school year will be paid $42,993 — a 16.9 percent increase over the current 2018 starting pay.

Under the contracted salary scale, teachers get a pay raise for each year of experience. Under the current contract, teacher pay topped out after 30 years at $70,239. That rate is boosted to $74,630 for teachers who hold a masters degree, and $79,019 for those who have earned a doctorate.

Under the new contract, teachers will reach the top of the scale after 19 years, King said, while teachers will 12 or more years of experience will no longer be required to log five years in RSU 21 before advancing to Step 13 on the salary scale.

Staff Writer Duke Harrington can be reached at news@kennebunkpost.com.

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