I advocate for myself and members

I advocate for myself and members

A NCAE PRESENTATION

I AMM (I Adovcate for Myself and Members)

Directions• Various scenarios, as told by educators, will be

presented to you.• You, as an AR at the annual training, must decide how

to respond appropriately to the different scenarios. • Additionally, you should know the rationale behind

each scenario.• Remember some situations do not have one definitive

answer. The purpose of this activity is to help you learn more about educators’ rights and responsibilities.

• While we want to make each of you aware of educators’ rights and responsibilities, we are NOT trained in law. And as such, trained legal counsel should also be consulted in identifying, reading, and interpreting laws and other legal statutes.

I advocate for myself and

members

Part I: Dismissal,

Non-Renewals,

Suspension, & Due

Process


Notes from your UniServ Director

In the following scenarios, a suggested answer or answers follow each question. The fact is that the actual answer will vary depending on the facts of the individual case, and NCAE staff may be able to persuade the administration that a more measured or humane response (then what might be allowed under the law) is best for the educator, administration, and students. NCAE staff members are extremely well trained in mediation and negotiation skills in order to help our members receive the very best resolutions. Always contact your UniServ Director at the first sign of trouble.


Scenario #1• I am a career status (tenured)

high school teacher. Two years ago, I was warned in writing not to put my hands on students after being accused of using unnecessary force with a misbehaving student. Yesterday, in breaking up a fight between two students, I grabbed one student by the lapels and held that student against the wall for a few seconds. Am I at risk of being dismissed?


Response


Rationale for Scenario #1

• Yes or No—It depends• No, if the member was using “reasonable”

force to protect himself or others• Yes, if the member was being more

aggressive than the situation required• If the force was excessive, grounds for

dismissal could include– Neglect of duty– Insubordination (given prior written warning)– Failure to comply with reasonable requirements

of the board (if there is a board policy against excessive force)



• G.S. 115C-390: School Personnel may use reasonable force

• Except as restricted or prohibited by rules adopted by the local boards of education, principals, teachers, substitute teachers, voluntary teachers, and teacher assistants and student teachers in the public schools of this State may use reasonable force in the exercise of lawful authority to restrain or correct pupils and maintain order



• G.S. 115C-391: Corporal punishment, suspension, or expulsion of pupils

• {excerpt} Not withstanding any policy adopted pursuant to this section, school personnel may use reasonable force, including corporal punishment, to control behavior or to remove a person from the scene in those situations when necessary

1. To quell a disturbance threatening injury to others;2. To obtain a possession of weapons or other

dangerous objects on the person, or within control, of a student;

3. For self-defense;4. For the protection of persons or property; or5. To maintain order on school property, in the

classroom, or at a school-related activity on or off school property


Scenario #2

• I taught for 15 years in another state. However, this is my first year in North Carolina. I wear a tiny diamond in my left nostril. Can I be non-renewed from my job based on my appearance?


Response



• Legally - Maybe• If the District has a policy of no nose

piercings, with a reasonable justification for such policy and a practice of enforcing it fairly, then perhaps “yes.” Probationary teachers may be non-renewed for any reason, yet there is a provision in G.S. 115C-325(m) – “Provided, however, that the cause may not be arbitrary, capricious, discriminatory or for personal or political reasons.” NCAE may be able to uncover fact that make this non-renewal arbitrary or discriminatory


Rationale for Scenario #2• Practically, “yes”• The challenge that faces

probationary teachers is that an unhappy principal is likely to find a performance related problem and use it, rather than something controversial like a nose piercing, as the basis for the non-renewal recommendation


Scenario #3

•Two students in my class had sexual relations during a movie. Other students were aware but I was not. Can I be suspended even though I was not aware of this?


Response


Rationale for Scenario #3 Suspension• Yes, for investigatory purposes. • G.S. 115C-325(f1) allows the

Superintendent to suspend a teacher for up to 90 days with pay to investigate any significant accusation of wrong doing

• Maybe, for punishment• G.S. 115C-325 allows the Superintendent to

suspend a teacher for up to 60 days without pay as a punishment


NC Public School Law 115C -325

Grounds for Dismissal or Demotion of Career Employee

• Inadequate performance• Immorality• Insubordination – defined by case notes as a willful

disregard of express or implied directions of the employer and a refusal to obey reasonable orders.

