Schools Legal Service K-12 District Clients and County Superintendents

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1 March 5, 2012 Schools Legal Service is a joint powers entity TO: FROM: RE: Schools Legal Service K-12 District Clients and County Superintendents Christopher W. Hine Certificated Employees Hired Under Temporary Categorical Contracts (Education Code Section 44909) providing legal and collective bargaining services to California public education agencies since Grant Herndon General Counsel Stacy L. Inman Assistant General Counsel William A. Hornback Christopher P. Burger Alan B. Harris Kathleen R. LaMay Christopher W. Hine Monica D. Batanero Tenielle E. Cooper Melissa H. Brown Counsel Peter C. Carton Of Counsel José S. Cantú Daryl Valdez Bargaining Specialist On March 1, 2012, an appeals court decision was issued in the case of Stockton CTA v. Stockton USD. Although we are still digesting the decision, it appears that all certificated employees hired under temporary categorical contracts (Education Code Section 44909) ("categorical temps") are actually probationary employees. PLEASE NOTE THAT THIS ONLY APPLIES TO TEMPORARY EMPLOYEES HIRED UNDER EDUCATION CODE CONTRACTS. IT DOES NOT APPLY TO OTHER TEMPORARY TEACHERS. We believe that the provisions of the current Schools Legal Service contract document will still operate to terminate the categorical temps on or before June 30 of each year. However, in order to protect your district from being required to employ the categorical temps next year we recommend the following actions: 1. Immediately serve a termination letter (the "thanks for the memories" letter) on each categorical temp if you have not already done so. A draft letter is attached for your convenience. 2. Have your board nonreelect all categorical temps before March 15. The forms and instructions for nonreelecting probationary employees are attached. 3. In lieu of nonreelection you can have the teacher resign effective June 30, This is a provision found in some versions of the temporary contracts the districts are using. But we recommend that you have the teacher reaffirm that he or she is resigning effective June 30, We realize the nonreelection may carry a stigma but our conservative advice is to either nonreelect the employee or get a specific written resignation before March 15, We are continuing to evaluate this decision and hope to have further, more definitive, advice in the next 2 weeks. We are sorry for the short time frame but the school law community only became aware of this decision on Friday, March 2. This is a bad decision and we hope that either the California Supreme Court or the legislature will over turn it. But for now it is important that you nonreelect your categorical temps by March 15 in order to preserve the complete range of available options Street, 7 Floor Mailing Address: P.O. Box 2445 Bakersfield, California th th FAX: sls@kern.org

2 THE ANNUAL FAREWELL LETTER FOR REPLACEMENT TEMPORARY CERTIFICATED EMPLOYEES Adaptable for Many Temporary Employments * * * * * * * * * * * * * * * * * * * * * * * * * * To Be Typed On District Letterhead [Date] [Employee's Name and Address] Re: Confirmation of Cessation of Temporary Employment Status Dear [Employee Name]: This confirms cessation of your employment with the District. As you know, you are employed on a temporary basis under Education Code section [*]. Your written contract will end on [the last day of instruction for the current school year]. For record purposes, we will show the completion date as June 30, 20, which is the date of your final salary warrant. This notice is also given under Education Code Thank you for your service to the district. [Optional: Although funding for next year remains uncertain, we look forward to receiving an application from you.] Sincerely, Name and Title cc: Board of Trustees * Show applicable Code section authorizing temporary service, i.e., 44909, 44910, 44917, 44919, or

3 NONREELECTION OF PROBATIONARY CERTIFICATED EMPLOYEES OVERVIEW 1. This process applies to a district with an ADA of 250 or greater. 2. A probationary teacher may be "nonreelected" by board action. There is no evidentiary hearing. The teacher must be notified of the board's decision by March The procedural steps in a nonreelection are: a. The appropriate item is placed on the board's agenda as an action item. (Note: Though not required, some districts find it useful to invite the employee to the board meeting.) b. The board takes action. c. The teacher is notified by no later than March 15 of the board's action. 4. Reminder: State law prohibits use of the nonreelection process as an alternative to a layoff. 1

4 PROCESSING CERTIFICATED NONREELECTIONS INSTRUCTIONS TO DISTRICT SUPERINTENDENTS Districts Eligible for the Nonreelection Option Districts with 250 ADA or more may use the nonreelection option. [Educ. Code ] Districts with under 250 ADA do not operate under a tenure system. Consequently, these small districts cannot use the nonreelection process unless the Board first takes specific action converting the entire certificated staff to a tenure system (definitely not recommended; consult with counsel for details). Overall Deadline: Year #1 of Tenure Track - We recommend completion of the entire process prior to March 15. While the statute does not impose a March 15 deadline in Year #1, most districts find that they know by mid-year whether a first year teacher will likely not be renewed. Year #2 of Tenure Track - The entire process, including personal service of the final notice on the employee, must be completed on or before March 15. GOVERNING BOARD ACTION The Board Meeting: The Board must meet to take action, and final notice of its decision to nonreelect must be given in writing, before the deadline shown above. (Note: Though not required, many districts find it useful to invite the employee to attend this Board meeting.) Board Agenda Text: W e suggest the following agenda text: Closed session under Education Code section Discussion and action on Superintendent s recommendation that notice of nonreelection be given to one or more probationary certificated employees. Suggested Minutes: The closed session minutes should read substantially as follows: The Superintendent reported and recommended that [Employee Name] be given notice of nonreelection for the school year. IT IS RESOLVED that [Employee Name] be given notice 2

