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Public Employee Labor Relations Board: The Basics - Advocates's Voice, May 2006

Through this column, we try to answer common questions and to make certain that members are aware of the rights provided under New Mexico law. Questions frequently arise regarding the Public Employee Labor Relations Board – commonly referred to as the State Labor Board. This is the Board created by law that is required to hear disputes regarding labor issues and to intervene when issues are raised. Given the broad nature of “labor issues,” this article will shed light on the board’s main goals and objectives, what a “prohibited practice” is and how the prohibited practice complaint procedure works. 

A. Public Employee Bargaining Act
The rules regarding the Public Employee Bargaining Act are set forth in New Mexico Statutes § 10-7E-1 - 26. The intent of the Bargaining Act is: To establish fair and expeditious procedures that further the purposes of the act, which are:

1. to guarantee public employees the right to organize and bargain collectively with their employers;
2. to promote harmonious and cooperative relationships between public employers and public employees; and
3. to protect the public interest by assuring, at all times, the orderly operation and functioning of the state and its political subdivisions.

Much of the Bargaining Act relates to bargaining units, elections, exclusive representation, and scope of collective bargaining. These issues are what I would refer to as macro-labor issues. These sections affect how local units are formed and how the local unit can engage in collective bargaining with the governmental entity. The focus of this column is not on overall collective bargaining and unit formation, rather the focus is upon how the Bargaining Act relates to specific employees and specific actions by employers.

The main way that the Bargaining Act affects the individual member is through the creation of the Public Employee Labor Relations Board (“PELRB”). The PELRB is responsible for the following seven primary functions:

1. Establish procedures for the filing of, hearing and determination of prohibited practice complaints.
2. Hold elections for selection, certification, and decertification of exclusive bargaining agents.
3. Hold hearings for determination of appropriate bargaining units.
4. Approve local labor relations boards.
5. Educate both public employees and employers as to their rights for the purpose of promoting harmonious relationships.
6. Assist in impasse resolution. and
7. Seek judicial enforcement of board orders.

The PELRB is the entity responsible for making sure that the Bargaining Act is enforced and that both the union’s and the governmental entity’s rights are equally enforced. The area in which we receive the most questions about is prohibited practices and the prohibited practice complaint procedure.

B. Prohibited Practice Resolution
The Bargaining Act sets out a procedure for any public employee or any bargaining unit to file a claim for a prohibited practice. Once a complaint is filed, the PELRB carries out an investigation and may have a hearing. However, the definition of a “prohibited practice” is much narrower than many folks believe.
Sections 10-7E-19 – 21, NMSA 1978, define prohibited practices. The first type of prohibited practice involves action on the part of an employer. An employer shall not:

1. Discriminate against a public employee with regard to terms and conditions of employment because of the employee’s membership in a labor union.
2. Interfere with, restrain or coerce a public employee in the exercise of a right guaranteed under the Bargaining Act.
3. Dominate or interfere in the formation, existence or administration of a labor organization.
4. Discriminate in regards to hiring, tenure or term of employment because employee has signed, or filed an affidavit, petition, grievance or complaint or given testimony in a labor action, or because an employee is forming, joining or choosing to be represented by a labor organization.
5. Refuse to bargain collectively in good faith, with exclusive representation.
6. Refuse to comply with the Bargaining Act.
7. Refuse to comply with the collective bargaining agreement.

These are the prohibited practices that relate to union members. The other prohibitive practices relate to things that an employee or labor organization can not do; including, picketing homes or business of elected or public officials, (no marches in front of the Superintendent’s house) no strikes and no discrimination by the labor organization.

Allow me to try and put some flesh on the bones of the above prohibited practices. In short, prohibited practices are interference by the administration in the union’s activities. Administrations are obviously prohibited from refusing to hire or promote union members. Administrators are prohibited from attempting to stop the formation of a unit; however, they are not prohibited from campaigning for a vote against the union. Similarly, they are prohibited from refusing to negotiate in good faith with exclusive representation, but they are not prohibited from extremely tough negotiation. 

The alleged prohibited practice must relate to union membership and it must result in some sort of adverse action against the individual or the union. A couple of recent prohibited practice cases we have worked on also help illustrate the types of activities that give rise to a prohibited practice complaint.

An administration was attempting to thwart an organization campaign at New Mexico State University. The administration told employees that they were not allowed to talk about union activities during work hours, that they were not allowed to post material about the union on the community boards, and prohibited union organizers from coming on campus during school hours, regardless of whether they were meeting with folks during break times. Additionally, the administration told employees that if they did not abide by these prohibitions, then they faced possible termination. These acts are all prohibited and were the focus of several prohibited practice complaints. However, it should be pointed out that the administration characterized its activities much differently. Administrations are smart enough to have a pre-textual reason for their actions. But the effect of the action is more important than the claimed reason.  

C. Prohibited Practice Actions
If you experience discrimination because of your union membership or activity, the first thing to do is to contact your union representative. The representative will be able to help explain whether or not a particular action falls in the prohibited practice area. If such an act has occurred, you will file a prohibited practice complaint with your local labor relations board. The form of the complaint is fairly straightforward and must include the section of the Bargaining Act that has been violated and a description of the violation.

