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Legal Corner

 

 

The BTU Legal Corner serves as a portal of information for members. The page features legal topics and issues of interest to professionals educators. The BTU Legal Corner is maintained through the assistance of BTU Legal Counsel Steve Rossi and his staff.

 

 

 

 

 

Special Legal Notice

 

 

 

 

 

 

 

Legal Issues

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Protecting Yourself In The Workplace

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As a school employee, the job of teaching can be a difficult one.  Teachers deal with hundreds of students and their parents as well as the school administration and colleagues on a daily basis.  Although unfortunate, the very nature of the job leaves teachers open to serious allegations of misconduct, ranging from inappropriate discipline to excessive use of force to sexual misconduct to misappropriation of funds to falsifying records. 

 

While it is impossible to stop allegations from being made, steps can be taken to protect  teachers, their reputations and careers.  It is important to note that teachers are not the only employees in a school district who are open to allegations of misconduct.  Bus drivers, teacher assistants, food service workers, custodians, secretaries and other educational support personnel are also vulnerable to charges.  By following these simple tips, teachers can help protect themselves from becoming the victims of allegations.

 

 

What practices and activities are covered by the employment nondiscrimination requirements?

 

Who is protected from employment discrimination?

 

Who is a “qualified person with a disability?”

 

What is “reasonable” accommodation?

 

What are some examples of accommodations?

 

Are you in need of assistance in requesting a reasonable accommodation?

 

*Americans With Disabilities Act*

 

 

 

 

What practices and activities are covered by the employment nondiscrimination requirements?

 

The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training and other terms, conditions and privileges of employment.  It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits and all other employment-related activities.

 

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Who is protected from employment discrimination?

 

Employment discrimination is prohibited against “qualified individuals with disabilities.”  An individual is considered to have a “disability” if she/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as

having such an impairment.

 

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Who is a “qualified person with a

disability?”

 

A qualified person with a disability is a person who meets legitimate skill, experience, education or other requirements of an employment position that she/he holds or seeks, and who can perform the

essential functions of the position with or without reasonable accommodation. 

 

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What is “reasonable” accommodation?

 

Reasonable accommodation is any modification or adjustment to a job or to the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform the essential functions of the job. 

Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.

 

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What are some examples of accommodations?

 

A reasonable accommodation for an individual employee should be considered on a case by case basis.  Depending on the nature of the disability, it is helpful to have the employee, employee’s doctor, therapist or other healthcare specialist, who is familiar with the employee, participate in the discussion.  There are also many public and private sources that can be of assistance.  There is no cookie-cutter approach, and often the employee knows exactly what is needed in the way of an accommodation.

 

Reasonable accommodation includes: making existing facilities accessible and

useable, restructuring a job, modifying work schedules, making adjustments in leave policies, acquiring or modifying equipment, providing qualified readers or

interpreters, or modifying examinations, training or other programs.  

 

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Are you in need of assistance in requesting a reasonable accommodation?

 

If you are a qualified individual with a disability or believe you are a qualified individual with a disability and are in need of assistance in requesting a

reasonable accommodation from your employer, call your Union office for assistance.  Sometimes it is helpful to make the request of your employer through the Union. If you have been denied a reasonable accommodation to which you believe you are entitled, you should contact the Union office immediately for help.

 

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Assaulted? Know Your Rights

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It’s important for teachers to know what to do if they are victims of an assault (the threat of violence) or battery (the actual violent action).

 

Both crimes are traumatic, and the natural reaction of the victim, especially a school employee, is to minimize the event.  However, days or weeks later, the victim will realize physical or emotional injury caused by the crime. Therefore, it is important to report any assault or battery as soon as possible so that your rights will be protected.

 

 

 

Reporting the Assault/Battery

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Fill out the appropriate reporting forms at your school. You should always fill out the necessary forms even if you think your injury is not serious or was just an accident. Keep the description brief and factual.  If students are involved, also fill out a discipline referral form. Remember to keep copies of all forms for your own files.

 

 

 

Report to Your Principal

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Typically, you will not have time to fill out the forms until later in the day or after school. Therefore, you should promptly report the incident to your principal. Do not wait more than a few days before having any workers’ compensation or social security disability application completed and filed.

