RIGHTS OF PROVISIONAL EDUCATORS & UEA MEMBERS

Transcription

1 RIGHTS OF PROVISIONAL EDUCATORS & UEA MEMBERS This pamphlet was prepared by the Utah Education Association's Bargaining, Professional Rights and Responsibilities Committee to inform provisional educators about their basic rights as well as the job protection you have as an educator and a member of the UEA. Because it is merely a summary, it does not provide details about each right and responsibility, nor does it cover every right or responsibility.

2 By Tracey M. Watson, Director of Legal Services & General Counsel and Dawn Riganto, Paralegal Approved by the Utah Education Association Bargaining, Professional Rights and Responsibilities Committee 2012

3 Table of Contents I. Educator Rights Must Be In Writing... pg. 1 II. Constitutional Rights... pg. 1 III. Statutory Rights... pg. 1 a. Civil Rights... pg. 1 b. The Family and Medical Leave Act... pg. 2 c. The Occupational Safety and Health Act... pg. 2 d. Utah Orderly School Termination Procedures Act.pg. 2 e. Utah Educator Evaluation Act... pg. 3 f. Retirement... pg. 4 g. Unemployment Compensation... pg. 5 h. Workers Compensation... pg. 5 i. Dues Deductions... pg. 5 j. Right to Organize Without Employer Interference.. pg. 5 k. Right to Hold Public Office... pg. 5 l. Right to be Defended and Indemnified... pg. 5 m. Immunity... pg. 6 n. Educator Records... pg. 6 IV. Negotiations & Board Policy... pg. 6 V. Educator Responsibilities... pg. 7 a. School Board Authority... pg. 7 b. Provisional Educators... pg. 7 c. Student Records... pg. 8 d. Child Abuse... pg. 8 e. Safe Learning Environment... pg. 8 f. Public Officers and Employees Ethics Act... pg. 9 g. Utah Professional Practices Act... pg. 9 VI. Membership Rights... pg. 9 VII. What to do About an Employment Problem... pg. 12 VIII. What to do When Threatened or Served with a Lawsuit... pg. 14

4 1 I. EDUCATOR RIGHTS MUST BE IN WRITING Provisional educator rights are found in written documents -- the U.S. Constitution, federal laws, the state constitution, state laws, district policies and handbooks, and negotiated agreements. With few exceptions, provisional educators rights are not implied or extended beyond the written agreement or board policies. Additionally, vague language is not construed by the courts in favor of the educator. School districts claim the right to construe language according to what the board wants. II. CONSTITUTIONAL RIGHTS The U.S. Constitution protects public speech, association, privacy, the right to petition government, and the free exercise of religion, and requires the equal application of the laws. The U. S. Constitution prohibits government from establishing (promoting) religion or interfering in the free exercise thereof; it prohibits unreasonable searches in schools, taking life, liberty or property without due process of law, the denial of equal protection, and nonconsensual self-incrimination in criminal cases; it protects the right of assembly, speech, the press, and privacy. The Constitution of Utah protects most of these same rights. Constitutional rights extend to all educators, not just provisional educators. III. STATUTORY RIGHTS a. Civil Rights. Federal and state laws prohibit employment discrimination on the basis of gender, religion, age, color, national origin and disability. All employees have a right to work in an environment free of conduct which perpetuates discrimination based on these protected classes.