Filing a prohibited practice complaint with a labor board is typically an action requesting that the administration stop interfering with union activities. Frequently, prohibited practice complaints also request that adverse evaluations or similar matters in personnel files be removed. Prohibited action complaints do not often seek damages.

Once a prohibited practice complaint is filed, the labor board is charged with conducting an investigation. A hearing is only provided if the director believes that there is sufficient evidence to hold a hearing. The initial hearing is held with a hearing officer. The hearings typically include examination of witnesses and presentation of all facts that support the claim. The hearing officer then issues a decision on whether she finds a prohibited practice. The decision may be appealed for full board determination. The board may hold a new hearing or it may simply request briefs.  

Although one of the main functions of the PELRB is to establish a forum for prohibited practice complaints, our experience is that the complaint process is best used sparingly. Certainly, as with the recent New Mexico State experience, when an administration is engaging in discrimination against multiple people and against the union at large, then complaints are warranted and are often very effective. Conversely, when a single individual is claiming a prohibited practice, without the ability to show similar discrimination against other union members, the ability to achieve success through the complaint process is very low.

D. Conclusion
New Mexico laws are intended to protect the integrity of the bargaining unit and to protect union members and union activity. The protection comes through the Public Employee Relation Board and the local boards. The State Board has a straight-forward process in place to deal with prohibited practices that directly relate to union activity. When faced with discrimination or intimidation by administrations, the prohibited practice complaint process can be a safe place to protect your rights as a union member. A great resource is the Public Employee Labor Relations Board website – http://www.state.nm.us/pelrb/

The website includes the rules relating to the labor board, forms for filing a complaint, and links to other relevant material, including statutes. Hopefully none of you will face any adverse actions relating to union activity. But the PELRB is there in case the need arises to stop a prohibited practice.

Have a good summer.
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No Child Left Behind: The Basics and the Lawsuits - Advocate's Voice, March 2006

PDF of "No Child Left Behind"

Over the last four years, the No Child Left Behind Act (NCLB) has been applauded and derided many times over, often by the same folks. This article will explain some of the basic elements of the law and will explain the recent fire that the Act has come under. Although the NEA has taken a clear stance on NCLB, this article steps back and looks at the Act from a relatively objective standpoint.

NCLB Framework:
The NCLB was passed in 2001 as a sweeping reform by the federal government to increase the achievement level and proficiency of all students by 2013-2014. The NCLB is broken down into nine different sections. Each section deals with a particular area as follows:

Title I - disadvantaged students (low-income). Number of low-income students determines funding;
Title II - preparing, training and recruiting high quality teachers and principals;
Title III - language instruction for students with limited English proficiency;
Title IV - safe schools free from drugs, guns and tobacco;
Title V - promoting choice and innovation through charters, magnet schools, GT, etc;.
Title VI - improving academic achievement grants, flexibility, and rural education initiatives;
Title VII - Native American education;
Title VIII - impact aid; and
Title IX - general provisions.

The NCLB is a federal program with a direct effect upon state schools. Because the federal government does not have direct oversight control over state and local programs, the NCLB gives the federal government such power through the almighty dollar. Funding for schools is based upon the schools implementing the NCLB. Implementation occurs through a tracking process relating to AYP - adequate yearly progress. The AYP is designed to assure that students and schools are proficient in the core subjects of reading and math by 2013-2014.

AYP is primarily determined based upon the periodic testing of students. As many of you are aware, the testing aspect of NCLB has received a lion's share of the attention. If a school is failing to make AYP, then the school receives sanctions. The sanctions have various names depending upon how long a school has been under sanctions. Typically the sanctions do not result in lower funding, but the sanctions are required to be reported to parents. The parents are then required to be offered a choice to allow their children to attend a school that is not under sanctions. Obviously there are exceptions and guidelines for the choices and for the sanctions; however the main point is that failing to meet AYP has serious consequences.

NCLB and Teachers

The NCLB has specific sections that relate to teachers. The purported goal of the program is to make sure that all teachers are "highly qualified" by 2005-2006. Highly qualified means the following:

ELEMENTARY TEACHER

• hold a Bachelor's degree;
• have a teaching license, with an endorsement in elementary education;
• completed a teacher education preparation program; and
• passed the state education content area test.
  

SECONDARY SCHOOL TEACHER (teaching only in his/her academic field):

• hold a Bachelor's degree;
• have a teaching license, with an endorsement in a field consistent with major;
• completed a teacher education preparation program; and
• passed the state education content area test in his/her major teaching area.
  

SECONDARY SCHOOL TEACHER (7-12 - teaching in more than one field):

• Must have at least 24 semester hours of college coursework in each subject taught or have passed state content area in each subject taught.
  

All teachers have until the end of the 2005-2006 year to become highly qualified in their area. If a teacher is teaching in an area that they are not highly qualified to teach, the school district must send home a notice to parents that the specific teacher is not highly qualified. This notice must be sent out at the beginning of the 2006-2007 school year.