 

 

 

 

See a Doctor

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You should be examined by a doctor in case your injuries require medical attention. Some injuries are not apparent until later, for example, strained muscles or twisted backs.  Check with your principal/supervisor for the list of panel doctors.  You should not seek medical treatment without the approval of your employer or their insurance company, unless it is an emergency.

 

If you are not satisfied with the doctor, ask your employer or their insurance carrier to select a different one. Be sure to tell the doctor that you were injured on the job so that any medical expenses will be covered by workers’ compensation. Workers’ compensation will also reimburse you for those days you are out of work. If you stay out of work because of disability resulting from a school-related battery, those days are not deducted from your sick days.

 

 

 

 

Police Report

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You may also wish to contact the police and have them file a police report. You may decide to press charges after this is done. You do not need your principal’s permission to do this.

 

 

 

 

Florida Law

 

784.081 Assault or battery on specified officials or employees; reclassification of offenses.— Whenever a person is charged with committing an assault or aggravated assault or a battery or aggravated battery upon any elected official or employee of a school district; when the person committing the offense knows or has reason to know the identity or position or employment of the victim, the offense for which the person is charged shall be reclassified as follows:

  • In the case of aggravated battery, from a felony of the second degree to a felony of the first degree.

  • In the case of aggravated assault, from a felony of the third degree to a felony of the second degree.

  • In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.

  • In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.

 

 

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Simple Career Savers

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Never touch a child in anger.  Avoid any contact that can be perceived as grabbing, pushing, shoving, pinching, twisting or hitting. Avoid being alone with a student, particularly one of the opposite sex.  Have another student or adult present at all times.  If this is not possible, be sure to leave the door open.

 

  • Do not give a student a ride in your personal vehicle.

 

  • Do not send cards, personal letters or e-mails to students.

 

  • Do not give gifts to students.

 

  • Do not become a pal to students.  Be sure that it is clearly understood that you are the adult, and maintain a professional relationship with students.

 

  • Do not discuss your personal life with students.

 

  • Do not engage in conversations with students about their dates, romantic problems or sex.  If a student needs help, refer him or her to a guidance counselor.

 

  • Do not let students sit on your lap.

 

  • Avoid hugging students.

 

  • Don’t ask students to give you back rubs.

 

  • Never drink alcohol in front of students or on a school-sponsored trip, even if students are not present.

 

  • Do not use profanity.  Not only is it inappropriate in the workplace, but it may also be offensive to others.

 

  • Do not make sexist, racist or prejudicial remarks.

 

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Reputation in the Community

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  • Keep your co-workers and supervisors informed.

  • Communicate with parents and document your communication.

  • Dress and act appropriately and professionally.

  • Use common sense and judgment.

  • Avoid putting yourself in a position where you have to defend, justify your behavior or actions.

  • Maintain a professional reputation in the community.

 

 

 

 

What Are Self-Reporting Requirements?

 

 

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The Code of Ethics for the Education Profession requires employees who hold a valid Florida Teaching Certificate to self-report certain arrests or charges.

Within 48 hours the following must be

reported:

 

  • Any arrest or charge involving the abuse of a child

  • Any arrest or charge involving the sale or possession of a controlled substance

 

Within 48 hours of a final disposition, with the exception of a minor traffic violation, the following must be reported:

 

  • A conviction for any criminal offense

  • A finding of guilty for any criminal offense

  • A withholding of adjudication for a criminal offense

  • A commitment to a pre-trial diversion program for any criminal offense

  • The entering of a plea of guilty or nolo contender for any criminal offense

 

Will self-reporting affect my employment?

 

The Code of Ethics clearly states that giving notice to your employer is not an admission of guilt, nor shall the notice be admissible for any purpose in any proceeding — civil or criminal, administrative or judicial, investigatory or

adjudicatory. 

 

However, depending on the nature of the pending allegations, an employer may choose to take action on its own.  The District may choose to engage in an investigation or place you on suspension with or without pay or place you in an alternative position until there is a finding through the legal system or the charges are dropped.  The District may also make a report to the Professional Practices Service (PPS).

 

The PPS is the State Department of Education’s investigatory arm that investigates allegations of misconduct against teachers.  If a report is made to PPS, you can expect a thorough investigation.

 

If the District puts you on notice that it intends to take action, you should contact your Union office immediately so that you can be provided representation.