5 The EEOC has adopted rules designed to prevent sexual harassment. Age discrimination protects employees age 40 and over. Employers must make a reasonable accommodation for employees who have a disability. Before an employer must make a reasonable accommodation for an employee's disability, the employee must inform his/her supervisor about the disability and request accommodation. All of the civil rights laws require that the employee file a written complaint within a short time after the employer took the discriminatory action against the employee usually within180 days. The complaint is filed with the EEOC (federal) or the Utah Anti-Discrimination and Labor Division (state). b. The Family and Medical Leave Act (FMLA). FMLA requires school districts to provide leave to most employees employed for more than a year for reasons related to their own health, child birth, adoption, or foster care, and to take care of an ill relative. c. The Occupational Safety and Health Act (OSHA). OSHA is a federal act enforced by the state of Utah. OSHA requires all districts to provide a safe working environment for employees. d. Utah Orderly School Termination Procedures Act (UOSTPA) is now known as Public Education Human Resource management Act (as of 2012) UCA 53A-8A- 201 and 53A-8A-501et. seq. This state statute requires that provisional educators be provided with due process if they are terminated during the contract term. Due process means a provisional educator has a right to know the detailed reasons for the termination and to have those reasons justified before either an independent hearing officer or the board of education in a termination hearing. At the hearing, 2

6 3 the educator has a right to hear the evidence against him/her, the right to cross examine the witnesses and question the documentary evidence and to present his/ her side of the case. If the board decides to uphold the recommendation to terminate, the educator has a right to have the findings of fact supporting the decision in writing. Under a 1994 amendment to the UOSTPA, provisional educators must be given at least 60 days notice of intent to terminate. Provisional educators may be terminated for any reason or no reason, except they cannot be terminated because they are a member of a protected class or because they engaged in a protected activity. Career educators are afforded due process at any time they are to be terminated. If they are to be terminated for poor performance, they are entitled to a plan of assistance and a period of time not to exceed 120 days in which they may attempt to remediate the poor performance. e. Utah Educator Evaluation Act (UEEA) is now also known as Public Education Human Resource Management Act (as of 2012) Pt. 4. Educator Evaluations, UCA 53A-8a-401 et. seq. Local School boards are now required to formulate a joint committee and to develop an educator evaluation program in consultation with its joint committee. The new statute includes the former requirement that all educators be evaluated using valid and reliable criteria an dprocedures, i.e., related to their duties. Provisional and probationary educators are evaluated at least twice per year and career educators are evaluated annually. In addition, educators may not be evaluated prior to

7 receiving an orientation on the evaluation program. The summativeevaluation will nowdifferentiate among four levels of performance. Educators must be given 15 days advance notice of when the evaluation is to occur and within 15 days of the evaluation, the written evaluation will be discussed with the educator. Thereafter, if the educator is not satisfied with the evaluation he or she has 15 days to request a review. When an educator s performance is deemed inadequate or in need of improvement, the educator shall receive a written document and plan of assistance that clearly identifies specific, measurable and actionable deficiencies and the available resources that will be provided to the educator for improvement. The period of time for implementing the plan of assistance for career educators may not exceed 120 days but may continue into the next school year. (53A-8A-503(2) (a)(i) and (ii)). Provisional educators are not entitled to the plan of assistance but they are entitled to have a mentor assigned to them if they are having performance problems. The State School Board is charged with requiring each shcool district to fully implement and evaluation system for educators by the school year. f. Retirement. Full-time educators participate in the Utah State Retirement System and the Social Security System. Districts pay 100% of the state retirement contribution and match the employee's payment to the Social Security system. There are substantial penalties for educators that retire before age 65 with less than 30 years of retirement credit. Educators become vested in the retirement system after four years of employment. For further details contact the Utah Retirement System. 4

8 5 g. Unemployment Compensation. Educators are eligible for unemployment compensation if they are terminated from district employment except when terminated for serious misconduct. Educators are eligible for unemployment compensation when they are RIFed. h. Workers' Compensation. Educators are eligible for workers' compensation if injured on-the-job. State law requires employers to have workers' compensation application forms available. The form should be completed as soon as possible after a job-related accident. Claims not filed within one year are barred. i. Dues Deductions. Under Utah law public employees have the right to direct their employer to deduct from their wages association dues and pay those dues to the designated association. The UEA and local affiliates now offer and encourage members to enroll in E-Z Pay for payment of dues. j. Right to Organize Without Employer Interference. The U.S. Constitution gives employees the right to associate with each other. k. Right to Hold Public Office. Educators have a right to hold public office except on the school board of the district where they are employed. 1 Many districts provide leave to perform public service jobs. l. Right to be Defended and Indemnified. If sued, Utah educators have the right to request their employer defend them for acts or omissions arising out of their employment and to have their employer (the district) pay any judgment against them, except in cases where the educator engaged in fraud, acted with malice, or was driving under the influence of alcohol. UEA enforces this right when districts refuse to defend or indemnify our members. 1 UEA funded litigation during the 1960s and 1970s ensuring the right of educators to serve in the Utah legislature.