The NCLB has many other provisions that apply to specific areas. But this overview should give you an idea of the major portions of the NCLB as they relate to teachers and school systems.
NCLB Lawsuits.

Many of you are aware that a number of states, and the NEA, have filed suit against the U.S. Secretary of Education claiming that the Department of Education has failed to live up to the promises it made when the NCLB was enacted.

On April 20, 2005, the NEA, along with Michigan, Texas and Vermont filed suit seeking to have the courts recognize that the NCLB requires that the federal government fully fund the mandates from the NCLB, and that local school districts and taxpayers should not be required to make up the shortfall. The main complaint is that the NCLB requires many new programs in local schools, including testing, tutoring, programs for Title I students and many other initiatives, but that the funding for these initiatives has not been provided by the federal government. As an example, in 2005 Michigan received $267.7 million less that it would have if the NCLB was fully funded.

The plaintiffs in the lawsuit pointed to a portion of the NCLB that states nothing in the NCLB shall authorize the federal government to require local schools to spend any funds not paid for by the Act. The NEA and various states have argued that the NCLB is grossly under funded and that, by its terms, unless the local school district gets the money from federal funding, then it is not required to comply with NCLB. A similar lawsuit was filed by Connecticut.

The Department of Education filed a motion to dismiss that was granted. The Court read the statute as allowing for Congress to issue mandates that the states must follow, even if the funding is not available to meet the needs of the school district. The Court also held that Congress is free to pass legislation requiring that local school districts comply with the NCLB, even though they will have to use money that is not provided by Congress. The NEA has appealed the decision. In the Connecticut lawsuit, the Department of Education has filed a similar motion to dismiss that has not been decided.

CONCLUSION

Whether you view the NCLB as a sweeping reform that was much needed or as an attempt by the federal government to stick its nose in local school issues, the reality is that the NCLB is not likely to go away anytime soon. Considering the breadth of the Act, it is important to arm yourself with, at least a basic knowledge of the Act and how it affects teaching professionals. If you have any questions, feel free to send me an email and give me a call.
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FERPA: Background and Basics of the Family Education Rights and Privacy Act
Advocate's Voice, January - 2006

PDF of "FERPA"

At a recent NEA conference, I spoke with a group of educators about the legal aspects relating to job retention. During this discussion, I advised the group that one of the best ways to protect themselves from a bad situation is to communicate with fellow educators. This advice is built upon the desire to prevent an educator from ever having to defend themselves against student accusations and the proof being he said - she said. At least if an educator has spoken to a colleague about the problem, then another person is aware of the situation and can provide important support in many ways.
After giving this advice, a teacher said that she had been informed by the administration that she could not talk to a colleague because she might violate the Family Education Rights and Privacy Act - FERPA. This admonition by the administration surprised and confused me. Although I was certain that the administrations position was incorrect, I was not aware of FERPA's specific provisions or exactly what types of disclosures FERPA prohibited. This article provides an explanation of the background of FERPA, of the FERPA provisions relevant to educators and how FERPA has been interpreted by the U.S. Supreme Court.

FERPA, or the Buckley amendment, was enacted in 1974 and was designed with two goals in mind: first, to protect the privacy of student educational records by limiting third party access and by keeping personally identifiable information confidential; and second, to allow students and parents access to education records. 20 USCS § 1232g.

FERPA accomplishes these dual goals by requiring that schools keep education records confidential by preventing disclosure to third parties, and by requiring that schools have a policy in place for allowing access to parents, and to students over 18, upon a written request. These purposes raise two important questions: 1. what are educational records? and 2. Who are third parties?
Educational records are defined as "those records, files, documents, and other materials which - (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." This definition is certainly broad enough to cover most records that are maintained in a student's file. However, an important exception states that "educational records" does not include records that are the "sole possession" of an educator and which are not accessible or revealed to any person except a substitute. This exception is certainly important because a teacher's individual records are not covered by the FERPA protections and do not have to be disclosed to parents.

In case that went all the way to the United States Supreme Court, a student sued a teacher for having other students grade papers. The common practice of exchanging papers and going over the material as a group was challenged as revealing grades in violation of FERPA. In a unanimous decision, the Court held that allowing other students to grade papers did not violate FERPA because the papers were not educational records. The Court also held that records only gain protection when they "are maintained by an educational agency." Owasso Indep. School Dist. V. Falvo, 534 U.S. 426 (2002).
In addition to educational records, FERPA precludes disclosure of "personally identifiable information." This phrase is narrowly defined to include only the student's name, parent's name, the student's or parent's address, social security number, or other information that would make the student's identity easily traceable.

Of particular importance is the point that FERPA only covers educational records. Unlike some other privacy acts (i.e. HIPPA) FERPA does not protect information. It does not protect a teacher's thoughts or information that a teacher has learned, but is not contained in a student record. The intent of FERPA is simply to prevent third party access to students' permanent files.

