SUBJECT: Transfer of Entities
24 P.S. Section 11-1113

DATE OF ISSUE: September 1, 1997
DATE OF EXPIRATION: June 30, 2001


Set forth below are a series of questions about Sections
1113 and 1418 and the Department's response to those
questions.

1. What is the role of the Pennsylvania Department of
Education in implementing and enforcing Section 1113?

The Department does not play a formal role in implementing
or enforcing Section 1113. Unlike statutes that call upon
the Department to adjudicate any questions or compliance,
Section 1113 does not invoke any formal Departmental
procedure. Questions raised between a teacher and a school
entity under Section 1113 would be resolved by the courts if
the parties themselves cannot find a mutually acceptable
answer. Thus, the purpose of this BEC is not to advise
interested parties of how the Department would rule when
applying Section 1113. Rather, this BEC is intended to
fulfill the more limited purposes of informing interested
persons of their basic rights and obligations in this area,
proposing useful solutions to problems, and suggesting how
the courts might interpret the statute.

2. What are the Department's interests in this area?

The Department is not a regulator in this area. The
Department's interest is in having education statutes
respected and enforced and in (1) minimizing the likelihood
of conflict between teacher and school entities, (2)
minimizing any unnecessary disruption and discontinuity in
the education of the children of the Commonwealth, by having
established groups of students and teacher stay together
whenever possible, and (3) minimizing, where possible, the
negative personal impact on teachers resulting from
improvements in the organization of education in the
Commonwealth.

3. Does Section 1113 protect all school employees?

No. Section 1113 applies only to "professional employees
who are classified as teachers."

4. Under what circumstances are teachers given rights (and
therefore school entities put under an obligation) through
Section 1113?

Four things have to be true for Section 1113 to be
applicable to a teacher (and thus to a school entity):

a. A program or class is transferred between school
entities. Such a transfer must be from one or more
school entities to some other school entity or
entities.

b. One or more teachers are suspended because of the
transfer.

c. The services of an additional teacher, in an area
of the suspended teacher's certification, are
needed by a receiving school entity in order to
sustain the program or class transferred.

d. There is no properly certificated teacher already
suspended in the receiving entity and available to
help sustain the program or class transferred.

5. When a program is transferred from one entity to
another, must the receiving entity offer employment or
properly certificated employees suspended by the sending
entity due to the transfer?

This question addresses factors (a) and (b) Question and
Answer 4, above, but not factors (c) and (d). Thus, one
would have to know more in order to answer the question. If
the receiving entity needs additional personnel to sustain
the program it receives by transfer, and if it has no
properly certificated personnel already on suspension, the
answer is yes: the employee has a right to an offer of
employment.

If the receiving district does not need additional personnel
to sustain the program, or if the receiving district has a
properly certificated person on suspension, the employee who
taught in the transferred class or program has no right to
an offer of employment.

6. When the receiving entity already has a suspended
employee who is certificated in the area needed for the
class or program transferred, what are the receiving
entity's obligations and options?

This situation is not affected by Section 1113, but is
governed by Section 1125.1(d)(2) of the Public School Code,
which requires the receiving entity to recall its own
suspended employee before offering the position to an
employee of the sending entity.

7. Can the receiving entity realign its programs and
reorganize staff so as to not need to hire an additional
teacher for the transferred program or class?

Yes, but school entities should be careful if they are
considering such an action. Section 1113 does not forbid an
transfer in which the receiving entity absorbs the class or
program without needing to add staff. Also, a school may be
realigning its staff at the same time that a transfer is
taking staff. School districts should avoid, however, a
realignment in which existing staff are upgraded to the
detriment of the teacher who is suspended by the sending
entity. If the suspended teacher is not offered a job in
the receiving entity because the receiving entity moved a
teacher from part-time to full-time status, for example, the
receiving entity will likely face a claim under Section
1113. Where the transfer of a program or class means that
the receiving entity must hire an additional employee, a
receiving entity may realign its existing staff or hire new
employees to sustain a transferred program or class only
after it has absorbed properly certificated employees
suspended by the sending entity as a result of the transfer.

8. If a single sending entity transfers a program or class
to several receiving entities, which of the receiving
entities must offer positions to employee suspended by the
sending entity as a result of the transfer?

Any and all receiving entities that fit the description in 4
(c) and (d), above, must offer a position. The suspended
employee may accept whichever offer he or she prefers.

9. Does the teacher of a transferred class have a right to
a suspension that will then trigger the right of an offer of
employment from the receiving school entity?

Section 1113 does not address a right to be suspended,
however, a consensus suspension that results in the class --
including the teacher -- staying together is entirely
consistent with Section 1113 and should be pursued wherever
possible.

10. If the sending entity suspends more than one employee
as a result of transfers and the receiving entity needs only
one employee to sustain the program or class transferred, on
what basis should the receiving entity decide to whom to
offer the position?

This is not addressed in the language of Section 1113. The
Department's recommendation is as follows. Consistent with
our responses to questions 2 and 9, where the class or
program is to remain essentially intact under the auspices
of the receiving school entity, a result that keeps the
teacher with the children that he or she had been teaching
is favorable. Thus, the first teacher offered a position
would be the one that had been teaching the intact class.

