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The Florida Supreme Court invoked “nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a ''judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?
This case gives the Court the opportunity to answer one of the great open questions in takings law: when, if ever, can a judicial decision constitute a taking of private property in violation of the Fifth Amendment’s Just Compensation Clause? There is a widespread assumption among many property professors that the answer to this question is “never.” After all, we teach cases like Matthews v. Bay Head, where the Supreme Court of New Jersey appeared to alter the state’s property law to allow public access to beachfront property that had previously been private. There is little doubt that if the legislature had required the same access it would have been a per se taking (see, e.g., Nollan, Loretto, Kaiser Aetna). But because the judiciary, rather than the legislature, made the change, there is a sense that the takings problem somehow disappears.
Surely, it must be conceded as a general proposition that the law of real property is, under our Constitution, left to the individual States to develop and administer. And surely Washington or any other State is free to make changes, either legislative or judicial, in its general rules of real property law, including the rules governing the property rights of riparian owners. . . . To the extent that the decision of the Supreme Court of Washington on [the property issue in dispute] arguably conforms to reasonable expectations, we must of course accept it as conclusive. But to the extent that it constitutes a sudden change in state law, unpredictable in terms of the relevant precedents, no such deference would be appropriate. For a State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all. Whether the decision here worked an unpredictable change in state law thus inevitably presents a federal question for the determination of this Court.
389 U.S. 295-97 (1967) (Stewart, J., concurring).
Both Hughes and Stop The Beach involve the doctrine of accretion, which at common law gave ownership of land that was gradually deposited by the ocean to the beachfront property owner. In Hughes, however, the beachfront land had been owned and conveyed by the United States before Washington became a state. The Court therefore held that the issue of accretion was governed by federal rather than state law, and concluded that, as a matter of federal common law, the accreted land was owned by the beachfront owner.
This issue of prior federal ownership is not present in Stop The Beach, where the Florida Supreme Court (over vigorous dissent) held that as a matter of Florida law, the beachfront owner did not have a property right in the accreted land. The petitioners argue that the Florida Supreme Court’s holding was contrary to more than a century of precedent, and therefore constituted an unconstitutional judicial taking of the beachfront owners’ property rights. I have not read the prior Florida caselaw, but from reading the briefs on cert and the opinions in the Florida Supreme Court, I think that the petitioners make a good case that the Florida Supreme Court’s decision represents a radical departure from its prior law. I seriously doubt that the Court would have granted cert it had been able to find precedential support for the Florida Supreme Court’s position. It is also notable, though perhaps not directly relevant, that the Florida Supreme Court’s position is contrary to the U.S. Supreme Court’s statement of the common law in Hughes.
Stop The Beach therefore appears to squarely and cleanly present the judicial takings issue. Below are some thoughts on how the case might play out and what’s at stake for the larger law of regulatory takings. First a word of disclosure – I’m on the record (albeit in my student note) as favoring Supreme Court review of state court property decisions under a judicial takings theory.
(1) There are two different ways in which the judicial takings issue can present itself. First, a state legislature might pass a law that appears to take property rights. In deciding a takings challenge to the statute, a state court might hold that the claimed property rights did not exist, and reject the takings challenge because there was nothing to take. Second, in a case brought by private litigants, a state court might make a major change to the state’s existing property law. Matthews v. Bay Head is an example of the second type of case. Stop the Beach is an example of the first – the underlying litigation was about provisions of Florida’s Beach and Shore Preservation Act, and the Florida Supreme Court insulated the Act from constitutional problems by holding that there was no protected private property interest to be taken. There isn’t much of a theoretical basis for a distinction between the two categories, but the Supreme Court’s prior caselaw might be marginally more applicable to the facts in Stop the Beach because of the legislature’s involvement. As Buzz Thompson has noted, the Court has held in cases such as Muhlker v. New York & Harlem Railroad, 197 U.S. 544 (1905) that it can review a state court’s property rights determination “where a property holder challenge[s] a legislative or executive action as a taking and the state court ha[s] ruled that there was no property to take.” Barton H. Thompson, Jr., Judicial Takings, 76 Va. L. Rev. 1449, 1467 (1990). The Supreme Court recently noted in Lingle v. Chevron that it can be problematic to rely on early substantive due process cases as precedent in contemporary regulatory takings cases, but I would expect cases like Muhlker to come into play in Stop the Beach.
As a general matter, the Constitution leaves the law of real property to the States. But just as a State may not deny rights protected under the Federal Constitution through pretextual procedural rulings, see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455-458, 78 S.Ct. 1163, 1168-1170, 2 L.Ed.2d 1488 (1958), neither may it do so by invoking nonexistent rules of state substantive law. Our opinion in Lucas, for example, would be a nullity if anything that a state court chooses to denominate “background law”-regardless of whether it is really such-could eliminate property rights. “[A] State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all.” Hughes v. Washington, 389 U.S. 290, 296-297, 88 S.Ct. 438, 442, 19 L.Ed.2d 530 (1967) (Stewart, J., concurring). No more by judicial decree than by legislative fiat may a State transform private property into public property without compensation. Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164, 101 S.Ct. 446, 452, 66 L.Ed.2d 358 (1980). See also Lucas, supra, 505 U.S., at 1031, 112 S.Ct., at 2901. Since opening private property to public use constitutes a taking, see Nollan v. California Coastal Comm'n, 483 U.S. 825, 831, 107 S.Ct. 3141, 3145, 97 L.Ed.2d 677 (1987); Kaiser Aetna v. United States, 444 U.S. 164, 178, 100 S.Ct. 383, 392, 62 L.Ed.2d 332 (1979), if it cannot fairly be said that an Oregon doctrine of custom deprived Cannon Beach property owners of their rights to exclude others from the dry sand, then the decision now before us has effected an uncompensated taking.
I suspect that Justice Scalia has been looking for a suitable judicial takings case ever since. The petitioners in Stop the Beach note that at least 15 cases have sought cert on the judicial takings issue. I would guess that many of those previous cases had various problems with them that made them poor cert candidates. This is one reason why I think that the Court (or some members, at least) were reasonably confident that the Florida Supreme Court opinion is not supported by prior Florida law – I don’t think they would have granted cert otherwise.
(3) The sentence referencing Lucas in Justice Scalia’s Cannon Beach dissent helps to explain how the judicial takings issue fits into the Court’s larger regulatory takings jurisprudence. In Lucas, the Court held that a severe limitation on property rights that would constitute a per se taking would only be constitutional if the state’s background law of property or nuisance established that the property owner had no property rights to begin with. I have heard anecdotally that some state courts have been aggressive in using the background principles of state law exception to defeat takings claims, perhaps going to the extent of creating such background principles out of what Justice Scalia terms “nonexistent rules of state substantive law”. Note, by the way, that the cert petition in Stop the Beach quotes this language in describing the Florida Supreme Court’s action. If the Court holds that such a judicial reformulation of property rights is unconstitutional, then it would place a practical limit on state courts’ ability to use the background principles exception to defeat takings claims.