Who is a third party? One of the most important exceptions to FERPA is that educational records can be disclosed to: "other school officials, including teachers within the educational institutional or local educational agency, who have been determined by such agency or institution to have legitimate educational interests, including the educational interests of the child for whom consent would otherwise be required." This exception allows educators to disclose records that would otherwise be protected to colleagues that have an educational interest in the child. The exact parameters of who has an educational interest have not been defined, but would certainly allow teachers to discuss a child in relation to the goal of educating the child. Although there are many reasons that educators should not fear discussing problems with colleagues, this exception is one the most important to keep in mind.

Another recognized exception is that information may be disclosed if it is necessary to protect the health or safety of the student or others. This exception does not arise as frequently as the exception allowing disclosure to other teachers, but it can be important if health or safety is a concern.

FERPA has been misused in some circumstances to deny access to parents. Once a student reaches 18, the records are then protected from the parent in a limited number of situations. The parent is precluded access without the child's consent only if the child is no longer a dependent. Obviously this situation only arises in the high school setting and if the parent seeks access, the child will typically be a dependent. FERPA also allows disclosure to schools that a student is seeking to enroll in, pursuant to a subpoena, and to certain agencies, including licensing agencies, financial aid agencies, and agencies conducting studies for the school or department.

As you can see, the main point of FERPA is to prevent access to permanent educational records by third parties. At no point was FERPA designed to chill communication among educators. The United States Supreme Court has taken a narrow interpretation of the protections that FERPA provides. In addition to finding that peer grading is permitted, the Supreme Court also concluded that FERPA does not allow for private individuals to sue a teacher, a school, or a district based on a perceived violation of FERPA. Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) This important holding means that even if a student believes that her FERPA privacy rights have been violated, she cannot sue a teacher or school in court. The Court's decision was based on the fact that FERPA prevents "a policy or practice" of disclosing educational records. FERPA does not speak to specific instances of disclosure and it only states that if an institution has such a policy and practice, then it can lose federal funding. Arguably, a single disclosure of educational records does not violate FERPA. It must be a "policy or practice" before a violation occurs. But it would not be wise to test this argument. The Supreme Court took FERPA's language to mean that Congress did not create a private cause of action.

Although this Supreme Court holding has essentially put an end to private FERPA lawsuits, educators should still heed the central purpose of FERPA. FERPA should not be used by parents or by administrators to scare educators into believing that they cannot speak with colleagues. FERPA is simply a straightforward statute that prevents disclosure of permanent records. If ever in the position of not knowing whether a particular disclosure would violate FERPA, ask whether the information is contained in a permanent education record and ask whether the party seeking the information is a third party not protected by an exception. If still in doubt, speak with the administration about the particular situation.

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CLASSROOM SPEECH: Not Exactly Free!
Advocate's Voice, November 2005

PDF of "CLASSROOM SPEECH: Not Exactly Free"

Everyone familiar with the First Amendment raise your hand. Yes, the much heralded rights to free assembly, right to protest the government, to free exercise of religion, to freedom of the press, and to freedom of speech are all protected by the First Amendment. Without question the First Amendment has long provided the freedoms that we hold dear and that citizens of other countries envy.

A frequent question often arises regarding the limits of free speech. As all have heard, freedom of speech does mean that we can say whatever we want, whenever we want. The most widely recognized example is that the First Amendment does not protect a person that shouts "Fire" in a crowded theater. The question for this article is what protections does the First Amendment offer to teachers for speech in the classroom?

To fully answer this question we must first take a brief look at how limits on speech are defined in the school setting. Speech includes both written and oral communication and includes all forms of expression (i.e. armbands, clothing, etc.) The United States Supreme Court has examined teachers' rights under the First Amendment on numerous occasions. The Court looks to two important concepts when examining whether a particular form of expression is protected. The Court looks to the 'forum' where the speech occurred and whether the speech is a matter of "public concern."

A. Forum of the Speech

The Supreme Court recognizes three different types of forums when analyzing freedom of speech related to schools and teachers: public forum, limited public forum, and private forum. Public forums include areas such as sidewalks, common areas, and areas specifically designated free speech areas. Limited public forums include school grounds when opened for expression on a range of views, such as open meetings on public school grounds. Speech in either or these forums may not be restricted except in the most limited circumstances. Particularly, expression may not be suppressed based on the content or the view point.
This brings us to the private forum and the classroom. The classroom is a private forum and as such speech in the classroom can be limited in numerous ways. The test for limiting speech in the classroom is whether the limits have a "reasonable pedagogical purpose."

Application

The legal tests and classifications are well and good, but what does a "reasonable pedagogical purpose" mean to a teacher standing in a classroom in New Mexico? Although I am sure that everyone reading this article knows the precise definition of pedagogical, but I must admit that I had to look it up. Pedagogical comes from the root word pedagogy and means: 1. the art or profession of teaching; 2. preparatory training or instruction. Given this definition of pedagogy, classroom speech may be restricted when the limitation is reasonably related to the curriculum and to teaching students.

