plaintiffs-cross-appellants opening brief...plaintiffs – the north carolina association of...

No. COA 14-998 TENTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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NORTH CAROLINA ASSOCIATION OF EDUCATORS, INC., RICHARD J. NIXON, RHONDA HOLMES, BRIAN LINK, ANNETTE BEATTY, STEPHANIE WALLACE and JOHN DEVILLE, Plaintiffs, V. THE STATE OF NORTH CAROLINA, Defendant.

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From Wake County 13-CVS-16240

************************************************* PLAINTIFFS-CROSS-APPELLANTS’

OPENING BRIEF *************************************************

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INDEX

TABLE OF CASES AND AUTHORITIES ........................... iii

ISSUE PRESENTED ............................................................... 1

STATEMENT OF THE CASE ................................................ 2

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW ................................................................................. 3 STATEMENT OF THE FACTS .............................................. 3

A. North Carolina Provided Career Status Protections for Proven Teachers from 1971 to 2013................................ 3

B. Career Status Provided a Valuable Benefit to Teachers

That They Relied Upon in Making Employment Decisions ........................................................................ 7

C. North Carolina Schools Maintain Quality Workforces

Under the Career Status Law .......................................... 9 D. The General Assembly Repeals the Career Status Law

Retroactively ................................................................. 11 E. Judge Hobgood Rules the Career Status Repeal

Unconstitutional As To Teachers Who Have Career Status ............................................................................ 13

ARGUMENT ......................................................................... 16

I. STANDARD OF REVIEW .......................................... 17 II. THE REPEAL OF CAREER STATUS FOR

PROBATIONARY TEACHERS VIOLATES THE

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CONTRACTS CLAUSE AND LAW OF THE LAND CLAUSE.. .................................................................... 17

A. Statutes Offering Employment Benefits to Public

Employees Create Contractual Rights Protected by the Contracts Clause. .......................................... 17

B. Probationary Teachers Who Accepted

Employment at and Taught for North Carolina School Districts Before the Career Status Law Repeal Have Contractual Rights to the Availability of Career Status Protections. ........... 22

C. Based on the Trial Court’s Correct Rulings, The

Repeal of Career Status Violated the Rights of Probationary Teachers Under the Contract Clause and Law of the Land Clause. .............................. 28

CONCLUSION ...................................................................... 29

CERTIFICATE OF COMPLIANCE ...................................... 31

CERTIFICATE OF SERVICE ............................................... 32

APPENDIX:

Career Status Law, N.C. Gen. Stat. § 115C-325 (2012)……….. ………… ...................... App. 1-20

Sections 9.6 and 9.7 of the 2013 Appropriations Act,

Session Law 2013-360.. ………… ...... App. 21-43

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TABLE OF CASES AND AUTHORITIES Cases: Bailey v. State, 348 N.C. 130, 500 S.E.2d 54 (1998) ........ passim Blackburn v. Carbone, 208 N.C. App. 519, 703 S.E.2d 788 (2010) ..................................................................................... 17 Bruce–Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 504 S.E.2d 574 (1998) ................................................................... 17 Energy Reserves Group, Inc. v. Kan. Power & Light Co., 459 U.S. 400 (1983) ................................................................ 17, 28 Faulkenbury v. Teachers’ & State Employees’ Retirement System, 345 N.C. 683, 483 S.E.2d 422 (1997).................. passim Hyatt v. Mini Storage on Green, __ N.C. App. __, 763 S.E.2d 166 (2014) .............................................................................. 17 State of Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 58 S. Ct. 443, 82 L. Ed. 685 (1938)........................................... passim U.S. Trust Co. v. New Jersey, 431 U.S. 1 (1977) ............... 18, 28 Wiggs v. Edgecombe County, 361 N.C. 318, 643 S.E.2d 904 (2007) ............................................................................. passim Constitutional Provisions: N.C. Const. Art. I. § 19 ............................................................. 2 U.S. Const. Art. I. § 10 ....................................................... 2, 17

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Statutes: An Act to Establish an Orderly System of Employment and Dismissal of Public School Personnel, 1971 N.C. Sess. Laws Ch. 883 ..................................................................................... 3 An Act to Amend G.S. 115-142, The Teacher Employment and Dismissal Act, in Order to Make it More Workable and Eliminate Ambiguities, 1973 N.C. Sess. Laws Ch. 78 .............. 4 An Act to Modify the Law Relating to Career Status for Public School Teachers, N.C. Sess. Law 2011-348 .............................. 4 N.C. Gen. Stat. § 1-277 ............................................................. 3 N.C. Gen. Stat. § 7A-27 ............................................................ 3 N.C. Gen. Stat. § 115C-325 (2012) .................................. passim Current Operations and Capital Improvements Appropriations Act of 2013, N.C. Sess. Law 2013-360 ............................ passim The Excellent Schools Act, N.C. Sess. Law 1997-221 .............. 4

No. COA 14-998 TENTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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NORTH CAROLINA ASSOCIATION OF EDUCATORS, INC., RICHARD J. NIXON, RHONDA HOLMES, BRIAN LINK, ANNETTE BEATTY, STEPHANIE WALLACE and JOHN DEVILLE, Plaintiffs, V. THE STATE OF NORTH CAROLINA, Defendant.

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From Wake County 13-CVS-16240

************************************************* PLAINTIFFS-CROSS-APPELLANTS’

OPENING BRIEF *************************************************

ISSUE PRESENTED

I. DID TEACHERS WHO HAD ACCEPTED EMPLOYMENT UNDER

NORTH CAROLINA’S CAREER STATUS LAW, BUT HAD NOT ACHIEVED CAREER STATUS BEFORE THE LAW’S REPEAL, HAVE CONTRACTUAL AND PROPERTY RIGHTS IN THE CAREER STATUS SYSTEM PROTECTED BY THE FEDERAL OR STATE CONSTITUTION?

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STATEMENT OF THE CASE

Plaintiffs – the North Carolina Association of Educators (“NCAE”) and six

individual teachers, Richard J. Nixon, Rhonda Holmes, Annette Beatty, Stephanie

Wallace, John deVille, and Brian Link – filed this action in Wake County Superior

Court on 17 December 2013. (R pp. 2-15.) Plaintiffs’ Complaint alleges that the

General Assembly’s repeal of the Career Status Law (formerly codified at N.C.

