Contracts: Vigilance Required

Alert Members at Ponca Catch Violation Early in Year

Issue Resolved with NSEA’s Help

When a teacher new to the school district tried to join the Ponca Education Association in the fall of 2017, she turned to PEA President Keith Trusty for assistance.

Misty Bausch had encountered difficulty discerning which Association membership category fit her new employment status. 

No wonder. Bausch arrived at Ponca with seven years’ experience teaching special education in a nearby district. But she had been hired as a paraeducator – albeit at an enhanced rate of pay – to monitor an online Spanish language program the school district thought had a proctor behind it.

Bausch’s hiring was the district’s solution after administrators were unable to find a replacement to fill a retirement vacancy. The difficulty was understandable: the Nebraska Department of Education reports that more than a dozen World Language teaching positions across the state went unfilled in 2017-18.

Bausch had teaching experience, lived nearby and was fluent in Spanish. With a new superintendent and a new high school principal on board, she agreed to help the district by taking the position. But Bausch was not endorsed in Spanish, and most educators are not comfortable being assigned outside their area of endorsement.

“She was really doing the school district a favor,” said Trusty.

Favors aside, when Bausch reached out to Trusty, it turned a spotlight on issues that endanger the integrity of the negotiated contract.

“The district hired her as a paraeducator because she was not endorsed in Spanish,” said NSEA Attorney Scott Norby. “That does not justify them hiring her as a paraeducator, they cannot treat her as anything less than a certificated teacher.”

Fortunately, local members were alert and the contract issues were resolved professionally and quickly.

Vigilance, Violations

There are two important sides of contract advocacy that affect every local Association in Nebraska, from smallest to largest: contract negotiations and contract enforcement.

Trusty had recognized immediately that the district’s hiring of a certificated teacher as a paraeducator – off the agreed-to salary schedule – conflicted with the Association’s negotiated agreement. Contract vigilance and watchfulness are ongoing endeavors, said NSEA Director of Advocacy Trish Guinan.

“This is about protecting both the individual and the collective rights,” said Guinan. “This teacher had her certificate and was essentially hired as a full-time teacher.”

Yet Bausch was hired at an hourly rate that fell short of the first-year teacher’s salary shown on the PEA’s negotiated agreement. She was also denied fringe benefits outlined in the PEA contract and was not receiving contributions to her state retirement plan.

Guinan credited Trusty and his leadership team for identifying and taking the lead in resolving the issue. Protecting one member’s rights protects the rights of all, she said.

 “This is about being vigilant and proactive. Watching and enforcing the contract means doing what is right for all members,” she said.

Norby agreed, and said “This situation presented an issue that never really goes away: leadership and vigilance in monitoring compliance with members’ contractual and statutory rights.”

Supreme Court Wins

Paying certificated teachers as para-educators or as substitutes is a continuing problem, said Norby. He called such violations “an eternal challenge.”

“School officials wanting to fill vacancies with teachers under one-year contracts – and to pay them off-scale – continues to occur,” he said.

The most common method finds a school district hiring a certificated teacher to fill a vacancy but labeling and paying that teacher as a long-term substitute. Norby said there is a firm distinction between a substitute and a full-time teaching position.

“A substitute fills in during a permanent teacher’s leave of absence, whether that absence is a day or a month,” he said. “Substitutes are not members of the bargaining unit, they do not get benefits.”

As noted, Bausch was hired to teach Spanish, even though not endorsed in that area. Norby said a school district’s administration has the right to assign educators outside their area of endorsement.  Doing so, he said, does not alter the distinction between a substitute and a fulltime teacher.

“We’ve been dealing with this across the state for decades,” said Norby. “We’ve been to the Nebraska Supreme Court twice on this issue and won both times.

“Misty Bausch should not have been treated as anything less than a full-time, certificated employee.”

Local Support

When Trusty found Bausch had been hired as a paraeducator, he called Guinan, and along with PEA Vice President Zane Webb met with the district’s new superintendent. Those discussions, though cordial and amicable, led to a grievance filed by the PEA, which was resolved quickly.

Meanwhile, Bausch had reached out to NSEA Organizational Specialist Carol Hicks, who serves local associations in northeast Nebraska. Hicks also alerted Guinan about the potential need for NSEA involvement at Ponca.

Locally, Trusty said PEA members were kept informed along the way and supported the Association’s work on behalf of Bausch.

“We discussed it at our meetings, and members supported Zane and I,” he said.

Another Blip

At the Board of Education’s October 2017 meeting, a full teaching contract was approved for Bausch. But it came with another blip: Along with the contract, Bausch received a notice of non-renewal of her contract, effective at the end of the school year.

“When Misty was finally offered a full contract, they also gave her a non-renewal notice, so they could let her go at any time,” said Trusty.

Norby responded quickly.

“If you let them do that, why would you not let them issue a notice of non-renewal of employment with every new teacher’s contract?” he said. “That’s abuse of the process.

“There must be a reason for dismissal, and none of the state’s fair dismissal laws will mean anything if this kind of action is allowed,” said Norby.

NSEA, through the PEA, requested a public hearing, allowed by statute, to defend Bausch against the non-renewal notice. Once that filing was made, the notice was quickly withdrawn.

Never-Ending Effort

Bausch was eventually placed at the master’s degree level, given insurance, retirement benefits, a year’s credit in the retirement system and other fringes outlined in the contract. She never intended to stay more than a year, and resigned late in the school year, though Trusty said she plans to teach again. A new Spanish teacher is in place this year.

Trusty and PEA members drew praise from Guinan and Norby.

“Because Keith stuck his neck out for someone who was not really in a position to advocate for herself, she was able to get the pay and benefits she deserved. That’s what Association leadership is all about,” said Norby.

“Enforcing the contract, watching board policies is a never-ending effort,” said Guinan. “Members of the PEA showed that you can’t afford to go to sleep on your rights.”

Trusty thanked his leadership team and noted that PEA members are vigilant. They review each new contract before signing off, and have representatives attend and report on every board of education meeting.

He recommended watchfulness and suggested approaching administrators when there is an issue; suggested keeping the discussion professional; and suggested taking another association representative or representatives into such meetings.

Trusty had one more suggestion for local leaders: call NSEA.

“Even if you do reach a solution with your administrator, it’s a good idea to call NSEA so that they can advise you,” he said.