Questions and answers on receivership |
On Board Online • July 20, 2015
By Pilar Sokol
Deputy General Counsel
The Education Transformation Act of 2015, enacted into law as part of the state budget, amended the Education Law to institute new requirements regarding the manner in which school districts appoint educators to probationary terms and grant them tenure, evaluate classroom teachers and school principals, and discipline tenured teachers and administrators.
However, the act also provided for the take over and restructuring of struggling and persistently struggling schools through a new school receivership law. The Board of Regents adopted regulations for the implementation of that law, at their June 2015 meeting.
This article offers some basic answers to frequently asked questions that are starting to emerge as school districts begin to more closely examine the requirements of the receivership law. The information below is based on the language of both the statute and the related regulations.
School districts should be aware that the receivership regulations were adopted on an emergency basis, and are subject to a 45 day public comment period that expires August 24, 2015. In response to any such comments, the Board of Regents might make changes to the June 2015 emergency regulations.
On Board will inform its readers of future developments, including a summit meeting in Albany in late July.
What does it mean for a school to be in receivership?
It means that the school is being operated under the management of a receiver.
Which schools are subject to receivership?
Schools that are identified under the state's accountability system as being among the lowest achieving five percent of public schools in the state. These "priority" schools are deemed to be "struggling" if they have been on the priority list for at least three consecutive school years and "persistently struggling" for 10 consecutive school years, as specified in law. Charter schools and schools within a special act districts are excluded.
Are there different types of receivers?
Yes, for the time being.
As of July 1, 2015, both struggling and persistently struggling schools are operating under the management of a school district superintendent receiver - persistently struggling schools for one school year and struggling schools for two school years. Any such school that fails to make "demonstrable improvement" during the prescribed time period becomes eligible for placement under an external independent receiver for a period of three years.
Schools newly designated as struggling after the 2016-17 school year are immediately eligible to be placed under an independent receiver.
Who can serve as a school district superintendent receiver?
A school district superintendent receiver can be:
- A school superintendent, or other chief school officer of a district with one or more schools designated as struggling or persistently struggling and, in New York City, the chancellor or his/her designee, or
- An educational partnership organization (EPO) that has assumed the powers and duties of the school superintendent for purposes of implementing the school's educational program.
Who can serve as an independent receiver?
The term independent receiver refers to:
- A non-profit entity,
- An individual, or
- Another school district in good standing.
All independent receivers must meet the more specific qualifications set out in the commissioner's regulations. These may be related to, for example, the receiver's recent experiences improving student academic performance in low-performing schools or districts. Other relevant experience could involve working with at-risk student populations and forming collaborative relationships or partnerships with school community stakeholders (including parents, staff, unions, school boards and community members).
How is a school under a superintendent receiver deemed to have made demonstrable improvement during the receivership period?
The commissioner will make that determination based on factors including:
- The extent to which the school has met the annual goals set by the commissioner including improving school attendance, discipline and safety, student promotion, graduation and drop-out rates. Other factors include progress in areas of academic underperformance and progress among student accountability groups as well as parent and family engagement and building a culture of academic success.
- The number of years the school has been identified as struggling or persistently struggling,
- The degree to which the receiver has successfully used his/her powers.
What happens at the end of the receivership period?
It depends on whether the school is under a superintendent receivership or an independent receivership. In both cases, a determination could be made that the school has made sufficient improvement to be removed from its designation as struggling or persistently struggling. Other alternatives depend on the type of receivership. A school would remain under a superintendent receiver if it makes demonstrable improvement. Otherwise, it would be placed under an independent receiver.
For schools with an independent receiver, the commissioner may determine to renew the receivership for an additional period of not more than three years, or to terminate the receiver and appoint a new one if the school remains struggling and the terms of the school's intervention plan were not substantially met.
Are schools in receivership subject to the same rules as other public schools?
Yes, unless such other laws conflict with the provisions of the receivership statute.
Independent Receivers
Who appoints an independent receiver?
The school district appoints the independent receiver, subject to approval by the commissioner of education.
If the independent receiver's appointment is vacated or otherwise terminated, the commissioner may appoint a new or interim independent receiver until the school districts appoints a new one.
The commissioner also may appoint a receiver, if the district fails to appoint one that meets the commissioner's approval within a statutorily prescribed timeframe.
Must a school district appoint an independent receiver from among a list approved by the State Education Department (SED)?
No. However, when appointing someone who is not on the SED-approved list, the district must submit evidence that its choice meets the minimum qualifications set out in commissioner's regulations and in SED's request for proposals used to develop the list.
What is the employment status of independent receivers?
The commissioner contracts with the independent receiver appointed by the district and approved by the commissioner.
In addition, an independent receiver or designee serves as an ex officio non-voting member of the school board entitled to attend all school board meetings, except for properly convened executive sessions that pertain to personnel and/or litigation matters involving the receiver.
Nonetheless, independent receivers and any of their employees providing services in the receivership are entitled to defense and indemnification by the school district to the same extent as a district employee.
How are independent receivers paid?
An independent receiver's compensation and costs are paid from a state appropriation for such purpose, or by the school district as determined by the commissioner.
