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Friday, August 3, 2012

Administrative Discipline of Public School Teachers

Part I: Administrative Discipline

A.  Administrative Discipline: Basic Principle
Mechanism by which public servants are made answerable for acts or omissions committed in the service, provided—
Due process is observed
Security of tenure protected

B. Constitutional and Legal Basis for Administrative Discipline
1987 Constitution
Article IX, B, Sec 2
w  No disciplinary action except for cause provided by law
Article XI, Sec 1
·         Public office-public trust
·         Public servants accountable to people



w  Public servants - must serve with utmost Responsibility, Integrity, Loyalty, & Efficiency
w  must act with patriotism and justice and lead modest lives

C. Due Process; Principle; Basis Of
·         Principle of Due Process means that before a party may be held bound by administrative proceedings, he must--
(a)    been imp leaded (notified)
(b)    given an opportunity to defend his rights (answer)
·         Two (2) aspects of due process
Ø  Substantive
Ø  Procedural
·         Basis of--
1987 Constitution (Article III, Sec. 1)
                “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the
     laws.”

Part II: Disciplinary Jurisdiction

A. Disciplining Authority; Department of Education
B. Delegation of Authority to Investigation
C. Constitution of Investigating Committee

A. Disciplining Authority; Department of Education
·         Secretary of Education
·         Regional Directors in their regions
·         School Division Superintendents are Disciplining Authority for Non-Academic Personnel (RA 9155)

B. Delegation of Authority to Investigate

·         Secretary is duly authorized to discipline Presidential appointee, subject to President confirmation
·         Investigation Committee (per R.A. 4670)  shall be constituted to conduct the formal investigation and thereafter report and recommend to disciplining authority

·         It shall deliberate COLLECTIVELY; NOT INDIVIDUALLY


C. Constitution of Investigating Committee
·         Respondent is elementary/secondary,    head principal, district supervisor/       chair/coordinator or Education    Supervisor I
Ø  Schools Division  Superintendent - Chair
Ø  Representative of Teacher Organization - Member
Ø  Division Supervisor for elementary   or secondary education - Member


·         Respondent is Assistant Schools Division Superintendent, Schools Division Superintendent or Education Supervisor II

Ø  Regional Director - Chair
Ø  Representative of Division  Teachers Organization - Member
Ø  Regional Supervisor for  elementary or secondary  education - Member
·         Respondent is Assistant Regional Director or Regional Directors
Ø  Secretary of Department of Education - Chair
Ø  Representative of PPSTA - Member
Ø  Any Regional Director or high ranking Department of Education Central Officer - Member

Part III: Grounds for Disciplinary Action

Generally Classified (depending on gravity) into--
·         GRAVE
Ø  Dismissal / 6 months - 1 year suspension
·         LESS GRAVE
Ø  1st offense - 1 to 6 months suspension
Ø  2nd offense - Dismissal
·         LIGHT
Ø  1st offense - Reprimand
Ø  2nd offense - Suspension
Ø  3rd offense - Dismissal

GRAVE OFFENSES:

·         Dishonesty - 1st/Dismissal
Ø  intentional violation of truth
Ø  there must be intention to misrepresent/ defraud

·         Gross neglect of duty - 1st/Dismissal
Ø  want of any or slight care

As a rule, must be GROSS, HABITUAL
EXCEPT: Results to Loss - No need habituality
v  Gross neglect of teacher duties

Ø  Special Parental Authority and Responsibility Article 218, Family Code—

      “The school, its administrators and teachers, x x x engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody.”

Ø  Abandonment - absence from work and deliberate intent to discontinue to return

Two (2) Requisites
(a)  Absences without authority
(b)  Intention not to return


v  How to declare ABANDONMENT

Two (2) Letter Principle
·         as soon as a teacher starts to incur absences continuously without official leave or authority--
Ø  send 1st letter requiring him to report immediately and explain; and
Ø  send 2nd letter informing him of termination due to abandonment


v  Keeping of school records
Ø  BP 232, Sec. 16 (3), Obligation of Teachers--
“Render regular reports on performance of students x x x.”

Ø  Section 9 (4) and (5) Rights of Students/Parents
“The right of access to school records x x x.”

“The right to issuance of school records x x x 30 days from request.”

Grave misconduct - 1st/Dismissal

Ø  willful, improper behavior, and implies wrongful intent and NOT mere error of judgment
Ø  violation of an established and        definite rule   of action

w  Misconduct must be a DIRECT RELATION  to and CONNECTED      with performance of official duties
w  Teacher Misconduct
Ø  broad scope of official function of teachers subject to PROHIBITION OF MISCONDUCT


TEACHERS AS PROFESSIONALS

Duly licensed professionals who possess dignity and reputation with high moral values as well as technical and professional competence. In the practice of their noble profession, they strictly adhere to observe, and practice this set of ethical and moral principles, standard and values.