Gen. Stat. § 115C-325 (2012)), violates the prohibition against state laws

“impairing the Obligation of Contracts” set forth in Article I, Section 10 of the

United States Constitution (“the Contracts Clause”) and violates the prohibition

against uncompensated takings of property incorporated in Article I, Section 19 of

the North Carolina Constitution (“the Law of the Land Clause”). (R pp. 2-15.)

Plaintiffs filed a motion for summary judgment on 10 March 2014, seeking a

declaratory judgment that the General Assembly’s repeal of the Career Status Law

is unconstitutional as well as a permanent injunction against enforcement of the

legislation. (R pp. 25-27.) Plaintiffs’ motion was heard before Judge Robert H.

Hobgood on 12 May 2014. (R p. 503.)

On 6 June 2014, the trial court granted plaintiffs’ motion for summary

judgment in part, concluding that the repeal of the Career Status Law is

unconstitutional with regard to teachers who had already attained career status, and

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granted defendant summary judgment in part, upholding the repeal as to teachers

who had not yet attained career status before the repeal was enacted. (R pp. 503-

09.) The trial court permanently enjoined defendant from implementing and

enforcing the legislation as to teachers who had already attained career status. (R p.

509.)

Defendant filed a notice of appeal on 3 July 2014 and plaintiffs filed a notice

of cross-appeal on 7 July 2014. (R pp. 510-15.)

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

Plaintiffs appeal pursuant to N.C. Gen. Stat. §§ 1-277(a) and 7A-27(b) from

a final judgment entered in Wake County Superior Court.

STATEMENT OF FACTS

A. North Carolina Provided Career Status Protections for Proven

Teachers from 1971 to 2013. Over forty years ago, North Carolina established a statutory system

governing the employment and dismissal of public school teachers.1 While the

legislature has made minor adjustments to this system from time to time, the basic

framework of employment protections established in 1971 remained intact for four

1 See An Act to Establish an Orderly System of Employment and Dismissal of Public School Personnel, 1971 N.C. Sess. Laws Ch. 883.

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decades.2 In its most recent form before the repeal, this system of employment was

set forth in the Career Status Law, codified at N.C. Gen. Stat. § 115C-325 (2012).

Under this system, the State offered the following bargain to educators:

teachers who accept employment in a North Carolina school district, and who

prove themselves by successfully completing a probationary period of

employment, earn “career status,” entitling them to two protections: (a) the

assurance that they could only be dismissed, demoted, or relegated to part-time

status for one of the specific reasons set forth in the statute, and (b) the right to a

hearing in which they could contest the grounds offered by a school district for that

adverse decision. Id.

More specifically, the Career Status Law provides that teachers employed by

a public school system for fewer than four consecutive years on a full-time basis

are deemed to be “probationary” teachers. Probationary teachers are employed

from year to year pursuant to annual contracts, which school boards are free to

“non-renew” at the end of a school year for any cause the board deemed sufficient,

2 See, e.g., An Act to Amend G.S. 115-142, The Teacher Employment and Dismissal Act, in Order to Make it More Workable and Eliminate Ambiguities, 1973 N.C. Sess. Laws Ch. 782; The Excellent Schools Act, N.C. Sess. Law 1997-221; An Act to Modify the Law Relating to Career Status for Public School Teachers, N.C. Sess. Law 2011-348.

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provided that the non-renewal was not “arbitrary, capricious, discriminatory or for

personal or political reasons.” Id. § 115C-325(m)(2).

After a probationary teacher completes four consecutive years as a full-time

teacher in a public school district, that teacher becomes eligible for career status.

Under the Career Status Law, a school board is required, near the end of a

probationary teacher’s last probationary year, and on the superintendent’s

recommendation, to decide by majority vote whether to grant or deny the teacher

career status. Id. § 115C-325(c)(1). If the superintendent does not initially

recommend a probationary teacher for career status to the board, the teacher has a

right to a hearing before the board to contest that recommendation. Id. § 115C-

325(m)(4).

Teachers who have achieved career status are “not … subjected to the

requirement of annual appointment.” Id. § 115C-325(d)(1). Instead, career status

teachers are employed on a continuing-contract basis and can only be dismissed,

demoted or relegated to part-time status for the following causes:

a. Inadequate performance. b. Immorality. c. Insubordination. d. Neglect of duty. e. Physical or mental incapacity. f. Habitual or excessive use of alcohol or nonmedical use of a

controlled substance …. g. Conviction of a felony or a crime involving moral turpitude.

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h. Advocating the overthrow of the government of the United States or of the State of North Carolina by force, violence, or other unlawful means.

i. Failure to fulfill the duties and responsibilities imposed upon teachers or school administrators by the General Statutes of this State.

j. Failure to comply with such reasonable requirements as the board may prescribe.

k. Any cause which constitutes grounds for the revocation of the career teacher’s teaching license or the career school administrator's administrator license.

l. A justifiable decrease in the number of positions due to district reorganization, decreased enrollment, or decreased funding, ….

m. Failure to maintain his or her license in a current status. n. Failure to repay money owed to the State …. o. Providing false information or knowingly omitting a material

fact on an application for employment or in response to a preemployment inquiry.

Id. § 115C-325(e)(1). Pursuant to a 2011 amendment to the Career Status Law,

“inadequate performance” is defined to mean “(i) the failure to perform at a

proficient level on any standard of the evaluation instrument or (ii) otherwise

performing in a manner that is below standard.” Id. § 115C-325(e)(3).

Before a career status teacher can be dismissed, demoted, or relegated to

part-time status for any of these reasons, the Career Status Law requires the school

board to provide the teacher with notice, an explanation of the charges, and, if

requested by the teacher, a hearing before the board or before an impartial hearing

officer. Id. § 115C-325(h)(2). If a career status teacher chooses to have a hearing

before a hearing officer, the teacher has the right “to be present and heard, to be

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represented by counsel and to present through witnesses any competent testimony

relevant to the issue of whether grounds for dismissal or demotion exist or whether

the procedures set forth in [the statute] have been followed.” Id. § 115C-325(j)(3).

