Omnibus Code School Amendments (Act 39 and 44)

On June 22, 2018, Governor Wolf signed into law two Acts amending the Public School Code.  The first, Act 44 of 2018, modified existing School Code provisions related to School Police Officers and School Resource Officers, and also added language pertaining to school safety and security.

Due to some confusion regarding Act 44 “repealing” Sections 617 and 778 of the School Code, Maiello Brungo & Maiello thought it advisable to issue this instructive email clarifying both Acts and identifying the sections of the School Code that were amended by these Acts, as well as any additional responsibilities that have been placed on school districts.

Although Act 44 technically repealed Sections 617 and 778 of the School Code, a more apt explanation is Act 44 moved the provisions of those sections into an entirely new section of the School Code.  The new Article XIII-C, entitled “School Police Officers and School Resource Officers”, contains the same substantive language pertaining to School Police Officers and School Resource Officers as was contained in Sections 617 and 778.  Act 44 contains language in Section 1313-C outlining the specific powers and duties of School Resource Officers.  In addition, the Act also created Section 1311-C, entitled “Independent Contractors”, which gives School Districts an additional option to hire retired law enforcement officers to perform the duties of School Police Officers.  These individuals would be employed by the School District on an independent contractor basis, receiving an hourly wage, and are specifically prohibited from receiving fringe benefits such as health care coverage or pension benefits under PSERS.  Other than these changes, the substantive language of the School Code governing School Police Officers and School Resource Officers remains unchanged, and does not affect the existing relationship between the school district and any Police Officers or Resource Officers that maintain a presence in the School District.

In addition to Article XIII-C, Act 44 also established Article XIII-B, entitled “School Safety and Security”, and Article XIII-D, entitled “Safe2Say Program.”  These new Articles impose certain new duties on School Districts.  Under Section 1309-B, the Chief School Administrator of a school entity must, by August 31, 2018, appoint a school administrator as the “school safety and security coordinator” for the school district.  The school safety and security coordinator will oversee all school police officers, school resource officers, school security guards, and policies and procedures in the school entity and report directly to the Chief School Administrator.  Section 1309-B(c) outlines the specific duties of the school safety and security coordinator as follows:

(1)  Review the school entity’s policies and procedures relative to school safety and security and compliance with Federal and State laws regarding school safety and security.

(2)  Coordinate training and resources for students and school entity staff in matters relating to situational awareness, trauma-informed education awareness, behavioral health awareness, suicide and bullying awareness, substance abuse awareness and emergency procedures and training drills, including fire, natural disaster, active shooter, hostage situation and bomb threat.

(3)  Coordinate school safety and security assessments as necessary.

(4)  Serve as the school entity liaison with the committee, the department, law enforcement and other organizations on matters of school safety and security.

(5)  Make a report no later than June 30, 2019, and each June 30 thereafter, to the school entity’s board of directors on the school entity’s current safety and security practices that identify strategies to improve school safety and security. The report shall be presented to the school entity’s board of directors at an executive session of the school entity’s board of directors. The report shall be submitted to the committee and shall not be subject to the act of February 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law.

(6)  Coordinate a tour of the school entity’s buildings and grounds biennially or when a building is first occupied or reconfigured with the law enforcement agencies and first responders that are primarily responsible for protecting and securing the school entity to discuss and coordinate school safety and security matters. 

Additionally, Section 1310-B of Article XIII-B mandates School Districts to provide all employees with mandatory training on school safety and security.  Training must address: situational awareness, trauma – informed education awareness, suicide and bullying awareness, substance use awareness, and emergency training drills, including fire, natural disaster, active shooter, hostage situation, and bomb threat.   According to the Act, employees must complete three hours of such training every five years.

