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    Handling Employee Misconduct Frequently Asked Questions (FAQ)

    December 2019

    What are the policies that govern employee misconduct and discipline?

    Employee misconduct is a broad term. It encompasses many behaviors. These behaviors are usually characterized as behaviors that violate Seattle Public Schools (SPS) policies and procedures, or an employee's willful failure to perform their job responsibilities. Employee misconduct and employee performance may sometimes overlap, so it is important to determine if the issue is performance or misconduct, or if the issue is to be addressed in both arenas.

    Behavior, conduct, or action that may generate disciplinary action or discharge may include, but is not limited to the following conduct listed in School Board Policy No. 5281 (Staff Disciplinary Action & Discharge):

    1. Violating District policies, guidelines, or workplace rules, including safety rules;
    2. Insubordination;
    3. Sexual misconduct;
    4. Conviction of crimes under RCW 28A.400.322 or a crime that directly relates to the position held by the employee or impacts the employee’s ability to perform his or her job duties;
    5. Unprofessional conduct of staff (defined in Policy 5006);
    6. Falsifying application materials or District records, timesheets, or reports;
    7. Intentional discrimination;
    8. Intentionally damaging the property of the District or of another;
    9. Vulgar or profane speech or actions;
    10. Tardiness;
    11. Absence without authorization or an approved excuse;
    12. Illegal use or possession of controlled substances or drugs;
    13. Use or possession of alcoholic beverages on school premises or at a school-sponsored student activity off the school premises;
    14. Possessions of an unauthorized weapon on District property;
    15. Use of tobacco in violation of District policy;
    16. Use of District supplies and equipment for personal betterment or financial gain;
    17. Theft;
    18. Inappropriate touching of students;
    19. Inappropriate use of physical force on students;
    20. Assault and fighting;
    21. Bullying and harassing behavior, including the use of threats;
    22. Unauthorized absences;
    23. Inappropriate online socializing with students; and
    24. Inappropriate use of the District network.

    This is not an exhaustive list.

    What are the discipline procedures? How does staff determine the appropriate level of discipline?

    Seattle Public Schools utilizes a system of progressive discipline. Progressive discipline is based on the principle that each time an employee is disciplined, they receive an increasingly severe penalty. With the exception of the most serious offenses, an employee will not be discharged on the first offense.

    Progressive discipline is memorialized in our collective bargaining agreements and is reflected in case law. It is a system that is intended to change behavior and set clear guidelines for the disciplined employee, while promoting equal and fair treatment to all employees. If the undesirable behavior continues, the process continues with more stringent measures being imposed until the behavior is corrected or the employee is terminated.

    In other words, the discipline is progressive and is directly related to the seriousness of the offense, as well as the employee’s history. Depending upon the facts and circumstances involved in each situation, the supervisor may choose to begin disciplinary action at any step on the progressive discipline scale.

    While progressive discipline is frequently utilized by the Seattle Public Schools, it is by no means binding on the district or on the supervisor. In other words, there are circumstances where an employee’s behavior may be so serious that progressive discipline will not be used, and the district will immediately move to terminate an employee.

    Various collective bargaining agreements outline the process for discipline. For example, the Seattle Education Association CBA’s state that:

    "No employee shall be disciplined without just and sufficient cause. A process of progressive discipline will be used. Progressive discipline includes, but is not limited to, oral warning, written warning or reprimand, suspension and/or termination as appropriate to the circumstances. The SPS may bypass the steps of the progressive discipline process in any situation because of the seriousness of the employee conduct that constituted just cause for discipline. Any disciplinary action, except an oral warning not documented or recorded in the employee’s personnel file, shall be subject to the grievance procedure including binding arbitration. The specific grounds forming the basis for disciplinary action will be made available to the employee in writing. This section shall not apply to matters covered by statutory due process procedures."

    What is the process for administrative leave?

