Employee Stipends, Supplemental Duties, and Salaries. Introduc%on. Joey Moore. Derrell Coleman

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1 Employee Stipends, Supplemental Duties, and Salaries Presented By Joey Moore & Derrell Coleman Aus%n San Antonio Irving Albuquerque Rio Grande Valley Houston Introduc%on Here, we will explore the following employment issues with athle=c directors, coaches and other employees to guide you in dealing with these concerns in your district: The Hiring Process The Employment Agreement Changes in Employment Reassignment Ending the Employment Rela=onship Special Concerns and Considera=ons for Athle=c Directors and Coaches 2015 Walsh Gallegos 2 1

2 Hiring and Determining S%pends Texas Educa=on Code (a)(2) states that the superintendent has sole authority to make recommenda=ons to the board regarding the selec=on of all personnel other than the superintendent. Further, (b) gives the board the authority to accept or reject the recommenda=on, and if it rejects the recommenda=on, the superintendent must con=nue to make alterna=ve recommenda=ons un=l the board accepts one Walsh Gallegos 3 Hiring and Determining S%pends Many board policies require the superintendent to make hiring recommenda=ons to the board. The board may be unaware of the candidates for a par=cular posi=on un=l the superintendent brings forward the recommenda=on. In hiring an athle=c or head coach, however, there may be a desire to follow a different process Walsh Gallegos 4 2

3 Dual Assignment Contracts Coaches, athle=c directors, and band directors are some=mes employed on dual assignment contracts. If someone is employed under a dual- assignment contract, he or she essen=ally has two professional capaci=es Walsh Gallegos 5 Dual Assignment Contracts As such, any reassignment must include both posi=ons. For example, districts cannot reassign someone employed under a teacher/coach contract to only serve as a teacher, unless the employee consents Walsh Gallegos 6 3

4 Dual Assignment Contracts Dual assignment contracts may take the form of proba=onary, term, or con=nuing contracts Walsh Gallegos 7 Dual Assignment Contracts There are posi=ve and nega=ve aspects to using dual- assignment contracts. Coaches are bound to the coaching du=es to the same extent that they are bound to the teaching du=es in the contract. Thus, if the coach does not perform either the teaching or coaching du=es, the school district may take ac=on against the en=re contracts Walsh Gallegos 8 4

5 Dual Assignment Contracts Similarly, a coach may not simply refuse to coach, but s=ll maintain his or her teaching posi=on. Likewise, the school district may not simply decide to remove teaching du=es or coaching du=es. But must maintain the teacher s employment in both teaching and coaching capaci=es Walsh Gallegos 9 Dual Assignment Contracts This could be troublesome in a situa=on where an employee is a very good teacher, but may be lacking in coaching ability. In that situa=on, the district may not unilaterally remove the employee s coaching du=es without also removing the teaching du=es Walsh Gallegos 10 5

6 Supplemental Duty S%pends Rather than employing a coach on a dual assignment contract, a coach may be given a teacher contract with supplemental du=es (coaching) offered separately Walsh Gallegos 11 Supplemental Duty S%pends Coaches and other extracurricular posi=ons with s=pends are oaen employed on single assignment contracts ( teacher contracts) with supplemental du=es separately assigned outside the contract Walsh Gallegos 12 6

7 Supplemental Duty S%pends This involves a separate wriben agreement for supplemental du=es which clearly states that there is no contractual right to con=nue the supplemental du=es. In this case, the teaching and coaching du=es are not =ed together, so the coaching du=es may be removed without formal nonrenewal or termina=on procedures Walsh Gallegos 13 Supplemental Duty S%pends Supplemental du=es should be assigned in accordance with policy or administra=ve procedure, with a memorandum to the employee secng out the terms of the assignment Walsh Gallegos 14 7

8 Assignments Employee with dual contracts can be reassigned within the same professional capacity. Someone employed as a teacher/coach could go from being a teacher/varsity coach to a teacher/junior high coach Walsh Gallegos 15 Assignments Employees with teacher contracts and Supplemental Duty Agreements may be reassigned within the professional capacity of teacher. The supplemental du=es can be reassigned or removed without concern about impac=ng the professional capacity because the professional capacity is that of teacher Walsh Gallegos 16 8

9 Assignments Unlike a dual- assignment contract, with teacher contracts and Supplemental Duty Agreements the coaching and teaching du=es are not =ed together Walsh Gallegos 17 Rights Regarding S%pends A s=pend is in excess of base salary and is a temporary adjustment of total compensa=on, specified and approved in wri=ng, prior to work commencing, expressly condi=oned on availability of funds Walsh Gallegos 18 9

10 Rights Regarding S%pends S=pends may be paid for du=es performed by an employee not under contract at the =me the du=es must be performed (except for start dates that are outside of the academic year), or those that are not considered in the base salary Walsh Gallegos 19 Rights Regarding S%pends A s=pend does not increase the base appointment salary. May be paid on the monthly payroll but are not included in benefits calcula=ons. S=pends are not recognized as a property right and are dependent upon available resources Walsh Gallegos 20 10

