Handout - William Allan Kritsonis, PhD

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<ul><li><p>TOP TEN THINGS PRINCIPALS NEED To KNOW ABOUT THE </p><p>NONRENEWAL AND TERMINATION PROCESS </p><p>Presented at the Eleventh Annual TASSP-Legal Digest Conference on Education Law for Principals </p><p>June 9,1998 Austin Convention Center </p><p>Austin, Texas </p><p>Presented By: David M. Feldman </p><p>Prepared By: David M. Feldman and Debra M. Esterak </p><p>FELDMAN &amp; ROGERS, L.L.P. 12 Greenway Plaza, Suite 1202 </p><p>Houston, Texas 77046 Telephone: 713/960-6000 </p></li><li><p>Top Ten Things Principals Need to Know about the Nonrenewal and Termination Process </p><p>I. Contracts Come in Several Shapes and SizesAlways 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 </p><p>.'' '. * A. Probationary Contracts. Teachers who are employed for the first </p><p>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. </p><p>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. </p><p>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. </p></li><li><p>II. Look Before You Leap </p><p>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. </p><p>/" .. * A. Basics of Termination at the End of the Year. An employee's </p><p>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). </p><p>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. </p><p>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 </p><p>. 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 </p></li><li><p>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. </p><p>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. </p><p>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. </p><p>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. </p><p>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. </p><p>A. Standard of Review. </p><p>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 </p></li><li><p>in the record upon which a reasonable person could rely to reach the same decision as the Board. </p><p>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. </p><p>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. </p><p>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. </p><p>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. </p><p>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 </p></li><li><p>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. </p><p>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. </p><p>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. </p><p>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. </p><p>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 </p><p>6 </p></li><li><p>should a recommendation be in order, but also disserves teachers by not giving them an accurate assessment of their performance. </p><p>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). </p><p> VI. Effective Documentation Will Make or Break a Case. Principals must </p><p>remember that documentation of performance problems is not limited to the formal appraisal process. </p><p>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. </p><p>B. Performance Problems. In the case of employee performance problems, the documentation should provide specific information regarding: </p><p>1. the nature of the performance problem(s); </p><p>2. the steps that were taken to remediate the problem(s); and, </p><p>3. the employee's subsequent efforts (or lack thereof) to improve his or her performance. </p><p>C. Misconduct. In the case of employee misconduct, the documentation should provide specific information regarding: </p><p>1. the nature of the complaint or charges alleged against the employee; </p><p>7 </p></li><li><p>,..,-..-.. 2. the steps that were taken to investigate the complaint and/or verify the charges; and, </p><p>3. if the complaint is ultimately verified, the resulting disciplinary action and/or recommendation for action (i.e., termination, nonrenewal, suspension, reprimand, directives). </p><p>D. Caveat. Written documentation can prove to be a significant liability if it is not carefully and thoughtfully prepared. </p><p>E. General Techniques. The following techniques may be utilized when documenting virtually any type of performance problem and/or employee misconduct: </p><p>1. Always use precise, unambiguous language. </p><p>2. Focus the subject of the documentation. Avoid straying into unrelated or extraneous issues. </p><p>3. Stick to the facts: who, what, where, when, why. Avoid opinions and inflammatory words. </p><p>4. Avoid exaggeration it destroys credibility. </p><p>5. Do not resort to personal attacks. Again, credibility will suffer. </p><p>6. When appropriate, refer the employee's attention to any relevant rules, policies, procedures, laws, regulations, or handbook provisions. </p><p>7. Try to document while the facts are "fresh.11 </p><p>8. Always review any written documentation - for content and for f...</p></li></ul>