Thursday, April 02, 2009

Appeals Court Strikes Down Unlawful Prevailing Wage Mandate on Charter Schools

It's refreshing to see a heavy-handed, lawless bureaucrat be told where to go.

That's just what the state Appellate Division Court did today when it ruled that the state Department of Labor-imposed prevailing wage mandate found in Article 8 of the state Labor Law did not, in fact, apply to charter schools. The court struck down this 2007 edict by Labor Commissioner, Patricia Smith, who capriciously decided to impose this high-cost, union-scale pay requirement on charter schools. Commissioner Smith's "order" came in a September 2007 letter to the New York Charter Schools Association that said henceforth her Department would enforce the payment of such wages on contractors performing capital and service work for charters.

This brazen move ignored the plain language of the Education Law section 2854, part of the Charter Schools Act that exempts charters from all laws, rules and regulations except for those governing health, safety or civil rights. The Department of Labor, back in 2000, during the Pataki Administration, understood the obvious: that prevailing wage mandates did not apply to charters schools, especially in the absence of state building aid for school districts.

Commissioner Smith also ignored existing case law in which the state Supreme Court in Onondaga County ruled in 2000 that, yes, charter schools are exempt from prevailing wage mandates. Even when she imposed the mandate, she didn't even bother with any rule-making procedure or public comment period. She simply told charters to pay them, or else.

Ever since the New York Charter Schools Act of 1998 was enacted, labor union organizations have tried to get the state legislature to impose prevailing wage requirements on charter schools to give them a state-imposed mandate to get higher pay without negotiating a fair-market price as is done in the private sector.

Gov. George Pataki, who got the charter school law enacted, was certainly friendly to organized labor, approving card check legislation and project labor agreements, for example. But he protected charter schools from such high-cost mandates, recognizing their resources were limited. By 2007, the unions had an even stronger ally in Gov. Eliot Spitzer.

As state Attorney General in 2000, Spitzer issued an opinion stating that prevailing wage did apply to charter schools. This specious reasoning around Education Law 2854 was drafted by (guess who?) ...Patricia Smith, at that time an Assistant Attorney General to Spitzer. The Supreme Court rejected the AG office's opinion.

Seven years later, behind closed doors during budget negotiations, Governor Spitzer attempted to impose prevailing wage as part of the 2007-08 state budget deal -- the same deal where, ironically, he got the cap on new charter schools increased from 100 to 200. The Senate refused to go along with the wage mandate.

When the former Governor didn't get his way legislatively, several months later his Labor Commissioner, Pat Smith, performed the deed with a pen stroke. Our government at work.

The Brighter Choice Foundation, Albany Prep Charter School, and the NY Charter Schools Association sued, as did the Carl C. Icahn Charter School in a separate case, later combined.

In May 2008, state Supreme Court in Albany County upheld with the Department's position and ruled against the charter schools in a craven and vacuous decision that was ripe for reversal.

Today, the Appellate Court did just that. Justice and the rule of law, and practical common sense, has been restored.

Peter Murphy
for The Chalkboard

Disclaimer: The Chalkboard is hosted by the New York Charter Schools Association (NYCSA) as a place where members, public education advocates and others can view and respond to informed commentary on timely public education and charter school issues. The views expressed here are not necessarily the official views of the NYCSA, its board, or of any of its individual charter school members. Anyone who claims otherwise is violating the spirit and purpose of this blog. To comment on anything you read here, or to offer tips, advice, comments, or complaints. please contact TheChalkboard.