Merit pay unconstitutional? House leaders think so

other_state_govBy Bobby Harrison

Daily Journal Jackson Bureau

JACKSON – The fight over the teacher pay bill in the Mississippi Legislature might not be over the size of the salary increase, but whether to have a performance pay component.

Earlier this week, the House, at the urging of its leadership, rejected the pay package proposed by the Senate, opting to invite conference where three members from each chamber will try to reach a final agreement. Both chambers then will have the option to accept or reject that agreement.

Part of the reason the House rejected the Senate proposal is that Speaker Philip Gunn, R-Clinton, and his leadership team maintain the Senate’s performance-based component is unconstitutional.

The pay package passed by the Senate, at the urging of Lt. Gov. Tate Reeves and Education Chair Gray Tollison, R-Oxford, has a School Recognition Program that would provide money that would go to A and B level schools and schools that improve a grade level

That money could be awarded to teachers.

The original House package, in an attempt to develop a form of merit pay, included benchmarks that teachers would have to meet to obtain a pay raise.

But Gunn said that in the joint conference committee, the House position would be to “remove the Senate’s unconstitutional language related to merit pay, and there will be no benchmarks for teachers to obtain a raise.”

Besides scrapping his benchmarks, Gunn also has conceded that the House would agree to the Senate position of a $1,500 pay raise on July 1, followed by a $1,000 raise the following July. Gunn said the House negotiators would advocate for smaller raises in years three and four, not tied to performance, but dependent on state revenue growing by at least 3 percent.

House leaders said the Senate’s School Recognition Program violates Section 96 of the state Constitution that prohibits the Legislature from granting “extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered or contract made….” In other words, state funds could not be awarded as grants or bonuses for services rendered in the past.

Reeves accused the House of “political posturing” for rejecting the Senate proposal and inviting conference.

An April 2010 official opinion by the office of Attorney General Jim Hood, concluded it was not unconstitutional to award a city of Horn Lake employee a 10 percent commission for obtaining park sponsorship fees. The AG opinion, which does not carry the weight of law but protects public officials who adhere to the opinions, said the commission did not violate the Constitution even though it was for work already performed.

The key, according to the AG opinion, is that the commission was part of pre-approved contractual agreement.

The House leadership maintains that the School Recognition Program is different because the teachers may get the bonuses and they may not. In the Senate proposal, it will be up to a committee of school staff to determine how the money is disbursed – whether to teachers equally or to teachers based on seniority or some other measure or even for classroom improvements, such as lab equipment.

A House analysis of the Senate plan said that to avoid a violation of Section 96, “an enforceable contractual obligation for an award must exist before an individual’s performance. That contractual obligation for the salary supplement is missing” from the Senate proposal, according to the House.

Nicole Webb, communications director for Gov. Phil Bryant, said she could not speak to the current House or Senate teacher pay proposals, but said a pilot teacher merit pay plan proposed by the governor and passed by the Legislature last year is constitutional.

Webb said the pilot program, which is being conducted in four school districts, is constitutional because the incentives are part of the agreed-to contract that includes “objective standards of measurement.” She said that ensures that the performance pay package falls within the parameters spelled out in AG opinions as needed to be constitutional.

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  • Tony

    Simple: Across the board pay raise with no hoops and no “merit” requirements. It’s fair, it’s constitutional, and it rewards ALL teachers, not just the ones fortunate to be teaching in a affluent school.

  • charlie

    There is no measuring device or instrument that can determine if a classroom teacher deserves a pay raise. There are too many variables that affect a child’s progress in the classroom that the teacher has no control over.