Finally, Act 44 establishes the “Safe2Say program”, which the Legislature intends to be a “one-stop shop for students, teachers, and community members to report behavior perceived to be threatening to an individual or school entity.”  In essence, the Legislature has created a clearinghouse for complaints of violent behavior to be referred to the appropriate law enforcement agency.  Under Section 1303-D(d), school entities are required to “develop procedures for assessing and responding to reports received from the program.”  Pursuant to 1304-D, such reports are to be kept confidential under penalty of criminal sanctions.  Finally, Section 1305-D establishes criminal penalties for individuals making false reports to the Safe2Say program.

On the same day Governor Wolf signed Act 44 into law, he also signed Act 39 of 2018, which amended numerous sections of the School Code.  A summation of these amendments is as follows:

  1. Act 39 delayed the implementation of the Keystone Exams as a graduation requirement until the 2020-2021 school year.
  1. In an important change, Act 39 created a new Section of the School Code, Section 425, which permits School Districts to “plan, review, or discuss matters related to school security” during executive session. Essentially, the Legislature has created a new executive session topic in addition to those outlined in the Sunshine Law.
  2. Act 39 created a new section, Section 528, which establishes additional conditions for entering into contracts with third-parties for “non-instructional services.” Under the new Section, “non-instructional services” are defined as “services provided by a school employee whose terms and conditions of employment are governed by a collective bargaining agreement…excluding services provided by a professional employe, a substitute, or a temporary professional employe.”  In essence, this Section is creating additional steps that a School District must perform prior to contracting out services that were previously performed by bargaining unit members.
  1. Under the newly created Section 742, beginning with the 2018-2019 school year, School Districts may now test school facilities for the lead levels in the drinking water. Should the lead levels exceed the “maximum contaminant level goal or milligrams per liter as set by the United States Environmental Protection Agency’s National Primary Drinking Water Regulations”, the School District must “immediately implement a plan to ensure no child or adult is exposed to lead contamination drinking water and that alternative sources of drinking water are made available.”  The new Section also requires School Districts that do not test for lead to discuss lead issues in the school facilities at a public meeting.  Finally, if a test reveals elevated levels of lead, the level must be reported to the Department of Education and such information will be posted on the Department’s website.
  1. Section 803 of the School Code has been amended to permit school boards to adopt textbooks at any time, rather than the previous window of April 1 to August 1.
  1. The seniority and bumping provisions of the School Code, which had been amended in a prior Omnibus Bill, have been further amended to clarify that seniority is still applicable for breaking ties within the classifications that would be created based on teacher evaluations.
  1. Newly created Section 1327.3 clarifies that nonpublic schools must establish an attendance policy “designed to accurately determine when a child who is enrolled in a nonpublic school has an unexcused absence, which may differ from the policy of the school district in which the child resides.” The new section further mandates the School District of residence to execute citations or referrals for truancy.
  1. Further, regarding truancy, Act 39 mandates that a citation may not be filed against a child or person in parental relation for truancy if the School District “did not consult with the county children and youth agency prior to filing the petition.”
  1. Act 39 amended Section 1337 of the School Code, which had previously been amended under the “lunch shaming provisions” to state that a School District may communicate directly with a student in Grades 9-12 regarding a low meal money balance or meal debt as long as the communications “are made individually to the student by appropriate school personnel and are made discreetly.” Previously, School Districts were not permitted to communicate directly with any student regarding low meal money balances or meal debt.  Further, Act 39 now permits a School District to “restrict privileges and activities of students who owe money for school meals if those same restrictions apply to students who owe money for other school-related purposes.”  By way of example, a School District may prohibit individuals who owe meal debt from attending the prom if the School District has a policy that students who owe money for other school-related debts (i.e. library fines) are also prohibited.
  1. Section 1517 of the School Code has been amended to mandate that School Districts must, within ninety (90) days of the start of school, conduct one school security drill in each school building. Additionally, “after ninety (90) days from the commencement of each school year, each school entity may conduct two school security drills per school year in each school building in place of two fire drills.”  The amended Section now mandates that the school security drill be conducted while school is in session.