• Neglect of duty• Physical or mental incapacity• Excessive use of alcohol or any controlled

substance• Conviction of a felony or crime of moral turpitude


• Advocating the overthrow of the government

• Failure to fulfill the duties imposed on teachers

• Failure to comply with reasonable requirements of the board

• Failure to maintain certification in current status

• Failure to repay money owed to the state (overpayment)

• Providing false information or omitting a material fact on an application for employment


Reduction in Force or RIF

• When dismissed due to a reduction in force, your name is placed on a list of available career employees who have priority on all positions that meet the qualified career status for 3 consecutive years. If you are offered a job for which you are qualified and you refuse it, your name is removed from the priority list.

Suspensions• Suspensions without pay are used when a superintendent

believes there is cause for dismissing a career employee for any reason under G.S. 115C-325 (e)(1) and immediate suspension is necessary. The superintendent must meet with the employee and give him/her written notice of the charges, an explanation of the basis for the charges and an opportunity to respond. Within 5 days after the suspension without pay the superintendent must initiate a dismissal, demotion or disciplinary suspension without pay.

• Disciplinary suspensions without pay are generally used as a punishment for any reason under G.S. 115C-325 (e)(1) in lieu of dismissal. An employee has 15 days to request a hearing before the board.

• Suspensions with pay are used when a superintendent believes that cause may exist for dismissing or demoting a career employee for any reason under G.S. 115C-325 (e)(1), but additional investigation of the facts is necessary and circumstances are such that the employee should be immediately removed from his duties. The superintendent may suspend with pay the career employee for a period of time, not to exceed 90 days.

Dismissal or Demotion of a Career Employee:

• A career employee may not be dismissed, demoted or reduced to part-time employment except upon the superintendent’s recommendation. Before recommending dismissal or demotion, the superintendent shall give written notice to the career employee by certified mail or personal delivery of his/her intention to make such a recommendation and the grounds upon which he/she believes such is justified. The superintendent must also meet with the career employee and give written notice of the charges against him/her, an explanation of the basis of the charges and an opportunity to respond. The career employee shall have 14 days after the receipt of notice to file with the superintendent a request for either a hearing with a case manager or a hearing within 10 days before the board on the superintendent’s recommendation.

The 11 Commandments of Performance CasesBy Thomas M. Stern

The proceeding information is intended to help you when you encounter performance related problems. These Commandments do not provide a guarantee against being disciplined or dismissed from your job for poor performance. However, by keeping abreast of school policies and following the suggestions below, you will place yourself in the best position to protect your employment.

The Commandments

•Contact your local NCAE UniServ Director immediately•Do not make rash decisions or resign•Protect yourself at meetings•Exercise your right to rebut•Consider a grievance•Take your Individual Growth Plan very seriously•Keep in mind who your audience is•Solicit help when necessary•Have other people observe you•Consider your audio-visual alternatives•Do not take chances when you are under the gun

Teachers and the

Law



In the following scenarios the answers are given for the questions asked. However, with the help of a UniServ Consultant, a different conclusion may be reached. For instance instead of dismissal, an employee might receive a suspension without pay or a letter of reprimand. NCAE staff are extremely well trained in mediation and negotiation skills in order to help our members receive the very best resolutions. Always contact your UniServ Director at the first sign of trouble.


Scenario #4

• The school system over paid me on the wrong salary schedule for two years. Now they want me to pay it back. Am I obligated to pay the additional salary back?


Response



• Yes

• Even though you did not make the mistake, you did not earn the overpayment, therefore you must repay it. Usually, most systems will let you repay in installments to lessen the hardship.


Scenario #5

• I was accused of marijuana use. I was tested for marijuana and none was found in my system. Can I be fired since cocaine was found instead of marijuana?


Response



• Yes, assuming that there was a reasonable suspicion for the original drug test

• Excessive use of alcohol or any controlled substance is grounds for dismissal or demotion. It does not matter for what they tested, they found a controlled substance, and that is grounds for dismissal.


Scenario #6• I teach 5th grade. I

went on a planned vacation at the end of the school year. However, I forgot to turn in my receipt book and attendance cards. Can I be dismissed?


Response


Rationale for Scenario #6• Maybe

• The system could try to make a case for dismissal based upon neglect of duty, yet NCAE would fight this. The more likely penalty would be found under G.S. 115C-307(g) To Make Required Reports.-A teacher shall make all reports required by the local board of education. The superintendent shall not approve the voucher for a teacher’s pay until the required monthly and annual reports are made.


NC Public School Law 115C -325

Grounds for Dismissal or Demotion of Career Employee

• Inadequate performance• Immorality• Insubordination – defined by case notes as a willful

disregard of express or implied directions of the employer and a refusal to obey reasonable orders.