5 that he/she is not reelected for the and subsequent school years in accordance with Education Code section Motion by Trustee, seconded by Trustee. Vote: Note: For the subsequent open session minutes, some Districts choose to omit the name of the nonreelected employee. NOTICE TO EMPLOYEE AFTER THE BOARD MEETING Post-Board Meeting Notice Letter: A written notice must be hand delivered to the employee after the Board meeting and prior to the overall deadline (see above). At the same time, send the same notice to the employee by certified mail to the address shown on your personnel records. Proof of Service: Enclosed is the sample proof of service form. As you hand the notice to the employee, have the employee sign the bottom of your copy of the letter. The same Proof of Service form confirms the service by certified mail. IMPORTANT ADDITIONAL INFORMATION COPY TO SCHOOLS LEGAL SERVICE: PLEASE SEND COPIES OF ALL FINAL DOCUMENTS, AS WELL AS YOUR BOARD MINUTES, FOR OUR FILE. Attachments: Draft of Notice Letter Prior to Board Meeting Draft of First Notice Letter Copy of Education Code Proof of Service 3

6 DRAFT OF NOTICE LETTER NOTICE TO EMPLOYEE PRIOR TO BOARD ACTION * * * * * * * [REPRODUCE ON DISTRICT LETTERHEAD] [Date] [Name and Address of Employee] Re: Notice of Recommendation for Nonreelection under Education Code Section Dear : At the governing board's next meeting on, 2012, at p.m., I will recommend to the board, pursuant to education code section , subdivision (b) (copy attached) that you not be reelected as a certificated employee of the district for the school year. The board will consider my recommendation in closed session. You may be heard by the board prior to their decision to reelect or not reelect you. The board will afford you the opportunity to have this matter considered in public session, if you so desire. If the governing board adopts my recommendation and decides not to reelect you for the school year, your employment with the district will terminate on June 30, Sincerely, District Superintendent Attachment: Education Code I hereby acknowledge receipt of the original of this letter on, (Employee's Signature) 4

7 DRAFT OF NOTICE LETTER NOTICE TO EMPLOYEE AFTER BOARD ACTION * * * * * * * [Reproduce on District Letterhead] [Date] [Name and Address of Employee] Re: Notice of Nonreelection Under Education Code section Dear : At its meeting on, 2012, the District's Governing Board directed me to give you this letter as formal notice that you have not been reelected as a certificated employee of the District for the school year or subsequent school years. Accordingly, your employment with the District will terminate June 30, Sincerely, District Superintendent I hereby acknowledge receipt of the original of this letter on, (Employee's Signature) 5

8 Education Code Classification as permanent employee (a) Every employee of a school district of any type or class having an average daily attendance of 250 or more who, after having been employed by the district for three complete consecutive school years in a position or positions requiring certification qualifications, is reelected for the next succeeding school year to a position requiring certification qualifications shall, at the commencement of the succeeding school year be classified as and become a permanent employee of the district. This subdivision shall apply only to probationary employees whose probationary period commenced prior to the fiscal year. (b) Every employee of a school district of any type or class having an average daily attendance of 250 or more who, after having been employed by the district for two complete consecutive school years in a position or positions requiring certification qualifications, is reelected for the next succeeding school year to a position requiring certification qualifications shall, at the commencement of the succeeding school year be classified as and become a permanent employee of the district. The governing board shall notify the employee, on or before March 15 of the employee's second complete consecutive school year of employment by the district in a position or positions requiring certification qualifications, of the decision to reelect or not reelect the employee for the next succeeding school year to the position. In the event that the governing board does not give notice pursuant to this section on or before March 15, the employee shall be deemed reelected for the next succeeding school year. This subdivision shall apply only to probationary employees whose probationary period commenced during the fiscal year or any fiscal year thereafter. Education Code January 2012

9 PROOF OF SERVICE I,, declare as follows: I am a resident of and am employed in County, California. I am over 18 years of age and not a party to this action. My business address is:, California. On, 2012, I served document(s) described as: Notice of Nonreelection Under Education Code Other: - Upon: Name: At: Address: BY PERSONAL SERVICE, AS FOLLOWS: I personally hand delivered the documents to said person. BY MAIL, AS FOLLOWS: I placed the documents in an envelope, which was then sealed and addressed to said person as shown above. I then caused such sealed envelope, with postage thereon fully prepaid, to be placed in the United States Mail (Registered or Certified) at, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on, 2012, at, California. Signature of Declarant ACKNOWLEDGMENT OF SERVICE: I hereby acknowledge receipt of the above-listed document(s) on, Employee's Signature