 

 

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Charges That Trigger Investigations

 

 

 

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While not meant to be exhaustive, some charges that will trigger an investigation

by the District or PPS include the following:

 

  • Child abuse

  • Sale or possession of a controlled substance

  • DUI or DWI

  • Domestic violence

  • Fraud

  • Worthless checks

  • Assault

  • Battery

  • Petit or grand theft

  • Insurance fraud

  • Sexual battery

  • Solicitation for prostitution

  • Trespassing

  • Forgery

  • Lewd and lascivious acts or assaults

 

FLORIDA PROFESSIONAL PRACTICES  SERVICES

 

The Professional  Practices Services (PPS), is the investigatory branch of the Department of Education. The PPS investigates school employees (both teachers and administrators, who hold teaching certificates) when there are allegations of misconduct and/or violations of the Code of  Ethics. Based on the results of the investigation, the PPS makes a recommendation to the Commissioner of Education. The recommendation can be for a finding of Probable Cause or No Probable Cause.

 

 

 

 

 

 

 

 

 

How does the PPS receive complaints about certificate holders?

 

A complaint regarding allegations of misconduct is most often sent to PPS by the School District. It is also possible for a parent, student, colleague or any citizen to report allegations of misconduct to the PPS.

When a School District makes the report, there has more often than not, been an investigation into the allegations at the District level. In this case, the District would send any reports and evidence it gathered to be considered by the PPS.

 

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Why would the District have PPS investigate a second time?

 

The District and the PPS operate independently of each other. In fact, it is possible for the District to investigate and discipline the employee and for PPS to conduct an investigation which results in no disciplinary action. It is also possible for the District to take no action and for the PPS to mete out a penalty. It is important to note that the District disciplines the employee while PPS disciplines or takes action against the certificate.

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How does an investigation by PPS work?

 

When an allegation is made against a certificate holder, the PPS will notify the individual by letter. The letter will describe the nature of the allegation and inform the certificate holder that an investigation will occur. Should you receive a letter like this, immediately call the Union office. The PPS will send an investigator to interview possible witnesses in an effort to substantiate the allegations. If the certificate holder is contacted, no statement should be made at this time.

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What happens after the Investigation?

 

The certificate holder is again notified by letter and is invited to participate in an Informal Conference. The purpose of the conference is to provide information and documents to either dispute the allegations or to explain the situation. The staff of the Broward Teachers Union provides representation to its members for the Informal Conference. While the investigation is under way, everything is confidential. Once the investigation is complete, however, all documents, written statements, notes, etc. become public record and are available to anyone who requests them. Following the Informal Conference, the investigation will make a recommendation to the Commissioner of Education. No Probable Cause means that there is a recommendation to take no action against the certificate. Should the Commissioner agree and find No Probable Cause, the certificate holder will receive a letter to that effect and the Commissioner will dismiss the complaint.

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Probable Cause versus No Probable Cause

 

When there is a recommendation for a finding of Probable Cause and the Commissioner accepts that recommendation, an administrative complaint is prepared. The complaint, which is sent to the certificate holder, sets forth the rules and laws which are alleged to have been violated, as well as a

statement of the material allegations.

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Election of Rights

 

When the certificate holder is notified that there is finding of Probable Cause, an Election of Rights form is sent with the Administrative Complaint This form gives the certificate holder several options: a formal hearing before the Education Practices Commission or a settlement Option. A member of the BTU should seek legal assistance from the staff of the Broward Teachers union prior to making a selection.

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What Types of allegations are considered?

 

Sexual Misconduct Without Students: Sexual harassment of colleagues, sexual activities in public.

 

Sexual Misconduct with Student: Inappropriate comments of a sexual nature, romantic involvement, kissing or inappropriate touching or hugging, or sexual contact with student.

 

Drug-Related Offenses: Drinking with or providing alcohol to students, DUI and DWI offenses, appearing at work while under the influence of alcohol or drugs, possession or sale of controlled substances, forging prescriptions for addictive substances, convictions or  withheld adjudications for offenses involving

alcohol or controlled substances.

 

Inappropriate Discipline: Misuse of corporal punishment, excessive force, taping students’ mouths, tying students to chairs, inappropriate use of timeout.

 

Incompetency: Due to either inefficiency or incapacity, the educator has failed to demonstrate minimal standards of competent performance.

