TOP TEN THINGS PRINCIPALS NEED To KNOW ABOUT THE

NONRENEWAL AND TERMINATION PROCESS

Presented at the Eleventh Annual TASSP-Legal Digest Conference on Education Law for Principals

June 9,1998 Austin Convention Center

Austin, Texas

Presented By: David M. Feldman

Prepared By: David M. Feldman and Debra M. Esterak

FELDMAN & ROGERS, L.L.P. 12 Greenway Plaza, Suite 1202

Houston, Texas 77046 Telephone: 713/960-6000

Top Ten Things Principals Need to Know about the Nonrenewal and Termination Process

I. Contracts Come in Several Shapes and Sizes—Always Know What You're Dealing With. Before a principal considers recommending any adverse employment action on a teacher's contract, he or she should know the type of contract the teacher is under and the characteristics of the contract. Districts must employ their "teachers" (defined as supervisors, classroom teachers, librarians, nurses, principals, counselors, or other employees required to be certified), under a contract. See Tex. Educ. Code §§ 21.002, 21.101, 21.151, 21.201. There are three possible contracts that a teacher may hold: 1

.'' '. * A. Probationary Contracts. Teachers who are employed for the first

time by a school district or who have not worked for the district for two consecutive years must be employed by a probationary contract. A probationary contract may not be for a term of more than one school year. The contract may be renewed for two additional one-year periods unless the teacher has been employed in public education for five of the last eight years. If the board is uncertain whether a teacher who has not been employed five of the last eight years should receive a term or continuing contract, it may extend the teacher a probationary contract for the fourth year. See generally, Tex. Educ. Code, Ch. 21, Subchapter C.

B. Term Contracts. After completing the probationary period, a teacher may be given a term contract, which extends for a certain term, such as one or two years. These contracts may not, however, exceed a term of five years. At the end of each term, the board must either renew the contract, nonrenew the contract, or take no action, which results in the teacher being employed in the same professional capacity for the following school year. See generally, Tex. Educ. Code, Ch. 21, Subchapter E.

C. Continuing Contracts. As their name implies, continuing contracts are not for a set term, but continue indefinitely until the teacher retires, resigns, is discharged, or is returned to probationary status as an alternative to discharge. See generally, Tex. Educ. Code, Ch. 21, Subchapter D.

II. Look Before You Leap

A principal's role in the suspension/termination process is to "recommend to the superintendent the termination or suspension of an employee assigned to the campus or the nonrenewal of the term contract of an employee assigned to the campus." Tex. Educ. Code § 11.202 (b)(6). There is a vast difference between the procedure used to terminate a term or probationary contract employee at the end of the school year and that used for discharging a person prior to the end of the contract term. Before making any recommendation regarding an employee's contract, the principal needs to develop a working understanding of what each process entails, including an appreciation of the inherent pitfalls.

/" .. * A. Basics of Termination at the End of the Year. An employee's

term contract may be nonrenewed at the end of the contract term for reasons established by board policy (found at DFBB Local for TASB Policy Manual subscribers). See Tex. Educ. Code § 21.203(b). A probationary contract may be terminated at the end of the contract term if it is in the best interests of the District. Tex. Educ. Code § 21.103. A continuing contract cannot be "nonrenewed" at the end of the school year, as a continuing contract continues indefinitely until the employee is discharged for good cause (see below).

1. Probationary Contracts. Before a probationary contract may be terminated at the end of the year, the teacher must be given notice of the Board's intention to terminate not later than 45 calendar days before the last day of instruction. The Board's decision is final and may not be appealed. Tex. Educ. Code §21.103.

2. Term Contracts. Term contract employees must receive notice at least 45 calendar days before the last day of instruction that the Board intends to nonrenew the contract at the end of its term. Tex. Educ. Code § 21.206(a). Not later than 15 days after the teacher receives notice of the proposed

. action, the teacher may request a hearing. Tex. Educ. Code § 21.207. Depending upon the process chosen by the Board, the employee will receive a hearing either before the Board or before an independent hearing examiner. Id. If the employee does not request a hearing, the Board must notify the teacher of the final action not later than 30 days after the initial notice was sent. Tex. Educ. Code 21.208(a). If a hearing is

conducted, the teacher is then notified of the final action following the hearing. Tex. Educ. Code § 21.208(b). The teacher may appeal an adverse decision to the Commissioner of Education. Tex. Educ. Code 21.209.

3. Notice. Failing to provide timely notice to a teacher will result in the action being overturned. In order to avoid such a result, be sure to recommend nonrenewal or propose termination early, thereby allowing the Superintendent to meet the requisite timeliness.

B. Basics of Discharge. A district may discharge a term or probationary contract employee during the school year or a continuing contract employee at any time, for good cause. A teacher proposed for termination may request a hearing before an independent hearing examiner within 15 days of receiving the notice. Tex. Educ. Code § 21.253.

