Legislative Alert - MASC opposes Senate Bill 350 regarding dismissal rights

MASC urges you to contact your legislators by phone prior to the September 9, 2015 hearing before the Education Committee at 10:00am in Room A1 of the State House, and subsequently to contact them in writing, for the purpose of opposing this legislation.

Below, please find a bill, S. 350 that would reverse the holding of a recent Supreme Judicial Court case, Zagaeski v. Lexington (July 14, 2014) that limited the scope of authority granted to an arbitrator, to reinstate a teacher who was dismissed for conduct that the arbitrator found constituted a valid basis for dismissal. S. 350 will apply prospectively, and will not overturn Lexington, but would affect other similar matters that are commenced after its passage. The conduct in question by the teacher concerned his making two sexually- inappropriate comments made during class to a female student. On the first occasion, in response to a question from a student seeking extra help, the teacher referencing a comment from another student, indicated that, if the student wanted to improve her grade he would welcome some sexual favor. Two days later when the student came to the teacher for extra help he made a similar comment. After the second incident the female student reported the comments to her guidance counselor. The Principal and Superintendent proceeded, after an investigation to dismiss the teacher. The Arbitrator determined that the comments rose to the level of sexual harassment as defined in the school committee’s policy, which mirrors the law. He further found that the comments made to the student were inappropriate, and had the effect of offending the student causing her to lodge a complaint .Moreover, he found that these comments created a hostile or offensive educational environment for the student. Nonetheless, he reduced the dismissal to a two day suspension. The Supreme Judicial Court (SJC) overturned the Arbitrator’s decision and reinstituted the local decision to dismiss the teacher. MASC and MASS have, through their respective counsels, argued since the Geller (2001) case that the statutory dismissal (G.L. c. 71, S.  42) does not allow the arbitrator to substitute his judgment for that of the district, once he has determined that the charge has been substantiated. The proposed bill will allow an employee who has been found to violate the sexual harassment policy, as was the case in Lexington, or any other matter determined by an arbitrator to be proven, to be subject to the arbitrator’s modification of the discipline imposed by the school district.
 

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 
SECTION 1 Section 42 of Chapter 71 of the General Laws is hereby amended by striking out the third paragraph in place thereof the following paragraph:-
A teacher with professional teacher status, pursuant to section forty-one, shall not be dismissed except for just cause, including inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure on the part of the teacher to satisfy teacher performance standards developed pursuant to section thirty-eight of this chapter.
 
SECTION 2 Section 42 of Chapter 71 of the general laws is hereby further amended in the fifth paragraph by striking the second sentence and inserting the following:-
In determining whether just cause exists for dismissal, the arbitrator shall have the authority to consider whether the grounds, if proven, warrant dismissal or a lesser measure of discipline based on such factors including, but not limited to, whether the proven misconduct or shortcoming justifies dismissal and whether the decision to dismiss is consistent with fundamental fairness as expressed in a collective bargaining agreement or through established disciplinary practices in the district.
 
SECTION 3 Section 42 of Chapter 71 of the general laws is hereby further amended in the sixth paragraph by striking the sixth sentence and inserting the following:-
With the exception of other remedies provided by statute, an arbitrator hearing a dismissal pursuant to this section shall be limited to awarding the aforementioned remedies.