B. Career Status Provided a Valuable Benefit to Teachers That They

Relied Upon in Making Employment Decisions. Five of the plaintiffs – Richard J. Nixon, Rhonda Holmes, Stephanie

Wallace, John deVille, and Annette Beatty – have earned career status and, like all

career status teachers, work for North Carolina school districts under continuing

contracts. (R pp. 38, 51-52, 105-06, 224, 246-47, 381-82.) Each relied on the

statutory promise that career status was available in making their decisions both to

accept employment with their North Carolina school districts and to remain so

employed, and each considers career status to be an important and valuable part of

their overall compensation and benefits. (R pp. 39, 42-43, 106, 225, 247, 382.)

Thousands of NCAE’s members are career status teachers who earned career status

before the repeal of the Career Status Law. (R p. 148.)

One of the teacher plaintiffs, Brian Link, had accepted and began his

employment three years before the repeal of the Career Status Law and was just

one year short of eligibility for career status when the legislature enacted the

repeal, eliminating his ability to earn career status. (R pp. 239-41.) Had the law not

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been repealed, Link’s school board would have voted whether to grant him career

status at the end of the 2013-14 school year. (R p. 240.) For the 2012-13 school

year, Link was evaluated as “Accomplished” under the North Carolina teacher

evaluation process. (R p. 240.)

Link relied on the promised availability of career status protections when he

made his decision to accept a position with a North Carolina school district and to

remain in that position. (R p. 240.) Indeed, one of the reasons Link chose to accept

a position in North Carolina over a job offer in Florida was the availability of

career status protections under the Career Status Law. (R p. 240.) And Link also

views the availability of career status as part of the overall package of

compensation and benefits that he bargained for in accepting employment with a

North Carolina school district and remaining so employed. (R p. 241.) Like Link,

many NCAE members are full-time teachers who would be eligible for career

status in coming years but for the repeal of the Career Status Law. (R p. 148.)

From the perspective of school administrators, career status protections help

attract and retain teachers despite the low salaries established by State salary

schedules. (R pp. 46, 52-53, 144-46, 232-33, 237, 324.)

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C. North Carolina Schools Maintain Quality Workforces Under the Career Status Law.

North Carolina school administrators presented unrebutted evidence that

they have sufficient tools under the Career Status Law to prevent ineffective

teachers from achieving career status and, in those instances in which a career

status teacher has un-remedied performance problems, to effectively and

efficiently secure the teacher’s separation from employment.

North Carolina’s four-year probationary period provides extensive time for

school districts to evaluate teachers and thus make an informed decision as to

whether a given teacher is granted career status in the first place – a decision that is

not automatic and that the administrators weigh very seriously. (R pp. 44, 52-53,

144, 193, 230-31.) Career status determinations are made only after newer teachers

have completed their four-year probationary period. During that period school

administrators regularly evaluate all teachers, and school boards have full latitude

to dismiss teachers at the end of each school year for poor performance. (R p. 44,

53, 230-31.) Accordingly, school districts have ample time and tools to identify

performance issues with probationary teachers, address those issues, and, if

improvement efforts are unsuccessful, to non-renew ineffective teachers even

before making a career status determination. (R pp. 53, 193, 231.)

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School administrators also have the proper tools to handle performance

issues with career status teachers. Administrators agree that dismissal is far from

the only way – or the optimal way in many cases – to address teachers’

performance issues, which can often be remedied instead through such tools as

formal and informal evaluations, mentoring programs, and the implementation and

monitoring of improvement plans. (R pp. 44-45, 112-13, 231-32.) However, when

a teacher has been given the proper opportunity to improve and has not made the

necessary improvement, termination is the appropriate course of action. (R pp. 45,

113, 231-32, 237.)

When a career status teacher fails to meet performance standards, and is

unresponsive to improvement measures attempted by the district, the Career Status

Law does not stand in the way of the career teacher’s removal. (R pp. 45-46, 52,

113, 145, 193, 231-32, 237, 325, 331.) Indeed, in the vast majority of cases, the

teacher agrees to resign without challenging the school district’s decision at a

hearing. (R pp. 46, 145, 220, 231-32, 237, 325.) And in the few instances in which

termination hearings occur, school administrators report that the process is not

onerous for the districts. (R pp. 145, 325.)

There is no evidence that the Career Status Law prevents North Carolina

school district officials from separating teachers when they believe termination is

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necessary. To the contrary, North Carolina school administrators provided

uncontradicted testimony that they are able to make all necessary personnel

changes within the framework of the Career Status Law. (R pp. 231-32 (testimony

of Iredell-Statesville Schools Superintendent Brady Johnson) (“[W]here career

status teachers continue to fall below standard ..., separation from the district

becomes necessary, which can always be accomplished within the career status

system”); R p. 237 (testimony of Durham Public Schools Area Superintendent

James Key) (“The career status system has never prevented me from separating a

teacher when appropriate to do so.”); R p. 325 (testimony of former Davie County

Schools and Mount Airy City Schools Superintendent William Steed) (“In my

experience, the career status system was not an obstacle to termination when a

teacher did not improve after being given a fair chance to do so.”).

D. The General Assembly Repeals the Career Status Law Retroactively. On 24 July 2013, the General Assembly enacted the Current Operations and

Capital Improvements Appropriations Act of 2013, N.C. Session Law 2013-360

(the “Appropriations Act”), a budget bill for fiscal years 2013-14 and 2014-15.

Included within this voluminous bill are the provisions repealing the Career Status

Law, Sections 9.6 and 9.7 (the “Career Status Repeal”). Those provisions were

added to the appropriations bill at the last minute by the Conference Committee,

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without discussion or debate. (R pp. 195-96.) On 26 July 2013, Governor Patrick

McCrory signed the Appropriations Act into law as Session Law 2013-360.

With this legislation, the General Assembly fundamentally altered the

system of employment established by the Career Status Law and its predecessor

statutes. Its provisions take effect as follows:

First, as of 1 August 2013, any teacher who has not achieved career status

before the beginning of the 2013-14 school year will never be granted career

status, but will instead be employed on the basis of one-year contracts until 2018

(with the one-time exception for some teachers noted below). Appropriations Act §

9.6(f).

Second, as of 1 July 2018, the Career Status Repeal revokes the career status

of all teachers who had previously earned that status pursuant to the Career Status

Law. Id. § 9.6(i). After 1 July 2018, all teachers will be employed on one-, two-, or

four-year contracts that can be non-renewed at the discretion of the school board

without any right to a hearing. Id. §§ 9.6(b) & (j).

