Preparing For A Successful Nonrenewal

Transcription

1 INTRODUCTION & BASIC ANALYSIS OF CONTRACTS Preparing For A Successful Nonrenewal Presented By: Dorcas Ann Green dgreen@wabsa.com AND Chris Elizalde celizalde@wabsa.com East Huntland Drive Suite 600 Austin, Texas (512) N. E. Loop 410 Suite 900 San Antonio, Texas (210) Hidden Ridge Suite 410 Irving, Texas (214) N. 10 th Street Suite C McAllen, Texas (956) Marquette, N. W. Suite 1360 Albuquerque, New Mexico (505) E. Price Road Suite A Brownsville, Texas (956)

2 Meet the Speakers: Dorcas Ann Green, a shareholder in Walsh, Anderson, Brown, Gallegos, & Green, P.C., is a 1991 graduate of the Texas Tech University School of Law. Ms. Green served on the Texas Tech Law Review Board of Editors and was a recipient of the Judge Meade Griffin Award. Prior to attending law school, Ms. Green obtained an Associate Degree from Amarillo College and a Bachelor of Arts degree from West Texas State University. She has most recently authored Striking the Balance: Protecting Children, Preserving Rights, A Guide for Administrators in Restricting Child Sex Offender Access to School Campuses. This article is published in the Texas School Administrators Legal Digest. Other articles by Ms. Green published in the Legal Digest include: School District Compliance with the Employment Provisions of the Americans With Disabilities Act of 1990", Student Discipline-Round Two: The 75th Legislature Makes Changes to Chapter 37 of the Texas Education Code, and Curbing Violence in Our Public Schools: Legal Issues Dealing with Weapons at School. Ms. Green currently serves as the Vice Chair of the Council of School Attorneys and serves on the TASB Legal Assistance Board. She is a former editor of the School Law News for the Texas School Law Section and a former co-editor of Time Out with Walsh Anderson. Chris Garza Elizalde, a shareholder in the firm, is a 1980 graduate of the University of Texas School of Law. She is licensed to practice law in New Mexico and Texas. Prior to law school, she taught in Texas and Florida public schools for seven years. Ms. Elizalde spent 15 years at the Texas Association of School Boards as a staff attorney, Director of Legal Services, and Associate Executive Director. In her private practice, she has represented school districts, central tax appraisal districts and public officials successfully defending clients in hundreds of disputes before federal and state agencies. Her practice includes a broad range of legal areas, including employment and labor law, sexual harassment, public meetings and records, privacy, and contracts. Ms. Elizalde has served as an adjunct professor or guest lecturer at three universities. Ms. Elizalde is a frequent presenter and trainer in the areas of personnel and employment contract issues, and in recent years she has assisted school district clients extensively in the areas of personnel cost reductions. She is active in the Texas and National Council of School Attorneys, as well as the School Law Section of the Texas State Bar. She is currently co-editor of the firm s client newsletter, Time Out with Walsh Anderson. Preparing for A Successful Nonrenewal Page 2 Walsh Anderson 2010

3 PREPARING FOR A SUCCESSFUL NONRENEWAL As school administrators prepare for the upcoming Contract Season, a brief review of the basics of renewals and nonrenewals of term contracts and the termination of probationary contracts will help avoid pitfalls that can occur in the process. Unfortunately not all employees who are under contract have successful performance and a District must evaluate and determine what contract action is needed, hopefully a renewal but if a nonrenewal is appropriate, the District will want to have followed Board policy and the law governing contracts. Any discussion on nonrenewal of contracts should start with a clear understanding of the contract that the employee was issued. The basic analysis is shown in five steps below. I. Basic Review of School District Employee Contracts Step One: Know the types of contracts that govern school employee. There are four basic employment relationships in the educational context. (1) At-will employees (2) Probationary contracts (3) Term Contracts (4) Continuing Contracts Step Two: Review the actual contract terms - not what you think the contract might be or should be. Step Three: Determine what type of contract the employee was issued. In the example below, the employee was issued a Term Contract. State of Texas County of Bliss Date given employee Date returned by employee TERM CONTRACT Administrator BLISS INDEPENDENT SCHOOL DISTRICT hereby employs (the employee), and the Employee accepts employment on the following terms and conditions. Term. The District agrees to employ the Employee on a 12 month basis for the school year(s), according to the hours and dates set by the District as they exist or may hereafter be amended. Figure A Preparing for A Successful Nonrenewal Page 3 Walsh Anderson 2010

