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After Teacher 'Sick Outs,' Kentucky Says They Violated Labor Laws

Labor Cabinet Secretary David Dickerson said the investigation was necessary to ensure that public schools remain open during the upcoming school year and that "similar work stoppages do not occur in the future."

By Jack Brammer and Bill Estep

An investigation by Gov. Matt Bevin's administration showed 1,074 teachers violated Kentucky law when they participated in a "sick out" during this year's legislative session over concerns about their pension benefits, Labor Cabinet Secretary David Dickerson said Friday.

Even though the action constituted an illegal work stoppage, no penalties will be assessed for the violations, Dickerson said.

"Let it be clearly understood that the grace extended in this instance will not be extended for future such proven violations," he warned.

Dickerson said the investigation was necessary to ensure that public schools remain open during the upcoming school year and that "similar work stoppages do not occur in the future."

Nema Brewer, a multimedia production specialist for Fayette County schools and co-founder of the advocacy group KY 120 United, pledged defiance. "We expect nothing less from this governor," she said. "They are not going to stop us."

Christian Trosper, a Knox County teacher who is also a co-founder of KY 120 United, called Dickerson's comments "a fear tactic to prevent teachers from exercising our First Amendment rights."

"We will continue to use our sick days as we see fit until the Kentucky legislature makes sure education is properly funded and teachers' benefits are not threatened," Trosper said.

She noted that some school districts canceled classes to allow teachers to express their views at the Capitol.

"It's unfortunate that Governor Bevin, through his appointee at the Labor Cabinet, decided to issue this veiled threat against educators who dared to exercise their democratic right to be heard by their government," the Kentucky Education Association said in a statement. "We encourage Bevin's Labor Cabinet to focus its energy on supporting Kentucky's working men and women -- like our hard working coal miners still waiting for a paycheck -- rather than conducting political witch hunts against educators."

Attorney General Andy Beshear, the Democratic nominee against Bevin in this year's race for governor, called the announcement a win for teachers.

"Today, Matt Bevin and the Labor Cabinet backed down and stated that they would not attempt to fine brave Kentucky teachers who protested his anti-education policies at the Capitol," Beshear said. "This is a clear win for the thousands of teachers that this governor tried to bully. While the governor's press release attempts to threaten future punishment of teachers, we've stopped him before, we stopped him here and we will stop him in the future."

The investigation was conducted by the Labor Cabinet's office of inspector general. It said Kentucky law gives the cabinet the discretion to assess civil penalties of up to $1,000 per person, per day for work stoppages that violate state labor law.

"Kentucky law clearly prohibits public-sector employees from engaging in work stoppages that many teachers engaged in during the early months of 2019," said Dickerson. "Those teachers who participated in this concerted effort were in clear violation of the law, as noted by the Kentucky Education Association and recently affirmed by a federal court."

Dickerson said U.S. District Judge Danny Reeves acknowledged in a May 9 ruling "that the Labor Cabinet had every right to investigate public school teachers for their conduct."

"Kentucky statutes explicitly grant the Labor Cabinet the authority to prosecute and assess civil penalties against public employees, which includes public-school teachers who may have violated KRS Chapter 336," Reeves wrote. "Students are expected to attend classes. If they fail to do so without a valid excuse, their absence is duly-noted and appropriate action is taken. But the teachers at the center of this controversy expect[ed] different treatment."

In his ruling, Reeves denied a request by Beshear and the Jefferson County Teachers Association to block the Labor Cabinet from enforcing the cabinet's subpoenas that directed the school districts to provide information on teacher absences.

Among other things, Reeves ruled there would not be significant harm in letting the subpoenas stand because much of the information they sought had already been provided to the cabinet.

Reeves said in the decision that the Jefferson County association apparently encouraged members to oppose the pension proposals, to join rallies against the bills and to contact elected representatives.

Schools there closed several days in March, the judge said.

Schools in Fayette, Madison, Bath, Marion, Carter, Boyd and Letcher counties also closed for a day because of expected teacher absences, and schools in Bullitt and Oldham counties closed because of teachers calling in sick, the ruling said.

The closures affected people in "real and substantial ways," Reeves said.

"Because of these 'sick outs' children missed classes, parents were forced at the eleventh hour to find other means of child care, and ACT testing was affected in at least on district by the teachers' actions," Reeves wrote in the decision. "These harms were neither insignificant nor trivial."

The cabinet eventually got information about the absent teachers from the state Department of Education.

Kentuckians "have a strong and continuing interest in public schools remaining open during the school year," Dickerson said.

He pledged that the cabinet "will continue to monitor any future 'sick outs' closely for further violations of Kentucky labor law."

(c)2019 the Lexington Herald-Leader (Lexington, Ky.)

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