(4) It should be obvious that accepting the idea of judicial takings would put the Supreme Court in the awkward position of reviewing a state court’s decisions on the substance of state property law. I doubt that the Court, if it accepts the idea of judicial takings, would defer to a state court’s characterizations of their own decisions – to do so would be to replace the “stupid staffer” that Justice Scalia referred to in Lucas with the stupid law clerk or stupid state court judge. So the Court would need to review the state court’s analysis to see if it was supported by precedent. I expect that the Court would only find a judicial taking if the state’s prior law was remarkably clear and that the court decision under review represented a clear departure from that precedent. Otherwise, the Court risks becoming the court of last resort in any state law property case.
(5) I worry that a decision in favor of the petitioners in Save the Beach will contain some language that can be read to place a broad limit on states’ ability to reform their property law. Justice Stewart was clear in Hughes that this was not the result that he had in mind: “surely Washington or any other State is free to make changes, either legislative or judicial, in its general rules of real property law . . . .” The easiest way to avoid this problem in Stop the Beach would be to simply hold that the judiciary cannot achieve through deciding a case what the legislature cannot do by statute. The Court’s current caselaw is clear that the legislature cannot transfer private property to public ownership without compensation, and this is what happened in Save the Beach if petitioners’ factual claims are accurate. This transfer of ownership to the public might be a good way to distinguish between judicial alterations of property law that are takings and those that are not. Beach access cases come up all the time in the judicial takings literature because they tend to present issues of public ownership or public access. Similarly, the property reform that was invalidated in Hodel v. Irving involved a statute that escheated certain property interests to the government. In Lucas, the ability to build on the property was destroyed outright, not transferred to another person. In contrast with these types of scenarios would be cases that involved alteration of property rights between private parties. Statutes and judicial decisions alter, and sometimes destroy, property rights all the time. This does not seem to present a takings problem when the result is that one private party owns the property rather than another private party. For example, the abolition of the fee tail in many states destroyed the reversionary right in the original owner, effectively transferring that right to the holder of the present interest. Alterations in almost any part of property law, and many alterations in other areas such statutes of limitations and the law of contracts, can result in A owning a particular property rather than B owning that property. It would be a big problem if stray language in a Supreme Court case raised questions about states’ ability to make these basic changes to the law.
(6) I wonder about procedural issues if the Court allows judicial takings claims. Will litigants have to litigate these issues in state court, and rely on cert petitions to remedy judicial takings, or will litigants be able to bring takings claims against the states based on judicial decisions in the lower federal courts? I’m not an expert on Williamson County and San Remo, and don’t know how those cases might impact the issue.
Is the Florida Supreme Court's approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?
Is the Florida Supreme Court's approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner's property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?
I read the first of these questions as raising a substantive due process claim and the second as raising a procedural due process claim. I’m not sure how these might play out, though I note that Justice Kennedy has expressed sympathy for due process arguments in the takings context – see, for example, his concurrence in Lingle.
(8) Here’s my guess on how the case comes out: 5-4 in favor of petitioners; opinion of the Court by Justice Scalia, joined by the Chief Justice and Justices Kennedy, Thomas, and Alito. [UPDATE: I am fully aware of the Court's procedures for allocating writing assignments for majority opinions; my point in predicting that Justice Scalia will author the majority is that I think he has something that he wants to say in this case, and that he might try to seek out the writing assignment in this case]. Possible concurrence on due process grounds by Justice Kennedy. Justices Stevens, Ginsburg, Breyer, and Sotomayor if confirmed, dissenting, with Justice Stevens especially likely to write. This may be a case where the replacement of the moderate-conservative Justice Souter with the moderate-liberal Judge Sotomayor might make a difference in the voting, if not in the outcome. Unlike earlier liberal justices like William Brennan (see, e.g., his dissent in San Diego Gas and Electric), the liberal wing of the current Court has rarely expressed much sympathy for regulatory takings claims. Justice Stevens, of course, dissented in Penn Central, but has been the leader of the anti-regulatory takings wing of the Court since at least the mid-1980’s.
(9) If you are new to the judicial takings issue, here are four articles to read: (a) Buzz Thompson’s article in the Virginia Law Review mentioned above – it is the classic on the subject; (b) David Bederman’s The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 Colum. L. Rev. 1375 (1996); (c) Roderick Walston’s The Consitution and Property: Due Process, Regulatory Takings, and Judicial Takings, 2001 Utah L. Rev. 379; and (d) David Sarratt’s Judicial Takings and the Course Pursued, 90 Va. L. Rev. 1487 (2004).
Citation to student note, please?
I tend to think that, from a jurisprudential stand point, this is not a taking. There is at least a legal fiction that judges don't make law, they only decide what the law already is. Therefore, a judicial decision finding that you don't have a particular property right means that you never had that property right and have no grounds to complain that that property right was taken.
It would seem like a decision in favor of the property holders here risks setting up a scenario where every case awarding property rights, will now be subject to federal review to determine if the judge was making new law or just enforcing old law. This would not just include questions, such as this one, where the judge is determining if the public have access to the property, or if the owner can use the property in a particular way, but also cases ranging from the interpretation of real estate contracts to how property is distributed in a divorce.
Zyg, the student note is "Defining 'Property' in the Just Compensation Clause, 63 Fordham L. Rev. 1853. I talk about judicial takings beginning on page 1873.
Robert, I think the second half of your comment gets to what could be a big issue. But I don't think that every judicial decision that changes the law of property, or the law affecting property (which is much broader), would be a taking. Among other things, I think that a very strong case can be made under the Court's current jurisprudence that most legislative alterations in property rights are not takings, even if they are retroactive. If this is right, then the same act done by the judiciary would also not be a taking.
As a side note, this case has to win at least an Honorable Mention in the "Awkwardly Named Plaintiffs" category.
I have enjoyed reasding your comments on this ruling... Do you see any bright line differences between Scalia's and Kennedy's respective opinions/approaches to dealing with this? Any ideas as to what other situations would force the Court to decide this issue? It seems that if there was a case to force the decision, the Court would lean towards Kennedy's approach when adding Breyer back into the mix (loosely basing this on the McDonald case decision). Any thoughts?

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D.C. Law Library - Subchapter V-A. Washington Metrorail Safety Commission Establishment.
↪ Subchapter V-A. Washington Metrorail Safety Commission Establishment.
Subchapter VI. Adopted Regional System.
Subchapter V-A. Washington Metrorail Safety Commission Establishment.
§ 9–1109.11. Metrorail Safety Commission Interstate Compact.
"WHEREAS, this compact is created for the benefit of the people of the District of Columbia, the Commonwealth of Virginia, and the State of Maryland and for the increase of their safety, commerce, and prosperity.