Under the Career Status Repeal, teachers like Plaintiff Link, who began their

employment before enactment of the Career Status Repeal but who had not yet

earned career status, would no longer have the opportunity to earn career status, as

was promised to them by the Career Status Law when they accepted employment

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with their school districts. And the law provides that teachers who had previously

earned career status will be stripped of their career status protections as of 1 July

2018. Hence, the repeal means that career status teachers who had continuing

contracts under the Career Status Law – and who could only be dismissed on the

basis of one of the statutorily enumerated causes – will be employed on time-

limited contracts that are subject to nonrenewal on any basis that is not “arbitrary,

capricious, discriminatory, for personal or political reasons, or on any basis

prohibited by State or federal law.” Id. § 9.6(b).

Furthermore, the repeal means that teachers who had previously earned

career status will no longer have a right to a hearing on non-renewal decisions after

their career status is revoked. Instead, after receiving notice of non-renewal, former

career status teachers will be permitted to request a hearing on a local school

board’s non-renewal decision, but the board will have unfettered discretion to

decide whether or not to hold such a hearing. Id. § 9.6(b).

E. Judge Hobgood Rules the Career Status Repeal Unconstitutional As To

Teachers Who Have Career Status. In support of their motion for summary judgment, plaintiffs filed affidavits

from eighteen individuals, including the six plaintiffs, six current superintendents

and school board chairs, two former superintendents, and a labor economist at the

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University of California at Berkeley. (R pp. 38-384.) On 4 May 2014, defendant

filed responsive affidavits from two experts, a fellow at the Hoover Institution and

a policy analyst at the John Locke Foundation. (R pp. 388-433, 437-444.)

In its order on summary judgment, the trial court concluded that teachers

who had earned career status before the 26 July 2013 repeal of the Career Status

Law had contractual rights to their career status, and that by eliminating that status,

the Career Status Repeal (1) substantially impairs those contractual rights without

adequate justification, violating the Contracts Clause, and (2) constitutes a taking

of those teachers’ property without just compensation, violating the Law of the

Land Clause. (R pp. 506-08.)

The trial court began its analysis with its finding that “[c]areer status rights

constitute a valuable employment benefit that is earned after successfully

completing the probationary period, and is part of the offer on which teachers

reasonably relied when accepting and continuing employment.” (R p. 507.) The

court went on to conclude that teachers who had earned career status before 26

July 2013 therefore had contractual rights in their career status protections and

Career Status Repeal substantially impairs those rights by eliminating those

protections. (R p. 507.) The court concluded that these impairments are not

reasonable and necessary to further the purported public purpose of ensuring that

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ineffective teachers can be dismissed. (R p. 507.) The court relied in part on the

undisputed testimony of North Carolina school district officials, which established

that “school administrators already have the ability to dismiss career status teachers

for inadequate performance whenever necessary.” (R p. 507.)

The court further concluded that because contractual rights are property

rights protected by the Law of the Land Clause, the Career Status Repeal also

constitutes an uncompensated taking of the property of teachers who had already

earned career status, violating the North Carolina Constitution. (R p. 508.) The

court entered a declaratory judgment that the Career Status Repeal violates the

rights of career status teachers under the Contracts Clause and the Law of the Land

Clause and permanently enjoined the law as to those teachers. (R pp. 508-09.)

At the same time, the court concluded that teachers who had accepted

employment and performed services for school districts, but who had not yet

achieved career status, such as plaintiff Link, had no contractual rights under the

Career Status Law. (R p. 508.) The court accordingly entered judgment for

defendant on the claims brought by plaintiff Link and the other plaintiffs’ claims

on behalf of teachers who had not yet earned career status. (R p. 509.)

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ARGUMENT Plaintiffs’ claims turn, in the first instance, on the question of whether the

Career Status Law created contractual rights for teachers. The trial court correctly

concluded that the Career Status Law, as a statute providing for certain benefits

that public employees can earn as part of their overall compensation, is contractual

in nature and that teachers who had already earned career status have contractual

rights that are protected by the Contracts Clause and the Law of the Land Clause.

The trial court erred, however, in concluding that probationary teachers who had

accepted employment with and performed services for North Carolina school

districts while the Career Status Law was in effect have no contractual rights

arising from the law’s promise that they could earn career status if they met the

statutory requirements. Because those teachers also have protected contractual

rights that were impaired without any reasonable justification by the Career Status

Repeal, the Court should find the repeal unconstitutional with regard to these

teachers as well.3

3 Plaintiffs’ cross-appeal is limited to the trial court’s conclusion regarding the contractual rights of probationary teachers. The other principal issues in the case will likely be contested by the State in its appeal and thus will be addressed in plaintiffs’ response brief.

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I. STANDARD OF REVIEW. This Court reviews “orders granting or denying summary judgment using a

de novo standard of review.’” Hyatt v. Mini Storage on Green, __ N.C. App. __,

763 S.E.2d 166, 169 (2014). “‘The standard of review on appeal from summary

judgment is whether there is any genuine issue of material fact and whether the

moving party is entitled to a judgment as a matter of law.’” Blackburn v. Carbone,

208 N.C. App. 519, 525, 703 S.E.2d 788, 794 (2010) (quoting Bruce–Terminix Co.

v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998)).

II. THE REPEAL OF CAREER STATUS FOR PROBATIONARY

TEACHERS VIOLATES THE CONTRACTS CLAUSE AND LAW OF THE LAND CLAUSE.

A. Statutes Offering Employment Benefits to Public Employees

Create Contractual Rights Protected by the Contracts Clause. The Contract Clause of Article I, Section 10 of the United States

Constitution provides that “[n]o State shall … pass any … Law impairing the

Obligation of Contracts ….” While the Contract Clause is “facially absolute,” the

Supreme Court has long held that “its prohibition must be accommodated to the

inherent police power of the State to safeguard the vital interests of its people.”

Energy Reserves Group, Inc. v. Kan. Power & Light Co., 459 U.S. 400, 410

(1983). Consequently, courts apply a three-factor test to determine whether a state

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law violates this prohibition, asking: “(1) whether a contractual obligation is

present, (2) whether the state’s actions impaired that contract, and (3) whether the

impairment is reasonable and necessary to serve an important government

purpose.” Bailey v. State, 348 N.C. 130, 141, 500 S.E.2d 54, 60 (1998) (citing U.S.