• Neglect of duty• Physical or mental incapacity• Excessive use of alcohol or any controlled

substance• Conviction of a felony or crime of moral turpitude


• Advocating the overthrow of the government

• Failure to fulfill the duties imposed on teachers

• Failure to comply with reasonable requirements of the board

• Failure to maintain certification in current status

• Failure to repay money owed to the state (overpayment)

• Providing false information or omitting a material fact on an application for employment


Reduction in Force or RIF

• When dismissed due to a reduction in force, your name is placed on a list of available career employees who have priority on all positions that meet the qualified career status for 3 consecutive years. If you are offered a job for which you are qualified and you refuse it, your name is removed from the priority list.

Suspensions• Suspensions without pay are used when a superintendent

believes there is cause for dismissing a career employee for any reason under G.S. 115C-325 (e)(1) and immediate suspension is necessary. The superintendent must meet with the employee and give him/her written notice of the charges, an explanation of the basis for the charges and an opportunity to respond. Within 5 days after the suspension without pay the superintendent must initiate a dismissal, demotion or disciplinary suspension without pay.

• Disciplinary suspensions without pay are generally used as a punishment for any reason under G.S. 115C-325 (e)(1) in lieu of dismissal. An employee has 15 days to request a hearing before the board.

• Suspensions with pay are used when a superintendent believes that cause may exist for dismissing or demoting a career employee for any reason under G.S. 115C-325 (e)(1), but additional investigation of the facts is necessary and circumstances are such that the employee should be immediately removed from his duties. The superintendent may suspend with pay the career employee for a period of time, not to exceed 90 days.

Dismissal or Demotion of a Career Employee:

• A career employee may not be dismissed, demoted or reduced to part-time employment except upon the superintendent’s recommendation. Before recommending dismissal or demotion, the superintendent shall give written notice to the career employee by certified mail or personal delivery of his/her intention to make such a recommendation and the grounds upon which he/she believes such is justified. The superintendent must also meet with the career employee and give written notice of the charges against him/her, an explanation of the basis of the charges and an opportunity to respond. The career employee shall have 14 days after the receipt of notice to file with the superintendent a request for either a hearing with a case manager or a hearing within 10 days before the board on the superintendent’s recommendation.



The Commandments


ESPs and the

Law



In the following scenarios the answers are given for the questions asked. However, with the help of a UniServ Consultant, a different conclusion may be reached. For instance instead of dismissal, an employee might receive a suspension without pay or a letter of reprimand. NCAE staff are extremely well trained in mediation and negotiation skills in order to help our members receive the very best resolutions. Always contact your UniServ Director at the first sign of trouble.


Scenario #7• I am 55 years old bus driver with a

good driving record. A car hit the car in front of my bus and hit my bus also. I was carrying 32 students. My students didn’t even know that we were hit. I got off to inspect my bus and it wasn’t damaged. I proceeded safely to take my students to school. When I got to the school, I was called in, met by my supervisor, and relieved of duties. Can I be terminated?


Response


Rationale for Scenario #7• Maybe• The odds are that the system has a board

policy or school transportation department rule requiring drivers to report all accidents to the administration. Violation of this rule would likely be enough, legally, to support a dismissal. Assuming that the driver is not charged criminally for leaving the scene of an accident, NCAE would argue that this punishment is much too severe for a bus driver with a good record and years of good service. If the driver is arrested for leaving the scene of an accident, it will be harder to save the driver’s job.


Scenario #8• I am a Teacher Assistant. I was

accused of misrepresenting my hours on my time sheet. I was absent, but, my friend accidentally signed me in thinking I was there. He forgot to change it at the end of the day. Can I be fired? Can my friend be fired? Is my friend entitled to request a due process hearing?


Response


Rationale for Scenario #8• Can I be fired?• Not likely, if the teacher assistant truly did

not know the friend has signed her in• Can my friend be fired?• Yes, if there is any credible evidence that

the friend knew this was happening or it had happened in the past

• Is my friend entitled to request a due process hearing?

• Maybe, it may be difficult to save the friend’s job, unless there was a practice of people signing cards for others in this work place.


Scenario #9• I am a secretary. My principal

asked me to sign a form acknowledging that an IEP meeting occurred that was never held. Can I be fired for doing this?


Response



• Maybe

• Normally it is a dismissible offense to provide false information. Yet NCAE may be able to persuade the Board that the secretary was following directive from her superior, and the superior should be punished.

