Know Your Contract
Due Process
What does due process require?
Whether you are a teacher or an ESP, at some time in your career you or your colleague may be faced with a written communication from the administration that may reflect negatively on your performance or character. At these times members often have questions about what exactly are their due process rights. The answer is simple and yet a bit complicated.
Due process first of all only applies if you are being formally disciplined by the administration. That is, you are being “written up” and a conclusion is being reached by your supervisor that you have done something or failed to do something that you should have done. Due process then requires that before the discipline is imposed, the administrator provide you with notice of what the charges are against you, the discipline that is being considered, and an opportunity for you and your WEA representative to respond to the charges and present any arguments and mitigating circumstances.
In addition, both the teacher and the ESP contracts state that discipline must be imposed for “just cause.” This is a term that has been used in labor-management relations for well over 50 years. There are seven tests that are generally applied to see whether the discipline imposed meets the standards of “just cause:”
1. Was the employee adequately warned of the consequences of his conduct?
2. Was the employer's rule or order reasonably related to efficient and safe operations?
3. Did management investigate before administering the discipline?
4. Was the investigation fair and objective?
5. Did the investigation produce substantial evidence or proof of guilt?
6. Were the rules, orders, and penalties applied evenhandedly and without discrimination?
7. Was the penalty reasonably related to the seriousness of the offense and the past record?
On the other hand, your employer always has a right to tell you what is expected of you in the future. In this district these non-disciplinary memos are usually entitled a “Memorandum of Understanding” or sometimes it is entitled a “Letter of Expectations.” But it may be called anything other than a “written reprimand” which is a disciplinary action. In order for these memos to be non-disciplinary in nature, they must not include any conclusions about you or your performance and they are not to be placed or copied to your official district personnel file, These memos only belong in your building file and serve only to document that you have been told what is expected of you in the future. So if you get a written document - regardless of the title - that negatively reflects on your performance, that document is a written reprimand and is subject to the grievance procedure for any violation of due process and/or just cause.
As with many other rights you have under the contract, the district is not obligated to inform you of your rights. It is up to you to Know Your Contract.
This message is intended for members of the Westminster Education Association
and is not intended for distribution to the general public.
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This page was last updated on 11/13/2008
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