NEW EDUCATORS’ LEGAL RIGHTS,
RESPONSIBILITIES AND PROTECTIONS
IRA FADER, MTA General Counsel
ASHLEY CALL, MTA Staff Counsel
Massachusetts Teachers Association
New Educator Orientation Program
Cambridge Public Schools/
Cambridge Teachers Association
August 17, 2015
Topics include:
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Inside the MTA
Inside the MTA Legal Division
Professional Teacher Status
Rights as Unionized Teachers
Use of Social Media/E-mail
“51A” Reporting Obligations
Bullying Prevention Act
Liability and Immunity of Public Employees
Physical Interventions with Students and the Use of Physical Restraint
You and Your Association
NEA
MTA
Cambridge
Teachers
Assoc.
Member
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• BOARD OF
DIRECTORS
• PRESIDENT
and
• VICEPRESIDENT
• EXECUTIVE
DIRECTORTREASURER
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Legal
Educational
Policy and
Practice
Communications
Affiliate
Services
Governmental
Relations
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General Counsel
Deputy General Counsel
9 in-house attorneys
2 current administrators; 2 professional
support staff; 2 paralegals
Approx. 30 attorneys with law firms or solo
practices handle MTA cases
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Labor issues
◦ Unfair Labor Practices
◦ Representation petitions
◦ Bargaining unit scope and structure
◦ Agency Service Fee
Contract Arbitration
Dismissal, non-renewal, suspension
Discrimination
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Health Insurance
Licensure
51A investigations
Air Quality
Conflict of interest law
Criminal matters
Unemployment hearings
Higher Education
Retirement
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Professional Teacher Status (“PTS”)
and Dismissal/Non-Renewal
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Mass. General Laws chapter 71, § 41: PTS after three
consecutive school years as a teacher in the district.
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First year: first 90 days is “pre-probationary”
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First three years: “probationary.
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A non-PTS teacher can be “non-renewed” no later than
June 14 for next school year
Limitations on Employer
You cannot be non-renewed based on:
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your decision to join the CTA/MTA/NEA
your involvement in union matters
your race, ethnicity, gender, sexual
orientation, etc.
your First Amendment activity
evaluations that violate the eval system
G.L. c. 150E:
THE LIFEBLOOD OF YOUR
POWER
AS UNIONIZED TEACHERS
Employees shall have
the right of selforganization and the
right to form, join or
assist any union
Employer cannot
interfere with, restrain
or coerce an employee
in the exercise of any
right under c. 150E
Employer cannot
discriminate on the
basis of union
membership
Employer retaliate
against employee for
exercising any right
under c. 150E
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CONCERTED ACTIVITIES
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TEST:
 How
many people does it take to engage
in concerted activity?
 What subjects can they talk about?
 Where can concerted activity take place?
 Are there any concerted activities that
employees cannot engage in?
 What about acting without union
knowledge, approval, authority?
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“PLEASE, CAN I GO GET A UNION REP?!”
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WEINGARTEN RIGHTS
If you are called to a meeting by
the employer AND
It is investigatory AND
You reasonably believe it could
lead to you getting into trouble:
YOU ARE ENTITLED TO
HAVE A UNION REP WITH
YOU THROUGHOUT THE
MEETING!
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Let’s talk about
social media:
Teacher or citizen
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In the eyes of the world, what ARE you?
What is the predominant image of an
educator?
You are an APPLE
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… all … instructors of youth shall exert their best
endeavors to impress on the minds of children and
youth committed to their care and instruction the
principles of piety and justice and a sacred regard
for truth, love of their country, humanity and
universal benevolence, sobriety, industry and
frugality, chastity, moderation and temperance,
and those other virtues which are the ornament of
human society…; and they shall endeavor to lead
their pupils, as their ages and capacities will admit,
into a clear understanding of the tendency of the
above mentioned virtues to preserve and perfect a
republican constitution and secure the blessings of
liberty as well as to promote their future
happiness, and also to point out to them the evil
tendency of the opposite vices.