Basically school administrations are allowed to restrict speech in the classroom based on a desire to present a unified message for the students. The rationale is that a teacher appears to speak on behalf of the administration when he or she teaches. Unlike other areas of speech, classroom speech can be limited to a certain viewpoint. An example involved a recent case in which a school board decided to promote Gay and Lesbian Awareness Month. One teacher made a bulletin board in his classroom that did not promote the message of tolerance and diversity. The bulletin board was found to conflict with the message presented by the administration. The court held that the teacher did not have a right to freedom of speech and had to remove the bulletin board. The First Amendment does not constrain a school's desire to present a unified message.

School administrations are allowed to limit speech in furtherance of school curriculum. If that is not a gray enough test, then I am sure we could fuzz it up a little more. Suffice it to say that when confronted with a district imposed restriction on speech ask yourself whether the limitation has a reasonable relationship to a teaching purpose. The area that is more difficult is when can a school district limit speech to a single viewpoint. For example, if a school district allows pro-war lesson plans, can it limit anti-war lesson plans? As the above case demonstrates, the answer depends on whether the limit is reasonably based on a purpose related to teaching.

B. A Matter of Public Concern

Once again I am sure that you have all heard the phrase a 'matter of public concern.' The real question is what does this phrase mean and how does it affect classroom speech? This topic arises most often when an employee has been disciplined and he or she believes the discipline was because of speaking out on an issue. Public concern has been defined as involving "an issue of social, political, or other interest to a community." The general test for determining whether a matter is of public concern is a balancing of the individual's right to free expression and the school's interest in promoting the services it performs.

As with many legal tests, the test for whether a matter is a public concern is rather ubiquitous and does not help in the practicalities of teaching.

Conclusion:

The First Amendment provides broad protection for many forms of expression. Based on this article, one might think that the broad protection simply does not extend to teachers. Unfortunately, teachers do not gain the full protection of the First Amendment for speech in the classroom or for speech that is related to personnel matters within the school. However, the First Amendment still provides vast protection against issue-based prohibition on speech and against prohibition of speech in public forums. Although all speech is not free, the cost of refusing to speak may even be greater.

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A TOUCHY SUBJECT
Advocate's Voice, August 2005

PDF of "A Touchy Subject"

The conundrum of today's education professional is likely best summarized in the mixed signals sent regarding touching students. If a teacher touches a student, the teacher runs the risk of potential claims against the teacher and the school. However, if a teacher refuses to engage in even a handshake or a hug, then parents worry that the teacher is cold and does not connect with students.

This article addresses several questions that frequently arise regarding appropriate touching of students. Obviously, this is a topic that could encompass an entire book, so rather than a detailed examination of the issues, the article attempts to give practical guidance for teachers.
All right, everyone repeat after me - the only truly safe touch is a handshake. Given the litigious society that we live in, any touch beyond a hand shake can be misinterpreted and can lead to a claim and possibly a lawsuit. Since this column is intended to explain Your Rights and to tell you how to avoid legal problems, the sad advice that must be given is that affectionate touching, even hugs, can be misinterpreted and should be avoided.

As with every rule, there are exceptions, and there are times when touch is unavoidable. Let's look at a few scenarios and I will try to explain the issues from a legal perspective.

> A student has just fallen outside on the playground and is bleeding from a cut leg. The teacher is the first on the scene and must the student needs first-aid. The teacher must quickly decide how to respond. To stand by and let the child bleed is certainly not the answer. However, before jumping right in a couple of considerations should be kept in mind. If the injured child is a female and the first teacher on the scene is a male, the teacher may be well advised to provide emotional support to the injured child until a female teacher arrives on the scene to assist in the first-aid. If the time is not available to wait, then the male teacher should first ask for the student's permission to touch the leg and to administer first-aid. In either case, the smart professional makes a written report of the incident and provides the report to the school administration as soon as possible.
Two students are fighting and need to be broken up. This scenario happens all too frequently and often provides the opening for a claim against a teacher. Recent legal cases have touched on this area and provide some guidance. Courts typically look at the following four part test in determining whether a school official's use of force violated a student's rights:

1. the need for the application of force;
2. the relationship between the need and the amount of force administered;
3. the extent of injury inflicted; and
4. whether the force was administered in a good faith effort to maintain discipline or maliciously and sadistically for the very purpose of causing harm.

Golden v. Anders et al., 324 F.3d 650 (8th Cir. 2003). In this case, a principal grabbed a sixth-grader by the collar and flung him down on a table and held him there for some time. The student was kicking a soda machine and had his hand on a teacher in a threatening way. The student suffered injuries and required a steroid injection in his neck as a result of the handling. The Court found in favor of the teacher and dismissed the case. The Court refused to find liability because the teacher was acting in manner that required instant judgment and was not directing his actions at the child.

What does this case do for us? First, it shows that courts are willing to side with teachers when the actions are reasonable. Second, it shows that when touching a student in the context of a fight or to protect a student, teacher or staff, courts are much more lenient than when the touching occurs in other contexts. Another case involved a teacher that slapped the legs and buttocks of a child. The court sided with the teacher because the child had tried to kick the teacher. However, the same contact in a different situation would have surely resulted in serious problems and ramifications for the teacher and the school. Many schools have policies regarding breaking up fights and every professional should familiarize themselves with the policy and then follow the policy.

