GCAP Applauds Commonwealth Court for Striking Down Moratorium on Separations Act Mandate Waivers, Will Continue to Work with Act 61 Taskforce on its Study of the Issue

November 25, 2008

As you read on this website, an effort earlier this year to “trade” no Separations Act in KOZs for an outright elimination of the Separations Act in the Department of Education’s Mandate Waiver Program failed. Instead, the Department was charged with leading a taskforce of Administration and Legislative members to evaluate the fiscal benefits of this waiver (Act 61 of 2008). A statutory moratorium on these waiver applications while this study took place also failed. As a result, the Department agreed to a self-imposed moratorium on any waiver applications until completion of the study.

This fall, the Muhlenberg School District sued the Department in Commonwealth Court for imposing the moratorium. They argued that Act 61 did not authorize the Department to suspend this program. On November 20, the Court ruled in favor of the District. They found that while Act 61 authorized the Department to study the issue, there was no provision allowing them to suspend the program.

While the Department intends to continue its study of the school construction costs relative to the Separations Act, the moratorium issue is now moot – the Department must end the freeze. The Court’s decision underscores the failure of mandate waiver opponents to achieve specific statutory authority for the Department to suspend approving the applications.

Prior to the Muhlenberg decision, the Act 61 taskforce held several meetings to discuss the benefits of giving school districts the option to choose multi-prime or single prime bidding. Act 61 requires the group to provide recommendations to the Governor about the issue – something Secretary of Education Gerry Zahorchak hopes to do by January 2009.

GCAP strongly supports the ability of a school entity to seek a Separations Act waiver. School districts should have this option because they are in the best position to determine if such a waiver will provide cost-saving benefits for them. GCAP Lobbyist Scott Bishop, GCAP Board Member Rick Seitz, General Contractor Nobel “Bud” Quandel and former DGS Chief Counsel Bill Warren all presented testimony in support of the waivers. In addition, GCAP continues to work with the various education groups who want support giving districts this option.

Stay tuned to this website for more information about the Act 61 Taskforce.