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Teachers’ “actions, words, and so on carry a moral significance in
themselves… [T]eachers act as moral agents all the time, usually
unconsciously.”
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“[A] school teacher has extensive and peculiar opportunity to
impress his attitude and views upon pupils in his charge.”
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John Dewey, Moral Principles in Education (1909)
Faxon v. School Committee of Boston (SJC, 1954)
“A teacher serves as a role model for his students, exerting a subtle
but important influence over their perceptions and values…
[T]hrough.. the example he sets, a teacher has an opportunity to
influence the attitudes of students toward government, the political
process, and a citizen's social responsibilities. This influence is
crucial to the continued good health of a democracy.”
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Ambach v. Norwick, 441 U.S. 68 (1979) (state may require U.S. citizenship as a condition of
employment as public school teacher)
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…relax?
…go home?
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Your on-line identity is your public persona
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The Internet blurs the line between
• YOU AS A TEACHER (on-duty) and
• YOU AS A FUN-LOVING PERSON or A POLITICAL
ACTIVIST or PRIVATE CITIZEN
Job Loss for Off-duty Conduct: Then and
Now
• Marriage, pregnancy, child-rearing
• Pregnancy outside wedlock
• Homosexuality
• Perceived Sexual Misconduct
• Alcohol and drug related offenses
• Criminal activity – guilty? or not guilty?
• Disfavored political activities
• Disfavored lifestyle activities
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A teacher's unfitness to teach was not
established by the fact of his one-week,
non-criminal, homosexual relationship
with another teacher.
Morrison v. State Bd. of Education, 461 P.2d
375 (1969)
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“Nexus” test: is there a connection between
off-duty “misconduct” and your job?
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Are students involved?
Any harm to the reputation of the
employer/school?
Are you able to perform your duties?
Likelihood of recurrence?
Reaction of colleagues, parents, students?
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Pickering v. Board of Ed., 391 U.S. 563 (1968) (teacher acted as citizen when he
wrote a letter to the editor concerning school funding. “…a teacher’s exercise of his
right to speak on issues of public importance may not furnish the basis for his dismissal
from public employment.”
Connick v. Myers, 461 U.S. 138 (1983) (public employer can discipline employee for
speech when public employee speaks not as a citizen upon matters of public concern
but instead as an employee upon matters only of personal interest)
Garcetti v. Ceballos, 547 U.S. 410 (2006) (“when public employees make statements
pursuant to their official duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their communications
from employer discipline.”)
Lane v. Franks, 134 S.Ct. 2369 (2014) (speech by a public employee outside the
scope of ordinary job duties is speech as a citizen for First Amendment purposes
even where it relates to public employment.
E-mail
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Permanent
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Can’t toss, shred, or recycle it
“Delete” does not delete
Stored electronically in numerous places
Easily forwarded
Easily printed
Beware of “reply-to-all”
Work e-mails created or received at school are
“public records”
G.L. c. 4, § 7(26)
Public record is “all materials or data,
regardless of physical form or
characteristics . . . made or received by any
[public] officer or employee”
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EVEN MY PERSONAL EMAILS?!
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Your personal email IS a public record because
1.
Public records statute is broad
2.
Public has right to know how you spend your work time
It is NOT a public record because
1. Not “made or received” in course of job
2. Exemption (c): protects “personal privacy”
3. Exemption (e): “materials prepared by an employee of the
commonwealth which are personal…”
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But SPR says this exemption applies only to work-related personal reflections
Acceptable Use Policies
•Do you have a copy?
•Have you read it?
•Did you sign a form of
acknowledgement?
•Training or guidance?
•What are common “practices” in your
work area?
•Does the AUP address “personal
use”?
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Personal web-based email on
school computer?
• “Expectation of privacy” in personal email
account when using school computer?
– Employer cannot log onto your personal account
without your authorization: Stored
Communications Act, 18 USC s. 2707
– Employer cannot intercept email while in transit:
Electronic Comm. Privacy Act, 18 USC s. 2510
Personal web-based email on
your own mobile device?
