Denver Public Schools

Denver Public Schools did not violate its union contract, the Court of Appeals ruled on Thursday, because the Denver Classroom Teachers Association failed to prove a teacher was denied representation at the appropriate stage of a misconduct investigation.

Sharyn E. Dreyer and Erik Bradberry, attorneys for the DCTA, believed the appellate judges refused to consider key evidence about the historical application of the relevant contract provision.

"Unfortunately, the court’s interpretation of the collective bargaining agreement creates uncertainty and furthers the imbalance of power between teachers and administrators by making it more difficult for teachers to access their right to union representation," they said in a statement.

DCTA alleged DPS committed breach of contract when the district refused to allow union representatives to attend and speak for teachers at meetings investigating alleged educator misconduct. The collective bargaining agreement provided that principals must meet with the teacher in question and give them an opportunity to respond to the allegations.

Principals who then decide they may need to take corrective action against the teacher must allow the employee to have “either another teacher or representation from the [DCTA] present” when they notify the teacher.

Denver District Court Chief Judge Michael A. Martinez found the contract clearly allowed a union representative to be present at the second meeting, but not the first. Nonetheless, he agreed there was a question of when, exactly, the principal determined corrective action may be necessary, triggering the right to representation.

"From September 1, 2005, when this language was adopted, until February 2016, the parties consistently construed and applied this provision as entitling teachers to representation in any meeting held after the administrator in issue decides to conduct an investigation of the matter," attorneys for the union wrote to the Court of Appeals.

DCTA alleged that since February 2016, the district began to exclude union representatives from a majority of investigatory meetings, even though the choice to investigate a teacher amounted to a decision to potentially pursue corrective action, in the union's opinion.

Former DCTA executive director Pam Shamburg testified she had never been in an investigatory meeting "where it wasn’t clear that the possibility of corrective action was on the table." She added that representation was important during the investigation so that the teacher had an advocate to object if the process was unfair.

At trial, however, only one person testified she was excluded from a meeting involving the investigation of a teacher, but the reason was unclear. Martinez ultimately sided with DPS, finding the union had not proven the administrator in that case had already decided corrective action may be necessary at the time they excluded the representative from the investigatory meeting. Therefore, the district had not violated the contract.

“DCTA was required to prove that, by the time of any particular investigative meeting, the principal or designee had already determined that it may be necessary to take corrective action against the teacher accused of misconduct,” wrote Judge Lino S. Lipinsky de Orlov for the Court of Appeals panel that upheld Martinez's decision in a May 27 opinion.

The three-judge appellate panel agreed that principals could decide in favor of potential corrective action at any point — from as soon as they heard about the allegation all the way up to the conclusion of the investigation.

“But whether the principal or designee made that determination before walking into a particular meeting is a fact that must be proven to establish a breach of the agreement,” Lipinsky continued.

The appellate panel agreed with Martinez that the evidence did not support a conclusion that the district acted contrary to the collective bargaining agreement.

"The district court said it's not a matter of which meeting [a representative can attend], it's a matter of what's happening in the person's head," observed Judge Elizabeth L. Harris, another member of the appellate panel, during oral arguments in May.

"If I were the teachers union, what I would tell teachers now is when you go into the investigatory meeting, you say to the person behind the desk, 'Is there any possibility that this investigation is going to lead to investigative action?' And if the person says, 'Well, I don't know,' then that means yes, there's a possibility. Then you say, 'I'd like to have my union rep come in.'"

DPS did not respond to a request for comment on the decision.

The case is Denver Classroom Teachers Association v. School District No. 1.

This article has been updated with comments from DCTA's attorneys.

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