C. Other Alternatives. In lieu of discharge and for good cause, an employee may be suspended without pay until the end of the school year. Tex. Educ. Code §§ 21.104(b), 21.156(b), 21.21 l(b). A contract employee who is suspended without pay may appeal the decision to an independent hearing examiner. Tex. Educ. Code § 21.251. Alternatively, in lieu of discharging a continuing contract teacher or terminating or nonrenewing a term contract employee, the district may, with the written consent of the teacher, return the employee to probationary status. Tex. Educ. Code § 21.106. The employee may be returned to probationary status only after receiving written notice of the proposed action.

III. Nonrenewals are Tough, but Mid-Year Terminations are Tougher. While it is fairly easy to terminate a probationary contract at the end of the school year, nonrenewing a term contract at the end of the year requires more effort. Terminations based on good cause are still more difficult to support and successfully conduct.

A. Standard of Review.

1. Substantial Evidence. Nonrenewals heard by the board are subject to a "substantial evidence" standard of review if appealed to the Commissioner. See Tex. Educ. Code § 21.209. "Substantial evidence" means that there is evidence

in the record upon which a reasonable person could rely to reach the same decision as the Board.

2. Preponderance of the Evidence. An independent hearing examiner must evaluate all cases (whether termination or nonrenewal) based on a "preponderance of the evidence" standard. See Tex. Educ. Code § 21.256(h). In other words, the district has the burden of proving that the reason(s) for termination (or nonrenewal) are more likely true than not.

B. "Good Cause" for Termination. While districts must set forth reasons for nonrenewal in Board policy, Tex. Educ. Code § 21.203 (e.g., failure to comply with policies or directives, failure to fulfill job responsibilities, etc.), no similar requirement exists for specifying reasons that constitute "good cause" for termination.

1. Defined. The definition of "good cause" differs depending upon the type of contract in question. In continuing and probationary contract situations, good cause is defined as the failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in this state. Tex. Educ. Code § 21.104. Conversely, a term contract may be terminated for "good cause as determined by the board" — good cause not being specifically defined. Tex. Educ. Code § 21.211.

2. Examples. A district must present evidence of serious or egregious misconduct in order to constitute "good cause" for termination. Examples of "good cause" for termination have included romantic involvement with a student, falsification of documents, theft of district property, allowing a student to orally castrate a pig, harming a student, and other serious misconduct.

C. Independent Hearing Examiners. The Education Code allows teachers who receive notice of proposed suspension without pay or discharge before the end of the year (or, for continuing contract employees, discharge at any time) to request a hearing before an independent hearing examiner ("IHE"). See generally, Tex. Educ. Code, Ch. 21, Subchapter F. During the hearing, a teacher has the right to representation, cross-examine adverse witnesses, and present and hear evidence. The IHE then issues a recommendation that includes findings of fact and conclusions of law. The board

considers the IHE's recommendation and hears oral argument from the teacher and the administration's representatives, and may either adopt, reject, or change the IHE's conclusions of law. Id. The board may also reject or change a finding of fact, but only if the finding is not supported by substantial evidence. Id.

D. The Cost Factor. The IHE process has proved costly in several regards: districts must bear the cost of the services of the IHE and court reporter and, given the evidentiary standard involved as well as fact finding by a third party who may not be as appreciative of the district's concerns, districts appear to be losing more hearings under this process than they are winning. Given the trial-like nature of the process, the district also generally hires outside legal .counsel to investigate and present the administration's case, thus incurring additional expense.

IV. Practicalities of Nonrenewal vs. Mid-Year Termination. Given the fact that end of year probationary contract termination and term contract nonrenewal are not as difficult to support as mid-year terminations, principals must rely on their common sense when making a recommendation to terminate a teacher. A mid-year termination generally takes several months to pursue, during which time the teacher is usually suspended with pay pending the investigation into the misconduct. If a term contract employee commits serious misconduct at the end of the year, it is often better in terms of costs and risk to pursue nonrenewal as opposed to termination; and this is especially true in the case of the probationary teacher. Along those lines, if a teacher commits serious misconduct earlier in the year, do not delay investigating the misconduct and, if warranted, recommending termination.

V. Nice Guys Finish Last. As difficult as it may be to reprimand an employee or otherwise be candid about an employee's deficiencies, doing so is a necessary part of a principal's job.

A. Let Teachers Know Where They Stand. If problems become apparent early in the year, do not sit back and hope they will disappear. They usually don't. Counsel the employee early, document your discussions, and use growth plans and written reprimands as appropriate. Waiting until the middle or end of the year to identify deficiencies for nonrenewal purposes, or waiting until the last minute to come to grips with a pattern of misconduct that warrants termination, not only hurts the district's position

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should a recommendation be in order, but also disserves teachers by not giving them an accurate assessment of their performance.

