June 2017 Issue - Labor Issues
May 31, 2017

Could this happen to you?

Source: NYSUT United

If ever faced with discipline or discharge, all NYSUT members are entitled to free legal representation from one of your statewide union's highly trained and experienced attorneys. NYSUT has more than 40 staff attorneys ready to fight for our in-service members, their locals and our retirees.

The story you are about to read is real. Any identifying information has been changed to protect the NYSUT member's identity.

The accusation

Ms. Smith is an elementary teacher. For the past 18 years, her observations and evaluations with the school district were all positive.

Ms. Smith taught approximately 400 students in more than a dozen elementary classes spanning kindergarten through sixth grade. One class turned out to be the most difficult of her career. She was faced with repeated, and near daily, behavior challenges from a small, yet disruptive group of students. The district provided her with some in-class administrative and paraprofessional support, without much improvement. Lacking, however, was effective guidance and strategies to improve student behaviors.

Toward the end of the school year, she administered the SLO Post Test to her students. She had, at the very minimum, a proctor present for each examination. During the difficult class, however, three adults were present in the room, in addition to Ms. Smith, while the test was given.

After the exam, the administrator reported testing irregularities to the principal who, in turn, reported it to Human Resources. Ms. Smith continued to administer the SLO Post Test to her remaining classes on the following three days. And, Ms. Smith continued to teach until the end of the school year. Ms. Smith denied all allegations of wrongdoing.

Due process

After a four-day hearing, with nine witnesses, more than 50 exhibits and extensive closing briefs filed by both sides, the neutral hearing officer dismissed all charges against Ms. Smith.

The hearing officer found that proof was entirely lacking to prove the serious charge of testing misconduct, and he took great exception to the district's blatant disregard for well-established principles of due process. The lack of a fair investigation was a fatal blow to the district's case.

Particularly troublesome to the hearing officer was the fact that the district simply accepted the word of a single administrator and never asked for corroboration from either staff or students. If the district had sought out other witnesses, it would have found a paraprofessional who refuted the allegation that Ms. Smith improperly assisted students during the administration of the SLO Post Test.

Basic principles of due process dictate that an employee be afforded the opportunity to give his/her side of the story. The district completely disregarded this and never interviewed Ms. Smith until after it made its decision to move forward with charges.

In her own words

Here's what the member had to say about her experience:

"I never thought anything like this could happen to me. I love my job and I love my students. I strive to do my best at my job and I do what is asked of me. I follow the rules. I feel that what happened to me was both personal and political.

"I was not aware that the union had such a strong legal department or that they would help me exercise my right to due process. I have not been in this situation before, so I did not know all that was involved. I was very scared when the situation happened. I was told that the union would provide a lawyer for me but I was also told by co-workers that I should get an outside lawyer.

"I am overjoyed that I decided to stick with the union lawyer I was assigned. She explained everything, was very helpful, knowledgeable and extremely professional. She got me through this and helped me keep my sanity.

"I know the outcome would not have been positive if it were not for union representation. I could never have fought the giants of such a large district if it were not for such a strong union legal department. When considering outside representation, I was told and I believed, that the union legal department would know more about fighting a case like mine than any outside lawyer could. The union legal department knows how this works and handled it perfectly. My career was saved because of the legal department of our union."


"Public employees shall have the right to be represented by employee organizations, to negotiate collectively with their public employers in the determination of their terms and conditions of employment, and the administration of grievances arising thereunder."

§203 : Right of Representation, Public Employees Fair Employment Act (Taylor Law), 1967