Use of a Memorandum of Agreement

While a collective bargaining agreement (CBA) sets forth the terms and conditions of employment, it is common to encounter issues that are unique or not clearly addressed in the CBA. An important tool for addressing these issues is the use of the Memorandum of Agreement (MOA). A properly executed MOA is a legally binding document that supplements the CBA. The following Questions and Answers share important legal considerations and best practices in the drafting and use of an MOA.

Q1. Does an MOA have to be in a certain form?

A1. No. However, there does need to be specific information in the agreement, which specifically includes, the name of the parties, reference to any underlying CBA, a clear outline of the issue(s) being addressed, what each party is specifically responsible for providing, the effective date of the action and signatures of those with authority to sign.

Q2. Is an MOA governed by the Taylor Law?

A2. Yes. The Taylor Law sets forth required legal practices between the District and its employee associations. Specifically, if the District is considering an MOA, it is important to first determine whether the issue is addressing a mandatory subject of bargaining under the Taylor Law. (Mandatory subjects are usually closely related to compensation or other terms and conditions of employment. Non-mandatory subjects often deal with management rights such as methods of instruction.) If the issue is not a mandatory subject of bargaining, then an MOA is likely not the best method of resolving the matter.

For non-mandatory subjects of bargaining, the District can work collaboratively with the Association to address an issue, however, the final decision remains with the District and does not require a written contractual agreement. It is important to remember that if the District enters a contractual agreement, including an MOA, on a non-mandatory subject, it converts the subject to a mandatory subject of bargaining until it sunsets (that is, ends on a certain date) or is otherwise removed. If you are unsure whether a subject is mandatory or non-mandatory, it is important to seek legal counsel.

Q3. Can an MOA address multiple subjects?

A3. Yes. However, best practice dictates that an MOA should be narrowly tailored to either a specific subject or very closely related subjects. When drafting an MOA there should be language that it is for this specific issue only and that it is not intended to otherwise modify or impact the parties’ contractual rights.

Q4. Should an MOA contain an end date?

A4. When drafting an MOA, there should be a specific reference to the contract that is being supplemented and its effective dates. Generally, there should be a sunset clause occurring no later than the underlying contract’s end date. If the parties want the MOA provisions to last beyond the end of the current contract, such provisions should be considered in subsequent contract negotiations and incorporated into the CBA successor agreement.

Q5. What is the difference between a Memorandum of Agreement (MOA) and a Memorandum of Understanding (MOU)?

A5. An MOU is sometimes used as a non-contractually binding way to clarify an understanding between parties, such as the definition of a term or procedure. However, to make sure it is not considered a binding agreement requires certain clear and specific legal language. Often, the use of the term MOA or MOU is simply a matter of the custom followed by a particular employer and union.

In practice, whether titled an MOA or MOU, an Association will often take the position that it is a binding legal document. Generally, absent very unique circumstances, whether titled MOA or MOU, the district should only enter into these agreements on mandatory subjects of bargaining, should be narrowly tailored for specific issues and should sunset no later than the expiration of the underlying CBA.

Q6. Does an MOA require Board of Education approval?

A6. In certain cases, yes. Under the Taylor Law, an “agreement” is the result of the exchange of mutual promises between the Superintendent and an employee organization, which is a binding contract, except for provisions which require approval by the Board (such as the expenditure of money). However, during contract negotiations, there may be a ground rule whereby the Board reserves the right to ratify the entire agreement.

Therefore, an MOA which requires the expenditure of additional funds requires Board approval. An MOA which actually amends a CBA that was ratified by the Board probably also requires Board approval (unless the Board has delegated authority to the Superintendent to enter into this type of MOA). An MOA which simply clarifies the parties’ interpretation, or which settles a grievance at the Superintendent’s stage, generally does not need Board approval.

Q7. Can a Board of Education ratify an MOA not previously approved?

A7. Yes. A Board of Education can adopt a resolution retroactively ratifying an MOA. (This might happen if the Superintendent needed to take prompt action between meetings of the Board, or at the beginning of a school year.)

Memoranda of Agreement are useful in resolving unique issues on mandatory subjects of bargaining not adequately addressed in the underlying collective bargaining agreement. The above best practices will help to make sure an MOA is legally compliant and narrowly tailored.