March-April 2018 Issue
March 01, 2018

Could this ever happen to you?

Source: NYSUT United

A co-worker with a grudge lodges abuse complaints against an experienced special education teacher. Administrators want the teacher fired.

As a member of a NYSUT local union, you are entitled to free legal representation from a NYSUT attorney should you ever face discipline or discharge. Here's how one member was helped. Any identifying information has been changed to protect the NYSUT member's identity.

The background

Within a four-month period, education administrators brought two discipline cases against special education teacher Jane Smith. Though a co-worker was found to be an unreliable witness in the first case, administrators pursued a second case based on the same co-worker's complaint.

The accusation — first case

For more than 20 years, Smith taught special education classes effectively at an elementary school. She never had any disciplinary issues. Then in 2016–17 Smith was assigned to work with a less-experienced teacher aide, who immediately exhibited a disrespectful attitude toward Smith and her proven ways of teaching.

The aide lodged a complaint against Smith, alleging she caused a crying student to hyperventilate and made abusive comments to the aide. Based on this complaint, administrators initiated Education Law § 3020-a charges against Smith seeking her termination.

Due process — first case

A staff attorney in NYSUT's Office of General Counsel represented Smith in the 3020-a hearing. After hearing testimony from five witnesses, the hearing officer dismissed all charges against Smith.

One staff member who testified on Smith's behalf corroborated that Smith appropriately addressed the student's conduct. The hearing officer determined that this testimony refuted the aide's assertion that Smith mishandled the situation. The hearing officer credited the testimony of Smith and her supporting witness — two trained educators with a history of interacting with the student — in concluding that they would not have subjected the student to an unsafe environment. Further, the hearing officer recognized that Smith followed written protocols for addressing this type of situation.

The hearing officer also found that a verbal exchange between Smith and the aide did not justify discipline. The hearing officer noted that the conversation did not disrupt the classroom environment and did not negatively impact any students.

The second case

Four weeks after the first case was dismissed, administrators brought a second 3020-a case against Smith, seeking her termination for an alleged incident in the same school year. These charges alleged that Smith placed her hand over a student's mouth during an exam.

Another attorney in NYSUT's Office of General Counsel represented Smith at the second 3020-a hearing. A co-worker, who had testified in the first 3020-a case, claimed that Smith put her hand over the student's mouth when the student failed to respond to staff requests to read the exam silently in his head. The hearing officer found that the co-worker was not credible, based on her inconsistent statements and bias toward Smith. In comparison, the hearing officer found Smith to be extremely credible.

Smith testified that she first demonstrated the quiet sign on her lips and then used her pointer finger to demonstrate the sign on the student's lips. Smith explained that she used a visual sign because the student was a visual learner. Smith's account was corroborated by the student, who told investigators that Smith had put only one finger on his mouth to demonstrate a quiet sign.

Because of her rights as a union member, and her access to legal representation from NYSUT's legal team, Smith was completely exonerated and a terrible injustice was prevented.

Post script

As a longtime leader in her union, Ms. Smith was aware of the possibility of disciplinary action, but it wasn't until she got a new principal did she begin to realize that the possibility was becoming a reality for her. She knew tenure meant due process and found her NYSUT attorneys to "be very knowledgeable and competent." In fact, she "felt confident that the union had chosen the best people to represent its members."

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