B. Explore Your Options. Principals are not limited to recommending nonrenewal or renewal — and nothing else — to the superintendent. A recommendation for renewal of a term contract can also include a recommended term. For example, a teacher on a three-year term contract may be recommended for renewal for a one-year term, thus allowing the district more flexibility at the end of the one-year term. See George v. Bourgeois, 852 F. Supp. 1341 (E.D. Tex. — Beaumont, 1994); Rison v. Houston ISD, Docket No. 141-R10-1294 (Tex. Comm'rEduc. 1995).

» VI. Effective Documentation Will Make or Break a Case. Principals must

remember that documentation of performance problems is not limited to the formal appraisal process.

A. General Guidelines. Written documentation, when properly prepared, can prove to be an invaluable source of information several years down the road, after memories have begun to fade. More importantly, written documentation can often provide the source of a successful defense. Always keep in mind the intended purpose of the documentation; then, tailor the contents of the documentation to your purpose.

B. Performance Problems. In the case of employee performance problems, the documentation should provide specific information regarding:

1. the nature of the performance problem(s);

2. the steps that were taken to remediate the problem(s); and,

3. the employee's subsequent efforts (or lack thereof) to improve his or her performance.

C. Misconduct. In the case of employee misconduct, the documentation should provide specific information regarding:

1. the nature of the complaint or charges alleged against the employee;

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,..,-..-..• 2. the steps that were taken to investigate the complaint and/or verify the charges; and,

3. if the complaint is ultimately verified, the resulting disciplinary action and/or recommendation for action (i.e., termination, nonrenewal, suspension, reprimand, directives).

D. Caveat. Written documentation can prove to be a significant liability if it is not carefully and thoughtfully prepared.

E. General Techniques. The following techniques may be utilized when documenting virtually any type of performance problem and/or employee misconduct: »

1. Always use precise, unambiguous language.

2. Focus the subject of the documentation. Avoid straying into unrelated or extraneous issues.

3. Stick to the facts: who, what, where, when, why. Avoid opinions and inflammatory words.

4. Avoid exaggeration — it destroys credibility.

5. Do not resort to personal attacks. Again, credibility will suffer.

6. When appropriate, refer the employee's attention to any relevant rules, policies, procedures, laws, regulations, or handbook provisions.

7. Try to document while the facts are "fresh.11

8. Always review any written documentation - for content and for form. Documentation containing typographical errors and/or grammatical mistakes looks unprofessional and tends to lack credibility.

F. Other Considerations. Administrators need to assume that the employee will request copies of any documentation related to his or her performance problems and/or misconduct. Before drafting any documentation, evaluate whether there are any special considerations which may affect the manner in which the performance problems/misconduct are described and discussed:

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1. Are students involved? If so, can you avoid identifying them by name? If not, remember that an employee does not have a right of access under the Texas Public Information Act ("TPIA") to student records that are otherwise confidential under the Family Educational Rights and Privacy Act, 20 USC § 1232g. See Tex. Att'y Gen. Informal Letter Ruling OR94- 546.

2. Does the documentation concern allegations of sexual harassment? If so, some of the documents you generate may be exempt from public disclosure pursuant to Section 552.101 of the TPIA. Examples: The names of witnesses who .participated in the investigation and their statements or affidavits. See Morales v. Ellen, 840 S.W.2d 519 (Tex. App. - El Paso 1992, writ denied).

G. Timing. The timing of documentation is also crucial. In the case of employee misconduct, the documentation should always be prepared as the investigation progresses; do not wait until the investigation is complete to try to summarize the various steps that have been taken and the evidence generated. Similarly, performance problems should also be documented as they occur or at the time they are identified. An employee who is placed on a growth plan for on-going performance deficiencies in February generally cannot be recommended for nonrenewal in March based on the same performance deficiencies that were first identified in February. The employee will surely argue that he or she has not received an adequate opportunity to remediate his or her deficiencies. Documentation of performance problems should be constant and consistent. Little "flurries" or bursts of documentation immediately prior to the nonrenewal deadline leave the administration's recommendation subject to attack.

H. Acknowledgment. Notice is always an important consideration. To ensure that an employee cannot claim that he or she did not receive notice of a problem or deficiency, ask the employee to acknowledge receipt of all documents by placing his or her signature and the date on documents. If the employee is receiving the original, be sure to maintain a copy for your files.

VII. Remediation Really is Important. Depending on the nature of an employee's alleged misconduct or performance problems, remediation may be required prior to termination and/or nonrenewal.

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A. When Required. In general, remediation is required unless the employee's conduct is egregious or intolerable (e.g., physical assault of student, employee, or parent; sexual-misconduct with a student; offensive sexual behavior directed toward a student or fellow employee).