9 m. Immunity. Educators have governmental immunity for acts or omissions which occur within the course and scope of employment, except for intentional injuries to individuals and property. Governmental immunity means Utah state courts will not hear civil cases against the school district or its employees except under limited conditions. Educators, members of the board of education and district employees do not have governmental immunity in federal court for violations of federally protected rights. The Utah Governmental Immunity Act entitles employees to request defense and indemnification when sued for acts related to their employment. The request must be made in writing within a few days after the employee is served with a summons. n. Educator Records. Educators have a right to request, examine and copy documents contained in their personnel file. They also have a right to obtain copies of most school district records. The Utah Governmental Records Access and Management Act makes certain parts of an educator s personnel records public, but restricts access to specific information such as a educator s evaluation and financial records. IV. NEGOTIATIONS & BOARD POLICY The most comprehensive source of teachers' rights are local negotiated agreements and board policy. As used in this section negotiated agreement means and includes board policies. Most Utah school districts have negotiated agreements negotiated with the local affiliate of the UEA. These agreements provide a wide and diverse range of substantive and procedural rights. The negotiated agreement contains definitions, the process for 6

10 7 negotiating with the district, grievance and termination procedures, salary schedules, personal insurance benefits, leave policies, sick pay, progressive discipline procedures, remediation, voluntary and involuntary transfer procedures, professional development issues, hours of work (at school), extra-duties assignments, work load, class size, peer review, professional assistance and remediation. If a provisional educator s right is violated, there is a grievance or termination procedure that requires the employee to initiate a grievance or request a hearing within a short time after the employee knew or should have known of the violation. Failure to timely make the request or file the grievance usually results in waiving it. This may mean that although the educator s rights were violated, the right cannot be enforced. Some civil rights violations do not require that the district s administrative remedies be exhausted before filing with appropriate government agencies, but not following the grievance procedure is risky. V. EDUCATOR RESPONSIBILITIES a. School Board Authority. School boards have broad authority to make employee assignments. School boards may not assign educators to perform duties clearly outside the scope of an educator's contract or to perform services that are obviously dangerous or unlawful. Boards have the authority to make new assignments and to give the educator a reasonable time in which to become qualified to perform those assignments. b. Provisional Educators. Provisional educators have the responsibility to be and remain qualified to teach in the areas they are assigned and to perform the duties they are assigned to perform. Additionally, all

11 educators should comply with the code of professional responsibilities adopted by the Utah State Board of Education that establishes professional and ethical conduct for educators. The code also requires educators be competent to perform in the areas for which s/ he is licensed. The code of ethical conduct requires educators to maintain high ethical standards both on and off the job. Educators licenses will be revoked for illegal drug use, sexual misconduct with a student, and almost any kind of serious criminal conviction. c. Student Records and Privacy. Student records and information about a student are confidential and should not be provided to persons not authorized to have them. Districts tend to error on the side of caution in defining a student record or providing information about a student even to other teachers. Federal courts generally have limited the definition of student record to mean those records the district maintains on a permanent basis. Teacher notes containing the names of students are not generally considered student records. Utah has also enacted legislation which prohibits educators from surveying students or asking questions about a student s private life, mental or psychological problems, illegal, antisocial, or demeaning behavior, sexual behavior, orientation, or attitude, politics, appraisals or individuals with whom the student or family member has close family relationships, and religious affiliations or beliefs. d. Child Abuse. Educators are required to report suspected cases of child abuse. (See section VII.) e. Safe Learning Environment. Districts have a duty to provide a safe learning environment free from conduct which is prohibited by federal law under the anti-bias laws. 8