4 Other types of contracts: Probationary Contract, Continuing Contract, Non Chapter 21 Contract. Why is the professional capacity of a contract important? If nonrenewal or termination of a contract is not the desired outcome, a reassignment may be an option. The District could reassign the educator in Figure A above to another Administrator position. Without the agreement of the educator, a reassignment to a Teacher capacity is not an option. Step Four: Determine the term of the contract. In the example above, the term is for the school year. Why is this important? A term contract for one year is subject to proposed nonrenewal provided the provisions of Chapter 21 are followed. Term. The District agrees to employ the Employee on a 12 month basis for the school year(s), according to the hours and dates set by the District as they exist or may hereafter be amended. Figure B Step Five: Confirm that the contract is a contract subject to the Chapter 21 rights provided in the Texas Education Code. This paragraph would read similar to: Termination. This Contract will terminate upon a determination by the Board of good cause, financial exigency, or a program change, in accordance with applicable law and Board policy, or upon the Employee s resignation at the end of a school year without penalty, pursuant to Chapter 21 of the Texas Education Code. Figure C This means that the contract in Figure C can be proposed for nonrenewal or proposed for termination pursuant to the procedures found in Chapter 21 of the Texas Education Code. Preparing for A Successful Nonrenewal Page 4 Walsh Anderson 2010

5 II. Probationary Contracts Probationary contracts are provided to certain educators who are employed by a school district for the first time, or who has not been employed by the district for two consecutive school years subsequent to August 28, A person who previously was employed as a teacher by the district and after at least a two-year lapse in district employment may be employed under a probationary contract. Probationary contracts are issued for one year but may be extended to a 2 nd, 3 rd, or possible 4th year if the teacher has not been employed as an educator for at least five of the last preceding eight years in public education. (Texas Education Code Section ). What s the big deal? Aren t these educators probationary? A probationary educator still has rights under state and federal law not to be discriminated or retaliated against. To challenge an adverse employment action, probationary employees often go to the EEOC, Texas Commission on Human Rights, Department of Labor, and/or the Office of Civil Rights. A supervisor should treat probationary employees just like term contract employees for purposes of documenting poor work performance. It is recommended that if a probationary teacher has work performance problems that they be put on a growth plan just as a term contract employee. If the employee improves significantly, the principal may wish to recommend the continuance of the employment. If, however, the work performance does not improve, the district (and the principal) will be in a much better position to defend any action that may arise. How long can an educator be on probation? 1. The probationary period may not exceed one year for a teacher who has been employed in public education for at least five of the last eight years preceding employment by the district. TEC (b). 2. Except for those teachers who fall under (a) above, a teacher s first probationary contract may be renewed for two additional one-year periods, for a maximum probationary period of three school years. TEC (b). 3. The district may extend the probationary period for a fourth consecutive school year if during the third year, the Board determines that it is doubtful whether the teacher should be given a continuing or term contract. TEC (c). Preparing for A Successful Nonrenewal Page 5 Walsh Anderson 2010

6 4. At the end of the fourth consecutive probationary year, the district must either terminate the teacher or issue the teacher a continuing or term contact. TEC (c). Can a District Nonrenew or Terminate a Probationary Contract? Learn the correct terminology. A probationary contract is not nonrenewed. The contract can be terminated (note I did not say proposed for termination ) at the end of the probationary period. The probationary contract can be proposed for termination during the contract period or terminated at the end of the contract period. (This distinction is important.) Step One: Review the actual contract term - not what you think the contract might be or should be. Step Two: Determine what type of contract the employee was issued. Step Three: Confirm the term of the contract. If probationary, it should be for a year at a time until the probationary period is over. Step Four: Determine that there are legitimate nondiscriminatory reasons that the probationary contract should be terminated at the end of the contract period. Step Five: Make sure the agenda item and motion are worded correctly. State of Texas County of Bliss Date given employee Date returned by employee PROBATIONARY CONTRACT Teacher BLISS INDEPENDENT SCHOOL DISTRICT hereby employs (the employee), and the Employee accepts employment on the following terms and conditions. Term. The District agrees to employ the Employee on a 12 month basis for the school year(s), according to the hours and dates set by the District as they exist or may hereafter be amended. Figure D A common error occurs when the administration incorrectly believes the contract is probationary. It s much better to check before it goes to the Board because the process is significantly different. Preparing for A Successful Nonrenewal Page 6 Walsh Anderson 2010