"1. As used in this MSC Compact, the following words and terms shall have the meanings set forth below, unless the context clearly requires a different meaning. Capitalized terms used herein, but not otherwise defined in this MSC Compact, shall have the definition set forth in regulations issued under 49 U.S.C. § 5329, as they may be revised from time to time.
"(m) “WMATA Rail System” or “Metrorail” means the rail fixed guideway public transportation system and all other real and personal property owned, leased, operated, or otherwise used by WMATA rail services and shall include WMATA rail projects under design or construction by owners other than WMATA.
"2. The Signatories to the WMATA Compact hereby adopt this MSC Compact pursuant to 49 U.S.C. § 5329. The Commission created hereunder shall have safety regulatory and enforcement authority over the WMATA Rail System and shall act as the state safety oversight authority for WMATA under 49 U.S.C. § 5329, as may be amended from time to time. WMATA shall be subject to the Commission’s rules, regulations, actions, and orders.
"(f) Meet other requirements of federal and State law relating to safety oversight of the WMATA Rail System.
"4. The Commission is hereby created as an instrumentality of each Signatory, which shall be a public body corporate and politic, and which shall have the powers and duties set forth in this MSC Compact.
"5. The Commission shall be financially and legally independent from WMATA.
"6. The Commission shall be governed by a Board of 6 Members with 2 Members appointed or reappointed (including to fill an unexpired term) by each Signatory pursuant to the Signatory’s applicable laws.
"7. Each Signatory shall also appoint or reappoint (including to fill an unexpired term) one Alternate Member pursuant to the Signatory’s applicable laws.
"8. An Alternate Member shall participate and take action as a Member only in the absence of one or both Members appointed from the same jurisdiction as the Alternate Member’s appointing jurisdiction and, in such instances, may cast a single vote.
"9. Members and Alternate Members shall have backgrounds in transit safety, transportation, relevant engineering disciplines, or public finance.
"10. No Member or Alternate Member shall simultaneously hold an elected public office, serve on the WMATA board of directors, be employed by WMATA, or be a contractor to WMATA.
"(c) The Alternate Member shall be appointed for a 3-year term.
"12. Any person appointed to fill a vacancy shall serve for the unexpired term.
"13. Members and Alternate Members shall be entitled to reimbursement for reasonable and necessary expenses and shall be compensated for each day spent meeting on the business of the Commission at a rate of $200 per day or at such other rate as may be adjusted in appropriations approved by all of the Signatories.
"14. A Member or an Alternate Member may be removed or suspended from office only for cause in accordance with the laws of such Member’s or Alternate Member’s appointing jurisdiction.
"15. Four Members shall constitute a quorum, and the affirmative vote of 4 Members is required for action of the Board. Quorum and voting requirements under this paragraph may be met with one or more Alternate Members pursuant to section 8.
"16. The Commission action shall become effective upon enactment unless otherwise provided for by the Commission.
"I, ___________, hereby solemnly swear (or affirm) that I will support and defend the Constitution and the laws of the United States as a Member (or Alternate Member) of the Board of the Washington Metrorail Safety Commission and will faithfully discharge the duties of the office upon which I am about to enter.
"18. The Board shall provide for its own organization and procedure. Meetings of the Board shall be held as frequently as the Board determines, but in no event less than quarterly. The Board shall keep minutes of its meetings and establish rules and regulations governing its transactions and internal affairs, including, without limitation, policies regarding records retention that are not in conflict with applicable federal record retention laws.
"19. The Commission shall keep commercially reasonable records of its financial transactions in accordance with accounting principles generally accepted in the United States of America.
"20. The Commission shall establish an office for the conduct of its affairs at a location to be determined by the Commission.
"21. The Commission shall adopt 5 U.S.C. § 552(a)-(d) and (g), and 5 U.S.C. § 552b, as both may be amended from time to time, as its freedom-of-information policy and open-meeting policy, respectively, and shall not be subject to the comparable laws or policies of any Signatory.
"22. Reports of investigations or inquiries adopted by the Board shall be made publicly available.
"23. The Commission shall adopt a policy on conflict of interest that shall be consistent with the regulations issued under 49 U.S.C. § 5329, as they may be revised from time to time, which, among other things, places appropriate separation between Members, officers, employees, contractors, and agents of the Commission and WMATA.
"24. The Commission shall adopt and utilize its own administrative procedure and procurement policies in conformance with applicable federal regulations and shall not be subject to the administrative procedure or procurement laws of any Signatory.
"25. The Board shall elect a Chairman, Vice Chairman, Secretary, and Treasurer from among its Members, each for a 2-year term and shall prescribe their powers and duties.
"26. The Board shall appoint and fix the compensation and benefits of a chief executive officer who shall be the chief administrative officer of the Commission and who shall have expertise in transportation safety and one or more industry-recognized transportation safety certifications.
"27. Consistent with 49 U.S.C. § 5329, as may be amended from time to time, the Commission may employ, under the direction of the chief executive officer, such other technical, legal, clerical, and other employees on a regular, part-time, or as-needed basis as it determines necessary or desirable for the discharge of its duties.
"28. The Commission shall not be bound by any statute or regulation of any Signatory in the employment or discharge of any officer or employee of the Commission, but shall develop its own policies in compliance with federal law. The MSC shall, however, consider the laws of the Signatories in devising its employment and discharge policies, and when it deems it practical, device policies consistent with the laws of the Signatories.
"29. The Board may fix and provide policies for the qualification, appointment, removal, term, tenure, compensation benefits, worker’s compensation, pension, and retirement rights of its employees subject to federal law. The Board may also establish a personnel system based on merit and fitness and, subject to eligibility, participate in the pension, retirement, and worker’s compensation plans of any Signatory or agency or political subdivision thereof.
"(e) Audit every 3 years the compliance of WMATA with WMATA’s Public Transportation Agency Safety Plan or conduct such an audit on an ongoing basis over a 3-year time frame.
"(f) Take such other actions as the Commission may deem appropriate consistent with its purpose and powers.
"32. Action by the Board under section 31(c)(5) shall require the unanimous vote of all Members present and voting. The Commission shall coordinate its enforcement activities with appropriate federal and State governmental authorities.
"(k) Do such other acts necessary or desirable for the performance of its duties and the execution of its powers under this MSC Compact.
"34. Consistent with this MSC Compact, the Commission shall promulgate rules and regulations to carry out the purposes of this MSC Compact.
"(f) The General Manager and each member of the board of directors of WMATA.
"36. The Commission may prepare, publish, and distribute such other safety reports that it deems necessary or desirable.
"37. The Commission shall make and publish an annual report on its programs, operations, and finances, which shall be distributed in the same manner provided by section 35.
"38. The Commission may also prepare, publish, and distribute such other public reports and informational materials as it deems necessary or desirable.