School districts are responsible for an independent receiver's costs only if the district has an open administrative line available and the receiver takes on the responsibilities of that open line.
Who may terminate an independent receiver's contract?
The commissioner may terminate an independent receiver's contract if, after the annual evaluation of a school with an independent receiver, the commissioner finds both that the school remains struggling and the terms of the school's intervention plan were not substantially met.
In addition, the commissioner may terminate a receiver's contract for a violation of law or commissioner's regulations, or for neglect of duty.
A Receiver's Authority
Do all receivers have the same powers and duties?
Yes, except as expressly provided in the receivership statute and the rules of the Commissioner's Regulations.
For example, all receivers have the authority to manage and operate all aspects of the school and implement a school improvement plan (which in the case of a school superintendent receivership consists of an SED approved intervention model or comprehensive education plan, and in the case of an independent receiver a school intervention plan).
In more specific terms, all receivers also have the authority to, for example:
- Supersede any decision, policy or regulation of the superintendent or chief school officer, school board, another school officer, or the building principal that, in the receiver's sole judgment conflicts with the school plan being implemented by the receiver.
- Expand, alter or replace the school's curriculum and program offerings, as necessary.
- Extend the school day and or the school year for the school.
- Review and modify the proposed school district budgets prior to the budget hearing (and prior to board approval in large city school districts) without unduly impacting other district schools.
- Supersede any employment decision by the school board, except that a school superintendent receiver and an EPO receiver may not override a school board decision regarding their own employment.
- Increase salaries and establish steps to improve hiring, induction, teacher evaluation, professional development, teacher advancement, and school culture and organizational structure.
- Abolish the positions of all members of the teaching and administrative and supervisory staff assigned to the school, and terminate the school building principal, and require that they reapply for the positions in the school if they so choose.
- Convert the school into a charter school in accordance with the state's charter school law.
On the other hand, an independent receivers are authorized and required to convert schools into community schools to provide expanded health, mental health and other services to students and their families, but school district superintendent receivers are not required to exercise such authority.
Are there any limitations on a receiver's supersession authority?
Yes. For example, a receiver's authority to supersede a decision, policy, or regulation does not apply to decisions that are not directly linked to the school plan being implemented by the receiver, but only to the extent that such decisions impact other schools in the district.
In addition, a receiver may not pursue school budget modifications that would require the school board to seek voter approval of a budget that exceeds the tax levy cap.
Similarly, a receiver's decision to implement an abolition of positions must be based on a comprehensive school needs assessment that includes an analysis of the professional development provided to staff in the abolished positions during the preceding two school years, and how the planned abolition will result in improved student performance.
In all such instances, the receiver must give prior written notice with an opportunity to respond prior to the taking of such actions. Moreover, the commissioner must be provided an electronic copy of all correspondence related to such actions.
Stakeholder Engagement
Are there any specific requirements intended to ensure stakeholder engagement while a school is in receivership?
Yes. For example, school districts must provide written notice to the parents of students attending a school that may be placed into receivership and a description of the reasons. They also must notify parents of a school intervention plan approved for the school by the commissioner.
In addition, districts must hold at least one public meeting or hearing annually to discuss the performance of the school in receivership and the construct of receivership.
Furthermore, the superintendent must develop a community engagement plan in the manner set out in the Commissioner's Regulations, subject to approval by the commissioner. Once approved, it must be incorporated into the school's receivership plan.
Are districts with schools in receivership required to establish a community engagement team?
Yes, within 20 business days after a school's designation as struggling or persistently struggling. That team consists of community stakeholders such as the school principal, parents of students attending the school, teachers and other school staff assigned to the school, and students attending the school.
What is the role of the community engagement team?
Generally, that team develops recommendations for the school. It also presents such recommendations, and its assessment of the receivership plan's implementation, to the school leadership, at least twice annually.
In addition, an independent receiver must consult with the school community engagement team and other local stakeholders including the school board and the superintendent, before developing a receivership plan for the school.
Collective Bargaining
Can a receiver engage in collective bargaining negotiations?
Yes. A receiver may request the negotiation of a receivership agreement that modifies the applicable collective bargaining agreement(s) with respect to the school(s) in receivership during the period of receivership.
What subjects can be included as part of receivership agreement negotiations?
The scope of such negotiations can include:
- The length of the school day and/or school year.
- Professional development for teachers and administrators.
- Class size.
- Changes to the programs, assignments, and teaching conditions in the school.
Are there any limitations on the scope of a negotiated receivership agreement?
Yes. Such an agreement may not alter the remaining terms of the existing/underlying collective bargaining agreement which must remain in effect.
In addition, a receivership agreement may not reduce compensation unless there is also a proportionate reduction in hours. On the other hand, a receivership agreement must provide for a proportionate increase in compensation, if the length of the school day or school year is extended.
Is the negotiation of a receivership agreement subject to special procedural rules?
Yes. Such negotiations must be conducted in accordance with the process established in the receivership statute and the Commissioner's Regulations.
Unresolved issues ultimately will be resolved by the commissioner of education in accordance with standard collective bargaining principles.