Trust Co. v. New Jersey, 431 U.S. 1, 25 (1977)).

Both the United States Supreme Court and the North Carolina Supreme

Court have held that statutes offering employment benefits to public employees

who satisfy certain prerequisites create contractual rights in those benefits. See

State of Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 58 S. Ct. 443, 82 L. Ed.

685 (1938); Faulkenbury v. Teachers’ & State Employees’ Retirement System, 345

N.C. 683, 483 S.E.2d 422 (1997); Bailey v. State, 348 N.C. 130, 500 S.E.2d 54

(1998); Wiggs v. Edgecombe County, 361 N.C. 318, 643 S.E.2d 904 (2007). Each

court has also concluded that substantial impairments of public employees’ rights

under employment benefit statutes violate the Contract Clause.

In Brand, the United States Supreme Court held that Indiana’s teacher tenure

system – one that is very similar to North Carolina’s career status system – created

contractual rights and that the state legislature’s repeal of the statute violated the

Contracts Clause. Brand, 303 U.S. at 100-04.

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In finding that the Indiana teacher tenure statute created contractual rights,

the Court emphasized that the statute provided that teachers, after serving for five

years under annual contracts and being re-employed for a further year, were

considered to be working under an indefinite contract of employment, which could

be terminated “only upon compliance with the terms of the statute,” i.e., only “after

notice and hearing” and only “for incompetency, insubordination, neglect of duty,

immorality, justifiable reduction in the number of teaching positions, or other good

and just cause, but not for personal or political reasons.” Id. at 103-04. The Court

concluded that the state’s offer of those employment benefits, “when accepted as

the basis of action by individuals, become contracts between them and the State or

its subdivisions.” Id. at 100. Having found the tenure statute created contractual

rights, the Court had little difficulty concluding that legislation repealing the

statute for certain teachers “was not an exercise of the police power for the

attainment of ends to which its exercise may properly be directed.” Id. at 109.

Consistent with Brand, in Faulkenbury, the North Carolina Supreme Court

held that legislation reducing teachers’ disability retirement benefits violated the

Contract Clause. The Court first found that the retirement statute created

contractual rights, rejecting the State’s contention that it only announced a policy

subject to change by a later legislature. The Court explained: “We believe that a

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better analysis is that at the time the plaintiffs started working for the state or local

government, the statutes provided what the plaintiffs’ compensation in the way of

retirement benefits would be. The plaintiffs accepted these offers when they took

the jobs. This created a contract.” Faulkenbury, 345 N.C. at 690, 483 S.E.2d at 427

(emphasis added). Having found a contract, the Court went on to conclude that

“[t]he plaintiffs are entitled to what they bargained for when they accepted

employment with the state and local governments.” Id. at 693, 483 S.E.2d at 429.

As to the latter prongs of Contract Clause analysis, the Court found that reducing

the amount of benefits the plaintiffs could receive impaired their contractual rights

and that there was no “important public purpose” underlying the changes. Id.

Similarly, in Bailey, the North Carolina Supreme Court held that legislation

capping the previously unlimited tax exemption for public employee retirement

benefits violated the Contract Clause. As to the first question in the Contract

Clause analysis, the Court concluded that a tax exemption created by the State’s

public employee retirement statutes created a contractual right between public

employees and the State. Bailey, 348 N.C.at 146, 500 S.E.2d at 63. In so doing, the

Court credited the trial court’s finding that “‘[a] reasonable person would have

concluded ... that the tax exemption was a term of the retirement benefits offered in

exchange for public service to state and local governments.’” Id. The Court noted

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that the benefit of the tax exemption “helped attract and keep quality public

servants in spite of the generally lower wage paid to state and local employees.”

Id. at 150, 500 S.E.2d at 65. The Court then held that the legislation was neither

reasonable nor necessary because “[t]here [we]re numerous ways the State could

have achieved [its] goal without impairing the contractual obligations.” Id. at 152,

500 S.E.2d at 67.

Finally, in Wiggs v. Edgecombe County, 361 N.C. 318, 643 S.E.2d 904

(2007), the North Carolina Supreme Court again concluded that a statutory

employment benefit for public employees created contractual rights. The plaintiff,

a deputy sheriff, availed himself of a “special separation allowance” granted to

certain county employees who chose to retire early. Wiggs, 361 N.C. at 319, 643

S.E.2d at 905. He then secured part-time employment with another local

government. Id. His former public employer then passed a resolution providing

that special separation allowance payments would terminate upon a retiree’s re-

employment with another local government entity. Id.

Drawing on Faulkenbury, the Court had little difficulty concluding that this

employment benefit was contractual in nature and that, although the county might

have acted within its authority to “to pass a resolution which would apply

prospectively to those whose rights to the special separation allowance had not yet

- 22 -

vested,” it could not “retroactively appl[y]” such a resolution “to plaintiff’s vested

contractual right to receipt of the special separation allowance payments.” Id. at

324, 643 S.E.2d at 908.

B. Probationary Teachers Who Accepted Employment at and

Taught for North Carolina School Districts Before the Career Status Law Repeal Have Contractual Rights to the Availability of Career Status Protections.

The reasoning of the cases canvassed above, applied to the undisputed facts

in this case, compel the conclusion that teachers who accepted employment and

taught for school districts before the enactment of the Career Status Repeal, no less

than teachers who had achieved career status before that time, have contractual

rights. Specifically, they have rights to the availability of career status as promised

by the Career Status Law at the time that they accepted employment and began

working for their school districts.

The contractual nature of career status protections is demonstrated by the

terms of the Career Status Law. See Brand, 303 U.S. at 104 (“[T]he cardinal

inquiry is as to the terms of the statute supposed to create a contract.”). The Career

Status Law offered teachers the following bargain: As an inducement to accepting

employment at, and remaining employed with, North Carolina school districts, the

Career Status Law offered teachers the opportunity to earn career status protections

- 23 -

if they satisfied the law’s requirements. See N.C. Gen. Stat § 115C-325(c)(1),

(d)(1), & (e) (2012).

