Lewis Kappes

The 2019 Indiana General Assembly enacted Senate Enrolled Act 390 as P.L. 274-2019. This bill makes significant changes to the collective bargaining process established by Indiana Code 20-29-6-1 et seq. and requires the school employer to hold both a pre-formal bargaining public hearing and a pre-ratification public hearing. The pre-formal bargaining hearing requirements were added as Indiana Code 20-29-6-1(b):

Notwithstanding any other law, before a school employer and school employees may privately negotiate the matters described in subsection (a)(1) during the time period for formal collective bargaining established in section 12 of this chapter, the parties must hold at least one (1) public hearing and take public testimony to discuss the items described in subsection (a).

Indiana Code 20-29-6-1(a) establishes the statutory obligation and right of a school employer and an exclusive representative to bargain the mandatory subjects identified in Indiana Code 20-29-6-4, discuss the mandatory subjects of discussion identified in Indiana Code 20-29-6-7, and enter into a collective bargaining agreement embodying any of the mandatory subjects of bargaining.

In 2017, the Indiana General Assembly changed the commencement date of formal negotiations from August 1 to September 15. Senate Enrolled Act 390 now requires the school employer and the school employee organization to hold a public hearing and take public testimony before formal bargaining begins on September 15. The public hearing required by Senate Enrolled Act 390 may be informal and may be hosted by the parties. While the local Board of School Trustees is not required to attend this hearing, the parties must ensure that the information and public comments presented in this hearing are communicated to the Board. Neither the school employer, nor the school employee organization is required to answer questions from the public at this meeting. However, as a practical matter, this pre-formal bargaining hearing provides an excellent opportunity for the parties to educate the public about the limitations built into the bargaining process, including the compressed bargaining timeline and the lack of state funding.

Senate Enrolled Act 390 also amended Indiana Code 20-29-6-19 to require the school employer to hold a public hearing on the collective bargaining agreement tentatively agreed to by the parties before it is ratified in a regular public board meeting. The Board must advertise this hearing at least 72 hours prior to the hearing. The tentative agreement must be discussed at this hearing, but the Board is not required to allow public testimony or respond to questions at this meeting. However, the Board must allow public comment at the public board meeting where the tentative collective bargaining agreement is actually ratified using the same rules that apply to any other public comments offered in a regular board meeting.

The pre-ratification hearing and public Board meeting where the agreement is ratified must be held before the conclusion of formal bargaining on November 15. In addition, the parties must submit the newly signed collective bargaining to IEERB before the November 15 cutoff date. As a practical matter, the Board may want to go ahead and advertise the November pre-ratification public hearing date and the November Board meeting date now to ensure compliance with the Open Door Law notice requirements and the statutory bargaining timeline.

Please contact one of the Education attorneys at Lewis Kappes if you have any questions about Senate Enrolled Act 390 and its impact on the collective bargaining process.

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