1. In remediable situations, principals should take advantage of less serious discipline techniques such as directives, growth plans, evaluations, and other disciplinary measures that not only allow the teacher to correct the deficiency, but also document the problem(s) at hand. If conduct can be remediated — for example, tardiness, failing to turn in lesson plans, etc. —the teacher must be given an opportunity to remediate the deficiency in order for a nonrenewal or termination based upon the conduct to successfully proceed.

2. If the conduct poses potential and significant harm to a student's emotional or physical well-being, the Commissioner of Education will support a district's decision to terminate employment without remediation rather than risk the possibility that the teacher will engage in similar conduct in the future. See Whalen v. Rocksprings ISD, Docket No. 065-R2-284 (Tex. Comm'r Educ. 1984).

B. Document Expectations. Be specific when describing what is required of the employee to remediate his or her conduct. Give specific time lines, when appropriate. However, make sure that the time lines are reasonable: not too short or too long for demonstrating sustained improvement. Explain what will happen if the employee fails to show improvement. Will partial improvement suffice? If not, the documentation should state as much. Use clear, unequivocal language to express your expectations: "you are directed to refrain from ..."; "you are directed to develop ..."; etc. Avoid telling an employee that he "needs to" or "should" do something.

VIII. Student Witnesses: If You Can't Rely on Them to Turn in Their Homework, You Can't Rely on Them to Make Your Case. Numerous considerations come into play when utilizing child witnesses. For example, you must receive parental consent in order for them to testify and their dependability is sometimes an issue. Principals should be leery of nonrenewal or termination situations in which the only evidence supporting the action is the testimony of a child witness. Uncorroborated and/or suspect allegations by students are not sufficient to support a termination.

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See e.g., Aguilar v. Ysleta ISD, Docket No. 067-R2-1190 (Tex. Comm'r Educ. 1991); Woolworth v. Eagle Pass ISD, Docket No. 119-R2-1291 (Tex. Comm'r Educ. 1994).

IX. As Bad as They May Seem to You, Some Reasons Simply Do Not Support Nonrenewal or Termination. Before you recommend nonrenewal of a term contract employee, always check to make sure that the reasons supporting your recommendation are included in policy. Likewise, before you recommend that an employee be discharged, check with your district's local counsel to ensure that the offense is truly a terminable one. Remember that in either situation, you will need documentation to support your reasons for the recommended action.

* A. The Commissioner of Education has determined the following

reasons to not support nonrenewal:

• A coach's failure to maintain a winning record. Hester v. Canadian ISD, Docket No. 106-R1-585 (Tex. Comm'r Educ. 1985).

• Filing formal grievances. Ostroff v. Manor ISD, Docket No. 320-R2-694 (Tex. Comm'r Educ. 1996).

B. The Commissioner has also overturned terminations based on the following:

• Incompetence, absent adequate notice of deficiencies and a reasonable opportunity to remediate. See McRuiz v. Cleburn ISD, Docket No 047-R2-1087 (Tex. Comm'r Educ. 1990).

• A single, isolated incident in which a teacher threatened a student. Patterson v. Albany ISD, Docket No. 210-R2-890 (Tex. Comm'r Educ. 1991).

• Selling pencils to students before or after class time. Rickaway v. Elkhart, Docket No. 353-R2-792 (Tex. Comm'r Educ. 1995).

• A plea of no contest to indecent exposure as the plea was not a finding of guilt, the evidence did not support the arrest, the conduct did not involve children, and no publicity or community reaction resulted from the arrest. Patton v. Dallas ISD, Docket No. 093-R2-1192 (Tex. Comm'r Educ. 1995).

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• Shoplifting, when the charges were dropped and there was no nexus between the shoplifting allegations and the teacher's fitness to perform her duties. Duncan v. Pecos-Barstow-Toyah ISD, Docket No. 351-R2-792 (Tex. Comm'rEduc. 1995).

• Giving evasive, but not necessarily false answers on an employment application. Specifically, the District attempted to terminate a teacher for falsifying her application when the teacher had responded to the question "have you ever been subjected to non-renewal" with "my jobs have always ended with a move or a job change." Everton v. Round Rock ISD, Docket No. 070-R2-1091 (Tex. Comm'r Educ. 1995).

X. Remember Your Role as Central Office's Eyes and Ears. The superintendent is not omniscient and, in most situations, does not know the particulars on any one teacher's deficiencies. Accordingly, it is the principal's responsibility to recommend what actions should be taken on a teacher's contract, provide the requisite documentation supporting that recommendation, and advise the superintendent about the particulars of the teacher's employment and contact status. Trust your instincts about an employee—if you have questions about his or her abilities early on, start documenting and, if possible, do not allow the marginal or problematic teacher to advance from probationary status to term or continuing contract status.

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