The Career Status Law, like the Indiana teacher tenure law in Brand, also

speaks in contractual terms. Just as “[t]he title of the [Indiana] act [was] couched in

terms of contract,” 303 U.S. at 105, the provisions of the Career Status Law were

codified under the heading “Part 3. Principal and Teacher Employment Contracts,”

N.C. Gen. Stat. § 115C-325 (2012). And just as the Indiana statute “sp[oke] of the

making and canceling of indefinite contracts” and used the term “contract”

throughout, 303 U.S. at 105, the Career Status Law expressly regulated teacher

contracts and provided that career status teachers were no longer subject to annual

contracts, see N.C. Gen. Stat. § 115C-325(c)(1), (d)(1), & (e) (2012). The Career

Status Law therefore has all of the features that the Supreme Court in Brand found

to support the conclusion that the tenure law in that case was contractual: the

Career Status Law “contain[s] provisions which, when accepted as the basis of

action by individuals, become contracts between them and the State or its

subdivisions.” Brand, 303 U.S. at 100.

The protections offered by the Career Status Law also are analogous to the

retirement-related employment benefits that the North Carolina Supreme Court

found to be contractual in Faulkenbury, Bailey, and Wiggs. Like the benefits at

- 24 -

issue in those cases, career status protections are valuable employment benefits

promised to prospective employees at the outset of employment that can be earned

after fulfilling certain eligibility requirements. Those promises were reasonably

relied on by teachers who chose to accept employment in North Carolina school

districts and to remain in those positions.

It is undisputed that the job protections promised by the Career Status Law

constitute a valuable employment benefit for teachers and that this benefit is a part

of the overall package of compensation and benefits that a person considers when

making a decision to enter and remain in the teaching profession.4 It is undisputed

that each of the teacher plaintiffs here, when they decided to accept teaching

positions in North Carolina school districts and to remain in those positions, in fact

relied on the State’s statutory promise that those valuable career status protections

would be available. And it is undisputed that each plaintiff considered the

availability of career status to be a valuable benefit that helps offset the relatively

low pay that public school teachers receive.5

4 Indeed, the Career Status Repeal legislation demonstrates the economic value of career status protections as it offered teachers $5000 in raises in exchange for the teachers relinquishing their career status four years before the law would revoke their status. See Appropriations Act §§ 9.6(f) & (g). 5 These undisputed facts are consistent with the testimony of plaintiffs’ expert, labor economist Jesse Rothstein, who makes clear that as a matter of basic economics, career status is an employment benefit that “has economic value for

- 25 -

For instance, plaintiff Link accepted employment with a North Carolina

school district in reliance on the promised availability of career status. He chose

that job over a job offer in Florida specifically because the teaching position in

North Carolina offered the availability of career status protections. He then

performed excellent work for three years with the understanding that he would be

eligible for career status after his fourth year. Only then did the General Assembly

renege on the bargain Link accepted, retroactively eliminating the availability of

career status.

As economist Jesse Rothstein explained – without contradiction – the

availability of career status is of value to those who have not yet earned it. Because

“workers’ career choices are forward-looking, in the sense that workers make

decisions among jobs on the basis not just of the pay they receive immediately

upon starting the job but also based on their forecasts of pay, job security, and

other working conditions in all future years,” the availability of career status after

completion of the probationary period is one of the benefits on which individuals

rely in deciding whether to accept employment as a teacher. (R p. 254.)

teachers,” is one of the characteristics of a job that a prospective employee considers and factors into the decision whether to accept employment, and is one that will compensate for the low pay offered to teachers. (R pp. 253-54.)

- 26 -

Given these undisputed facts, it is plain that, as the trial court held, the

Career Status Law created contractual rights for those who had already earned

career status. But, contrary to the trial court’s ruling on plaintiff Link’s claim, there

is no basis for limiting the contractual rights established by the Career Status Law

to just those teachers who already achieved career status before the repeal. To the

contrary, under Brand, Faulkenbury, and Bailey, probationary teachers who

accepted employment and worked for North Carolina School districts before the

Career Status Repeal, no less than teachers who already earned career status, have

contractual rights.

In Brand, the Court emphasized that a contract was formed when the state’s

offer of employment benefits in the form of tenure protections were “accepted as

the basis of action by individuals.” Brand, 303 U.S. at 100. And in Faulkenbury,

the North Carolina Supreme Court concluded that a contract was formed when

individuals accepted public employment under a statute that provided for certain

benefits. As here, “the statutes provided what the plaintiffs’ compensation in the

way of retirement benefits would be” at the time when they considered and

accepted their public employment positions. Faulkenbury, 345 N.C. at 690, 483

S.E.2d at 427. “The plaintiffs accepted these offers when they took the jobs. This

created a contract.” Id. (emphasis added). Indeed, the Faulkenbury Court further

- 27 -

emphasized this point in concluding that the contract was unconstitutionally

impaired: “The plaintiffs are entitled to what they bargained for when they

accepted employment with the state and local governments.” Id. at 693, 483

S.E.2d at 429.

And similarly, the Court in Bailey emphasized that the tax exemption for

retirement benefits at issue in that case served as an inducement to a “reasonable

person,” who “would have concluded … that the tax exemption was a term of the

retirement benefits offered in exchange for public service to state and local

governments’” while at the same time “help[ing] attract and keep quality public

servants in spite of the generally lower wage paid to state and local employees.”

348 N.C. at 146, 150, 500 S.E.2d at 63, 65.

In each of these decisions, the court emphasized that the statutory

employment benefit in question served as an inducement – in Brand terms, “a basis

of action” – on the part of public employees. As the Faulkenbury Court explicitly

stated, a contract resulted when an individual accepted public employment, even

though the employee’s entitlement to the benefit itself had not yet ripened at the

time the contract was formed.

Consequently, a probationary teacher such as plaintiff Link, who accepted

employment while the Career Status Law was in full effect and relied upon the

- 28 -

availability of career status when accepting employment with a school district and

remaining employed, gained a contractual right to the continuing availability of

career status protections upon satisfaction of the law’s requirements. The trial

court’s rulings that probationary teachers have no contractual rights under the

Career Status Law and that plaintiff Link has no standing must therefore be

reversed.

C. Based on the Trial Court’s Correct Rulings, the Repeal of Career

Status Violated the Rights of Probationary Teachers Under the Contract Clause and Law of the Land Clause.