> A 7-year old child is sad and down because Buffy, the family dog just died. She approaches the teacher at a quiet moment and looks like she needs a hug. Is it okay to hug the child? This is one of the scenarios where professional judgment comes into the equation. We all know it would not be appropriate for a male teacher to pick the girl up and have her sit on his lap while she put her head on his shoulder. Even if the genders are reversed, allowing a child to sit on your lap is simply not a good idea and can, and has, lead to claims and litigation. Whether a simple hug is appropriate depends upon such factors as how well the teacher and the student know each other, whether the student is a person that would openly accept a hug, and whether the teacher is comfortable with a hug. If a hug is called for, then it is advisable to ask the student, "Do you need a hug?"

It is certainly unfortunate that this column has to be written and that a lawyer has to spend time discussing whether it is okay to show a child that he or she is not alone and that you care. But history has taught us that it is better to be mistaken as a professional that is a bit cold, than to be mistaken for a professional that engages in inappropriate contact with children.

This article could go one of two ways at this point: I could either now set out a long list of things to avoid and give you endless accounts of sad stories about how allegations of inappropriate touching have ruined careers, or I could simply say use your best judgment and always keep in mind the fact that every action can be perceived by two people in two very different ways.

Finally, as always, if you find yourself defending your actions against the words of a student, contact your NEA representative immediately. We can often help early in the process and hopefully prevent any formal allegations that can scar a career. In closing, stick with handshakes, never put yourself in a situation where it is your word against the child's, and be smart and you will avoid this troubling topic altogether.

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RE -EMPLOYMENT AND TERMINATION RIGHTS IN NEW MEXICO
Advocate's Voice, May 2005

PDF of "Re-Employment and Termination Rights in New Mexico"

A frequent question arises this time of year - "What are the notification requirements for re-employment and what rights do employees have if they receive a notice of termination?" This article attempts to broadly address the requirements for notice and the rights that are triggered by a notice of termination.

A. Time Guidelines for Re-Employment.
The rules regarding certified school instructors' rights to notice of reemployment and termination are set forth in New Mexico Statutes § 22-10A-22 - 28. Section 22-10A-22 provides that "on or before the last day of the school year of the existing employment contract the local school board or the governing authority of the state agency shall serve written notice of reemployment or termination on each certified school instructor employed by the school district or state agency." This section gives us the starting point that all employees, those with three years consecutive experience (for our purposes - tenured) and those without three years consecutive experience (non-tenured), must receive notice before the end of the school year. The next question is what happens if no notice is received?

NMSA § 22-10A-22 also provides that if the school board fails to give notice, then the failure shall be "construed to mean that notice of reemployment has been served." New Mexico law is very clear that if an employee does not receive notice before the end of the school year, then the employee can, and should, treat this as an offer of reemployment.
Before we get into some of the more difficult questions, let's look at what an employee should do when he/she has either received a notice of reemployment or has not received any notice. NMSA § 22-10A-23 provides that an employee must provide written acceptance within fifteen days of either: (1) the date written notice of reemployment is received or (2) the last day of the school year if no written notice was received.

Before any contract becomes binding there must be an offer and an acceptance. With the employment contract, the offer is either the written notice or the failure to give notice and the end of school. An employee must accept the offer in writing within the time period or the offer of employment expires. A potential pitfall must be avoided. If an employee receives a notice of reemployment, the fifteen-day time period begins when the notice is received, not on the last day of the school year. Providing written acceptance on the fifteenth day after the end of the school year may be too late if the notice was received earlier. Simply keep this in mind when you receive a notice of reemployment.

In short, the procedures for receiving and accepting a notice of reemployment are fairly simple. When you receive the notice, a written acceptance must be provided to the local school board within fifteen days. Alternatively, if you do not receive notice, then treat the last day of school as an offer of reemployment and provide written acceptance within fifteen days.
It should be pointed out that this article focuses upon the procedures that apply to certified school instructors. However, notice of re-employment only applies to licensed employees. Non-certified employees are employed until terminated and no statutory requirement exist for annual notice of re-employment. Section 22-10A-24 does provide that non-certified school employees shall be served with a notice if they are to be terminated.

B. Procedures for a Notice of Termination.
Now let's look at the less appealing, but equally important, topic of how to respond if a notice of termination is received. Termination is defined as ending the employment of a non-certified employee anytime, end of the year or not and ending the employment of licensed employees at the end of a contract. NMSA § 22-10A-22 governs notice of termination and provides that notice must be received on or before the last day of the school year. Although this is true for non-tenured employees, a tenured employee must receive notice at least fourteen days before the end of the school year. The fourteen-day requirement comes from the New Mexico Administrative Code Section 6.67.2.8. Although the NEA-NM has asserted that the fourteen-day requirement should apply to non-tenured teachers, the New Mexico Court of Appeals rejected this argument.
The receipt of a notice of termination triggers several deadlines that must be followed. If you receive a notice of termination, contact your local NEA president or UniServ representative immediately to make sure that the deadlines are followed.

