By Andrew Schwartz, Esq.
NJPSA Associate Counsel
One of the most important legal defense measures anyone can take when asked to attend a disciplinary or potentially disciplinary meeting is to know and exercise the right to have representation. This could entail having a local representative present from the bargaining unit to which the staff member belongs, or depending on the circumstances, having an NJPSA attorney present.
If you get called into a meeting with the superintendent—if you have even the slightest inclination that such meeting could lead to discipline or have disciplinary consequences—we urge you to call NJPSA, and ask to speak to a lawyer.
Taking this small precautionary measure can pay enormous dividends in the long run. By calling the NJPSA lawyers, you are involving at the outset the legal team in any potential investigation to protect your rights, minimize your exposure, and ensure the integrity of the process.
Too often, we receive phone calls after the preliminary interview has taken place or after the staff member has already made a statement. Although it is never too late to involve the NJPSA legal team, it’s better to focus on managing the problem from the outset, as opposed to mitigating a statement already made.
When asked why they respond to the superintendent’s request and submit themselves for questioning, members often say they want to cooperate; they don’t want to be viewed as insubordinate.
To be clear—it is not insubordinate and you are not being uncooperative if you contact your legal representative when called to answer questions that could have disciplinary consequences.
In fact, if you have any inclination that such questioning could lead to discipline, calling a legal representative is a right—not a privilege.
In the seminal 1975 decision N.L.R.B. v. J. Weingarten, Inc., the U.S. Supreme Court established an employee’s right to have a union representative at disciplinary investigations. In New Jersey employment settings, this is known as a “Weingarten Right”, and this right extends to investigations where the employee reasonably believes disciplinary action might result.
So, the next time the superintendent sends you an email summoning you to report to his/her office at 3pm that afternoon to respond to questioning, if you have even the slightest belief that such questioning could result in disciplinary action, please call us right away.
Once we are contacted, we will be in a position to help. We can then, in turn, contact the lawyers representing the District, gain clarity on the issue being investigated, and determine the type of representation that is needed—whether a lawyer or a local representative should be present.
In terms of your career, it is important for you to take this easy precautionary step to better understand your rights, the process that may unfold, and any strategy that may need to be followed.
Calling for assistance before the inquiry begins is far preferable than to have to “back-peddle” from a misstatement or a misunderstanding of a preliminary question or inquiry. As the oft-quoted saying goes: if you say it, you own it.
The better course is to err on the side of caution and involve NJPSA-legal counsel as soon as possible to preserve your rights, and the integrity of the investigation process.
We cannot help if we are not contacted.