As shown above, probationary teachers who, like plaintiff Link, accepted

employment and worked for North Carolina school districts in reasonable reliance

on the statutorily promised availability of career status protections, but who had

not yet earned that status, have contractual rights. Given the trial court’s other

rulings – correctly concluding that (i) the Career Status Repeal eliminated, and thus

substantially impaired, teachers’ contractual rights to career status; (ii) under the

Career Status Law, school administrators already have the ability to dismiss

teachers for inadequate performance whenever necessary; and (iii) the Career

Status Repeal was thus not a “reasonable and necessary” means of furthering an

important public purpose – the Career Status Repeal violates the Contract Clause

- 29 -

as to probationary teachers who had not yet attained career status before the repeal

was enacted.

Likewise, given the trial court’s correct conclusions that (i) teachers’

contractual rights under the Career Status Law are property rights protected by the

Law of the Land Clause; and (ii) the Career Status Repeal constitutes a taking

without just compensation, the Career Status Repeal violates the Law of the Land

Clause as to probationary teachers who had not yet attained career status before the

repeal was enacted.

CONCLUSION

For the foregoing reasons, plaintiffs respectfully request that the Court

reverse the part of the trial court’s Order denying plaintiffs’ motion for summary

judgment and granting defendant summary judgment on plaintiffs’ claims with

respect to probationary teachers, and remand with instructions to enter judgment in

favor of plaintiffs on those claims.

Respectfully submitted, this 22nd day of October, 2014.

PATTERSON HARKAVY LLP Electronically submitted Burton Craige NC Bar No. 9180

- 30 -

1312 Annapolis Dr., Suite 103 Raleigh, NC 27608 Tel: 919-755-1812 Fax: 919-942-5256 Email: [email protected]

N.C. R. App. P. 33(b) Certification: I certify that all of the attorneys listed

below have authorized me to list their names on this document as if they had personally signed it.

Narendra K. Ghosh NC Bar No. 37649 Patterson Harkavy LLP 100 Europa Dr., Suite 420 Chapel Hill, NC 27517 Tel: 919-942-5200 Fax: 919-942-5256 Email: [email protected] Philip A. Hostak DC Bar. No. 472945 (motion for pro hac vice admission pending) National Education Association 1201 16th Street NW Washington, DC 20036 Tel: (202) 822-7035 Fax: (202) 822-7033 Email: [email protected] Counsel for Plaintiffs

- 31 -

CERTIFICATE OF COMPLIANCE Pursuant to Rule 28(j) of the Rules of Appellate Procedure, counsel for the

Defendant certifies that the foregoing brief, which is prepared using proportional

font, is less than 8,750 words (excluding cover, index, table of authorities,

certificate of service, this certificate of compliance, and appendices) as reported by

the word-processing software.

This the 22nd day of October, 2014.

Electronically submitted

Burton Craige

- 32 -

CERTIFICATE OF SERVICE The undersigned counsel for the Defendant hereby certifies that a copy of

Plaintiffs-Cross-Appellants’ Opening Brief was sent via first class mail, postage

prepaid, addressed as follows:

Melissa L. Trippe Special Deputy Attorney General North Carolina Department of Justice P.O. Box 629 Raleigh, N.C. 27602

This the 22nd day of October, 2014.

Electronically submitted Burton Craige

CONTENTS OF APPENDIX

Career Status Law, N.C. Gen. Stat. § 115C-325 (2012) ................................................................. App. 1-20

Sections 9.6 and 9.7 of the 2013 Appropriations Act, Session Law 2013-360………… .................... App. 21-43

§ 115C-325. System of employment for public school teachers, N.C.G.S.A. § 115C-325

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1

West's North Carolina General Statutes AnnotatedChapter 115C. Elementary and Secondary Education

Subchapter V. Personnel (Refs & Annos)Article 22. General Regulations

Part 3. Principal and Teacher Employment Contracts

N.C.G.S.A. § 115C-325

§ 115C-325. System of employment for public school teachers

Effective: July 17, 2012Currentness

(a) Definition of Terms. --As used in this section unless the context requires otherwise:

(1) Repealed by S.L. 1997-221, § 13(a).

(1a) “Career employee” as used in this section means:

a. An employee who has obtained career status with that local board as a teacher as provided in G.S. 115C-325(c);

b. An employee who has obtained career status with that local board in an administrative position as provided in G.S.115C-325(d)(2);

c. A probationary teacher during the term of the contract as provided in G.S. 115C-325(m); and

d. A school administrator during the term of a school administrator contract as provided in G.S. 115C-287.1(c).

(1b) “Career school administrator” means a school administrator who has obtained career status in an administrativeposition as provided in G.S. 115C-325(d)(2).

(1c) “Career teacher” means a teacher who has obtained career status as provided in G.S. 115C-325(c).

(1d) Repealed by S.L. 2011-348, § 1, eff. July 1, 2011.

(2) Repealed by S.L. 1997-221, § 13(a).

(3) “Day” means calendar day. In computing any period of time, Rule 6 of the North Carolina Rules of Civil Procedureshall apply.

Appendix p. 1



(4) “Demote” means to reduce the salary of a person who is classified or paid by the State Board of Education as a classroomteacher or as a school administrator. The word “demote” does not include: (i) a suspension without pay pursuant toG.S. 115C-325(f)(1); (ii) the elimination or reduction of bonus payments, including merit-based supplements, or asystemwide modification in the amount of any applicable local supplement; or (iii) any reduction in salary that resultsfrom the elimination of a special duty, such as the duty of an athletic coach or a choral director.

(4a) “Disciplinary suspension” means a final decision to suspend a teacher or school administrator without pay for nomore than 60 days under G.S. 115C-325(f)(2).

(4b) “Exchange teacher” means a nonimmigrant alien teacher participating in an exchange visitor program designated bythe United States Department of State pursuant to 22 C.F.R. Part 62 or by the United States Department of HomelandSecurity pursuant to 8 C.F.R. Part 214.2(q).

(4c) “Hearing officer” means a person selected under G.S. 115C-325(h)(7).

(5) “Probationary teacher” means a licensed person, other than a superintendent, associate superintendent, or assistantsuperintendent, who has not obtained career-teacher status and whose major responsibility is to teach or to superviseteaching.

(5a) Expired Oct. 1, 2009, pursuant to S.L. 2007-326, § 6.

(5b) “School administrator” means a principal, assistant principal, supervisor, or director whose major function includes thedirect or indirect supervision of teaching or any other part of the instructional program as provided in G.S. 115C-287.1(a)(3).

