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PED sued over penalty for sick leave

PED Secretary Hanna Skandera

PED Secretary Hanna Skandera

Copyright © 2017 Albuquerque Journal

Whether called sick leave or personal leave, the lawsuit claims, it is private property that is created by the provisions of a teacher’s contract and the policies of the respective school board.

And under the New Mexico Constitution, “Private property shall not be taken or damaged for public use without just compensation.”

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That is the crux of a class-action lawsuit filed by Logan Municipal Schools teacher Angela Medrow over the state’s policy of penalizing teachers in their evaluations if they take more than six days of sick time over the course of the school year – even if their contracts allow for more. Named as defendants are the New Mexico Public Education Department and PED Secretary Hanna Skandera.

The suit was filed March 30 in the 1st Judicial District Court in Santa Fe by attorney Warren F. Frost, representing Medrow and the other class-action plaintiffs.

“As with every other employee in the state, whether public or private, sick leave and personal leave days are part of their compensation and benefits,” Frost told the Journal on Friday. In this situation, “it is the government trying to take these benefits and property away. It’s no different than if the government wanted to put a road through private property. The government would have to pay, or provide compensation to the property owner.”

Skandera issued a statement Friday, saying only: “We received the lawsuit. It’s being reviewed.”

In 2012, PED adopted new regulations evaluating teacher effectiveness using a five-tiered system. Teachers identified as minimally effective or ineffective were to be placed on a growth plan after which they could be terminated unless sufficient improvement was demonstrated. Teacher absenteeism was among factors considered in the evaluation as part of a teacher’s overall effectiveness.

Last August, Skandera issued a memorandum to all districts and charter schools informing them that teachers who missed three days of school or less would not have those absences counted as a negative in their evaluations; and teachers missing four or more days would have all their missed days – including the first three – scored against them in their evaluations.

Earlier this month, Skandera and Gov. Susana Martinez announced that teachers will be able to take six sick days, rather than three, before it impacts the attendance portion of their evaluations.

But six days is still less than the maximum provided for under policies of the Logan Municipal Schools, for which plaintiff Medrow began working during the 2004-2005 school year.

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According to the district’s sick leave policy, a teacher can earn one day of sick leave per month of employment.

“Teacher contracts are nine months, therefore a teacher can earn nine days of sick leave annually,” the lawsuit says. “A teacher may accumulate a maximum of 90 days of sick leave, at which point no more sick leave can be earned until the teacher’s use of sick leave causes the total to be reduced below 90.”

In addition, the school district provides teachers four days of personal leave that can be used at the discretion of the teacher.

“Under Logan’s policy, two days of personal leave are provided with no reduction in pay, and two days of leave result in the reduction of pay in the amount of the cost of a substitute to fill in for the teacher,” the lawsuit says.

Personal leave cannot be accumulated and is available for use only during the year for which it is granted.

In addition to asking the court to certify the lawsuit’s class-action status, Frost is asking for an injunction to prevent PED from considering teacher sick leave as part of a teacher’s evaluation.

It’s not clear who might be part of the class-action suit, but during the 2014-2015 school year, Frost noted in the lawsuit, PED identified 21,800 teachers in the state who were subject to the evaluation system.

The lawsuit also asks for damages for all members of the class “for the value of their earned leave that they were deprived of.”

Frost told the Journal he was using a March 9 House executive message from the governor as the starting point for damages.

In that message addressed to the state House of Representatives, Martinez said she was proud that during the 2015-2016 school year alone, the state and school districts saved $3.6 million by reducing the number of teacher absences, which required the use of fewer substitute teachers.

“If the state claims to have saved more than $3 million then it stands to reason that the teachers are out that $3 million and that’s our starting point for damages,” Frost said.

Charles Bowyer, executive director of the National Education Association New Mexico, declined to comment specifically on the lawsuit brought by Medrow.

“But our position remains that the sick leave penalty has no place in a fair evaluation system aimed at improving student success,” he said. “Teachers must be allowed all contractual compensation without penalty.”

Further, he said, PED’s rule undermines the authority of local school boards to determine contract language for their teachers.

“Teachers serve in one of the most stressful jobs, and it’s made harder by the administrative sick leave penalty that does not improve student success,” said NEA-NM President Betty Patterson, a special education teacher.

“It remains wrong to devalue teaching done when an educator is healthy, simply because like other human beings, they or their own children may be sick from time to time.”

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