ESPs and the LawAdministrators normally take the position that ESPs are “at will” employees meaning they have few due process rights. However, several years ago, NCAE was able to get legislation passed which allows these employees the right to appeal an administrative decision impacting “terms or conditions of employment” to the school board and in some instances all the way to superior court. This law is within GS 115C-45. It may best be used when a true change in working conditions or pay is suffered by an employee without supportable documentation or when it has been done in an insupportable way. Because there is often a lack of policy and/or law pertaining to this group of employees and their issues, it is almost always necessary to consult with a UniServ Director and/or attorney in order to effectively utilize this right. However, it is important for every ESP member to know they should not automatically assume that they have no rights nor should they resign under duress or otherwise because they do have rights under the law and with assistance, they may be able to prevail.

ESPs and the LawGS 115C-45: Judicial Functions of Board• (a) Power to Subpoena and to Punish for Contempt. – Local

boards of education shall have power to issue subpoenas for the attendance of witnesses. Subpoenas may be issued in any and all matters which may lawfully come within the powers of the board and which, in the discretion of the board, require investigation; and it shall be the duty of the sheriff or any process serving officer to serve such subpoena upon payment of their lawful fees.

• Local boards of education shall have power to punish for contempt for any disorderly conduct or disturbance tending to disrupt them in the transaction of official business.

• (b) Witness Failing to Appear; Misdemeanor. – Any witness who shall wilfully and without legal excuse fail to appear before a local board of education to testify in any manner under investigation by the board shall be guilty of a Class 3 misdemeanor.

• (c) Appeals to Board of Education and to Superior Court. – An appeal shall lie to the local board of education from any final administrative decision in the following matters:

• (1) The discipline of a student under G.S. 115C‑391(c), (d), (d1), (d2), (d3), or (d4);

ESPs and the Law• (2) An alleged violation of a specified federal law, State law, State

Board of Education policy, State rule, or local board policy, including policies regarding grade retention of students;

• (3) The terms or conditions of employment or employment status of a school employee; and

• (4) Any other decision that by statute specifically provides for a right of appeal to the local board of education and for which there is no other statutory appeal procedure.

• As used in this subsection, the term "final administrative decision" means a decision of a school employee from which no further appeal to a school administrator is available.

• Any person aggrieved by a decision not covered under subdivisions (1) through (4) of this subsection shall have the right to appeal to the superintendent and thereafter shall have the right to petition the local board of education for a hearing, and the local board may grant a hearing regarding any final decision of school personnel within the local school administrative unit. The local board of education shall notify the person making the petition of its decision whether to grant a hearing.

• In all appeals to the board it is the duty of the board of education to see that a proper notice is given to all parties concerned and that a record of the hearing is properly entered in the records of the board conducting the hearing.

ESPs and the Law• The board of education may designate hearing panels composed of

not less than two members of the board to hear and act upon such appeals in the name and on behalf of the board of education.

• An appeal of right brought before a local board of education under subdivision (1), (2), (3), or (4) of this subsection may be further appealed to the superior court of the State on the grounds that the local board's decision is in violation of constitutional provisions, is in excess of the statutory authority or jurisdiction of the board, is made upon unlawful procedure, is affected by other error of law, is unsupported by substantial evidence in view of the entire record as submitted, or is arbitrary or capricious. However, the right of a noncertified employee to appeal decisions of a local board under subdivision (3) of this subsection shall only apply to decisions concerning the dismissal, demotion, or suspension without pay of the noncertified employee. A noncertified employee may request and shall be entitled to receive written notice as to the reasons for the employee's dismissal, demotion, or suspension without pay. The notice shall be provided to the employee prior to any local board of education hearing on the issue. This subsection shall not alter the employment status of a noncertified employee. (1955, c. 1372, art. 5, ss. 15‑17; 1971, c. 647; 1981, c. 423, s. 1; 1993, c. 539, s. 881; 1994, Ex. Sess., c. 24, s. 14(c); 2001‑260, s. 1; 2001‑500, s. 6.)



The Commandments



This presentation brought to you by

• Charlotte-Mecklenberg Association of Educators

• Rowan-Salisbury Association of Educators• UniSERV Directors: Lina Drinkard, Pamela

Hemphill, Bettye Brown, & Terry Williams • Edwin Horsley, NEA• Mary McCray, President CMAE• Brian Whitson, President RSAE

I advocate for myself and members

Documents

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