7 Does There Need to be Grounds for Terminating a Probationary Contact at the End of the Contract Period? Not grounds as set out in District policy for nonrenewals, DFBB (Local); however, the legal standard states the termination of the probationary contact at the end of the contract period is in the best interest of the District. This is the legal standard that the Board is held to; however, the District should be able to articulate legitimate nondiscriminatory reasons for the contract action. An employee whose probationary contract has been terminated at the end of the contract period may still challenge the action in a grievance before the Board, to the EEOC, or to the Texas Workforce Commission Civil Rights Division. Good documentation of the performance concerns will help the District in defending such a challenge. What should the superintendent do if he or she accepts the recommendation from the principal that the probationary contract be proposed for termination to the Board of trustees? Often times, the superintendent and/or principal conferences with the employee and advises them of their intent to propose the termination of the probationary contract at the end of the contract period. During this conference the superintendent and/or principal can advise the employee that if he or she wishes to resign before the recommendation is presented to the Board, the resignation will be accepted. Remember, never coerce an employee to resign rather, discuss with the certified educator that resigning is an option. Can the employee resign to avoid the recommendation going to the Board? Yes, if the probationary employee submits a resignation, it should be accepted immediately so long as the superintendent has the authority to accept resignations. Remember: A resignation is not effective until the resignation has been accepted by the district. Therefore, note on the resignation form that the resignation has been accepted and return a copy to the employee. What if the employee does not want to resign? If the probationary employees does not wish to resign, the superintendent should be prepared to timely recommend to the Board that it is in the district s best interest that the probationary contract be terminated. Can the Board issue a multi-year probationary contract? It is not recommended that the Board do so. The statute discusses one year probationary contracts. A multi-year probationary contract could limit the district to terminate the contract before the last year of the multi-year probationary contract. Preparing for A Successful Nonrenewal Page 7 Walsh Anderson 2010

8 Should an educator who can no longer be employed under a probationary contract be issued a term contract if there are still work performance problems? No, it is strongly recommended that if an educator is not satisfactorily performing all of the job duties, the probationary contract should be considered for termination. Remember, the probationary period is a time for an educator to perform satisfactorily so the District will want to issue a term contract to the educator. A term contract will not help poor performance of a probationary employee. An administrator should evaluate carefully before recommending that an employee go from a probationary contract to a term contract. The contract rights are significantly different if there is a nonrenewal or termination later down the road. III. Continuing Contracts A small number of districts may have employees on continuing contracts. Such contracts cannot be nonrenewed but can be terminated for good cause. Chapter 21 rights would govern such a proposed termination. If an employee is demonstrating performance concerns, before any contract action is initiated, the District would need to be able to show that there is good cause to terminate the continuing contract. The employee would be entitled to a hearing before an independent hearing examiner under Chapter 21 of the Texas Education Code. IV. Term Contracts Term contracts are issued to educators who are not provided a probationary or continuing contract. Term contracts are governed by Chapter 21 of the Texas Education Code, which specifically sets out the procedures that a District must follow to propose the nonrenewal of a term contract and then after proposal nonrenew the contract. In evaluating if an educator s performance rises to the level of nonrenewal, a thorough review of the documentation and facts that relate to the educator s performance begins the process. The administration should review the District s policy that the Board has adopted for nonrenewal. Policy DFBB (Local) sets out the process to follow as well as the grounds for nonrenewal. In reviewing the performance, also see what grounds for nonrenewal would apply. Example: As the principal, you have been working with a teacher all year to help her improve so that she has appropriate lesson plans for her students. Despite verbal conferences, written memos, and even a teacher in need of assistance plan, the teacher has not consistently provided appropriate lesson plans. In reviewing these facts and DFBB, the following grounds for nonrenewal may be applicable. 1. Deficiencies pointed out in observation reports, appraisals or evaluations, supplemental memoranda, or other communications. 2. Failure to fulfill duties or responsibilities. 3. Incompetency or inefficiency in the performance of duties. Preparing for A Successful Nonrenewal Page 8 Walsh Anderson 2010