"39. An independent annual audit shall be made of the financial accounts of the Commission. The audit shall be made by qualified certified public accountants selected by the Board, who shall have no personal interest, direct or indirect, in the financial affairs of the Commission or any of its officers or employees. The report of audit shall be prepared in accordance with generally accepted auditing principles and shall be distributed in the same manner provided by section 35. Members, employees, agents, and contractors of the Commission shall provide access to information necessary or desirable for the conduct of the annual audit.
"40. The Commission’s operations shall be funded, independently of WMATA, by the Signatory jurisdictions and, when available, by federal funds. The Commission shall have no authority to levy taxes.
"41. The Signatories shall unanimously agree on adequate funding levels for the Commission and make equal contributions of such funding, subject to annual appropriation, to cover the portion of Commission operations not funded by federal funds.
"42. The Commission may borrow up to 5% of its last annual appropriations budget in anticipation of receipts, or as otherwise set forth in the appropriations budget approved by all of the Signatories, from any lawful lending institution for any purpose of this MSC Compact, including, without limitation, for administrative expenses. Such loans shall be for a term not to exceed 2 years, or at such longer term approved by each Signatory pursuant to its laws as evidenced by the written authorization by the Mayor of the District of Columbia and the Governors of Maryland and Virginia, and at such rates of interest as shall be acceptable to the Commission.
"43. With respect to the District of Columbia, the commitment or obligation to render financial assistance to the Commission shall be created, by appropriation or in such other manner, or by such other legislation, as the District of Columbia shall determine; provided, that any such commitment or obligation shall be approved by Congress pursuant to the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 774; D.C. Official Code § 1-201.01 et seq.).
"44. Pursuant to the requirements of 31 U.S.C. §§ 1341, 1342, 1349 to 1351, and 1511 to 1519, and D.C. Official Code §§ 47-105 and 47-355.01 to 355.08 (collectively, the “Anti-Deficiency Acts”), the District cannot obligate itself to any financial commitment in any present or future year unless the necessary funds to pay that commitment have been appropriated and are lawfully available for the purpose committed. Thus, pursuant to the Anti-Deficiency Acts, nothing in the MSC Compact creates an obligation of the District in anticipation of an appropriation for such purpose, and the District’s legal liability for the payment of any amount under this MSC Compact does not and may not arise or obtain in advance of the lawful availability of appropriated funds for the applicable fiscal year.
"45. The exercise of the powers granted by this MSC Compact shall in all respects be for the benefit of the people of the District of Columbia, the Commonwealth of Virginia, and the State of Maryland and for the increase of their safety, commerce, and prosperity, and as the activities associated with this MSC Compact shall constitute the performance of essential governmental functions, the Commission shall not be required to pay any taxes or assessments upon the services or any property acquired or used by the Commission under the provisions of this MSC Compact or upon the income therefrom, and shall at all times be free from taxation within the District of Columbia, the Commonwealth of Virginia, and the State of Maryland.
"46. WMATA shall have the right to petition the Commission for reconsideration of an order based on rules and procedures developed by the Commission.
"47. Consistent with section 16, the filing of a petition for reconsideration shall not act as a stay upon the execution of a Commission order, or any part of it, unless the Commission orders otherwise. WMATA may appeal any adverse action on a petition for reconsideration as set forth in section 48.
"48. The United States District Court for the Eastern District of Virginia, Alexandria Division, the United States District Court for the District of Maryland, Southern Division, and the United States District Court for the District of Columbia shall have exclusive and original jurisdiction of all actions brought by or against the Commission and to enforce subpoenas under this MSC Compact.
"49. The commencement of a judicial proceeding shall not operate as a stay of a Commission order unless specifically ordered by the court.
"50. The Commission and its Members, Alternate Members, officers, agents, employees, or representatives shall not be liable for suit or action or for any judgment or decree for damages, loss, or injury resulting from action taken within the scope of their employment or duties under this MSC Compact, nor required in any case arising or any appeal taken under this MSC Compact to give a supersedeas bond or security for damages. Nothing in this paragraph shall be construed to protect such person from suit or liability for damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of such person.
"51. The Commission shall be liable for its contracts and for its torts and those of its Members, Alternate Members, officers, agents, employees, and representatives committed in the conduct of any proprietary function, in accordance with the law of the applicable Signatory (including, without limitation, rules on conflict of laws) but shall not be liable for any torts occurring in the performance of a governmental function. The exclusive remedy for such breach of contract or tort for which the Commission shall be liable, as herein provided, shall be by suit against the Commission. Nothing contained in this MSC Compact shall be construed as a waiver by the District of Columbia, the Commonwealth of Virginia, or the State of Maryland of any immunity from suit.
"52. Each of the Signatories pledges to each other faithful cooperation in providing safety oversight for the WMATA Rail System, and, to affect such purposes, agrees to consider in good faith and request any necessary legislation to achieve the objectives of this MSC Compact.
"53. Amendments and supplements to this MSC Compact shall be adopted by legislative action of each of the Signatories and the consent of Congress. When one Signatory adopts an amendment or supplement to an existing section of this MSC Compact, that amendment or supplement shall not be immediately effective, and the previously enacted provision or provisions shall remain in effect in each jurisdiction until the amendment or supplement is approved by the other Signatories and is consented to by Congress.
"54. Any Signatory may withdraw from this MSC Compact, which action shall constitute a termination of this MSC Compact.
"55. Withdrawal from this MSC Compact shall be by a Signatory’s repeal of this MSC Compact from its laws, but such repeal shall not take effect until 2 years after the effective date of the repealed statute and written notice of the withdrawal being given by the withdrawing Signatory to the governors or mayor, as appropriate, of the other Signatories.
"(d) A plan to return any surplus funds that remain 4 years after the creation of the trust.
"57. This MSC Compact shall be liberally construed to effectuate the purposes for which it is created.
"58. If any part or provision of this MSC Compact or the application thereof to any person or circumstances be adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part, provision, or application directly involved in the controversy in which such judgment shall have been rendered and shall not affect or impair the validity of the remainder of this MSC Compact or the application thereof to other persons or circumstances, and the Signatories hereby declare that they would have entered into this MSC Compact or the remainder thereof had the invalidity of such provision or application thereof been apparent.
"59. This MSC Compact shall be adopted by the Signatories in the manner provided by law therefor and shall be signed and sealed in 4 duplicate original copies. One such copy shall be filed with the Secretary of State of the State of Maryland, the Secretary of the Commonwealth of Virginia, and the Secretary of the District of Columbia in accordance with the laws of each jurisdiction. One copy shall be filed and retained in the archives of the Commission upon its organization. This MSC Compact shall become effective upon the enactment of concurring legislation by the District of Columbia, the Commonwealth of Virginia, and the State of Maryland, and consent thereto by Congress and when all other acts or actions have been taken, including, without limitation, the signing and execution of this MSC Compact by the Governors of Maryland and Virginia and the Mayor of the District of Columbia.