(Preamble, Code of Ethics for Professional Teachers)


“Every teacher shall merit reasonable social recognition for which purpose he shall behave with honor and dignity at all times and refrain from such activities as gambling, smoking, drunkenness and other excesses, much less illicit relations.”
(Code of Ethics, Article III, Section 3)

“A teacher shall place premium upon self-respect and self-discipline as the principle of personal behavior in all relationships with others and in all situations.”
(Code of Ethics, Article XI, Section 2)

“A teacher shall maintain at all times a dignified personality which could serve as model worthy of emulation by learners, peers, and others.”
(Code of Ethics, Article XI, Section 3)


w  Joseph Santos vs. NLRC, Hagonoy Institute, Inc. et al., Supreme Court--

   “As a teacher, (one) serves as an example to this pupils x x x.”

“Consequently x x x teachers must adhere to the exacting standards of morality and decency. x x x A teacher, both in his official and personal conduct, must display exemplary behavior.  He must freely and willingly accept restrictions on his conduct that might be viewed irksome x x x the personal behavior of teachers, in and outside the classroom, must be beyond reproach, x x x they must observe a high standard of integrity and honesty.”

v  More Teacher Misconduct
·         BP 232, Section 9 (4), Rights of Students—
   “x x x the CONFIDENTIALITY of which the school shall maintain and preserve.”

Covers Classified/Strictly Confidential Records
(a)  personal records
(b)  academic records/reports
(c)  birth certificates
(d)  adoption papers
(e)  medical/guidance reports
(f)  disciplinary records
        also… disclosing or misusing confidential information (Section 22)


1st Offense - 6 months to 1 year
2nd Offense - Dismissal


w  BP 232, Section 16 (5), Teacher’s Obligation--

Refrain from making deductions/additions in grades NOT manifestations of scholastic performance


Padilla vs. NLRC, SBC, Supreme Court--

“This Court is convinced that the pressure and influence exerted by (a teacher) on his colleague to change a failing grade to passing one x x x constitute serious misconduct which is a valid ground for dismissing an employee.”


In Celia Flores vs. NLRC, PPSTA - where employee was involved in brawl/fighting, Supreme Court said--


“Fighting within company premises is a valid ground for dismissing an employee. At all events it was not necessary to determine who started the fight; what is important is that (the employee) engaged in a fight in the work premises x x x.”

w  Corporal Punishment - Article 233 (2nd par.)
“In no case x x x inflict corporal punishment upon the child.”

Definition:  An act that inflict pain or harm upon a child’s body as punishment for wrong doing usually through beating and spanking


Elements:
(a)  physical contact
(b)  to inflict pain


v  Sexual Harassment is Grave Misconduct
Ø  RA 7877: Sexual Harassment--
“x x x teacher x x x having authority, influence, or moral ascendancy over another  x x x in education environment, demands, requests or otherwise requires sexual favor from other, regardless of whether the demand, request or requirement for submission is accepted x x x.”

w  Two (2) Types
-          Quid Pro Quo
        Hostile Environment

Manner - it may be visual, verbal, or physical, which may be subtle, obvious or gross

v  Sexual Harassment
Ø  Not all forms warrant termination.  Dismissal depends on the gravity of case.
v  Sale of tickets; collection of contribution/ donations from pupils/parents
v  BP 232, Sec. 9 (9) - students have right to be free from (voluntary) involuntary contributions
Ø  Improper or unauthorized solicitation of contributions from subordinate employees and by teachers or school officials from school children

   “x x x (Department of Education) considers the act of teachers in x x x contracting loans from parents of their students x x x not only serious misconduct but x x x violation of students’ right to be free from involuntary contribution x x x.”
                      - USEC Nachura, 13 Feb. ‘98


Ø  Rule XIV, Sec. 22 (j) - Contracting loans is Grave Offense

… because reprehensible behavior such as the use of trust relationship as leverage for borrowing money is involved.

… to avoid exertion of undue influence by teachers over the students or their parents

v  Other kinds of misconduct
Ø  Employee repeatedly uttered obscene and insulting statements against his superior and violated company rules and regulations (Asian Design and Manufacturing Corp. vs. DOLE)
Ø  Employee repeatedly shouted invectives at the company’s lady physician for her refusal to certify his sick leave (Dela Cruz vs. NLRC)
Ø  Employee challenged his superior officer   to a fight (Luzon Stevedoring Corp. vs. CIR)
Ø  Gross Disrespect connotes serious misconduct directed against superiors by subordinates is SERIOUS MISCONDUCT but Gross Discourtesy connotes the absence of proper courtesy in dealing with the public he/she is transacting official business (not GROSS MISCONDUCT - hence only Less Grave Offense - 1st/1 to 6 months suspension, 2nd/ Dismissal)


l  Notoriously undesirable - 1st/Dismissal
Ø  when a public servant is known to be constantly and flagrantly violating existing laws, rules and regulations and which acts are known to and looked upon with disfavor by the community
l  negative attitude toward work, duties and responsibilities, superiors and proper conduct, when public servant does not seem to consider the aforesaid conduct wrong and improper

l  Oppression - 1st/6 months to 1 year suspension, 2nd/Dismissal
Ø  act of cruelty, severity, unlawful exaction, domination, or excessive use of authority (Ochate vs. Ty Deling)
Ø  Committed usually by a superior officer over a subordinate or a public servant over a private citizen
l  Corporal punishment may also be oppression

·         Inefficiency and incompetence in the performance of duties - 1st/6 months to 1 year suspension, 2nd/Dismissal

Ø  Public servant has consistently shown his inability to efficiently perform  his duties and responsibilities,  within a common performance  standards.