11 Rights Regarding S%pends S=pend Agreement: There is no contractual or property right to any con=nuing assignment associated with an extra duty s=pend payment. The district may, at its sole discre=on, discon=nue any such assignment and associated s=pend payment at any =me Walsh Gallegos 21 Rights Regarding S%pends No Pay for Wins. A district may not award its athle=c director or any of its coaches addi=onal pay based solely on the success of the district s athle=c teams. The UIL Cons=tu=on and Rules states that [s]chools shall not pay coaches out of gate receipts, or draw the contracts with coaches in such a way as to make it to the financial advantage of a coach to win games Walsh Gallegos 22 11

12 Rights Regarding S%pends Further, districts may not pay to coaches, and coaches may not accept, payment from a high school booster club in an abempt to circumvent the above prohibi=on. See, University Interscholas4c League, Compe44on and Contest Rules, Rule 1202(b), available at Walsh Gallegos 23 Two Separate Documents May Form a Unified Contract. The commissioner has held that if two separate wriben agreements appear to be a unified contract, the employee will have Chapter 21 rights with regard to the teaching du=es and the coaching du=es. In Dibble v. Keller ISD, Dkt. No R (Comm r Educ. 2000) Walsh Gallegos 24 12

13 Dibble had a teacher con=nuing contract which allowed the superintendent to assign or reassign his du=es. Dibble also had a supplemental contract which provided a s=pend for performing head football coach and assistant soccer coach du=es Walsh Gallegos 25 While the supplemental contract disavowed the crea=on of any contractual right. However, it specified that failure to perform the coaching du=es may be ground for termina=on or nonrenewal of the teacher con=nuing contract Walsh Gallegos 26 13

14 It provided that Dibble could not ask to be relieved of the assigned coaching du=es without resigning from the district. In some ways, the two documents treated the coaching and teaching du=es as severable, and in other ways, the documents treated them as non- severable Walsh Gallegos 27 The Commissioner ruled that these two documents cons=tuted a unified con=nuing contract covering both teaching and coaching du=es. For that reason, the district could not remove Dibble s coaching du=es without following the requirements of Chapter 21 of the Educa=on Code Walsh Gallegos 28 14

15 The Key is Whether or Not Coaching Du%es Are At- Will. The key is to make certain that the separate document does not create Chapter 21 rights. In Carroll v. Wichita Falls ISD, Dkt. No R (Comm r Educ. 2000), Carroll had a con=nuing contract with the district as a teacher and a supplemental contract to perform coaching du=es Walsh Gallegos 29 The supplemental contract stated that Carroll may resign from the coaching posi=on upon wriben no=ce to the superintendent. The coaching du=es may be terminated for any reason or no reason at the discre=on of the District Walsh Gallegos 30 15

16 The contract also contained a provision condi=oning the supplemental contract upon Carroll s con=nued employment as a teacher, sta=ng that termina=on or nonrenewal of the teaching contract would automa=cally terminate the supplemental contract Walsh Gallegos 31 The Commissioner ruled that the terms of the supplemental contract showed it to be an at- will employment agreement. The term condi=oning the supplemental contract upon con=nued employment as a teacher did not form a unified contract. As such, the supplemental du=es could be terminated by either party at any =me and with or without reason Walsh Gallegos 32 16

17 Bledsoe v Hun4ngton ISD, Docket No R (Comm r Educ. 2014). Teacher given s=pend for chair of social studies department and teaching World Geography. District eliminated World Geography classes aaer school started and it realized no need. Teacher was not informed about his s=pend reduc=on un=l aaer the beginning of the following school year Walsh Gallegos 33 Held that cannot unilaterally change material terms of a contract aaer the 45 th day before instruc=on. Teacher s s=pend counts towards their total compensa=on Walsh Gallegos 34 17

18 A district mistakenly paid a newly hired teacher more than returning teachers. The salary was reduced aaer 7 months. Since the newly hired teacher did not receive no=ce or warning when they signed their contract, the district could not reduce their salary. Munoz v Valley View ISD, Docket No R (Comm r Educ. 2014) 2015 Walsh Gallegos 35 An Asst Prin for high school was reassigned to middle school. He received the same salary for the current year but was =mely informed his salary was reduced the following year. The procedures in Tex Ed Code (Furloughs) only apply when salary is reduced aaer the 45 th day before instruc=on. Abdul- Jabber v Port Arthur ISD, Docket No R (Comm r Educ. 2015) 2015 Walsh Gallegos 36 18