Employer can observe in
real time.
Network activity is
captured (ie, date and
time).
Software exists to capture
content of email on
internet server.
Personal Liability of Public
Employees
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G.L. c. 258, § 2 protects teachers and other
public employees from personal liability for
any injury or loss caused by negligent or
wrongful acts or omissions “while acting
within the scope of office or employment.”
Employee must cooperate with the employer
in investigating and defending any claims of
negligence.
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Limits on Immunity
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Within the scope of employment –
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Follow job duties and school policies; no immunity
for unauthorized actions outside the scope of
employment
Reckless and Intentional Torts such as
assault, sexual harassment, discrimination
are not protected.
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When Teacher is the Victim
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File criminal complaint – MTA will provide
legal representation at “show cause” hearing
G.L. c. 265, § 13D provides for imprisonment
or a fine for individuals (e.g., parents) who
assault public school teachers and other
public employees
G.L. c. 231, § 85G makes parents liable for
the willful acts of minor children (8-17) that
result in injury or property damage ($5K limit)
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When Teacher is the Assailant
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Corporal punishment is prohibited by law
[G.L. c. 71, § 37G]
Physical restraint may not be used as a form
of punishment [603 C.M.R. 46.04(3)(a)].
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BUT: “such reasonable force as is necessary to
protect pupils, other persons, and themselves
from an assault by a pupil.”
If parents or students bring criminal
complaint against you, you will get an MTA
attorney.
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Physical intervention with
students (cont’d)
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The “Good Samaritan law” [G.L. c. 71, §
55A]: No public school employee who, in
good faith, renders emergency first aid or
transportation to a student who has become
injured or incapacitated in a public school or
on its grounds shall be liable… as a result of
his or her acts or omissions, nor shall such
person be subject to any disciplinary action
for such emergency first aid or
transportation.
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School district’s policies?
Child Abuse Reporting Law
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G.L. c. 119, § 51A requires employees to identify children
at risk of abuse or neglect and to intervene when
necessary.
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“Abuse” means the
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non-accidental commission of any act
by a caretaker (“teachers” are caretakers)
upon a child under age 18
which causes, or creates a substantial risk of, serious physical or
serious emotional injury, or constitutes a sexual offense under the
laws of the Commonwealth. [110 C.M.R. 2.00]
When/How to Report
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Report immediately whenever there is
“reasonable cause to believe that a child under 18
is suffering serious physical or emotional injury”
To Department of Children and Families (“DCF”)
or person in charge of school (usually principal)
Statute prohibits an employer from disciplining or
retaliating against the reporting employee
No liability for making a charge in good faith
Failure to report could result in a fine of not more
than $1,000, discipline by the school, and/or civil
liability against the district
Bullying Prevention Act – G.L. c. 71, § 370
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Schools must create bullying prevention and intervention
plans (BPIP), updated every other year
Schools must provide age-appropriate instruction to
students on bullying prevention
Student handbooks must contain age-appropriate summary
of BPIP
Employees must receive annual training on the plan
Staff shall immediately report any instance of bullying or
retaliation the staff member has witnessed or become
aware of to the principal and/or other school official
identified in the plan
Effective 7/1/13: “Perpetrator” includes school staff
 GIFTS?
 G.L. c. 268A, § 3 prohibits
teachers from receiving gifts of
substantial value for official
acts performed or to be
performed
 G.L. c. 268A, § 23(b) prohibits
teachers from soliciting or
receiving anything of
substantial value because of
their official positions
 “substantial value” is a gift
worth $50 or more in the
aggregate within any 365-day
period
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Everything will be OK because:
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You will love teaching
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Your kids will love and/or respect and/or learn
from you
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You will learn from and stand strong with your
new colleagues
 Your union – CTA and MTA – are behind you.
 You are members of a proud and powerful and
vocal profession and professional union.
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