9 4. Insubordination or failure to comply with official directives. 5. Failure to comply with Board policies or administrative regulations. 6. Failure to comply with reasonable District requirements regarding advanced course work or professional improvement and growth. 7. A significant lack of student progress attributable to the educator. After determining that the educator s performance does fall within the grounds for nonrenewal, a clear understanding of the process and time lines is needed. Get out your calendar! The Board must propose the nonrenewal 45 calendar days before the last day of instruction and the Board s notice must be received by the educator by this date. No exceptions, no excuses! This takes planning. Count 45 days before the last day of instruction. This is the absolute drop dead date by which the educator must receive the notice that the contract is being proposed for nonrenewal. The written notice must be delivered to the employee by this 45th day. This means that the Board must have had an opportunity to meet, consider the superintendent s recommendation, vote, and then have a written notice in the employee s hands by the deadline. Failure to do so is a fatal error in terms of a successful nonrenewal. Once the written notice has been provided to the educator timely, the educator has ten calendar dates to request a hearing and then the Board must provide the hearing no later than 15 days after receipt of the request unless and agreement between the educator and district has been made (and that agreement is in writing). Unless the employee requests that the hearing be open, the hearing shall be conducted in closed session with only the members of the Board, the Superintendent, their representatives, and such witnesses as may be called in attendance. The burden is on the administration to prove that the conduct falls within the grounds for nonrenewal and that all procedures have been followed. Recap: 1. Review documentation and evaluations of employee. 2. Determine if there are grounds for nonrenewal. 3. Superintendent provides recommendation to Board. 4. If Board accepts the recommendation, written notice must be provided to the employee no later than 45 calendar days before the last day of instruction. 5. The employee has ten calendar days to request a hearing after receiving written notice of the proposed nonrenewal. 6. The hearing must be held within 15 days of the request for hearing unless there is a written agreement between the parties to hold the hearing on another date. 7. Hearing is held and administration must prove that the conduct of the educator rises to the level of a nonrenewal. 8. Board votes to nonrenew the contract or not to nonrenew the contract. Preparing for A Successful Nonrenewal Page 9 Walsh Anderson 2010

10 9. An appeal to the Commissioner, District Court, and Texas Appellate Courts is possible. V. What Can Go Wrong or What We Can Learn from Cases. Commissioner Decisions from Affecting Contracts 1. Any words of wisdom if a contract employee wishes to resign? Always accept a resignation immediately upon receipt. Do not pass go, do not collect $ accept the resignation. If the District later decides to allow the employee to rescind an offered resignation, it can do so. Immediately upon receiving a written resignation, accept the resignation in writing and deliver a copy to the employee. Case On Point: Chilton v. Alvin Indep. Sch. Dist., Tex. Comm r of Education Decision No. 031-R (March 5, 2009). A teacher appealed to the Commissioner after the District rejected her effort to rescind her resignation. The teacher submitted her resignation to the District on August 24. Before receiving any written acceptance, she faxed a letter to the district rescinding the resignation on August 30. However, the district asserted that it had accepted the resignation, by letter dated August 29, and so the teacher could not rescind. The Commissioner first concluded that an offer may be accepted by mail (unless the terms of the offer specify another means of acceptance). Moreover, if an offer is accepted by mail, acceptance occurs upon dispatch of a properly addressed letter. In this case, the district could point to no evidence in the record to support its assertion that the acceptance was mailed on the date it was drafted. The district argued that such evidence could be implied because the Level Two decision maker was the author of the acceptance letter. The Commissioner rejected this argument stating that a hearing is not fair when the decision maker bases a decision on personal knowledge. The Commissioner relied on the teacher s testimony that she received the acceptance in an envelope post-marked September 6, stating that was conclusive evidence that the acceptance was mailed after she attempted to rescind the resignation. The Commissioner granted the appeal in favor of the employee. Key Point: A resignation may be rescinded any time before it is accepted. A resignation is an offer to resign and the offer can be rescinded before it is accepted. Preparing for A Successful Nonrenewal Page 10 Walsh Anderson 2010

11 2. Does a District have to provide a hearing if a teacher s probationary contract is terminated at the end of the contract period? Can the employee appeal the Board s action to the Commissioner? A district can terminate a probationary contract at the end of the contract period. It does not require that the Board propose the termination of the probationary contract at the end of the contract period. It can be done in one step. The agenda and motion would be important. Agenda: Motion: Consider and possibly take action on the termination of probationary contacts at the end of the contract period. I move that the Board finds it in the best interest of the district to terminate the probationary contract of (list names or refer to exhibit where name is listed). The employee can file a grievance but cannot appeal to the Commissioner. Case On Point: Warren v. Houston Indep. Sch. Dist., Tex. Comm r of Educ. Decision No. 030-R (January 27, 2009). A teacher appealed the termination of his probationary contract at the end of the contract period, asserting jurisdiction under Texas Education Code Section and other provisions. The Commissioner stated that the Commissioner s jurisdiction under Texas Education Code Section (a) is limited to cases involving termination of continuing contracts, nonrenewal of term contracts, placing teachers on leave without pay, and termination of probationary contracts during the contract s term. Further, Texas Education Code Section (a) provides that: The Board of trustees of a school district may terminate the employment of a teacher employed under a probationary contract at the end of the contract period if in the Board s judgment the best interests of the district will be served by terminating the employment. The Board of Trustees must give notice of its decision to terminate the employment to the teacher not later than the 45 th day before the last day of instruction required under the contract. The Board s decision is final and may not be appealed. Because the Board voted to terminate the probationary contract at the end of the contract s term, the Commissioner lacked jurisdiction over the teacher s claims under Texas Education Code Section Key Points: Note the difference between at the end of the probationary contract term and during the contract term. Preparing for A Successful Nonrenewal Page 11 Walsh Anderson 2010