Where the class or program is not going to remain intact, a
review of the related School Code provisions, leads to the
conclusion that the determining factor should be seniority.
In such a case, the receiving entity would offer the
position first to the suspended employee of the sending
entity who possesses the greatest seniority at the sending
entity in the relevant area of certification. If that
person does not accept the offer, the position should next
be offered to the employee possessing the next greatest
seniority at the sending entity in the relevant area of
certification. See 24 P.S. Section 1125.1.

11. For how long does an employee suspended by the sending
entity retain the right to a teacher in a program or
class that has been transferred to a receiving entity?

The language of the statute does not answer this question.
Where a program or class in the receiving entity is plainly
the program or class from which the employee of the sending
entity was suspended, the suspended employee's right to a
position teaching that program or class appears to be
indefinite. That is, each time the position in the
transferred class or program becomes vacant, the suspended
employee should be offered the position. By analogy to
other statutes, the suspended employee's right to such a
position would be extinguished, however, if the employee
fails to provide the receiving entity with annual written
notice that he or she remains interested in the position and
available to fill it. See 24 P.S. Section 1125.1.

The Commonwealth Court decision in Hahn v. Marple Newtown
School District casts some doubt on this interpretation of
the statute. The case is far from definitive on this point,
however, because the court's primary conclusion was that
there was no transfer of a class at stake. Parties may
disagree over whether a position opening is caused by a
transfer of a program or class or caused by some other
event. In close cases, school entities should err on the
side of caution and treat openings as caused by a transfer
of a program or class.

12. May provisions of Section 1113 be altered through
collective bargaining agreements?

The statute is more clear in some ways than others. Section
1113(c) states that the statute shall not be construed "to
supersede or preempt any provision of a collective
bargaining agreement..." It is clear, then, that Section
1113 does not supersede or preempt any provision of a
collective bargaining agreement in effect when the statute
went into effect on February 4, 1982.

The more difficult question is whether the Legislature
intended Section 1113 to have the effect of forbidding
contrary collective bargaining agreement provisions entered
into after February 4, 1982. Since the purpose of Section
1113 was to protect employees of the sending entity, it
would appear inconsistent with Section 1113 to allow the
receiving entity and its employees to bargain away the
statutory rights of an employee in the sending entity (who
is not in the receiving entity's bargaining unit). Yet, it
is recognized that the statute is not explicit on this
point.

Given the uncertainty in this area, entities are advised to
simply avoid the problem by not entering into agreements
whose terms conflict with the terns of Section 1113.

13. Does Section 1113 affect suspension procedures in
effect in transferring entities?

While the statute creates rights for teachers once they have
been suspended by transferring entities, the suspension
process itself remains unchanged and is still governed by
Sections 1124 and 1125.1 of the Public School Code.

14. How does one tell whether a "transfer" or a program or
class has occurred?

This is apt to be the most difficult question in applying
the statute to various fact situations. Since it is
possible that program shifts will occur in a variety of
gradual ways, there is no simple litmus test. However, the
first question to be asked is whether, if there were no
other personnel changes going on at a "receiving" entity,
that entity would have to hire an additional person as a
result of a shift in students away from the "sending"
entity. The opinion in the Marple Newtown case also
suggests that the analysis of whether a transfer has
occurred must be based on the facts as they occur at the
time of the arguable transfer, rather than including
subsequent events as well.

15. When a teacher is transferred from one school entity to
another pursuant to the transfer of entities law, must the
teacher obtain an Act 34 criminal history background check
and have a medical examination?

Yes. When a teacher is transferred pursuant to the transfer

of entities law, that teacher is a new or prospective
employe in the receiving school entity. As required by
Section 111, the new teacher must obtain a criminal history
background check. As required by Section 1418, the new
employee must obtain a pre-employment medical examination.


The intent of Section 1113 is to protect teachers'
rights. The intent of Sections 111 and 1418, however, are
enacted to protect students. As such, teachers who are
going from one school entity to another, even when that
transfer is pursuant to a statute, are required to submit to
a criminal history background check and pre-employment
medical examination.


REFERENCES:

Purdon's Statutes

24 P.S. Section 1-111
24 P.S. Section 11-1113(a)
24 P.S. Section 11-1124
24 P.S. Section 11-1125
24 P.S. Section 11-1418

State Board of Education Regulations

22 Pa. Code Section 8.2(a)(1)

Other

Public Employee Relations Act (P.L. 563, #195, July 23,
1970)
Hahn v. Marple Newtown School District, 571 A.2d 1115
(Pa. Commonwealth 1990)
Fiorenza v. Board of School Directors, Chichester
School District, 28 Pa. Commonwealth Court 134, 367
A.2d 808 (l977)
Close

Places I've Been

The following links are virtual breadcrumbs marking the 27 most recent pages you have visited in Bucknell.edu. If you want to remember a specific page forever click the pin in the top right corner and we will be sure not to replace it. Close this message.