Paraprofessional wages/rights under Fair Labor Standards Act

YOUR JOB

Professional boundaries with students

Teachers are perceived as role models in the community, and the laws and regulations that mandate appropriate standards of conduct reflect that expectation. Failure to comply with these standards can lead to adverse employment action, certification sanctions and criminal consequences.

Sexual relationships with students

Sexual contact or indecent exposure with a minor is a felony that requires the perpetrator to register as a sex offender. It

also is a felony for any school district employee to engage in a sexual relationship with a student, even if that student is of the legal age of consent. This prohibition includes students

enrolled in schools where the teacher is not employed. A person who is a member of the Teacher Retirement System and is convicted of certain felonies that involve sexual abuse of a student or minor will be ineligible to receive a service retirement annuity from the retirement system. In 2019, lawmakers responded to concerns about educator misconduct by mandating that the Texas Education Agency maintain and make available through an internet portal a registry of persons not eligible for employment in a school district, District of Innovation, open-enrollment charter school, or other charter entity, education service center, or shared services arrangement. Private schools are provided access to the registry. A person who is the subject of a report alleging specified misconduct (the person was terminated or resigned and there is evidence the person abused or committed an unlawful act with a student or minor or was involved in a romantic relationship or solicited or engaged in sexual contact with a student or minor) is entitled to a hearing on the merits of the allegations. In the event that a report of alleged misconduct is sent by the superintendent or equivalent to TEA, the agency must promptly send notification that the person has 10 days to request a hearing and provide a written response. If the person does not submit a written response to show cause why the commissioner should not pursue an investigation, the agency will post notice through an online portal that the person is under investigation for alleged misconduct. If the person does not request a hearing in a timely fashion, the commissioner shall make a determination as to alleged misconduct based on the report submitted to TEA. If the commissioner determines that the person engaged in the described misconduct, the person will be added to the do-not-hire registry. If the person requests a hearing and the final decision determines that the person did not engage in the alleged misconduct, the agency will immediately remove from the portal the information indicating the person is under investigation for alleged misconduct. A school district must complete an investigation into allegations of educator misconduct, even if the educator resigns from the school district. School districts must notify the parent or guardian of a student with whom an educator allegedly engaged

TCTA ONLINE TRAINING ON PROFESSIONAL BOUNDARIES

Watch TCTA’s free online continuing professional education video “Texting Your Way Into Trouble: How to Keep Your Relationships With Students Professional,” at tcta.org/seminars to earn 1.25 CPE credit hours.

ELECTRONIC MEDIA AND SOCIAL NETWORKING

School districts are required by law to adopt a policy regarding electronic communications between employees and students. Most districts’ policies extend standards of conduct to use of electronic media and social networking sites, and the Code of Ethics imposes limitations on such communications. Educators are held to the same standards of conduct in their use of electronic media and social networking as for any other public communication. All communications with students or minors, whether electronic or in person, should be professional and appropriate. Many districts have even adopted policies specifying that teachers may communicate with their own children and their children’s friends using personal social networking sites, but may not do so with current or former students with whom there is no separate social relationship. Some districts have policies that designate only specific individuals who may send text messages to students and place time limitations on when educators may communicate with students. TCTA-initiated legislation that was passed in 2017 says that teachers may decline to disclose their personal email or cellphone number to students.

Continuing education requirements

Information about inappropriate relationships, boundaries and communications between educators and students must be included in the content presented in each educator preparation program. Continuing education requirements for certificate renewal specify that instruction regarding understanding of appropriate relationships, boundaries and communications between educators and students is one of the topics that must be covered in no more than 25% of the CPE hours required of a teacher every five years. in an improper relationship, regardless of whether the educator resigned or was terminated. The federal Every Student Succeeds Act prohibits school employees from aiding another school employee in obtaining a new job if there is probable cause to believe there has been sexual misconduct with a minor or student. Applicants for many school district positions must submit a pre-employment affidavit disclosing a charge, adjudication or conviction based on an inappropriate relationship with a minor. If an individual is found to have engaged in sexual conduct or a romantic relationship with a student or minor, regardless of age or enrollment status in the district, the State Board for Educator Certification will permanently revoke that educator’s teaching certificate.

Solicitation of a romantic relationship

Solicitation of a sexual or romantic relationship with a student also can result in adverse employment action and certificate sanctions, even if the relationship is not ultimately consummated.