12 The employee is not entitled to a hearing under Chapter 21 but can file a grievance under the district s grievance policy, DGBA (Local). Section (a) cited above is the statutory provision that requires a Board to believe the termination at the end of the contract term is in the best interest of the district. A practical place for this determination is in the actual motion made. An employee could still go to EEOC or the Texas Workforce Commission challenging that the employee was terminated for an illegal reason (based on race, gender, national origin, disability, whistle blower, or retaliation claims). 3. Is it easier to RIF an employee if there are no grounds to terminate or nonrenew the contract? A reduction-in-force (RIF) is a basis for a nonrenewal or termination. The reasons for a RIF are set out in district policy and can be necessary due to a financial exigency or if there is a need for a program change. The process should not be used to target an individual employee. District policy DFF (Local) sets out the procedures to follow. If a district follows the procedures, the district should prevail. If the district deviates from the policy, it will lose. Case On Point: The district wins! Ischy v. Cotulla Indep. Sch. Dist. Tex. Comm r of Educ. Decision No. 055-R (June 26, 2009). The teacher was employed under a term contract for Cotulla ISD and taught Reading Resources/CEI (Creative Educational Institute Reading Program) during the school year. The Board proposed the nonrenewal of her contract under a RIF due to a program change. The notice to the employee stated, Due to a program change Closing of Position. The notice included an as attachment of the Board s policy concerning the reasons for nonrenewal. The policy included as a reason for nonrenewal a RIF because of a financial exigency or program change. First, the teacher challenged the notice as insufficient. She lost. Second, she said that the district did not follow the criteria required by policy. However, the teacher was the person in the employment area identified; therefore it was not necessary for the Board to apply the criteria when the program job description to be eliminated is only held by one individual. The teacher lost because the district followed its policy, proper notice was given, and the contact was properly nonrenewed. Key Points: The district s notice was sufficient to put the teacher on notice that her contract was being proposed for nonrenewal due to a program change that the program that she was assigned to was being eliminated. A reduction in force because of a program change is a valid reason for nonrenewal as stated in the district s DFBB Local policy. Preparing for A Successful Nonrenewal Page 12 Walsh Anderson 2010

13 Because the teacher was the only person in the identified employment area, it was not necessary for the district to use the RIF criteria that is used if there is more than one person in the identified program area. If a district follows its policy, it should win a challenge. 4. What if the district has issued a Chapter 21 contract to an employee who is not required to have a Chapter 21 contract? Help is here! A person who holds a permissive Chapter 21 contract is not entitled to be employed under a Chapter 21 contract the next school year. Therefore, the district can change a Chapter 21 contract to a non-chapter 21 contract when it is a permissive contract! The employee s only right is to be employed in the same professional capacity the next school year. Case On Point: Harris v. Royse City Indep. Sch. Dist., Tex. Comm r of Educ. Decision No. 0570R (March 5, 2009). A non-certified administrator appealed the district s decision to move him from a Chapter 21 contract to a non- Chapter 21 contract. The administrator signed the non-chapter 21 contract, but he filed a grievance when the superintendent told him that he would be employed as an at-will employee for the following school year. The administrator then resigned and accepted employment in another district. On appeal, the administrator argued that the district violated Chapter 21 by putting him on a non- Chapter 21 contract. The Commissioner denied the appeal because the administrator had a permissive Chapter 21 contract. Under Texas Education Code (1), only some district employees are entitled to a Chapter 21 contract (a superintendent, principal, supervisor, classroom teacher, counselor or other full time professional who is required to hold a certification, or a nurse). The administrator did not fit into any of those categories, so the district was not required to give him a Chapter 21 contract, but the District could choose to give him a Chapter 21 contract if it wanted to do so. This is called a permissive Chapter 21 contract. Accordingly, the Commissioner decided that a person who holds a permissive Chapter 21 contract is not entitled to be employed under a Chapter 21 contract the next school year. [This is big news!] The employee does not have a right to a Chapter 21 contract; instead the employee has the right only to be employed in the same professional capacity the next school year. The Commissioner also held that the employee s appeal was not moot based on his employment in another district, and that the employee waived his claims to a Chapter 21 contract by accepting the non-chapter 21 contract. Preparing for A Successful Nonrenewal Page 13 Walsh Anderson 2010

