CTA Lawyer: Reprimands are Unlawful
The following letter was written by CTA attorney, James G. Bertoli on behalf of part-time faculty member, King Collins and the MPFA
To: Carl Ehmann, Superintendent
Mendocino-Lake Community College DistrictJune 25, 1998
Re: King Collins
Dear Mr. Ehmann:
This office has been retained by King Collins through the California Teachers Association to respond on his behalf to the unlawful letters of reprimand that were issued to him on May 11, 1998 by Dean of Student Services, Rick D. Stewart, and on May 14, 1998 by Executive VicePresident of Academic Affairs, Don Vasconcellos. The purpose of this letter is to provide the Mendocino-Lake Community College District the opportunity to have the offending letters removed from Mr. Collins' personnel file so as to prevent the necessity of instituting what shall surely be successful legal action against the District which could expose the District to significant legal damages as well as payment of Mr. Collins' attorney's fees and costs.
It is my understanding that at the District's annual Academic Awards Ceremony, Mr. Collins, in presenting scholarships awarded by the Mendocino Part-Time Faculty Association, CTA/NEA, made the following statement:
"Thank you. I'm here to give awards from the Mendocino College Part-time Association which is the only bona fide union at the college. Part-time instructors are noted for their imagination in curriculum, their devotion to students, their innovation in many areas, and the consternation they've caused the administration and the board. I can say that because I've been part of that process over the past year or so.
"I want to say a little about the process we use to select students for these awards. The MPFA selection process takes special consideration of the economic need of the candidate. And that's appropriate because the part-timers understand the difficulty of making ends meet.
"We have increased the amount we contribute every year for the last few years. The scholarship money comes entirely from the paychecks of the parttimers and now includes five awards totalling $950.
Mr. Collins then proceeded to give the five scholarships, making a brief statement about each student. After giving the awards, he made no further comments.
On May 11, 1998, Dean of Student Services Rick D. Stewart wrote to Mr. Collins stating that he was "extremely disappointed in [his] decision to use our event as a forum to place yourself in the spotlight with inuendo [sic] regarding the past year and your involvements with the Board of Trustees and the administration." He added "I personally know of many students and parents who were especially offended by your remarks in reference to the money supporting your scholarships coming from the wallets of underpaid part-time faculty."
On May 14, 1998, Vice-President Don Vasconcellos wrote that Mr. Collins'
"remarks at the recent Academic Awards Program while presenting student scholarships from the Mendocino Part-time Faculty Association were inappropriate. Comments about your involvement with college administration and the Board of Trustees this past year, as well as mentioning that scholarship donations came from underpaid part-time faculty, were unsuited to the occasion.
Mr. Vasconcellos concluded his letter by advising Mr. Collins that his letter, as well as the letter from Mr. Stewart, was being placed in his personnel file.
It is also my understanding that there are no District rules regarding the content of speeches made at the Academic Awards Ceremony.
These reprimands of Mr. Collins are unlawful for two very significant reasons: First, the reprimand of Mr. Collins for his union activity constitutes an unfair labor practice under the Educational Employment Relations Act (herein "EERA"), Gov. Code §§3540, et seq. and second, and most importantly, constitutes an unlawful abridgment of Mr. Collins' right to free speech under the First Amendment of the United States Constitution and Article I, Section 1 of the California Constitution.
Under EERA §3543.5, it is unlawful for an employer to impose reprisals on an employee because of their exercise of protected rights under the EERA. Among those protected rights is the right of an employee to participate in organizational activities. Efforts by individual employees on behalf of the organization is considered "organizational activity". See: North Sacramento School District (1982) PERB Dec. No. 708. Criticism of such things as District fiscal policies (Mt. San Antonio Community College District (1982) PERB Dec. No. 224) or management integrity and leadership (Regents of the University of California (1992) PERB Dec. No. 949-H) have been determined to be protected organizational activity. Without question, Mr. Collins' statements regarding the pay levels for members of MPFA fall within the realm of protected organizational activities and despite the fact that the District may not like the fact that he spoke such truths, the speaking of those truths are protected under the EERA.
But more importantly, these disciplinary steps are a flagrant violation of Mr. Collins' right of free speech under the First Amendment of the United States Constitution and Article I, Section 1 of the California Constitution. A government employer may not discipline a public employee for the exercise of First Amendment rights. Perry v. Sindermann (1972) 408 U.S. 593, 597-598, 92 S.Ct. 1731, 20 L.Ed.2d 811. Government employers may discipline employees for their speech if they are not speaking on matters of public concern but on wholly personal matters. Connick v. Meyers (1983) 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708. But it has been held that discussions of employer-employee relationships (such as those statements made by Mr. Collins) are matters of public concern given First Amendment protection from discipline. Chico Police Officers v. City of Chico (1991) 232 Cal.App.3d 635, 646.
The vast weight of legal authority shows that the disciplinary action taken against Mr. Collins was entirely inappropriate and must be remedied immediately. Please advise this office within 10 days of the date of this letter that all disciplinary letters relating to this matter will be removed from Mr. Collins' personnel file and that no further retaliation will be foisted upon Mr. Collins for the exercise of his rights under the EERA, the Untied States Constitution, and the California Constitution.
Thank you in advance for your prompt attention to this matter.
Very truly yours,
James Bertoli
cc: King Collins, Alan J. Frey, Don Vasconcellos, Rick D. Stewart
Copyright MPFA 1998
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