The criminal prohibition of online solicitation of a minor includes communications between an employee at a school and a student. A person commits this offense if they knowingly solicit a minor to meet with another person with the intent that the minor will engage in sexual contact with the person. Conviction of online solicitation of a minor is a felony. SBEC may sanction the teaching certificate of an individual who has engaged in deliberate or repeated acts that can be reasonably interpreted as soliciting a sexual or romantic relationship. Prohibited acts include, but are not limited to: • Communications tending to show that the educator

solicited a romantic relationship with the student; • Making inappropriate comments about a student’s body; • Making sexually demeaning comments to a student; • Making comments about a student’s potential sexual performance; • Requesting details of a student’s sexual history; • Requesting a date; • Engaging in conversations regarding the sexual problems, preferences or fantasies of either party; • Inappropriate hugging, kissing or excessive touching; • Suggesting that a romantic relationship is desired after the student graduates, including post-graduation plans for dating or marriage; and • Providing the student with drugs or alcohol. Educators should take care to avoid situations in which professional boundaries become poorly defined. Inviting

students to your home, meeting them for social activities that are not school-sponsored, or developing personal relationships with them can create the perception of inappropriate conduct. Avoid such situations with students in the absence of previously existing social relationships with them. Suspected child abuse

An educator who has reasonable cause to believe that any student or minor may be a victim of sexual abuse is required to make a report to the Texas Department of Family and Protective Services within 48 hours of becoming aware of the possibility of the abuse. This responsibility may not be delegated to someone else, and failure to make the required report is a criminal offense. For more information, see page 32.

YOUR JOB

FAQs: When placed on administrative leave

If you are told you will be placed on administrative leave, the following questions may come to mind:

The principal says I am being placed on administrative leave with pay. Can he do this?

Yes, this is legally permissible. Normally, the principal is acting on the superintendent’s behalf. Most school district policies provide that: “A term (or probationary) contract employee may be suspended with pay or placed on administrative leave by the superintendent during an investigation of alleged misconduct by the employee or at any time the superintendent determines that the district’s best interest will be served by the suspension or administrative leave.”

What should I do?

First and foremost, obey the directive, whether oral or in writing, and immediately leave your campus, if told to do so.

May I return to my classroom to pick up personal belongings?

This is a reasonable request that you should make to your principal. Unless instructed otherwise, remove only necessary personal items from the campus, leaving behind instructional and other work-related items, including student records.

Do I need to contact TCTA?

YES. You should call the Legal Department at 888-879-8282 as soon as possible to make your attorney aware of the district’s actions and provide additional information as necessary.

What happens next?

If you did not receive written notice at the time you were placed on administrative leave, your district will usually quickly provide written verification of your employment status. This notice usually states that you have been placed on administrative leave with pay, and it may provide a general statement as to the reason(s) for such action. The letter may further advise you to remain available during your normal working hours. In most cases, your presence on district property will be prohibited, as will be discussion of the investigation and related matters with colleagues, parents and students. Finally, such notice usually provides the name and telephone number of a district contact person in case you have questions. Note: Strict adherence to all district directives is absolutely necessary to avoid the possibility of any further employment repercussions. Any deviation from the district’s instructions should be authorized in writing by proper district personnel.

What if my colleagues ask about the situation? Doesn’t the district have to tell me exactly what they are investigating, or the specific allegations underlying my suspension?

No, not at this initial stage.

What about my due process?

Due process rights are not involved at this time based on the minimal employment action taken by the district and because you remain on full salary.

While I’m suspended, may I be required to perform certain duties?

Yes, you may be required to provide lesson plans, grades, etc., as directed by your supervisor or other administrative personnel.

Does my suspension mean the district believes I am guilty of wrongdoing?

Not necessarily. The district is taking this action to conduct a timely and proper investigation. Such action is usually in the best interests of all concerned, including you.

How can my TCTA attorney help me?

Your TCTA attorney will want to become thoroughly familiar with any relevant information leading up to the district’s action. If you are aware of specific allegations, the TCTA attorney may ask you to provide a draft preliminary statement regarding the matter. If you are required to provide a statement prior to contacting TCTA, always retain a copy of the statement. Your TCTA attorney also may be in contact with the district on your behalf to monitor the progress of the investigation. Make sure that your attorney is aware of any further district contact with you.

How long may the district keep me on leave?