14 Key Points: These cases open up the opportunity for a Board to renew a contract on an employee who previously was given Chapter 21 rights even though the contract was not required to provide such rights. Employees who are required to have a Chapter 21 contract are those who are defined by statute to be a teacher. Teacher means a superintendent, principal, supervisor, classroom teacher, counselor, or other full-time professional who is required to hold a certificate issued Subchapter B or a nurse. The term does not include a person who is not entitled to a probationary, continuing, or term contract under Section , an existing contract or district policy. Texas Education Code Section also provides that a school district shall employ each classroom teacher, principal, librarian, nurse or counselor under a probationary, term, or continuing contract. Keep in mind that classroom teacher means an educator who teaches at least an average of four (4) hours per day. A district can hire an employee under a Chapter 21 contract who is not required to be hired under a Chapter 21 contract. Example: Maintenance Director A district cannot terminate a contract during the contract period and not provide Chapter 21 rights if they have issued a Chapter 21 contract to the employee. At renewal time, the contract could be renewed without the Chapter 21 rights. Check your district policy before taking action based on this case. 5. What types of conduct will support a nonrenewal? Check your district s policy DFBB (Local). It will list the reasons that the Board has determined will support a nonrenewal. Stealing and lying will certainly do it. Case On Point: Sommers v. Judson Indep. Sch. Dist., Tex. Comm r of Educ. Decision No. 037-R (March 19, 2009). A teacher challenged the termination of her term contract for allegedly taking items from a retiring teacher s classroom and then lying about her actions. The Commissioner held that the teacher s actions of taking the possessions and lying about it had a sufficient nexus to her duties as a teacher to support a finding of good cause to terminate the contract. In this case the teacher also was found to be responsible for the destruction of notes that were not favorable to her. (Lying, Stealing and Shredding Documents -- Not Good Evidence). Preparing for A Successful Nonrenewal Page 14 Walsh Anderson 2010

15 Key Points: It is true what your mother said! It is bad enough to engage in wrongful conduct, but lying about it can be worse. Never shred documents that are related to a case. The independent hearing examiner and the courts have made inferences that the destroyed documents are not favorable to the teacher s position. 6. The District terminated the probationary contract, now the teacher wants to resign. Do we have to let the teacher resign? No. Most districts give employees the courtesy of accepting an employee s resignation before the contract is proposed for action by the Board. Case On Point: In Moreno v. Lockhart Indep. Sch. Dist., Tex. Comm r of Educ. Decision No. 068-R (March 26, 2009), a teacher complained that the district denied her grievance in which she requested to resign instead of being terminated. The teacher filed the grievance after the Board voted to terminate her probationary contract. The Commissioner dismissed the appeal for failure to exhaust administrative remedies. The Commissioner stated that he has jurisdiction relating to the termination of a probationary contract only if a teacher alleges that the Board terminated her contract during the term or failed to properly vote to terminate the contract at the end of its term. In this case, the teacher did not allege that either of these circumstances existed. Key Points: Texas Education Code Section (a) states that the termination of a probationary contract at the end of the probationary term is final and not appealable. An employee can file a grievance contesting the termination to the Board, but that grievance cannot be appealed to the Commissioner. 7. What kind of documentation does the district need to nonrenew a teacher who for illegal drug use? If the district requires certain employees to undergo random drug tests, then the results of the drug test will be sufficient as long as the testing complied with federal law. Case On Point: La Clair v. Latexo Indep. Sch. Dist., Tex. Comm'r of Educ. Decision No. 065-R (July 21, 2010). Latexo ISD employed Patty as an elementary physical education teacher and tennis coach. As part of her coaching duties, LaClair drove a district-owned vehicle. In February 2010, LaClair underwent random drug testing as a required by federal regulations. The results of the test were positive for morphine. Based on these results, the Latexo ISD Board nonrenewed LaClair's term contract. Preparing for A Successful Nonrenewal Page 15 Walsh Anderson 2010