12 9 f. Public Officers and Employees Ethics Act. Utah law prohibits public employees and officers from having or engaging in activities that creates a conflict of interest between the officers or employees duties. Essentially, the Act prohibits personal economic gain from ones public position or knowledge gained from ones public position. In 2000, UEA successfully urged amendments to the Ethics Act to permit educators to provide learning experiences to their pupils in the district for which the educator received some kind of compensation. Prior to the amendments the USOE had opined that educators could not provide these kinds of services to students and pupils attending schools in the district. g. Utah Professional Practices Act (UPPA). The UPPA creates a Professional Practices Advisory Commission to the State Board of Education. UPPAC establishes standards for professional competence and ethical behavior for certificated educators and has disciplinary power over educators who fail to meet those standards. VI. MEMBERSHIP RIGHTS Know Your Rights. Knowing about your rights isn t enough. Membership in the Utah Education Association guarantees that the educator has a way to protect and enforce his or her rights. The UEA and its local association affiliates have 20 full-time employees, located throughout the state, negotiating district policies and agreements to protect provisional educators rights, enforcing those rights and informing provisional educators about those rights. UEA Professional Liability Insurance Insurance. Through our affiliation with NEA, all UEA members have available to them an extensive professional liability insurance

13 coverage for when they are engaged in educational employment activities. This insurance is provided to members at no additional cost other than their membership dues. The policy is an excess insurance policy. In some certain instances members may be covered up to $1,000,000 per occurence for indemnification in civil suits (excluding civil rights issues or violations) of damages subject to a $3,000,000 aggregate and up to $3,000,000 for legal defense costs subject to a $9,000,000 aggregate. Coverage of civil rights issues and violations includes indemnification and defense expenses up to $300,000. Members are also eligible for the same up to $35,000 2 and the exoneration requirement does not apply when the member is required to defend criminal corporal punishment charges. There is also some limited coverage available for securing certain bail bonds and assault related personal property damage. A copy of the insurance policy is provided to members annually and is available in the Office of General Counsel. The UEA will pay up to $5,000, in $1,000 increments, toward the criminal defense of a member if approved by UEA legal counsel. UEA provides to members staff or legal representation in all job-related actions against a member including grievance disputes, terminations, actions against the employee by the Utah State Office of Education, the Division of Child and Family Services (child abuse) and unemployment hearings. Other Insurance. When conservative members of the Utah Legislature learned educators join UEA because of its job protection insurance, they passed a law requiring school districts to tell employees about the great coverage provided by Utah Risk Management Insurance (URMI). URMI is good and covers employees when the 2 A plea in abeyance is not considered an exoneration. 10

14 11 district and the employee are sued for acts or omissions occurring on the job and the interests of the district and the employee are the same. It does not cover the employee in any situation in which any governmental agency is adverse to the employee. Accordingly, it does not cover the employee in grievance disputes, terminations, parental harassment of a teacher, actions against the employee by the Utah State Office of Education, the Division of Child and Family Services (child abuse), worker s compensation disputes and unemployment hearings. Recently, another group has emerged claiming to represent educators and providing legal services to individuals who enroll in its programs. A careful reading of its advertisements shows it is really a prepaid legal services plan offering limited free legal services protection. If the individual enrolled in the plan requires any but the simplest of legal representation, the individual must come up with the attorney s fees (which the plan touts as being discounted). A detailed comparison of the programs is available from the UEA. Criminal Representation. The UEA provides immediate assistance to members accused of criminal activity or investigated by law enforcement agencies arising out of job related conduct. The protection is important as more and more innocent educators are being accused of abusing or assaulting students. If you believe you are the subject of a criminal investigation or are arrested, you should demand to talk with the UEA attorney before making any statements to anyone. Make no agreement to do anything until you receive competent legal advice. Too often educators naively participate in a meeting