It depends on the circumstances of your situation and how long it takes to fully investigate and review allegations or other matters.

What are the possible outcomes of the investigation and my suspension?

Generally speaking, there are three possible outcomes. You may be notified that you are to return to work with no further district action. The district also may elect to return you to activeduty status with minimal negative employment action, such as a directive, reprimand, growth plan, or in some situations, a reassignment. Return to duty as directed, but consult further with your TCTA attorney in these cases. If the investigation leads district administrative personnel to believe that you have engaged in serious misconduct, the district may change your status to administrative leave without pay pending further employment action. Immediate contact with your TCTA attorney will be necessary for further advice and appropriate representation.

FAQs: When called to the principal’s office

If you are notified by email, written memo or orally through the campus secretary that the principal wants to meet with you, the following questions may come to mind:

Do I have to go to the meeting?

Yes. Your immediate supervisor has provided you with a directive. Your failure to follow this directive could be considered an act of insubordination and result in formal disciplinary action, as well as negatively impact your appraisal. If the meeting time poses a direct conflict with another previously scheduled activity, immediately contact your principal to discuss an alternate meeting time.

Can I be required to meet with my principal during my planning time?

Unless the meeting involves conferencing with a student’s parent(s), such a requirement would not be proper. However, unless you have a direct scheduling conflict, you should exercise your best professional discretion in favor of attending the meeting. Your principal should not abuse this professional courtesy.

Do I have a right to have an attorney present?

In most cases, your right to have legal counsel or another representative present is limited to formal grievance hearings or hearings concerning the proposed nonrenewal or termination of your employment contract. You may request that your administrator allow you to have a friend, colleague or other representative present during the meeting. Granting the request is within your supervisor’s discretion.

What if my principal schedules a grievance conference at the last minute?

You have a legal right to have an attorney or other representative present at the grievance conference. Your principal (or other administrator) is obligated to provide notice of the meeting in a timely manner to allow for your designated representative’s presence.

May I record the meeting?

Normally, the decision to allow audio recording of a meeting with your principal will be within your principal’s discretion. However, at any meeting or proceeding at which the substance of a grievance is discussed, an employee is allowed to make a recording, thanks to a TCTA-initiated law passed in 2009. It is not illegal for an educator to secretly record discussions to which he/she is a party, though such recordings are rarely useful. However, some school districts have policies prohibiting such practices. More importantly, the commissioner of education has held that secretly recording such conversations is an unprofessional act and may be good cause for termination of employment. In many cases, the principal will have another party, such as an assistant principal, present to serve as a witness, take notes, etc. Again, you may request the attendance of a colleague for the same purpose. At the least, you should make complete notes of the meeting for later reference. Depending on the subject being discussed, any notes taken or recordings made by the administration may be available to you upon written request pursuant to the Texas Public Information Act.

Is the meeting confidential?

It depends. The Family Educational Rights and Privacy Act (FERPA) will apply in situations involving student records and related student information (see page 33). Confidentiality also will apply in the context of teacher evaluations (see page 19). However, under certain circumstances, be aware that any information you provide may ultimately be shared with other school personnel and officials, as well as outside parties such as the Texas Education Agency, State Board for Educator Certification, Texas Department of Family and Protective Services, law enforcement agencies and possibly others. If you suspect that a meeting with school personnel will involve potentially serious allegations, call the TCTA Legal Department at 888-879-8282 for consultation prior to the meeting, or as soon as possible.

Do I have to answer questions in the meeting?

In most cases, you should answer questions and/or provide your side of an issue in a professional manner and tone. Your principal may take action deemed appropriate for the situation if you fail to satisfactorily address his/her questions. An acceptable alternative may be to advise the principal that you would prefer to respond after consultation with the TCTA Legal Department and/or other legal counsel. You should always make such a request if the meeting includes district or other law enforcement personnel or a DFPS investigator. A school district employee may not be required to speak with or provide a written statement to law enforcement or DFPS personnel.

Do I have to sign a write-up, reprimand or document if I disagree with it?

Your signature on such a document does not usually constitute agreement, foreclose any remedies you may have in a given situation, or waive any other rights. This type of document usually states that your signature verifies your receipt of the document only, not your agreement to the substance of the document. If not, you may always indicate this restriction in writing above your signature. In addition to writing a response or rebuttal to such a document, members may wish to call the TCTA Legal Department at 888-879-8282 for further advice and consultation with a staff attorney.