16 On appeal to the Commissioner, LaClair argued the test results were hearsay and the district did not present competent evidence that the urine sample tested was taken from LaClair. The Commissioner rejected these arguments noting that the testing protocol followed by the district was welldefined, highly-regulated, and followed federally-mandated procedures. Accordingly, the Commissioner stated, it was not necessary to determine whether the lab report qualified for the business records or public records exception to the hearsay rule. The Commissioner therefore concluded that LaClair's nonrenewal was supported by substantial evidence and denied her appeal. Key Points: Generally, the results of a random drug test of employees needs to comply with well-defined and highly regulated federally-mandated procedures. We know now that documented safeguards, chain of custody records, and a review by a medical review officer will be enough to show that the drug testing records provide enough evidence for nonrenewal for good cause. 8. Oops! The district provided notice of termination of the teacher s probationary contract, but we typed the wrong section by accident. Is the notice still valid? It depends if it was still fair notice. The purpose of the notice to the employee is that the employee gets fair notice. Notice is fair when it sufficiently informs a party of the claims to be contested and gives the party an opportunity to prepare a defense. Case On Point: Pearson v. Archer City Indep. Sch. Dist., Tex. Comm'r of Educ. Decision No. 035-R (Mar. 26, 2010). John Pearson challenged Archer City ISD's termination of his probationary contract during the contract term. Archer City ISD alleged that Pearson was late for work on the first and second day of school, on one occasion was slurring his words at school and, on another occasion, was late because he was arrested for DWI on the way to work. The independent hearing examiner agreed that the district demonstrated good cause for termination of Pearson's contract. The independent hearing examiner nonetheless recommended against termination on the grounds that Archer City ISD had cited to the wrong section of the Texas Education Code in the notice of proposed contract termination. The notice cited to Texas Education Code section , which addresses termination of term contracts, rather than Section , which addresses termination of probationary contracts. The Archer City ISD Board rejected the hearing examiner s recommendation and voted to terminate Pearson's contract. Pearson appealed to the Commissioner of Education. The Commissioner agreed that the district cited to the wrong section of the Texas Education Code. However, Texas Education Code section (c) directs the Commissioner not to reverse a Board's decision based on a procedural irregularity, unless the irregularity was likely to have led to an erroneous Preparing for A Successful Nonrenewal Page 16 Walsh Anderson 2010

17 decision. The Commissioner stated that notice of proposed termination of a probationary contract is not strictly construed. Rather, the issue is whether the employee received fair notice. Notice is fair when it sufficiently informs a party of the claims to be contested and gives the party an opportunity to prepare a defense. Noting that Pearson and his attorney clearly understood the procedures and issues for the hearing, the Commissioner denied the appeal, upholding the termination. Key Points: The best practice is to review the notice letter for accuracy. However, the purpose of notice is that the other person is put on notice in order to be sufficiently informed so that he or she has the opportunity to respond. Preparing for A Successful Nonrenewal Page 17 Walsh Anderson 2010

18 Preparing for a Successful Nonrenewal Presented By: Dorcas A. Green and Chris Elizalde

19 Basic Review of School District Employee Contracts

20 Step #1 The Four Employment "Relationships" (1) At Will (2) Probationary Contract (3) Term Contract (4) Continuing Contract

21 The Four Employment Relationships At- Will Employees

22 The Four Employment Relationships Probationary Contracts

23 The Four Employment Relationships Term Contracts

24 The Four Employment Relationships Continuing Contracts

25 Step #2 Review the actual contract terms. (not what you think the contract might be or should be)

26 Step #3 Determine what type of contract the employee was issued. Examples: Term, Probationary, Continuing, Non-Chapter-21

27 Sample State of TX County of Bliss Date Given Employee Date Returned By Employee TERM CONTRACT Administrator Bliss ISD hereby employs (employee) and the Employee accepts employment on the following terms and conditions. Term. The District agrees to employ the Employee on a 12 month basis for the school year, according to the hours and dates set by the District as they exist or may hereafter amended.

28 Step #4 Determine the term of the contract. One Year? Multi-Year?

29 One Year Term or Multi-Year Term Contracts? #1. Term. The District agrees to employ the Employee on a 12 month basis for the school year, according to the hours and dates set by the District as they exist or may hereafter amended. #2. Term. The District agrees to employ the Employee on a 12 month basis for the school year, according to the hours and dates set by the District as they exist or may hereafter amended.

30 Step #5 Confirm that the contract is a contract subject to the Chapter 21 rights provided in the Texas Education Code.

31 Chapter 21 Contract Sample Termination. This contract will terminate upon a determination by the Board of good cause, financial exigency, or a program change, in accordance with applicable law and Board policy, or upon the Employee s resignation at the end of a school year without penalty, pursuant to Chapter 21 of the Texas Education Code. Nonrenewal. The District may nonrenew this contract in accordance with Texas Education Code Chapter 21, as applicable, and Board policy.

