AG’s Office Cites Legal, Policy Problems With Anti-Subcontracting Bill
TRENTON, June 25, 2002—The New Jersey School Boards Association is urging the state Senate to withhold action on the anti-subcontracting bill, A-1714/S-1537, after the state Attorney General’s office yesterday alerted legislators and the Governor’s office to significant legal and policy concerns with the legislation. A-1714/S-1537 would restrict local school districts’ ability to subcontract support services and thereby direct limited funding to the education program and control property taxes.
The Senate had been scheduled to act on the bill yesterday. However, it held up action on the measure.
In memoranda addressed to the office of Governor McGreevey’s counsel, dated June 19 and June 24, Assistant Attorney General Douglas K. Wolfson said its review “indicated a number of areas of major legal and substantive concern with the bill.”
The Attorney General’s office analysis points out that many school districts have three-year labor contracts and public colleges, four-year agreements. Therefore, under the terms of the bill, subcontracting would only be possible every three or four years.
“This restriction of the time frame for creating subcontracts is very troublesome,” states the June 19 analysis. “Interfering with the employer’s ability to immediately create a subcontract to react to a crisis or proximate need will seriously restrain the ability of the school district, college or university to manage efficiently and effectively.”
Given the “extremely narrow window” authorized by the bill, “school districts may be unable to effectively address the fiscal impact of a freeze on state aid by subcontracting some services in order to protect the instructional program,” asserts the analysis from the Attorney General’s office. “This could be particularly significant in Abbott districts where, during the 2002-2003 school year, the districts are being asked to meet their constitutional obligations as specified by the Supreme Court at the same level of spending on K-12 programs as the previous year.”
Members of the Senate, who initially asked the Attorney General’s office for its opinion on the legislation, requested an update in light of amendments approved by the Senate Labor Committee last week. One amendment requires the “impact of an employer’s decision to contract or subcontract” to be a mandatory subject of negotiation. The second amendment provides that, when a decision by an employer to subcontract is based solely on fiscal or economic grounds, the “employer and majority representative may discuss” possible alternatives to subcontracting, including means of improving the economy or efficiency of existing operations.
In its June 24 memorandum, however, the Attorney General’s office noted that the changes “do not resolve the central difficulties” identified in its June 19 analysis.
Earlier this month, the New Jersey School Boards Association released data showing that school districts have saved more than $40 million through subcontracting services such as cafeteria, transportation and maintenance. The districts directed the savings toward academic programming and property tax control. In addition, more than 94% of school districts make accommodations for employees whose positions are affected by subcontracting, according to an NJSBA survey compiled this spring. These efforts include employment with the subcontractor, often at a guaranteed level of salary and benefits; a guaranteed interview with the subcontractor; and, increasingly, subcontracting existing positions by attrition.