‘Teachers should not be intimidated.’ Could lawsuit follow request for ‘sickout’ records?

Teachers don’t have a constitutional right to take a sick day, says Kentucky education commissioner about sickouts

Kentucky Education Commissioner Wayne Lewis discussed the teacher absences that have caused some districts to cancel classes recently as some teachers protest about education legislation on March 15, 2019.
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Kentucky Education Commissioner Wayne Lewis discussed the teacher absences that have caused some districts to cancel classes recently as some teachers protest about education legislation on March 15, 2019.

A group of lawyers will be meeting soon to discuss filing a federal civil rights lawsuit on behalf of Kentucky teachers whose attendance records after a “sickout” have been requested by Education Commissioner Wayne Lewis, a Lexington attorney said.

Lexington attorney Mark Wohlander on Friday sent a letter to the state education department notifying them of a possible lawsuit on behalf of teachers “affected by unprecedented interference with their first amendment rights.”

On Thursday, Lewis requested that Fayette County Public Schools and nine other Kentucky school districts that had work stoppages as a result of teacher absences hand over attendance information by the end of the day on Monday. Fayette County only canceled classes on Feb. 28 as a result of teacher absences. Jefferson County canceled classes for a total of six days as educators kept watch on controversial legislation in the 2019 General Assembly.

Wohlander said in the letter to the state that based on a preliminary investigation, the demand for attendance records of educators who reported absent during protests was private information and the request deprives teachers of several constitutional rights.

“Teachers should not be intimidated if they exercise their right to take sick leave,” Wohlander told the Herald-Leader Friday. “It invades their privacy. If anybody was out sick on those days...what business is it of Dr. Lewis? He’s got no right to know that information.”

Lewis said at a news conference Friday that he had received Wohlander’s letter. He said teachers have the constitutional right to be in Frankfort and voice their opposition. But he said they don’t have the constitutional right “to call in sick when you are not sick and force a work stoppage that results in Kentucky schools closing.”

“We have to have a bigger conversation in Kentucky about how we protect the rights of kids and parents” and still provide avenues for teachers to be able to protest, Lewis said.

In addition to Fayette and Jefferson, the districts from which records were requested were Bath, Boyd, Bullitt, Carter, Letcher, Madison, Marion and Oldham. Lewis is asking for the names of all teachers that called in sick on days that there were work stoppages and classes were canceled. He is asking the dates that they called in sick. He is asking for affidavits and certificates from physicians stating that an educator or family member was sick, as required by state law for granting sick leave. And Lewis is asking for documentation of the school district’s sick leave policies.

Lewis said in a statement Thursday that under state law, he could report violations of law, misconduct, or mismanagement to the Kentucky Board of Education and then the state board could inform the county or Commonwealth’s Attorney in which the violation occurred.

He clarified at the Friday news conference that he had never suggested that criminal charges be filed.

“The best case scenario is that we collect information across our state and we work together with superintendents to put processes and procedures in place that allow teachers to register their dissent and opposition” in Frankfort, said Lewis, and at the same time, to keep districts open so that students aren’t deprived of instructional days.

“The solution, frankly, in Jefferson County may look different than the solution in Fayette County which may look different than the solution in Bath County,” Lewis said.

Lewis there needs to be a process to verify that teachers are indeed sick when they report being sick. He said he didn’t ask for the information from districts that had work stoppages until classes had been canceled in Jefferson County for six days.

“It is not a scare tactic,” Lewis said. He said he was trying to emphasize that state law and district policy don’t allow teachers to abuse sick days.

The Kentucky Education Association said in a statement after the news conference that Lewis noted that his demand for the names of educators who called in sick on specific days of the legislative session was not a scare tactic.

“But all educators, including the school administrators who received the Commissioner’s ‘requests’ through his general counsel, know better.... the Commissioner is using the power of his office to compile an ‘enemies list’ of educators for the Bevin Administration,” the KEA said. “This tactic serves only one purpose — to intimidate educators, public employees, school board members and superintendents across the Commonwealth and keep them from speaking out. “

Fayette County Public Schools officials have not commented. Daniel Kemp, a spokesman for the Jefferson County schools, said Friday that the district received the request for attendance records from the Kentucky Department of Education Thursday afternoon and is reviewing it.

Denise Yonts, Superintendent of Letcher County Schools said Friday that she has not decided if she will provide the information. She said she plans to check first with the school-board attorney on whether it would be appropriate. Yonts said she has received emails Friday from people in other school districts asking her not to provide the information.

Lori F. McDowell, spokeswoman for Oldham County schools, said Superintendent Greg Schultz is ”reviewing and working through every angle of the request with our general counsel to determine what the district legally has to do versus what we think is the right thing to do. “

“Until we are able to gain complete clarity on what is required by law, we will not submit information to KDE,” McDowell said. In an interview, she said the district got an email requesting information. The district only had one “sickout” day, March 7, but Lewis asked for information on other days.

She said the Oldham County Education Association paid for substitutes so that a representative from each county school could go to Frankfort on Tuesday, Wednesday and Thursday of this week. However, she said she was not aware of any teacher who called in sick and then went to Frankfort instead.

Lewis said Friday that he had not heard from a superintendent who indicated they were not going to comply with his request.

Under the Kentucky Open Records Act, Wohlander is asking for all documents related to Lewis’ request of school districts. Wohlander said Friday that he had not set a date yet for the meeting of attorneys.

Also Friday, Democratic gubernatorial candidate Adam Edelen announced that his campaign has submitted two open records requests to the Department of Education and the University of Kentucky where Lewis has worked as an associate professor “to ensure that Lewis has met the same standards of documentation that he is demanding of others. “

“You have to stand up to bullies,” Edelen said in a statement. “If we take Dr. Lewis at his word that all this is trying to do is collect information, then surely he has no issue providing that same information to the taxpayers. But he’s not, he’s trying to intimidate state workers and carrying water for a Governor dead-set on doing everything he can to make teachers pay a price for standing up for themselves.”

The request mirrors that of Lewis’ request and asks for “any and all affidavits or certificates of a reputable physician stating that Wayne D Lewis was ill or caring for an ill family member on the day(s) that Wayne D Lewis called in sick,” Edelen’s statement said. Lewis said he commended Edelen’s diligence.

In several instances, the legislation teachers were protesting has not advanced in the General Assembly, including a bill that would have created a scholarship tax credit program. The session’s final day will be March 28, when lawmakers can attempt to override possible vetoes and pass last-minute bills.

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