 

Criminal Conduct, Non-Drug Related: Convictions or withheld adjudications for such offenses as worthless checks, assault, battery, trespass, petit or grand theft, murder, forgery, insurance fraud, sexual battery, lewd and lascivious acts or assault, solicitation for prostitution, sale of child pornography.

 

Fraudulent Certificates: Failure to acknowledge criminal records on applications for certification, submission of fraudulent scores for certificate exams, altering the validity period or other information on a photocopy of the certificate, submission of false transcripts.

 

Miscellaneous Issues: Profanity, racial slurs, or derogatory comments to students, false and malicious comments about colleagues, showing “R” rated movies or other non-approved films to students, diversion of school funds, failure to follow procedures for the collection of students fees, use of invalid standardized testing procedures, altering students records, falsification of Full - Time Equivalent records, violation of

Education Practices probation.

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The Fair Use Doctrine & Copyright Regulation

 

 

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A copyright grants creators exclusive rights to their work for a limited time, so that they can profit from it and control its use.  These rights are balanced by “the fair use doctrine”, which permits certain exceptions, including works to be used for nonprofit, educational purposes without permission or fees.

 

 

 

 

 

 

If I am using materials for teaching, am I covered by “fair use”? 

 

The answer is “Not always.”  There are four factors that determine what is fair.

 

  • The purpose and character of the use (teaching generally passes)

  • The nature of the copyrighted work (fiction enjoys stronger protection than non-fiction).

  • The amount used (copying an entire work-never a good idea)

  • The effect of the use on the work’s potential market value (if you are taking money out of the creator’s pocket, it is probably not fair use – an example would be duplicating pages of a workbook so students or the school can avoid purchasing it)

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What About The Internet?

 

The Internet has made accessibility to music, articles, film clips and graphics more accessible than ever before.  Just because there is no copyright notice or symbol on a Web site doesn’t mean that the work isn’t copyrighted.

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Is There Any Way To Get Permission To Duplicate

Copyrighted Materials?

 

It never hurts to ask for permission to duplicate a copyrighted work.  The author may just say “yes” or may give a qualified “yes” which may include the payment of a fee or royalty or some limitations.  It is best to be very specific when seeking permission from the holder of the copyright, or in some cases, the editor or publisher.  Just remember that the answer may be a denial of permission and that “no” really means “no”.

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Are There Copyright Police?

 

While  you don’t have to lose sleep worrying about the copyright police, fines can be attached to the infringement on copyrights.  The fines can run from $500 to $20,000 per infringement and, if it can be proven that the law has been broken by willful intent, the fine can be raised to $100,000.  It should be noted that, while few educators have been sued successfully for copyrighting violations, there are several good reasons to obey the law.  Those who have created the work we seek to copy, be it a book, a poem, a picture, an article in a magazine or newspaper, a movie or even a piece of music probably did so with the intent of making money.

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Quick Guide To Duplication Of Copyrighted Material

 

You may duplicate single copies of the following items:

 

  • A chapter of a book

  • An article from a newspaper or periodical

  • A short story

  • A short essay

  • A short poem

  • A chart, graph, diagram or picture from a book, periodical or newspaper

  • A cartoon that is not copyrighted and syndicated

 

You may duplicate multiple copies for classroom use of the following items:

 

One chart, graph, diagram or picture per book or periodical issue

One cartoon that is not copyrighted and syndicated from a book or periodical issue

A complete poem of less than 250 words, if it is not printed on more than two pages

An excerpt from a long poem that does not exceed 250 words

An article, story or essay that is less than 2500 words or an excerpt of not more than 1,000 words from a larger printed work, not to exceed 10% of the whole, whichever is less

Special works that combine prose, poetry and illustrations that are no more than 10% of the total work

 

Guidelines for the use of multiple copies:

 

  •  All copies must contain the copyright notice

  •  Copies are for one course only

  •  Copies are of one work from a single author

  •  Copies are limited to no more than three authors from a collective work

  •  Multiple copying can not exceed nine times in one class term

  •  Copies may not be used a s a substitute for an anthology or collection

  •  The copying of consumables is strictly prohibited (workbooks, standardized tests, etc.)

  •  The same item may not be reproduced from term to term

  •  Students may not be charged other than the actual cost of the copies (check District policy to see if   students can be charged for copies)

  •  Multiple copies of current news periodicals and newspapers may be made, if they are not from publications for students.

 

 

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