    Administrative leave is an employer-directed removal from the regular work environment for an indefinite period of time. The purpose of administrative leave is to remove an employee from the workplace during the pendency of an investigation and/or until discipline can be imposed. In general, it is used when the district believes an employee’s continued presence in the workplace could threaten or endanger children or others, disrupt the educational or work environment, or interfere with an investigation.

    Administrative leave is not considered to be disciplinary.

    What is Due Process?

    Due process is a constitutional protection afforded in most circumstances when SPS takes action against an employee for engaging in misconduct, such as suspending or terminating the employee from his or her employment.

    It guarantees fair treatment to an employee facing adverse employment action, the basic elements of which are notice to the employee of what he or she has been accused of, an opportunity to be heard, and an ultimate decision by a neutral decision maker. This can include a meeting to provide notice of the charges against the employee and giving the employee an opportunity to respond. It can also involve a grievance process and hearing/arbitration after the decision is made to determine whether SPS had just cause, probable cause, or sufficient cause to take adverse action against an employee.

    This can be a long, expensive, and adversarial process.

    What is Just Cause? What is the standard?

    Different standards of cause apply to different types of employees. Which standard applies depends on the applicable collective bargaining agreement and/or whether the employee is classified or certificated.

    For classified employees, one arbitrator defined just cause as “a measure of whether the employer had a good reason for the discipline imposed and acted fairly in imposing it.”

    For certificated non-supervisory employees (teachers), the standard for sufficient cause is complex. By statute, a teacher cannot be discharged or suspended without pay except for "sufficient cause." See RCW 28A.405.300.

    The statute does not define "sufficient cause," so Washington courts have given meaning to the phrase. With respect to discharge, the Supreme Court has held that sufficient cause exists "where the teacher's deficiency is unremediable and (1) materially and substantially affects the teacher's performance, or (2) lacks any positive educational aspect or legitimate professional purpose." Fed. Way Sch. Dist. No. 210 v. Vinson, 172 Wn.2d 756, 772 (2011), quoting Clarke v. Shoreline Sch. Dist. No. 412, 106 Wn.2d 102, 113-14 (1986) (first emphasis in Vinson, second emphasis in Clarke). This framework is known as the "Clarke test." Sufficient cause may be found as a matter of law, without applying the Clarke test or Hoagland factors, in only the most egregious cases, such as where a teacher has engaged in sexually exploitive conduct or physical abuse of a student.

    What are the steps in an investigation? How do we protect students and/or staff during investigations?

    When the district’s complaint resolution process is requiring that an investigation be conducted, the investigation should in general consist of the following actions:

    • Gathering all relevant records, documents, emails, and other forms of tangible evidence (for example, security camera footage, if available); and
    • Interviewing relevant persons who may have firsthand knowledge of the situation. Interviews are usually done in particular order, starting with the complainant (or reporting party) and finishing with the respondent (person against whom a complaint is filed).

    Since an investigation is a dynamic process for the purpose of finding information that would either prove or disprove the allegation, the actions taken to uncover relevant evidence in each particular investigation are informed by the specific elements of an allegation. The plan of the investigation should also take into consideration the motives of the complainant, witnesses, and respondent and seek to gather information relevant to those factors.

    During the pendency of an investigation, the district may be required to implement reasonable interim safety measures (i.e. safety plans) if there are concerns regarding the safety to students and/or staff. Safety plans should be tailored to the specific needs of the relevant person and the context where the plan will be implemented.

    District investigators are allowed to expand the investigation, after review by the director of investigations and compliance, if the investigation uncovers additional areas of concern or other potential policy violations. If that occurs, the director of investigations and compliance will confer with HR directors to ensure that proper notice of the additional allegations is provided in accordance with relevant collective bargaining agreements.