"60. Any conflict between any authority granted herein, or the exercise of such authority, and the provisions of the WMATA Compact shall be resolved in favor of the exercise of such authority by the Commission.
"61. All other general or special laws inconsistent with this MSC Compact are hereby declared to be inapplicable to the Commission or its activities.".
Section 7028 of D.C. Law 22-33 repealed § 3(a)(2), (b), (c) of D.C. Law 21-250. Therefore the changes made to this section by D.C. Law 21-250 have been given effect.
Applicability of D.C. Law 21-250: § 3(a)(2) of D.C. Law 21-250 provided that the creation of this section by § 2 of D.C. Law 21-250 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.
For temporary (90 days) authority to appoint Members of the Board of Directors of the Washington Metrorail Safety Commission, see § 2 of Washington Metrorail Safety Commission Board of Directors Appointment Emergency Amendment Act of 2018 (D.C. Act 22-238, Jan. 27, 2018, 65 DCR 819).
For temporary (90 days) amendment of this section, see § 2 of Washington Metrorail Safety Commission Board of Directors Appointment Emergency Amendment Act of 2017 (D.C. Act 22-168, Oct. 24, 2017, 64 DCR 10927).
For temporary (90 days) repeal of § 3(a)(2), (b), and (c) of D.C. Law 21-250, see § 7028 of Fiscal Year 2018 Budget Support Congressional Review Emergency Act of 2017 (D.C. Act 22-167, Oct. 24, 2017, 64 DCR 10802).
For temporary (90 days) repeal of § 3(a)(2), (b), and (c) of D.C. Law 21-250, see § 7028 of Fiscal Year 2018 Budget Support Emergency Act of 2017 (D.C. Act 22-104, July 20, 2017, 64 DCR 7032).
For temporary (225 days) amendment of this section, see § 2 of Washington Metrorail Safety Commission Board of Directors Appointment Temporary Amendment Act of 2017 (D.C. Law 22-43, Jan. 17, 2018, 64 DCR 12310).
For mayoral authority to appoint members of the Board of Directors of the Washington Metrorail Safety Commission, see §2 of D.C. Law 22-84.


(1) The term "Administration" means the National Nuclear Security Administration.
(2) The term "Administrator" means the Administrator for Nuclear Security.
(3) The term "classified information" means any information that has been determined pursuant to Executive Order No. 12333 of December 4, 1981 (50 U.S.C. 3001 note), Executive Order No. 12958 of April 17, 1995 (50 U.S.C. 3161 note), Executive Order No. 13526 of December 29, 2009 (50 U.S.C. 3161 note), or successor orders, to require protection against unauthorized disclosure and that is so designated.
(5) The terms "defense nuclear facility" and "Department of Energy defense nuclear facility" have the meaning given the term "Department of Energy defense nuclear facility" in section 2286g of title 42.
(6) The term "nuclear security enterprise" means the physical facilities, technology, and human capital of the national security laboratories and the nuclear weapons production facilities.
(A) Los Alamos National Laboratory, Los Alamos, New Mexico.
(B) Sandia National Laboratories, Albuquerque, New Mexico, and Livermore, California.
(C) Lawrence Livermore National Laboratory, Livermore, California.
(8) The term "Nuclear Weapons Council" means the Nuclear Weapons Council established by section 179 of title 10.
(A) The Kansas City Plant, Kansas City, Missouri.
(B) The Pantex Plant, Amarillo, Texas.
(C) The Y–12 National Security Complex, Oak Ridge, Tennessee.
(D) The Savannah River Site, Aiken, South Carolina.
(E) The Nevada National Security Site, Nevada.
(F) Any facility of the Department of Energy that the Secretary of Energy, in consultation with the Administrator and Congress, determines to be consistent with the mission of the Administration.
(10) The term "Restricted Data" has the meaning given such term in section 2014(y) of title 42.
Executive Order No. 12958, referred to in par. (3), which was formerly set out as a note under section 435 (now section 3161) of this title, was revoked by Ex. Ord. No. 13526, §6.2(g), Dec. 29, 2009, 75 F.R. 731.
2014-Par. (3). Pub. L. 113–291 substituted "Executive Order No. 12333 of December 4, 1981 (50 U.S.C. 3001 note), Executive Order No. 12958 of April 17, 1995 (50 U.S.C. 3161 note), Executive Order No. 13526 of December 29, 2009 (50 U.S.C. 3161 note)," for "Executive Order No. 12333 of December 4, 1981 (50 U.S.C. 401 note), Executive Order No. 12958 of April 17, 1995 (50 U.S.C. 435 note),".
2013-Pub. L. 113–66, §3146(a)(1)(A), substituted "Except as otherwise provided, in this chapter" for "In this chapter" in introductory provisions.
Pub. L. 112–239 amended section generally. Prior to amendment, section defined "congressional defense committees".
Pars. (5) to (10). Pub. L. 113–66, §3146(a)(1)(B)–(E), added pars. (5) and (8), redesignated former pars. (5), (6), (7), and (8) as (6), (7), (9), and (10), respectively, and, in par. (10), substituted "Restricted Data" for "restricted data".
Pub. L. 107–314, div. D, §4001(a), formerly div. C, title XXXVI, §3601, Dec. 2, 2002, 116 Stat. 2756 , renumbered div. D, §4001, and amended by Pub. L. 108–136, div. C, title XXXI, §3141(c)(1)(A)–(D)(ii), Nov. 24, 2003, 117 Stat. 1753 , provided that: "This division [enacting this chapter] may be cited as the 'Atomic Energy Defense Act'."
"(1) In general.-The purpose of this section [see Tables for classification] is to assemble together, without substantive amendment but with technical and conforming amendments of a non-substantive nature, recurring and general provisions of law on Department of Energy national security programs that remain in force in order to consolidate and organize such provisions of law into a single Act intended to comprise general provisions of law on such programs.
"(2) Construction of transfers.-The transfer of a provision of law by this section shall not be construed as amending, altering, or otherwise modifying the substantive effect of such provision.
"(3) Treatment of satisfied requirements.-Any requirement in a provision of law transferred under this section (including a requirement that an amendment to law be executed) that has been fully satisfied in accordance with the terms of such provision of law as of the date of transfer under this section shall be treated as so fully satisfied, and shall not be treated as being revived solely by reason of transfer under this section.
"(4) Classification.-The provisions of the Atomic Energy Defense Act [Pub. L. 107–314, div. D, 50 U.S.C. 2501 et seq.], as amended by this section, shall be classified to the United States Code as a new chapter of title 50, United States Code."