What steps and process are you entitled to if you receive a termination notice? First, whether you are tenured or not you can request the reasons for your termination. This notice must be made to the superintendent within five days of receipt of the notice of termination. The superintendent then has ten days to provide the reasons for termination to you.

1. Non-Tenured Employees' Appeal Rights.
As many of you know, if an employee has less than three years service, the employee can be terminated for any reason the school board deems sufficient. The right of a non-tenured employee to challenge such a termination is greatly restricted. However, even though the school board does not have to provide "good cause" as with tenured employees, a non-tenured employee may not be terminated for a discriminatory reason. Such reasons include a physical disability, age discrimination, racial discrimination, gender discrimination or retaliation for certain protected acts such as filing a worker's compensation claim. If you feel that you have been terminated for a prohibited reason, contact your NEA president and discuss the situation. Although the same procedural appeals are not provided for non-tenured employees, you do have the ability to file suit in court if you have been terminated for a prohibited reason. However, keep in mind that the standard of proof is very high in proving such a claim.

2. Tenured Employees' Appeal Rights.
An employee with at least three years of service can only be terminated for "just cause." See NMSA § 22-10A-24. Just cause is a legal term of art used in many different employment contexts. An entire article could be written on the definition of just cause, but suffice it to say that the school board must provide an employment related reason for the termination. If a tenured employee receives a notice of termination, several steps exist to challenge the termination.
Step 1: Within five workdays of receiving the notice of termination, the employee must provide written notice to the school board requesting the reasons for termination and requesting a hearing.
Step 2: Within ten workdays of receipt of the reasons for termination, the employee must submit to the superintendent a 'statement of contention' that the termination is without just cause. The statement should include a statement of facts supporting the contention that no just cause exists.
Step 3: The school board hearing must be no less than five and no more than fifteen workdays after the superintendent's receipt of the statement of contention.
Step 4: After the board hearing, the board has five workdays to submit its decision in writing to the employee.
Step 5: The employee can appeal an adverse decision to an independent arbitrator. The notice of appeal must be submitted within five workdays of receipt of the school board's decision. The arbitration is binding, meaning that it is equivalent to a final judgment.

Although this is a whole lot of information to keep track of, hopefully this article will serve as a guideline if you find yourself in the unfortunate situation of receiving a notice of termination.

In conclusion, to protect your rights submit a written acceptance of an offer of reemployment or after the last day of school if no notice is received. If you receive a notice of termination, contact your NEA-NM president and keep the above procedures in mind.

Have a good summer!

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MELODY'S SECRETS FOR EMPLOYEE RIGHTS SUCCESS

PDF of "Melody's Secrets for Employee Rights Success"

Remain calm. Don't resign. Don't say anything under pressure. Don't involve other educators, students or the media. Contact your local Association president immediately.

Link to Local Associations Page

If the employees of Santa Fe Public Schools don't know her personally, they've heard about Melody McCormick because she's an employee rights institution. As Employee Rights chair for NEA-Santa Fe, Melody has had one of the most high profile volunteer jobs in the school district for the past 15 years.
Even NEA members from around the state have also heard about Melody. One, because she's been around so long. And second, because other locals look to NEA-Santa Fe for an example of an employee rights program that's visible and works.

That's why Melody McCormick is part of NEA-NM's summer training on July 28 and 29 this year for the central region, and why the trainings in the northwest and south are also emphasizing employee rights with trainers providing a program similar to Melody's.

Employee rights advocates for Association locals throughout New Mexico are noticing that their work is ever more complex because of the new regulations and requirements coming from all directions. Association reps on the building level need extra help and training, which is the focus of the summer advocacy programs for 2005.

If you're an AR already, or you're thinking about becoming an AR, or you just want to become better informed, you'll be interested in hearing more. That's why we're delighted to be featuring Melody, who's sharing her secrets with trainers in the other two regions. See the sidebar in this article for dates, times and places.

Those in the know are already aware that Melody McCormick is an angel, a worker bee, an advocate for members and members to be (after Melody represents them, people join NEA), and someone that even school administrators agree (even if they don't agree with her), that Melody gets the job done. She digs into complex problems, goes to the heart of employee rights situations with zeal and an even-handed approach that astonishes everyone who comes in touch with her.

After Melody gets to the bottom of the most frustrating problem, she's outspoken and listened to because her conclusions are well researched and well considered. I know Melody won't be comfortable hearing all these things said about her, but I promised that the purpose is to illuminate her 33 years as an NEA member and her more than 15 years working vigorously with employee rights.

If someone out there in a local is inspired to strengthen their employee rights program, Melody says she doesn't mind if we pick her brains. And furthermore, she's looking to find someone in NEA-Santa Fe to work with, so she can mentor them, and Melody can then take advantage of her retirement.

In case you didn't realize it, Melody McCormick is volunteering as the NEA-SF employee rights chair from her home as a retired teacher. That's how much she is committed to employee rights. She's ready to pass on the baton, and says she doesn't mind speaking her mind if someone comes forward so she can mentor them in this important work. Anyone interested?