15 with school authorities, law enforcement officers, or investigators for the DCFS. If an educator has reason to believe that s/he is about to meet with school administrators where the purpose of the meeting includes possible disciplinary actions against the educator, prior to the meeting the educator should (1) ask whether the meeting may involve possible disciplinary action against the educator, and (2) request that a representative of the Association be present during the meeting if (a) the educator was told that disciplinary action was a possible result of the meeting or (b) the administrator refused to tell the educator whether the meeting might result in disciplinary action. If a law enforcement officer or DCFS investigator requests a meeting with an educator, the educator should first find out whether the meeting involves allegations of child abuse against the educator. If it does, the educator should not meet with the law enforcement officer or the DCFS investigator without first consulting with his/her UniServ director or the UEA attorney. While law enforcement officers must first give a person their Miranda rights, DCFS investigators do not. Several educators have learned to their regret that the statements they gave to DCFS investigators could be and were used against them. VII. WHAT TO DO ABOUT AN EMPLOYMENT PROBLEM Consult with your Association representative, local president or UniServ director. Follow the advice given by the UniServ director or the UEA attorney. Try to resolve the problem at the lowest administrative level -- usually the building principal. 12

16 Prepare a written report of the incident; keep a log where the problem is ongoing. List witnesses. Request and keep copies of documents, papers, and policies related to the problem. Follow the district policy on grievances and know the time lines for processing the grievance. Keep the Association representative, local president or UniServ director informed and current. Know your rights. WITHOUT FIRST CONSULTING AN ASSOCIATION REPRESENTATIVE DON T: Involve students or parents (unless they are directly involved with the problem). Resign without first consulting an Association representative. Write lengthy accounts to the district or your administrator explaining your side until after you have consulted an Association representative or make statements about serious matters without consulting your Association representative. Sign any papers or agreements. 13 Provide to anybody (except your Association representative) your written account of a serious problem in which you are the target. (See VIII, 2.)

17 Agree to take a polygraph test. Admit guilt, accept blame, or agree to pay expenses or compensation. Seek private legal advice with the expectation that UEA will pay. UEA pays legal fees only if preauthorized. VIII. WHAT TO DO WHEN THREATENED OR SERVED WITH A LAWSUIT 1. Advise your local president or UniServ director about the problem as soon as possible. 2. Prepare a brief but detailed summary of the facts. Avoid statements of opinion or speculation. Be as objective as possible. Include names and addresses of witnesses. Do not allow anyone to see this summary until after it has been reviewed by your UniServ director or the UEA attorney. 3. Verbally report the incident to your principal. Often your principal will ask for a statement. (See 2 above.) 4. Make no statement which indicates guilt or responsibility. Do not discuss a matter with a parent or guardian where a student has been injured and you may be responsible. Obviously, you can say you re sorry the child was hurt, but do not place blame. If the parent wants to know, say, We re investigating. We ll let you know just as soon as possible. 14

18 5. Do not discuss an injury with the attorney for the other party except after having received advice from your UniServ director or the UEA attorney. 6. If you are threatened or served with a civil lawsuit: a. Call your UniServ director immediately. If he or she is not available, call the UEA attorney. b. Follow the requirements of the indemnification law described on p. 5. c. Send a copy of the summons and complaint to your UniServ director. 7. If you are about to be charged or are charged with a crime: a. Call your UniServ director immediately. If he/she is not available, call the UEA attorney. b. Do not discuss the issues involved with anybody except your attorney until otherwise advised. c. Do not provide the police, investigators, or the administration with any information until you have consulted an attorney. You have a right to legal counsel. Generally, both the police and the administration will allow you to consult an attorney before they proceed with the inquiry. d. Do not volunteer to take a polygraph test without first consulting an attorney. 15

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20 Utah Education Association 875 E 5180 S Murray, UT Fax myuea.org