text:
The article analyzes the problem of managing business conflicts in educational institutions. An analysis of scientific views on the definition of the concept of «conflict» and «business conflict» is presented. Specific features of inner conflicts in educational institutions are disclosed. The peculiarities of the structure of business conflicts, the dynamics of their development, and recommendations for improving the management of business conflicts in educational institutions are given.
Key words: educational institution, management in educational institution, sphere of education, conflict, conflict situation, business conflict, conflict dynamics, stages of conflict, management of business conflict.
Сфера управління закладами освіти характеризується насиченістю людськими ресурсами, що часто призводить до суперечності інтересів як окремих людей, так великих і малих груп. Конфліктна ситуація - це взаємодія конфліктуючих сторін, викликаних інцидентом або приводом.
Зазначається, що діловий конфлікт, як і соціальний, складається і вирішується в конкретній ситуації у зв язку з виникненням проблеми, що вимагає вирішення; обидва конфлікти мають певні причини, своїх носіїв, володіють певними функціями, тривалістю і рівнем гостроти. Однак на відміну від соціального, діловий конфлікт виникає лише у випадку, коли зачіпають професійні інтереси. Структура конфлікту - це сукупність його стійких зв'язків, що забезпечують цілісність, тотожність самому собі, відмінність від інших явищ соціального життя. Без наявності цих зв'язків конфлікт не може існувати як динамічно взаємозалежна система і процес.
Можна виокремити наступні періоди і етапи в динаміці ділового конфлікту: виникнення об'єктивної проблемної ситуації; усвідомлення об'єктивної проблемної ситуації суб'єктами взаємодії; спроби сторін розв'язати об'єктивну проблемну ситуацію неконфліктними способами; виникнення передконфліктної ситуації; інцидент - перше зіткнення сторін; ескалація конфлікту; збалансована протидія; завершення конфлікту; часткова і повна нормалізація відносин опонентів.
Управління діловими конфліктами у сфері освіти передбачає три етапи роботи з діловим конфліктом: визнання реальних причин конфлікту сторонами / однією стороною; легітимізація конфлікту - досягнення згоди між учасниками конфлікту стосовно визнання встановлених правил конфліктної взаємодії; інституціоналізація конфлікту - створення відповідних органів щодо регулювання конфліктної взаємодії.
Можна виокремити такі поведінкові тактики менеджера освіти: розв'язання конфлікту на основі його сутності та змісту; розв'язання конфлікту з урахуванням його цілей; розв'язання конфлікту з урахуванням його функцій; розв'язання конфлікту з урахуванням емоційно-пізнавального стану учасників; розв'язання конфлікту з урахуванням властивостей його учасників; розв'язання конфлікту з урахуванням його можливих наслідків; розв'язання конфлікту з урахуванням етики стосунків конфліктуючих сторін.
Спираючись на вищепроведене дослідження, було розроблено систему методичних рекомендацій щодо управління діловими конфліктами у закладах освіти.
Ключові слова: освітній заклад, управління освітнім закладом, сфера освіти, конфлікт, конфліктна ситуація, діловий конфлікт, динаміка конфлікту, стадії конфлікту, управління діловим конфліктом.
The dynamics of development of educational sphere throughout last years shows some drastic alternations that take place. The sphere of management of educational institutions is characterized by a saturation with human resources, that often results in contradiction of interests between separate persons, as well as large and small groups. For quick and, at the same time, effective resolution of such problems a manager should posess theoretical knowledge and practical skills in the sphere of a complex decision of business conflicts.
• to work out the system of methodical recommendations for the resolution of business conflicts in the field of the management of educational institutions.
Research methods. For realization of aim and tasks of research has been used the complex of interactive methods, namely: analysis and synthesis, that expose a meaning and basic features of concepts and categories which are used, and concept of «conflict» and «business conflict» in particular; the comparative method and comparison of different views of scientific schools was applied for the selection of features of business conflicts and determination of their structure. Application of methods of classification and systematization allowed to distinguish certain recommendations for resolution of business conflicts in the sphere of the management of educational institutions.
During the last years the sufficient amount of interesting and important researches is conducted in relation to the problems of business conflicts. There is a prooved increase of interest for the study of problem of conflict, however as yet a systematic research in separate directions is insufficient.
From the scientific point of view the problem of starting and development of business conflicts was researched by such scientists as: V. Andrianov, А. Bandurina, B. White, А. Dmitrieva, V. Druzhinina, Y Zaprudskiy, A. Kitov, H. Kornelius, N. Kroshus, V. Kudryavtseva, К. Levin, G. Lozhkin, D. Mayers, J. Piapoe, O. Sannikova, V. Semichenko, J. Scott, S. Fayre and others.
Before examining the features of business conflicts in educational institutions, it worth to mention that there are plenty of theories and wide range of approaches to concepts of «conflict» and «business conflict».
For the first time concept of «conflict» as multilevel social phenomenon was studied by Adam Smith in his famous work «Research about nature and reasons of riches of nations». A. Smith examined conflicts between opposing social classes as a source of development of society [12, p. 18].
Later W. Fisher determined a conflict a state of shock and disorganization in comparison with previous development that is the generator of new structures [14, p. 83].
Founder of independent direction in the study of conflicts in American sociology and conflictology W. Lincoln considered conflict from the position of pragmatism. In his opinion, a conflict is understanding, imagination or realizing by any single side the fact that other side or sides ignore or violate its interests [10, p. 105].
А. Antsupov determines a conflict through the selection of the stages of conflict: the base-line state, pre-conflict state, conflict state, transitional state, state of fixing of result of conflict [1, p. 56].
Kravchenko characterizes a conflict as situation in which the oppositely directed forces of approximately equal size influence on an individual simultaneously [8, p. 105].
D. Zelke worked out the theory of social conflict, according to which, a conflict is a fight around the values and solicitations caused by the deficit of status, power and tools, in which aims of opponents are being neutralized by their rivals [7, p. 111].
Thus, a conflict is the very difficult social and psychological phenomenon, successful study of which greatly depends on quality of methodological and theoretical pre-conditions and methods that is used.
Provided the general description of conflict, it seems necessary to precise such concepts as a «social conflict», «business conflict», «conflict situation».
In the sociological dictionary of YBabosov the completest determination of social conflict is given: a social conflict is a case of maximum intensication of social contradictions, that is expressed in the conflict of interests of different social associations, - classes, nations, states, different social groups, and institutes, caused by opposition or difference of their interests, aims, progress trends» .
Analysing scientific works related to origin and features of conflict situations, it could be generalized, that a conflict situation is interaction of the conflicting parties caused by an incident or occasion. A conflict situation is begun with an occasion. At the same time, an occasion is external, well realized reason of conflict. An occasion comes out in the form of claims.
N. Grishina points out that business conflict has a subject-object contradiction is the basis. Contradictions can exist for the long period and not to come out in a conflict. It is therefore necessary to consider that only incompatible contradictions, based on interests, necessities and values, could lie in basis conflict. Such contradictions, as a rule, are transformed in the open fight of parties, in the real opposing. Thus, a business conflict is the conflict based on contradictions directly in the sphere of professional activity [3, p. 305].
