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News State / Region NCAE speaks out against personnel policy

Macon County School System’s Attorney John henning Jr. advised the board to adopt the new personnel policy.Macon Board of Education under fire for ‘vague’ rules.

After a lengthy debate during Monday night's meeting, the Board of Education voted to approve the Professional Standards of Conduct and Performance for Macon County School System Employees after the 2nd reading of the policy.

The policy, which was approved only after Chairman Tommy Cabe made a tie-breaking vote with board members Stephaine McCall and Tommy Baldwin in favor of adopting the policy, and members Jim Breedlove and Gary Shields against it, is not an entirely new policy. Instead, it is a consolidation of two former Professional Standards of Conduct policies.

Originally the Macon County School system had two separate personnel policies, one for faculty members and one for staff members. After Superintendent Dr. Dan Brigman and school attorney John Henning Jr. reviewed each policy, Henning advised Brigman that it would be in the best interest of the board to consolidate the policies to avoid possible discrepancies in the future.

Both of the original policies were relatively similar, which is why Henning believed there was no reason for them to be consolidated so both faculty and staff members would be required to adhere to the same Standards of Conduct. According to Dr. Brigman, the language in the policies did not change in the consolidation process, but instead, the existing policies were combined to ensure that all Standards of Conduct were being applied to all employees throughout the Macon County school district.

“The purpose of combining these two existing policies is to have all of your employees to be playing on the same field to begin with,” said Henning. “It is terrible business practice to have two different sets of standards for different employees without any rhyme or reason behind it, and that’s where things stand right this minute.

In November, Attorney Mark Kerkhoff wrote a letter to Macon County School’s on behalf of the North Carolina Association of Educators (NCAE) and its members in Macon County, voicing concern about specific provisions in the proposed standards.

Kerkhoff wrote, “We are very concerned that two specific provisions within the proposed Professional Standards of Conduct and Performance for Macon County School System Employees (“Policy”) are overly broad, unduly vague, and constitute an infringement upon the First Amendment rights of Macon County educators. It appears these particular provisions would be subject to legal challenge.”

The first provision in question directs employees to “avoid confrontations with co-workers, including but not limited to, engaging in actions or conversations which the employee knows or should know will result in an actual disruption.”

In Kerkhoff's letter to the school system, he addressed his concern regarding the first provision by writing, “On its face, the discipline of an employee for speech which the employee ‘should have known’ would result in any type of disruption constitutes an amorphous and unpredictable directive. Nearly any type of speech involving controversial changed, uncertainty, or unpopular matters of public concern are likely to cause some type of ‘confrontation’ or ‘disruption’ and are thereby prohibited by this Policy.”

According to his letter, Kerkhoff stated that the policy prohibited speech regardless if the confrontation was positive or negative or if the level of disruption that may arise may be a reasonable level, thus hindering employees First Amendment rights.

Henning stated that to the best of his knowledge, he could not recall any event where the first provision in question was used to justify any sort of disciplinary action. He also stated that he did not believe that the intention of the provision was to lead to any sort of disciplinary action and that he was not opposed to clarifying the language of this specific provision after further discussion, and also advised the board that those changes should not affect the immediate approval of the policy and could be made at a later date.

The second provision of the policy addressed in Kerkhoff’s letter mandated that all school employees must “direct all complaints regarding the work environment to appropriate supervisors and/or file grievances instead of acting to undermine the authority of co-workers and supervisors,” which according to Kerkhoff was too vague and unclear. “Again, it is difficult to facially determine with any amount of predictability or certainty what type of workplace complaints may “undermine the authority” of other employees,” he wrote.

“I am not adverse to attempting to clarify that [language of the provision] and I think we can and should,” said Henning. “But again, I do feel that the board has gone with a bifurcated personnel policy for far too long. I would level the playing field first, and then work on what this policy is going to do for all of your employees.”

Both provisions in question were originally adopted by the school system after the board in November of 2009 as a provision of the Professional Standards of Conduct and Performance for Teachers, the consolidation process did not change the language of the provision, but did change the policy so not only teachers, but that all members of the faculty, must now adhere to the standards.

After the first reading of the policy and receiving the letter from Kerkhoff on behalf of the NCAE members in Macon County, Henning and Dan Moore, Director of Personnel for Macon County Schools, were instructed to address the concerns stated in the letter and to make necessary adjustments.

According to Moore, before ever receiving Kerkhoff’s email, he met with members of the faculty who voiced concerns about the policy on November 4 and also asked faculty members to email him any concerns they had regarding the policy. Per Dr. Brigman’s request, Moore later met with the Staff Advisory Council to solicit feedback regarding the policy.

“I found the discussions we had with our employee group to be very productive,” said Henning. “There very well may be changes in the somewhat near future to this policy to take into account some of those concerns. I take them very seriously and those concerns are important from a practical standpoint. From a legal standpoint, I have no concerns whatsoever that this policy is legal and constitutional and ought to be passed by the board now.”

Additional concerns outside of those expressed in the letter from Kerkhoff were brought up during the meeting with the Staff Advisory Council and meetings with the faculty members. According to Dr. Brigman, some faculty members were concerned about the provision of the policy “regarding appropriate and/or prohibited behavior with students including electronic communication with students directly or through the internet.”

Electronic communication is becoming increasingly popular with the increased use of social networking sites such as Facebook. The Policy’s provision fails to define “appropriate behavior” which faculty members feel is too vague and can result in disciplinary action do to the lack of clarification.

“I really feel like that one [provision] is going to need an entirely separate policy because it is really involved and terribly important,” advised Henning. He won’t on to note that there are countless teachers who find themselves having to deal with students finding their facebook pages and not knowing what the appropriate action is to take. “I do expect that we will be back to the board pretty soon with a policy crafted just for that particular purpose,” Henning concluded.

After a close review of the Policy, Henning advised the board at Monday night’s meeting to approve the policy so he would be able to begin tweaking the language to further address the concerns.

Board member Stephanie McCall made a motion to approve the new Policy, contingent on Henning and Moore working to clarify the language used while keeping the best interest of the students and teachers in mind. The Policy was approved by a 3- 2 vote.


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