In Evelyn Peña vs. NLRC, Supreme Court said-

   “xxx school can set high standards of efficiency for its teachers since quality education is a mandate of the Constitution x x x”
   “xxx Security of tenure, while constitutionally guaranteed, cannot be used to shield incompetence xxx.”

w  Need to continually evaluate teachers


·         Unauthorized absences/ tardiness - 1st/6 months to 1 year suspension, 2nd/Dismissal
v  Habitually absent

Ø  2.5 days/month x 3 months in a semester or 3 consecutive months in a year
v          Habitually tardy
Ø  10x/month at least 2 months in a semester or 2 consecutive months in a year

·         Refusal to perform official duty - 1st/6 months to 1 year suspension, 2nd/Dismissal
Ø  when a public servant refuses to  render service inherent to his position or when required to do so by his lawful superiors, without reasonable excuse

·         Gross insubordination - 1st/6 months to 1 year suspension, 2nd/Dismissal
Ø  a deliberate refusal of a subordinate to obey lawful orders from a superior
Ø  one must follow lawful order of superiors even if he does not agree with it
Ø  a protest or an appeal is not a legal excuse to disobey lawful orders
·         Conduct prejudicial to the best interest of service - 1st/6 months to 1 year suspension, 2nd/Dismissal
Ø  conduct of one which will give a bad image to the public service

Official participates in proceedings of promotion and selection board despite the fact he is NOT authorized; such influences the appointment of relative is conduct prejudicial

LESS GRAVE OFFENSES:
·         Simple neglect of duty
·         Simple misconduct
·         Gross discourtesy
·         Gross violation of Civil Service Rules
·         Insubordination
·         Habitual drunkenness
·         Recommending any person to a private enterprise with official business with his office
·         Unfair discrimination in rendering public service
·         Failure to file sworn statement of assets, liabilities
·         Failure to resign within 30-day in private business with conrflict of interest

LIGHT OFFENSES:
·         Discourtesy
·         Violation of office rules
·         Gambling prohibited
·         Borrowing money from subordinates
·         Disgraceful/immoral/dishonest conduct PRIOR to service
·         Willful failure to pay just debts
·         Refusal to overtime
·         Willful failure to pay taxes
·         Pursuit of business/profession/vocation without permission
·         Lobbying for personal interest or gain in congress
·         Promoting sale of tickets in behalf of private enterprise
·         Failure to act promptly on letters and requests 15 days from receipt
·         Failure to process papers for unreasonable length of time
·         Failure to attend to anyone who wants to avail himself of services


Part IV: DECS Rules of Procedure

DECS Order No. 33, Series 1999 (March 30, 1999) Administrative Disciplinary Case

l  Step 1 - Commenced by:
Ø  Disciplining Authority - MOTU PROPIO
Ø  Any person with an ordinary complaint     filed with Disciplinary Authority

Form of Complaint
w  in writing
w  under oath
w  written in a clear, simple and concise language

Step 1: Commenced by:

Contents of Complaint
w  full name/address of     complainant
w  Ibid.; as well as position/         office of employment of respondent
w  narration of relevant                  and material facts
w  no “forum-shopping”

Step 2 - Determination of PRIMA FACIE CASE

·         to determine if there is a sufficient ground to engender a well-founded belief that an administrative offense has been committed and respondent is probably guilty
·         How determined
Ø  fact-finding
Ø  preliminary investigation

FACT FINDING - involve merely the  ex parte examination of records/    documents submitted by complainant; also other documents available

PRELIMINARY INVESTIGATION - proceeding whereby complainant and respondents are given opportunity to submit affidavits/witnesses/evidence

Step 3 - FORMAL CHARGE  (if prima facie case is established)
Ø  Content of:
·         name of complainant
·         name of respondent
·         designation of the administrative offenses by the statute
·         acts/omissions complained of
·         time of commission
·         place of commission
·         time for respondent to answer which shall not be later than 5 days
·         query whether respondent prefers Formal Investigation or decide case on the records
·         inform of respondent’s right to counsel of choice
Step 4 - ANSWER
Ø  to be filed with the Disciplining        Authority

Form of ANSWER
w  in writing
w  Respondent’s answer to charges
w  indication whether or not  respondent elects FORMAL INVESTIGATION

Step 5 - FORMAL INVESTIGATION
Ø  when held - when respondent has filed his/her answer or after the period for filing an answer has expired
Ø  by the Investigating Committee


Note: when investigating committee is constituted not in accordance with Republic Act 4670, proceedings shall be VOID.

Step 6 - PROCEDURE
Ø  Pre-Hearing Conference - to consider and agree on any of the following:
·         dates of hearing
·         simplification of issues
·         stipulation of facts
·         limiting number of witnesses/names
·         ID/marking of evidence




 by: Ulpiano “Ulan” P. Sarmiento III








































































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