Therefore, a business conflict, as well as social, is unfolded and resolved in a certain situation connected with the origin of problem that requires a decision; both types of conflict have certain reasons, transmitters, own certain functions, duration and level of sharpness. However unlike social, a business conflict arises up only in the case when professional interests are at stake. At the same time, a conflict situation is only the fragment of conflict, episode of its development. However, sometimes the structure of conflict can be examined according to the structure of conflict situation.
1. Basic participants of conflict are those subjects of conflict, that directly act against each other. Opposite parties are a key link of conflict. When one of parties goes out of a conflict, then it ceases. It is also possible to mark a side that began a conflict - initiator, but in the protracted conflicts, doing it is more difficult. In a business conflict one distinguish important description of opponent - level. It is a level of possibilities of opponent from realization of the aims in a conflict, that is expressed in influentialness of his structure and connections, skill and ability, its social experience of conflict interaction.
2. Groups of support. Such participants, that is present in any conflict and can be represented by friends, colleagues and others like that.
3. Other participants of conflict are subjects that influence on course and results of conflict. Instigators and organizers could be mentioned here. Sometimes participants of conflict include mediators. The basic task of such third party is stopping the conflict.
4. The reason of conflict is existing problem that serves as basis of conflict, a reason for different parties for contradiction and entering into opposition.
5. The object of conflict can be a material, social or spiritual value, to possession or use of which both opponents aimed.
6. Micro- and macroenvironment of conflict are circumstances in which the participants of conflict operate. Taking into account surroundings of participants of conflict at micro- and macroenvironment level allows to understand their real aims, reasons of parties, and also their dependence on this environment [5, p. 211].
Furthermore, a structure of conflict is totality of its features that provide integrity, equality to the itself, difference from other phenomena of social life. Without the presence of these features a conflict can not exist as dinamically interdependent system and process.
In his turn, А. Drunie marks that an important aspect in a managing business conflicts resolution is their dynamics. It is necessary to point out that beginning of conflict can be fixed as the first acts of counteraction of parties. For starting of conflict three obligatory conditions taken together are needed: the first participant consciously acts against the second participant; the second participant realizes that that actions are directed against his interests; therefore he begins corresponding actions against the first participant. However, if the first side began aggressive actions, and second - remain in passive position, then a conflict will not take place .
1. Origin of objective problem situation. Essence of such situation is in the origin of contradiction between subjects (by their aims, reasons, aspirations and other like that). Such situation is a problem in interaction but that contradiction is not yet realized and conflict actions are absent. A feature is that most problem situations exist for a long time, not coming out.
2. Realization of objective problem situation by the subjects of interaction. Essence of this stage is in that the subjects of conflict understand the necessity of resolution of contradiction. Subjective perception of problem situation is an obstacle for realization of interests by both parties of conflict. Mostly, exact social divergences of participants are the basis of subjectivity of perception of situation. To this category belong values, ideals and interests. On complication of situation speed of development and probability of distortion of events depend by opponents.
3. Attempts of parties to resolve an objective problem situation using unconflict methods. Contradiction of conflict situation is not pre-condition of conflict interaction of parties. Sometimes the subjects of conflict try to apply unconflict methods: persuasion, elucidation, request, informing. On this stage an argumentation takes place, expressing own interests and fixing of the position.
4. The origin of pre-conflict situation is characterized as a presence of threat for one of parties of conflict. The actions of opponent must be regarded as an instant danger, that assist to development of situation toward a conflict.
1. An incident is the first collision of parties.
2. Escalation of conflict. This stage is characterized by sharp intensification of struggle between opponents.
3. Balanced interaction. On this stage activity of parties to resolve the conflict conflict becomes less intensive. Parties see unefficiency of power methods for the achievement of consent.
4. Completion of conflict. The basic difference of this stage from other consists in a transition from conflict interaction to stopping of conflict. Completion of conflict shows up in such forms: decision, settlement, fading, removal, outgrowing in other conflict.
III. Postconflict period. This period consists of two stages: partial and complete normalization of relations between opponents [4, p. 55-56].
Above-mentioned periods and stages, that characterize the dynamics of business conflict help to understand that as well as other types of conflicts, a business conflict means the collision of sides. However a main difference is that opposition and cooperation of certain target group are taking place. The dynamics of business conflict in educational institutions represent the realized contradiction between the members of corresponding collective, that aspires to the emotional decision in a situation that was folded in interorganizational space.
It should be noticed that a business conflict is a conflict between subjects, that relate to educational institutions, and could be ordinary employee or leaders. Also the participants of business conflict can be separate subdivisions and organizations that connected with the sphere of education.
Therefore unlike other types of conflicts, namely business conflicts in educational institutions are bearing certain features. Firstly, there are differences of the functional systems of educational institutions. In comparing to society educational institutions is more local system. Exactly within the limits of such system there are rules, standards, well-regulated processes that come forward as mechanisms of coordinated behavior. Exactly this feature gives an opportunity for prognostication of conflict situations and reliable application of measures of preventive character. Secondly, important is a role- play structure of educational institutions and its workers. Everybody, in order to achieve certain goal in professional field, pulls out on the first plan professional qualities and inner position. In other words, the role of worker appears in organization, id est set of the expected behavioural stereotypes related to implementation of certain work. Thirdly, for a managing business conflicts in the field of education methods of management of personnel are important. The effective management of educational institutions requires precise application of methods, but development of organizational structure - general system of methods by means of which educational institution conducts distribution of labour process on separate tasks and arrives at co-ordination between these tasks. On the method of implementation of tasks in organization, it worth to mention the horizontal and vertical organizational structure of educational institutions. On the basis of horizontal differentiation is conducted the implementation of different tasks in relation to activity of or educational institution after distribution and grouping according to certain principles. The types of horizontal differentiation shows different tasks, for example implementation of work, promotion of educational services, choosing consumers of educational services, at the place of location of educational institution or its separate subdivision. Also educational institutions have vertical distribution. Vertical differentiation is determined by the number of levels of authority, division of administrative specialities. Exactly vertical differentiation influences on satisfaction of stuff of educational institutions.
It is also necessary to mark that managing business conflicts in the field of the management of educational institutions envisages three stages of work with a business conflict: confession of the real reasons of conflict parties / by one side; legitimization of conflict is an achievement of consent between the participants of conflict in relation to confession of the set rules of conflict interaction; institualization of conflict is creation of corresponding bodies in order to adjust conflict interaction. [13, p. 7].
