Legal battle on the horizon

April 7, 2006

JOEL DAVIDSON

Frontiersman reporter

MAT-SU - Union custodians were hoping for a last-minute change of heart, but a divided Mat-Su Borough School Board decided not to terminate a recently signed three-year contract with NANA Management Services, which will allow the private company to begin performing custodial and light maintenance service for borough schools in July.

With the 4-3 vote on Wednesday night, the school board reconfirmed its decision to outsource custodial services and cut 112 school district custodians from next year's education budget. Mat-Su's chief school administrator, Bob Doyle, has argued that the move will save the district $1.6 million, while not compromising school cleanliness.

Union members, however, claim their own contract with the district was violated and plan to go to arbitration to solve the conflict. If that fails, it's off to court.

Union officials from the Classified Employees Association represent about 700 noninstructional school employees. They claim the school district deliberately violated the current three-year contract that was struck with district custodians last school year.

CEA President Ron Rucker said the only way the district will avoid a lawsuit is if they terminate the NANA contract and fulfill the duration of their contract with current employees.

The school district's attorney, Theresa Hennemann, however, said she believes the district has a solid legal basis for cutting the 112 employees from its fiscal year 2007 budget.

&#8220I believe that a solid legal basis does exist for the district to privatize the custodial work,” she told the board as a mostly

pro-union audience listened. &#8220I believe that ultimately that if this issue does come before the state Supreme Court, the court will affirm the board's actions.”

Hennemann said she believes previous rulings by the Alaska Supreme Court demonstrate that employers have a right to privatize work even when the current employees who are doing the work are under a collective-bargaining agreement.

In addition, Hennemann warned board members that they do not have a clear legal right to terminate a contract that was already signed with NANA on March 9. She said there are only two clauses under the contract that would allow the board to consider termination.

The first is performance-based, and Hennemann said that does not apply because NANA has yet to begin services and, therefore, has no performance to evaluate. The second cause for termination is for &#8220convenience,” she said, but there needs to be a substantial change in circumstances for that to apply. Whether a substantial change has occurred, Hennemann said, is an open question of fact and one filled with risks if the board were to apply it.

&#8220It is too difficult to determine how a judge would rule on a question of fact,” she said.

In addition, Hennemann said the district would at least be liable for any expenses NANA has so far incurred in preparation for beginning its contract in July. In a worst-case scenario, she said the district could be responsible for much more damages if NANA went ahead with its plan to sue the district if the contract was terminated.

Union officials countered Hennemann's assessment by arguing that they believe a court would find the district in violation of its contract with current employees if the NANA deal isn't terminated.

Vince Speranca is a staff member for National Education Association, Alaska. He urged the board to consider the legal and financial ramifications of dropping 112 custodians - risks that could include costly back payments if the union prevails in court.

&#8220This is a risk, and the longer this goes on the greater the risk becomes,” he said.

After all the legal opinions and public testimonies finished, the board took a long pause, before board member Rob Wells broke the silence.

&#8220There's been one word that's been in my mind for a few weeks now that has been repeated by a number of people tonight, and it's a four-letter word called ‘risk',” he said. &#8220It's real, and it probably comes, at this point, with some significant consequences.”

Wells said he thought the board acted prematurely by approving the NANA contract March 1. He questioned whether the district would really see a cost savings of $1.6 million. In addition, he appealed to his fellow board members to consider the fact that those savings might not be necessary if the state approves an increase to Gov. Frank Murkowski's proposed $13 million increase for state education.

&#8220I believe we made this decision prematurely because there is still a legislative session going on,” he said, &#8220and there is a 1.4 billion-dollar surplus.”

In the end, however, the board's narrow majority was unwilling to risk a legal battle with NANA or bank on the fact that the state or Mat-Su Borough would come through with more education funding.

&#8220I have mixed emotions about this thing,” said member Dan Contini, as he echoed the concerns of other board members.

Despite the fact that the school board asked the Mat-Su Borough for a $2 million increase next year and a $4 million increase from the state, Contini questioned whether the money would materialize. Ultimately, he said he had to make the district's money stretch as far as possible.

&#8220I can't wish for more money and we are wishing for $6 million right now,” he said.

If arbitration fails to change the board's decision, Rucker said court will be the union's last option.

&#8220Worst case scenario now is we go to court,” he said.

Contact Joel Davidson at 352-2266 or joel.davidson@

frontiersman.com.