    Types of misconduct that must now be led by HR (change in process was initiated August 2019)

    For the following allegations the investigation must be led by Human Resources:

    1. Any sexual harassment/sexual assault complaint where respondent is a staff member
    2. Formal discrimination complaint (3210 or 5010)
    3. Formal retaliation complaint (5245)
    4. Adult/Student Boundary violation allegation
    5. Assault of student by staff member
    6. Theft of district property/resources 7. Policy 5006 allegation (unprofessional conduct by credentialed staff member)

    What does it mean when a collective bargaining agreement states that disciplinary actions shall be subject to the grievance procedure?

    District staff make decisions about the appropriate level of discipline, but once that discipline is imposed, the employee/union has a right to file a grievance that essentially disputes the findings of the investigation and/or the level of discipline imposed. The grievance process involves several steps where the employee, union, and assigned district staff person meet to discuss any disagreements. At different steps, a different district staff person would hear the appeal. At the end of the review process, the union may file for arbitration where a person, usually an attorney, is appointed by the parties to make a final and binding decision on whether the district had cause to impose the discipline it imposed. Sometimes the discipline is upheld and sometimes overturned. For teachers under continuing contracts, when they are suspended or terminated, a different process is used. Those actions go immediately to a formal hearing officer for a formal hearing. See RCW 28A.405.310.

    What are settlement agreements and why does the district use them?

    Settlement agreements are generally used to reach a written understanding between the district and an employee leaving his or her position or the District. It outlines what actions the district and the employee will take. Because many employees have written employment contracts with the district, e.g. teachers and principals, the settlement agreements will usually discuss how much of the contract will be paid as part of the settlement.

    Please note: State law prohibits any settlements or severance agreements that has the effect of suppressing information about verbal or physical abuse or sexual misconduct by a present or former employee or of expunging information about that abuse from any documents in our personnel, investigative, or other files.

    SPS claims they have made several improvements to address the long-standing problems associated with the Labor and Employee Relations Department. What specifically has been done to realize improvement?

    The Human Resources Department in 2018 commissioned a consulting firm, Moss Adams, to conduct a department review and audit. In January 2019, Moss Adams issued a report that reviewed the structures, policies, processes, and staffing of the LER department. In summary, the district has done the following:

    • Created an implementation plan to address the 22 recommendations in the Moss Adams report;
    • Restructured staff to divide work more evenly and balance span of control between traditional labor relations matters and employee relations (misconduct, complaint processing);
    • Reorganized the investigative team and staff to expedite and streamline investigations to ensure fair and timely investigations;
    • Implemented training for investigators to ensure calibration and protocols are followed
    • Provided additional resources to LER to address the two-year backlog of cases in 2016. Currently, no employee misconduct case is older than seven (7) months;
    • The complaint process has been redesigned to streamline and improve processes, ensuring more consistent handling of cases;
    • The Labor Employee Relations team, Investigations and Compliance Director, and Deputy Legal Counsel meet weekly to review cases and calibrate on appropriate levels of discipline;
    • Mediation and adult resolution processes are being designed in partnership with UW School of Law Mediation Clinic to support the resolution of allegations/conflicts without requiring a formal investigation. We are also working with the union to create a SPS/SEA conflict resolution process;
    • Training is being modified for supervisors to better handle employee misconduct in their buildings;
    • Policies and procedures are being reviewed/revised to ensure clarity; and
    • Managers are working more directly with principals to ensure consistency in the handling of issues in schools.

    Is there anything the legislature could do to help?

    SPS, as well as other school districts, would benefit from legislative assistance in the future. Ideally, the legislature would define “Flagrant Misconduct” and broaden the types of cases that warrant termination for a first offense.

    Additionally, it would be helpful to clarify when the standards in Clarke and Hoagland should apply; the eight factors are generally unworkable and inapplicable in most cases. It could also help to eliminate the mandatory remediation prong legislatively.

    Lastly, school districts do not have the right to appeal an adverse decision by hearing examiners. In Vinson, the Court held “Under Title 28A RCW the legislature has given district employees, but not the district, the right to appeal a hearing officer's decision to superior court. RCW 28A.405.320.”