19 As long as employees are paid at least the amount specified in the state minimum salary schedule, a district may reduce or eliminate the local supplement between years by providing no=ce before the penalty- free resigna=on date. United Educators Ass n v. Arlington ISD, Docket No R (Comm r Educ. 2004} 2015 Walsh Gallegos 37 Prac%cal Advice on S%pends DEC (Local) says the superintendent shall recommend to the Board for approval compensa=on plans for all district employees. Compensa=on plans include wages, s=pends, benefits and incen=ves Walsh Gallegos 38 19

20 Prac%cal Advice on S%pends DEC (Local) also says the Superintendent shall administer the compensa=on plans consistent with the budget approved by the Board and "the Superintendent or designee shall classify each job =tle within the compensa=on plans based on the qualifica=ons and du=es of the posi=on. Within these classifica=ons, the Superintendent or designee shall determine appropriate pay for new employees and employees reassigned to different posi=ons." 2015 Walsh Gallegos 39 Prac%cal Advice on S%pends If their policy does not require a vote of the board to increase the s=pend, then no board ac=on is required. If typically they handle s=pends by allowing for them within the budget and lecng the superintendent set the amount Walsh Gallegos 40 20

21 Prac%cal Advice on S%pends The Board should seek clarifica=on from the superintendent as to when and how the increased s=pend will be presented to the coach. The board should communicate to the superintendent that the budget will ul=mately determine the amount of the s=pend Walsh Gallegos 41 Prac%cal Advice on S%pends Depending on the language of the employee s contract, a reassignment generally does not require special no=ce or any type of due process hearing. However, no=ce of reassignment in wri=ng to the employee is recommended Walsh Gallegos 42 21

22 FREEZING / REDUCING PAY Pay may be reduced between school years so long as the educator is no%fied of the decrease in compensa%on prior to the penalty- free resigna%on period. AWer the penalty- free resigna%on period, educators are en%tled to at least the same total compensa%on they received the previous school year Walsh Gallegos 43 A widespread salary reduc%on occurs when the annual salaries paid to classroom teachers are reduced based primarily on district financial condi%ons rather than on teacher performance. If teacher salaries are reduced, salaries paid to district administrators & other professional employees must be reduced by the same percentage Walsh Gallegos 44 22

23 WIDESPREAD SALARY REDUCTIONS Before implemen%ng a widespread salary reduc%on, the District must: 1. Involve instruc=onal staff in developing the salary reduc=on proposal 2. Conduct a public mee=ng with both the board & administra=on that includes the following: An opportunity for school employees to express opinions about the salary reduc=on Informa=on regarding op=ons considered for managing the district s resources, including a tax rate increase & use of any fund balance An explana=on of how the salary reduc=on will help limit the number of personnel who may be laid off Informa=on regarding the local op=on residence homestead exemp=on 2015 Walsh Gallegos 45 OTHER COST- SAVNG MEASURES ü Schedule Changes ü Increase Student- Teacher Ra%os ü Reduce Health Insurance Benefit Payments ü Re%re- Rehire Contribu%ons ü Resigna%on Incen%ves ü Severance Agreements ü Eliminate Extra Planning Periods ü Hiring Freeze 2015 Walsh Gallegos 46 23

24 FURLOUGHS Schools may adopt a furlough policy & reduce the number of days of service by no more than 6 days if the Commissioner cer%fies that the district will receive less state and local funding per student than was received for the school year The Commissioner must render a determina%on as to funding levels by July 1st of each year A school s decision to implement a furlough is final and may not be appealed Because this new law did not take effect un%l awer the July 1st deadline for the Commissioner to issue determina%ons on funding levels, a school district will not be able to take advantage of the furlough op%on un%l the school year 2015 Walsh Gallegos 47 Furlough Limita%ons May not result in fewer than 180 instruc%onal days Cannot result in any addi%onal teacher workdays Cannot be implemented on a state- mandated day of instruc%on Salary reduc%ons stemming from a furlough must be evenly distributed over the course of the contract term All contract personnel must receive the same number of furlough days A furlough day is neither a break in service for TRS purposes, nor is it a day of service for TRS purposes A teacher may resign without SBEC sanc%on, awer the penalty- free resigna%on deadline, if he or she is employed in a district that implements a furlough 2015 Walsh Gallegos 48 24

25 FURLOUGH PREREQUISITES Develop a furlough policy Involve the instruc=onal staff Conduct a public mee=ng at which: 1. Employees are given an opportunity to express opinions about the furlough 2. The board and administra=on present informa=on regarding: - - Op=ons considered for managing the district s resources, including a tax rate increase and use of any fund balance - - How the furlough will help limit the number of personnel who may be discouraged or nonrenewed - - Informa=on about the local op=on residence homestead exemp=on, and - - State the specific number of furlough days proposed 2015 Walsh Gallegos 49 Employee Stipends, Supplemental Duties, and Salaries The information in this handout was created by Walsh Gallegos Treviño Russo & Kyle P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney. Presented By Joey Moore jmoore@wabsa.com & Derrell Coleman dcoleman@wabsa.com Aus%n San Antonio Irving Albuquerque Rio Grande Valley Houston 25