It is worth to mention that namely the stage of institutialisation is one of basic, in fact on this very stage the mechanism of adjusting of conflict that will be based on clear principles and realized by means of the worked out technologies is being created. Institualisation of conflict for the managers of education can serve as the measure of preventive character. Because such conflicts are predictable, id est it is possible to look after development of that. The process of institutialisation of conflict interaction consists of next stages: structuting of groups (resolving question of accordance of behavior to the transmitters of opposite interests) and reduction of conflict (gradual lowering of conflict by its translation on another level) .
For business conflicts in the sphere of education destructive consequences are inherent, that is why it is necessary for an effective management to be able to diagnose the dynamics of conflict development, work out strategy of actions and provide it by means of certain technological receptions, such as: comprehension of conflict; working out a conflict management; creating a mechanism of inhibition; creation of technologies of managing a conflict.
• structurisation of subjects of conflict for an objective management and prevention of destructive consequences of the conflict.
An important role in resolution of business conflicts in educational institutions is played by a leader. It is related to the fact that difficulties of management in educational institutions in a crisis situation has double character. Firstly, constant implementation of new educational technologies; secondly, periodical intensifying of the problems related to interpersonal communication inside of pedagogical collective.
For overcoming of business conflicts that arise up on such soil, a manager of educational institution must be the neutral organizer of problem decision and adjusting dialogue. It is necessary to mark that the managers of educational institutions can make errors and most of them are ignoring conflicts that arise up in a collective, or applicating erroneous actions (superfluously critical estimation of events, permanent ignoring of interests of workers, producing of enormous amount of claims, and others like that). Such errors take place in that case, when a manager applies incongruous instruments for the settlement of conflict.
If manager of educational institution has the goal to influence effectively the resolution of conflicts in a collective, then it is necessary to memorize that strategic interference in the process of management should be carried out according to the following postulates: gaining authority at parties; determination of mutual relations between parties; support of equilibrium of parties; creation of «optimal» level of intensivity of conflict; differentiation of necessity of interference in the conflict; working out in detail of conflict; confrontation; synthesis; determination of procedures of achievement of compromise for both sides, assistance to permanent progress.
For the effective resolution of business conflicts in the sphere of education, it is necessary for the manager or head of an educational institution to apply the extended arsenal of methods of management conflicts. According to tools of conflict resolution we can differ the structural and interpersonal groups of methods. To the structural methods of conflict resolution we can attribute elucidation of requirements to work, using of co-ordinating and integration mechanisms, setting of common aims and use of the system of rewards. Interpersonal methods of conflict resolution in the sphere of educational management are the following: rejection, smoothing, compulsion, compromise, decision of problem [9, p. 39-40].
1. Style of competition. Such style is effective only in case when one of the parties of conflict knows that its decision is correct. And in that case it has the opportunity to insist on it.
2. Style of avoidance is being used in case when for one of the parties of conflict the meaning of a problem is not important and it has no desire to spend resources on its decision.
3. Style of adaptation will be useful if a business result is extraordinarily important for one of the parties of conflict.
4. Style of collaboration one of the hardest because requires a true collaboration. Both sides must be able to expound the necessities, hear each other and only then to lay down the alternative options of problem resolution. Such approach immediately becomes uneffective as soon as there is absent any of these elements [11, p. 56].
Analysing different approaches, principles, methods, postulates that are used for the resolution of business conflicts in educational institutions, it is impossible to find the only perfect way of conflict resolution. More promising apptoach is to investigate technologies of managing conflicts.
A successful management of conflict situations in the sphere of education is possible by developing relevant tactics, that will take into account the features of conflict. An important aspect is a search of general tangencies in interests of opponents. In fact this process is bilateral and turns out to be impossible in case of unwillingness (refuses) of opponents. It is important to discuss a problem objectively, finding out the essence of business conflict. In fact the successful search of method of resolution of problem in majoritymostly depends on ability of both sides to see the main and think structurally. For a leader it is important to choose optimal strategy of resolution of conflict situation that meets these circumstances.
For the foresight of development and management of a conflict, it is needed to thoroughly conduct the analytical stage - to investigate the object of conflict, opponents, reasons and direct occasion, that caused a conflict, social environment, secondary reflection. Only after the objective analysis of situation it is necessary to speculate on the options and ways of conflict resolution and to define necessary steps. It is also necessary to understand clearly the development of events as a result of choice of certain strategy and choose the latter according to the most favorable expected result.
Giving prognosis on the development of events after the choice of strategy is possible using criteria of resolution of business conflict. Here one could refer to: legal forms, moral principles, opinion of authoritative persons, precedents of decision of analogical problems in the past. Realization of selected strategy takes place according to the select method.
Analysing all abovementioned about the resolution of business conflicts in the sphere of the management of educational institution, it is possible to outline possible tactics of manager of education : resolution of conflict on the basis of its essence; a resolution of conflict on the basis of its aims; resolution of conflict on the basis of its functions; resolution of conflict on the basis of emotionally- cognitive state of participants; resolution of conflict on the basis of properties of its participants; resolution of conflict on the basis of its possible consequences; resolution of conflict on the basis of ethics of relations between rival parties.
Leaning on that research, the system of methodical recommendations was worked out regarding management of business conflicts in educational instiyutions: to do public statements that one of parties of conflict wants to stop escalation of conflict; to conduct elucidation, according to the pre-arranged steps for normalization of relations between parties of conflict; to induce opponents to the exchange acts that will assist the resolution of situation; to conduct preventive events with explanation, that business conflicts are uneffective for all their participants, to specify on reliable consequences; to offer strategies of decision and ways of stopping of business conflicts.
As a result of analysis, we came to the next conclusions: firstly, a concept «business» is investigated enough in socio-humanitarian sciences, also modern scientific literature holds in a spotlight the different aspects of business conflicts. The analysis of approaches to resolution of conflict showed that a business conflict is the conflict based on contradictions directly in the field of professional activity. Furhthermore, a business conflict is being unfolded and resolved in a certain professional situation in touch with the origin of professional problem and has certain reasons, transmitters, owns certain functions, duration and measure of sharpness. The analysis of features of business conflicts in the field of the management of educational institutions gives an opportunity to understand that the difference of business conflicts from other types of conflict is determined by three basic moments : by the differences of the functional systems of educational institution; by the role-play structure of educational institution and by methods of management a personnel.
Taking into account realities of public life, it was certain that a process of management a business conflict is a purposeful influence on the dynamics of conflict. An administrative process includes the certain types of activity, such as a prophylaxis and prevention of origin of business conflicts, diagnostics and adjusting of conflict, prognostication of development of conflicts and estimation their functional orientation and possible consequences, process of resolution of conflict. There is plenty of methods and technologies of a managing and resolving business conflicts. It is crucial for leaders in the sphere of education to master on general rules, principles and recommendations for effective application in case conflict situation evolved. Professionalism in making a decision in conflict situations will give possibility to the managers of educational sphere to regulate structurally conflict interaction and to use principles of effective interpersonal business communication.
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