32 Probationary Contracts

33 How long can an Educator be on Probation? The probationary period may not exceed one year for a teacher who has been employed in public education for at least five of the last eight years preceding employment by the district. TEC (b). Except for those teachers who fall under (a) above, a teacher s first probationary contract may be renewed for two additional one-year periods, for a maximum probationary period of three school years. TEC (b). The district may extend the probationary period for a fourth consecutive school year if during the third year, the board determines that it is doubtful whether the teacher should be given a continuing or term contract. TEC (c). At the end of the fourth consecutive probationary year, the district must either terminate the teacher or issue the teacher a continuing or term contact. TEC (c).

34 Q: Can a District Nonrenew or Terminate a Probationary Contract? 1. Review the actual contract term. 2. Determine what type of contract the employee was issued 3. Confirm the contract term. (If probationary, it should be for a year term.) 4. Determine there are legitimate non-discriminatory reasons that the contract should be terminated at the end of the contract period. 5. Make sure the agenda item and motion are worded correctly.

35 Q: Does there need to be grounds for terminating the probationary contract at the end of the term? Not grounds as set out in the District policy for nonrenewals (DFF (Local)). The legal standard is the best interest of the District. Good documentation will support this!

36 Q: What About Continuing Contracts? A small number of districts may have employees on continuing contracts. These contracts cannot be nonrenewed but can be terminated for good case. Chapter 21 governs a proposed termination.

37 RECAP 1-Year term contracts may be considered for nonrenewal in the year the contract ends. Multi-year contracts may be considered for termination during the term of the contract. Multi-year contracts can be considered for nonrenewal in the last year of the multi-term. Probationary contracts are not nonrenewed. Probationary contracts may be terminated at the end of the contract term if the Board finds it will be in the best interest of the District to terminate the contract. Probationary contracts may be considered for termination during the contract and Chapter 21 procedures will apply.

38 Q: Any words of wisdom if a contract employee wishes to resign? Always accept a resignation immediately upon receipt! Accept the resignation in writing and deliver a copy to the employee! (Case on Point: Chilton v. Alvin ISD)

39 Q: Does a District have to provide a hearing if the teacher s probationary contract is terminated at the end of the term? The employee can file a grievance but cannot appeal to the Commissioner. (Case on Point: Warren v. Houston ISD)

40 Q: Is it easier to RIF an employee if there are no grounds to terminate or nonrenew the contract? A RIF is a basis for a nonrenewal or termination. The reason for the RIF are financial exigency or program change. Policy DFF (Local) gives the procedures which must be followed. (Case on Point: Ischy v. Cotulla ISD)

41 Q: Is it easier to RIF an employee if there are no grounds to terminate or nonrenew the contract? A RIF is a basis for a nonrenewal or termination. The reason for the RIF are financial exigency or program change. Policy DFF (Local) gives the procedures which must be followed. (Case on Point: Ischy v. Cotulla ISD)

42 Q: What if the district has issued a Chapter 21 contract to an employee who is not required to have a Chapter 21 contract? Help is here! A person who holds a permissive Chapter 21 contract is not entitled to be employed under a Chapter 21 contract the next school year. Therefore, the district can change a Chapter 21 contract to a non-chapter 21 contract when it is a permissive contract! The employee has the right only to be employed in the same professional capacity the next school year. (Case on Point: Harris v. Royse City ISD)

43 Q: What types of conduct will support a nonrenewal? Check your district s policy DFBB (Local). It will list the reasons that the board has determined will support a nonrenewal. Stealing and lying will certainly do it. (Case on Point: Sommers v. Judgson ISD)

44 Q: The District terminated the probationary contract, now the teacher wants to resign. Do we have to let her resign? No. Most districts give employees the courtesy of accepting an employee s resignation before the contract is proposed for action by the board. (Case on Point: Moreno v. Lockhart ISD)

45 Q: What kind of documentation does the district need to nonrenew a teacher for illegal drug use? If the district requires certain employees to undergo random drug tests, then the results of the drug test will be sufficient as long as the testing complied with federal law. (Case on Point: LaClair v. Latexo ISD)

46 Q: OOPS! The district provided a notice of termination of the teacher s probationary contract, but made a typo. Is it still valid notice? It depends if it was still fair notice. The purpose of the notice to the employee is that the employee gets fair notice. Notice is fair when it sufficiently informs a party of the claims to be contested and gives the party an opportunity to prepare a defense. (Case on Point: Pearson v. Archer City ISD)

47 Preparing for A Successful Nonrenewal