Progressive Discipline Office of Legal Services Principals’ Meeting PS 273 October 9, 2013 Types of Employees -Tenured employees can only be terminated through the discipline process under Education Law 3020-a Probationary employees can only be terminated through the discontinuance/denial of probation process as set forth in the Education Law. -Non-Pedagogues include school aides, paraprofessionals, parent coordinators. These employees are terminated by the principal. Types of Misconduct Absenteeism/lateness; Arrest resulting in a conviction or guilty plea; Failure to report an arrest; Violation of a school policy or Chancellor’s Regulation; Sexually related misconduct; Corporal punishment or verbal abuse; or Insubordination. Reporting Misconduct SCI – All allegations of serious employee misconduct must be reported to the Office of the Special Commissioner of Investigation. OSI – All allegations of corporal punishment or verbal abuse must be reported to the Office of Special Investigations. Keep in mind that SCI can decide to investigate the matter or refer the matter to OSI for investigation. OEO- All allegations of discrimination, sexual harassment, etc., must be reported to the Office of Equal Opportunity. . A Principal’s Investigation Interview relevant witnesses; Have the witness generate a written statement; Statements should be legible and include a date and signature; Supervisor should keep detailed notes and should include dates and times of when the witnesses were interviewed. The Conference Conference – Summon the employee, in writing, give the employee reasonable notice, in writing, and advise that he/she may bring a union representative; At the conference, present the allegation, provide copies of the witness statements and a Privacy Acknowledgment Form for the employee to sign. What do you do when employee refuses to attend meeting? The Conference Cont’d Give the employee an opportunity to respond to the allegations; Interview any additional witnesses identified by the employee during the disciplinary conference. Progressive Discipline: School Aides, Paras, Parent Coordinators, Family Workers, etc. Make your expectations clear; Give verbal/oral warnings; Document misconduct with disciplinary letters for file; Give proper warning that termination may result (Did you include a Magic sentence?); Suspend without pay at least once [not needed in cases of serious misconduct]; Termination letters must be preceded by a disciplinary conference in which the employee is afforded the right to union representation – and discuss the presence or waiver of the representative. Due consideration meeting: staff members can be terminated for “good and sufficient reason” after you give “due consideration” to the matter. Due consideration means that you conducted a full and fair investigation giving the employee the opportunity to respond prior to making a determination. You should review the recent incident of misconduct as well as time to review the employee’s entire record. . Exceptions to progressive discipline: Where an employee’s behavior warrants immediate termination. Example: Sexual misconduct, fraud or severe instances of corporal punishment. Certain non-pedagogical employees who work the equivalent of less than one school term (defined as five (5) months) may be terminated without following the progressive discipline process. . The Disciplinary Letter A disciplinary letter memorializes the disciplinary conference and includes the following: Employee’s name and title Date of meeting, location, and who was present; Clear statement of the allegation; Summary of the facts in support of the allegation; Reference to OSI or SCI Report – attach to the letter; Employee’s response to the allegation; Principal’s conclusion; Magic sentence. Disciplinary Letter Cont'd Employee must sign the letter – and acknowledge that the letter will be made part of their personnel file. If the employee refuses to sign the letter – A witness must sign and date the letter indicating the employee’s refusal to sign. A copy of the signed letter must be placed in the employee’s personnel file. . Inform Others: Writing a termination letter is not enough. Make sure you: Inform your payroll secretary of the termination; Inform personnel/HR director of the termination; Ensure that the employee is removed from payroll; In cases of serious misconduct, consult Senior Counsel/HR director and request that the employee’s name is placed on the inquiry list. Senior Counsel/HR will make the proper notifications. Probationary Employees Who are considered pedagogues? How long is probationary period? How do I know when someone is completing probation? Can I extend someone’s probationary period? By written agreement between the pedagogue and the superintendent. Must be ready to proceed to discontinue/deny employee’s probation if he or she refuses to sign the extension agreement. Probationary Employees Discontinuance/Denial Continuous unsatisfactory service after support; One instance of significant misconduct can be enough to discontinue an employee; Employees can be discontinued for any reason, so long as the reason is not arbitrary and capricious or an illegal reason (cannot discontinue based on an employee’s gender, race, age, etc.) Discontinuance Process Confirm the employee’s probation completion date; Review the employee’s file for disciplinary letters or U rated observations; Upon your recommendation, and review of the documentation, the Superintendent will generate a letter informing the employee that his/her discontinuance is under consideration. The employee is provided 23 days to respond to the Superintendent’s notice. The Superintendent must generate a 2nd letter in order to complete the discontinuance process. Tenured Employees Tenured employees can only be terminated following a hearing under Education Law Section 3020-a hearing. The Administrative Trials Unit (ATU) handles cases involving misconduct such as corporal punishment, sexual misconduct, attendance, etc. The Teachers Performance Unit (TPU) handles cases involving poor performance and/or incompetence. Principal should complete a TAC (technical assistance conference) request if principal has a tenured employee who has engaged in serious misconduct, has received a U rating or has demonstrated instructional incompetence. Expedited Time/Attendance Hearing Process The Office of Labor Relations has an expedited time and attendance process that may be used to proceed against tenured employees who are chronically absent or late, abuse sick leave, engage in fraud or have a pattern of absences (e.g. Mondays and Fridays before or after a holiday.) This process does not result in termination. To initiate a time and attendance expedited hearing process, principal should complete the time and attendance referral form and email it to [email protected] If OLR decides to proceed with the hearing, principal will need to send OLR all relevant documentation.