It's evening. Melody's phone is ringing. On any particular evening she receives between three and seven calls. If she's been out of town for several days, it's not uncommon to return home and find her answering machine blinking and buzzing with at least ten or more calls. Many are simple questions that can be answered easily. How do I talk to my principal? Why do I need to document what's happening to me? Is my situation hopeless?

Melody listens to even the most impossible-sounding circumstances with patience, and then goes to work. This can take up to thirty hours in any particular week. She's also counseling Association Reps about how they can assume a more effective role on the building level. You don't have to be an expert, she tells them.
"The AR in the building plays a very important role, if only by listening to people talk and referring them to me, if necessary. I've found that ARs in the buildings are more experienced and knowledgeable than they realize. Even if they do little more than to listen and make sure basic due process is observed and then seek help from me, they're doing admirable work. I couldn't do what I do without strong ARs."

Many of Melody's secrets for success are contained in the NEA-NM pocket calendar members receive in a members' packet before school begins. The section entitled "Job Protection" has a simple section entitled "What To Do Until Help Arrives." It's a miniature version of Melody's usual message to members and ARs.
Remain calm. Don't resign. Don't say anything under pressure. Don't involve other educators, students or the media. Contact your local Association president immediately.

In the annual membership packet sent to NEA, there's a manila folder intended for members to use as a file to store important employment documents. Check it out. One section concerns what to do when evaluation time rolls around each year. Another has a space for important telephone numbers. Yet another is entitled, "Why You Should Keep a Professional File." There's a list of essential documents that everyone should maintain such as license, payroll stubs, evaluations and growth plans, record of leave days, correspondence from administrators, and so on.

A new feature column, "Your Rights," is included in every issue of The Advocate's Voice. The information in it is so valuable, you may want to clip it on a regular basis, include it in your professional file, post it on a bulletin board, or make copies to pass on to potential members as a sample of how valuable NEA membership can be.

If people just kept up their own personnel records and documented unusual incidents during the course of their regular work day, circumstances would be much easier to handle once they reach someone like Melody or the local UniServ Consultant. And Melody adds, "And for heavens sake, read your collective bargaining contract, if your district has one. So many answers can be found there, when it only takes a few minutes to do your research. It isn't rocket science. So often, I'm answering the same questions over and over again when people would be more secure seeing the answers themselves in black and white right in front of their noses."
Melody McCormick got her training in education back in 1971 after working with a Vista program at the University of Missouri (Kansas City) and CUTE, the Cooperative Urban Teaching Education Program. "It was a time when we had strong ideals for changing the world, when people were committed to a vision of changing the world one person at a time through education.

"I moved to New Mexico and took a job at Tesuque Elementary School. A lot of people like me still had a dream. We didn't need the book, 'The Culture of Poverty.' We knew students, their parents, their homes. Back then, Panasonic was supporting site-based reform programs. I attended trainings, went back to my school and shared the information with my colleagues…But as time passed, things changed. Principals came and went. And I became involved in employee rights after ten teachers in my school left in one year. I looked to NEA, became involved in employee rights and recognized the importance of creating a strong collective bargaining contract to take care of problems before they got out of control."

All these years later, Melody is still at it. She's very opinionated about why teachers are feeling more and more disenfranchised and distant from their work. Melody has various theories, such as the increased paperwork, the tendency of public officials and others to view educators as work units rather than real-life human beings who have hundreds, sometimes thousands of interactions in a day, and yet they are viewed and evaluated from the surface of what transpires in the teaching-learning process of any particular school.

"No matter why I think we're dealing with increased numbers of employee rights concerns, the fact remains that we are. And our NEA locals are becoming involved with more and more problems. They're happening to other people, but it's as if they're happening to each of us who witnesses employee rights problems on the building or organizational level. I'm persistent. I'm meeting with district officials now at least once a month, sometimes more. The local NEA-SF president is involved. The UniServ is involved. The AR on the building is involved. And we're having to stand up and speak up to be heard, as well as carve out an unprecedented level of trust that wasn't as necessary as recently as two years ago."

Not every local has a Melody. But every member and member to be has access to the NEA-NM web site with its link to employee rights (www.nea-nm.org). And you have an opportunity to sign up for the employee rights trainings in the north, central and southern part of the state this summer. It's as close as your back yard.
The phone's ringing. It's another member and she just needs to hear someone responding on a human level at the other end of the phone. It could be you, the reader, or your colleague in the classroom next door. Even if you aren't an Association Rep or someone taking on the yoke of responsibility like Melody McCormick, you may be the shoulder someone needs to lean on, the individual who can answer a pressing question or make a referral.

Yes, Melody. We realize it's time for you to move on. We know you believe there are younger members out there prepared to share some of this responsibility. Yes, we understand that you love teaching and love education. That's why you're part of the summer advocacy training this summer, so that more members can become more confident like you. Perhaps there's someone who's reading this article who will step forward and take a more active role in their local as far as employee rights is concerned. Maybe they'll sign up for the NEA-NM advocacy trainings this summer. Maybe a member of NEA-Santa Fe will step forward for you to mentor in employee rights. Maybe, just maybe.

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