Monday, May 19, 2008

education - free eduction - child support is not "compensation"

Velazquez v. East Stroudsburg School District - Commonwealth Court - May 19, 2008

Under 24 P.S. 13-1302 and 22 Pa. Code 11.19, a child has a right to attend school without payment of tuition in the district in which his custodial grandmother lives, despite grandmother's receipt of court-ordered support from one of his parents.

The child had lived with his grandmother for most of his life. The child's father was incarcerated and the mother was living in North Carolina or Florida. The grandmother received public assistance and was required to seek support from the parents. That support was not "compensation" for maintaining the child. Despite the receipt of support, the grandmother was "supporting the child gratis as if it were [her] own."

The trial court "mischaracterized the child support payments received by [the grandmother] as compensation to reach its erroneous conclusion that she did not support the child gratis as if he were her own child. Parents are liable for support of their children who are unemancipated and 18 years of age or younger, 23 Pa. C.S. §4321(2), and parents must provide for reasonable expenses of raising their children....The order imposed against the child's mother was for payment of child support to fulfill her obligation to provide child care expenses for the child, not to compensate the grandmother for her services."

Furthermore, grandmother was required to seek child support from the parents under 55 Pa. Code §187.23(b)....Her receipt of public assistance is not deemed personal compensation or gain, see 22 Pa. Code §11.19(a), and it would be absurd to conclude that the child support payments represent personal compensation when she was required to seek the payments in order to receive public assistance.

The case sub judice is clearly distinguishable from Brenner ex rel. Johnson v. West Shore School District, 780 A.2d 726 (Pa. Cmwlth. 2001). Unlike the parents in Brenner, the child's parents are not involved in any of the child's daily needs, and his mother provides only minimal child support. The father is incarcerated, and his mother resides out of state. The grandmother is the child's sole caregiver and provides all of his daily needs. She continuously supports him throughout the year, not merely during the school term, and she assumes all responsibilities for meeting school requirements and for making education-related decisions in the absence of his parents....The Brenner holding, therefore, does not support the School District's position.

The purpose of Section 1302 of the School Code is to prevent district 11 shopping....The evidence fails to establish, and the School District does not suggest, that grandmother was engaged in district shopping when she sought to re-enroll Jher grandson in the School District. Because grandmother established the child's entitlement to receive free school privileges in the School District, the Court concludes that the trial court committed an error of law and accordingly reverses its order.

This case was litigated by the Education Law Center in Philadelphia

admin. law - impartial tribunal - right of expression - state constitution

Day v. Civil Service Commission - Commonwealth Court - May 19, 2008

Police officer was dismissed after publicly criticizing fellow officers, contrary toi departmental regulations. The court upheld the civil service decision to dismiss the officer.

due process - impartial tribunal - state constitution
While rejecting his claim on the facts, the court recognized that under Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), due process is violated where prosecutorial and adjudicatory functions are commingled, and that "the due process rights of Pennsylvania citizens are broader than those afforded by the U.S. Constitution."

This was clarified in Stone and Edwards Insurance Agency, Inc. v. Department of Insurance, 538 Pa. 276, 648 A.2d 304 (1994), where the court said that: [T]he form of impermissible “appearance” of bias and partiality proscribed in Lyness must clearly be one that arises from an actual environment of commingled functions. Given the nature and constraints of our various governmental bodies, the question of due process reasonably involves an inquiry into the nature of the process actually provided. Id., 538 Pa. at 281-282, 648 A.2d at 307." However, the court found "no evidence whatsoever of a commingling of functions" in the case, "not even an appearance of impropriety."

right of expression - state constitution
A person's free speech rights under Article 1, Section 7 of Pennsylvania Constitution are "broader free expression rights than does the federal constitution. Pap’s A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591 (2002). Notwithstanding this broader penumbra, Pennsylvania law allows an employer to implement a chain of command policy to regulate the time, manner, and place of expression....We must remember that speech can also constitute conduct, and an employee’s conduct, in the workplace, may be regulated by the employer. Fuller v. Borough of Waynesburg, 503 A.2d 1031 (Pa. Cmwlth. 1986)...."

In this case, the "department’s regulation, which prohibited criticism of the department made to the public rather than to the appropriate supervisory personnel, was not constitutionally overbroad. Id., at 1033, n.4. The chain of command policy regulating procedures to follow when making complaints of improper conduct by fellow officers and superiors is necessary for the orderly and efficient operation of paramilitary organizations, such as a police department."

consumer - credit cards - bank overdrafts - proposed rules

SUMMARY: The Federal Reserve Board, Office of Thrift Savings, and National Credit Union Administration (collectively, the Agencies) are proposing to exercise their authority under section 5(a) of the Federal Trade Commission Act to prohibit unfair or deceptive acts or practices.

The proposed rule would prohibit institutions from engaging in certain acts or practices in connection with consumer credit cards accounts and overdraft services for deposit accounts.

This proposal evolved from the Board’s June 2007 Notice of Proposed Rule under the Truth in Lending Act and OTS’s August 2007 Advance Notice of Proposed Rulemaking under the Federal Trade Commission Act.

The proposed rule relates to other Board proposals under the Truth in Lending Act and the Truth in Savings Act, which are published elsewhere in today’s Federal Register.

DATES: Comments must be received on or before August 4, 2008.

Truth in Savings Act- overdrafts - proposed rule

SUMMARY: The Federal Reserve Board (Board) proposes to amend Regulation DD, which implements the Truth in Savings Act, and the staff commentary to the regulation, to provide additional disclosures about account terms and costs associated with overdrafts.

The proposed amendments would set forth content and timing requirements for a notice to consumers about any right to opt out of an institution’s overdraft service.

Requirements for disclosing overdraft fees on periodic statements would be expanded to apply to all institutions and not solely to institutions that promote the payment of overdrafts.

The proposed amendments also address balance disclosures provided in response to balance inquiries from consumers.

DATES: Comments must be received on or before July 18, 2008.

FTC - FCRA - risk-based pricing - proposed rule

SUMMARY: The Board and the Commission are publishing for comment proposed rules to implement the risk-based pricing provisions in section 311 of the Fair and Accurate Credit Transactions Act of 2003 (FACT Act), which amends the Fair Credit Reporting Act (FCRA).

The proposed rules generally require a creditor to provide a risk-based pricing notice to a consumer when the creditor uses a consumer report to grant or extend credit to the consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that creditor.

The proposed rules also provide for two alternative means by which creditors can determine when they are offering credit on material terms that are materially less favorable.

The proposed rules also include certain exceptions to the general rule, including exceptions for creditors that provide a consumer with a disclosure of the consumer’s credit score in conjunction with additional information that provides context for the credit score disclosure.

DATES: Comments must be received on or before August 18, 2008.

Truth in Lending - credit cards - proposed rule

SUMMARY: On June 14, 2007, the Board published proposed amendments to Regulation Z, which implements the Truth in Lending Act (TILA), and to the staff commentary to the regulation, following a comprehensive review of TILA’s rules for open-end (revolving) credit that is not home-secured.

The proposed revisions addressed disclosures provided with credit card applications and solicitations, at account-opening, on periodic statements, when terms are changed on an account, and in advertisements.

The Board is seeking comment on a limited number of additional revisions to the regulation and commentary. New proposed amendments address creditors’ responsibilities to establish reasonable instructions for receiving timely payments and when a due date falls on a weekend or holiday.

Creditors’ responsibilities when investigating a claim of unauthorized transactions or an allegation of a billing error are also addressed.

Advertisements for deferred interest plans would be required to provide additional information about how interest could be imposed.

Comments submitted to the Board in response to the June 2007 proposed revisions remain under consideration by the Board and need not be submitted a second time.

DATES: Comments must be received on or before July 18, 2008.