(6) “Teacher” means a person who holds at least a current, not provisional or expired, Class A license or a regular, notprovisional or expired, vocational license issued by the State Board of Education; whose major responsibility is to teachor directly supervises teaching or who is classified by the State Board of Education or is paid either as a classroomteacher or instructional support personnel; and who is employed to fill a full-time, permanent position.

(7) Redesignated as (a)(5a).

(8) “Year” for purposes of computing time as a probationary teacher shall be not less than 120 workdays performed as aprobationary teacher in a full-time permanent position in a school year. Workdays performed pending the outcome of acriminal history check as provided in G.S. 115C-332 are included in computing time as a probationary teacher.

(b) Personnel Files.--The superintendent shall maintain in his office a personnel file for each teacher that contains anycomplaint, commendation, or suggestion for correction or improvement about the teacher's professional conduct, except thatthe superintendent may elect not to place in a teacher's file (i) a letter of complaint that contains invalid, irrelevant, outdated, orfalse information or (ii) a letter of complaint when there is no documentation of an attempt to resolve the issue. The complaint,commendation, or suggestion shall be signed by the person who makes it and shall be placed in the teacher's file only after five

Appendix p. 2



days' notice to the teacher. Any denial or explanation relating to such complaint, commendation, or suggestion that the teacherdesires to make shall be placed in the file. Any teacher may petition the local board of education to remove any informationfrom his personnel file that he deems invalid, irrelevant, or outdated. The board may order the superintendent to remove saidinformation if it finds the information is invalid, irrelevant, or outdated.

The personnel file shall be open for the teacher's inspection at all reasonable times but shall be open to other persons only inaccordance with such rules and regulations as the board adopts. Any preemployment data or other information obtained abouta teacher before his employment by the board may be kept in a file separate from his personnel file and need not be madeavailable to him. No data placed in the preemployment file may be introduced as evidence at a hearing on the dismissal ordemotion of a teacher, except the data may be used to substantiate G.S. 115C-325(e)(1)g. or G.S. 115C-325(e)(1)o. as groundsfor dismissal or demotion.

(c)(1) Election of a Teacher to Career Status.--Except as otherwise provided in subdivision (3) of this subsection, when a teacherhas been employed by a North Carolina public school system for four consecutive years, the board, near the end of the fourthyear, shall vote upon whether to grant the teacher career status. The teacher has a right to notice and hearing prior to the board'svote as provided in G.S. 115C-325(m)(3) and G.S. 115C-325(m)(4). The board shall give the teacher written notice of thatdecision by June 15 or such later date as provided in G.S. 115C-325(m)(7). If a majority of the board votes to grant careerstatus to the teacher, and if it has notified the teacher of the decision, it may not rescind that action but must proceed underthe provisions of this section for the demotion or dismissal of a teacher if it decides to terminate the teacher's employment.If a majority of the board votes against granting career status, the teacher shall not teach beyond the current school term. Ifthe board fails to vote on granting career status, the teacher shall be entitled to an additional month's pay for every 30 days orportion thereof after June 16 or such later date as provided in G.S. 115C-325(m)(7) if a majority of the board belatedly votesagainst granting career status.

(2) Employment of a Career Teacher.--A teacher who has obtained career status in any North Carolina public school systemneed not serve another probationary period of more than one year. The board may grant career status immediately uponemploying the teacher, or after the first year of employment. The teacher has a right to notice and hearing prior to theboard's vote as provided in G.S. 115C-325(m)(3) and G.S. 115C-325(m)(4). The board shall give the teacher writtennotice of that decision by June 15 or such later date as provided in G.S. 115C-325(m)(7). If a majority of the board votesagainst granting career status, the teacher shall not teach beyond the current term. If after one year of employment, theboard fails to vote on the issue of granting career status, the teacher shall be entitled to one additional month's pay forevery 30 days or portion thereof beyond June 16 or such later date as provided in G.S. 115C-325(m)(7) if a majorityof the board belatedly voted against granting career status.

(2a) Notice of Teachers Eligible to Achieve Career Status.--At least 30 days prior to any board action granting career status,the superintendent shall submit to the board a list of the names of all teachers who are eligible to achieve career status.Notwithstanding any other provision of law, the list shall be a public record under Chapter 132 of the General Statutes.

(3) Ineligible for Career Status.--No employee of a local board of education except a teacher as defined by G.S. 115C-325(a)(6) is eligible to obtain career status or continue in a career status as a teacher if he no longer performs the responsibilitiesof a teacher as defined in G.S. 115C-325(a)(6). No person who is employed as a school administrator who did notacquire career status as a school administrator by June 30, 1997, shall have career status as an administrator. Further,no director or assistant principal is eligible to obtain career status as a school administrator unless he or she has alreadybeen conferred that status by the local board of education.

Appendix p. 3



(4) Leave of Absence.--A career teacher who has been granted a leave of absence by a board shall maintain his careerstatus if he returns to his teaching position at the end of the authorized leave.

(5) Consecutive Years of Service. --

a. If a probationary teacher in a full-time permanent position does not work for at least 120 workdays in a school yearbecause the teacher is on sick leave, disability leave, or both, that school year shall not be deemed to constitute (i)a consecutive year of service for the teacher or (ii) a break in the continuity in consecutive years of service for theteacher.

b. If a probationary teacher in a full-time permanent position is nonrenewed because of a decrease in the number ofpositions due to decreased funding, decreased enrollment, or a district reorganization, and is subsequently rehired bythe same school system within three years, the intervening years when the teacher was not employed by the localschool administrative unit shall not be deemed to constitute (i) a consecutive year of service for the teacher or (ii)a break in the continuity of years of service. However, if at the time of the teacher's nonrenewal for the reasonsdescribed in this subsection, the teacher was eligible for career status after being employed four consecutive yearspursuant to G.S. 115C-325(c)(1), or one year pursuant to G.S. 115C-325(c)(2), and the board subsequently rehiresthe teacher within three years, the teacher will be eligible for a career status decision after one additional year ofemployment. Unless the superintendent unilaterally grants a teacher the benefit set forth in this subsection pursuantto a policy adopted by the board of education for this purpose, the teacher is entitled to such benefit only if theteacher notifies the head of human resources for the local school administrative unit in writing within 60 calendardays after the first day of employment upon being rehired that the teacher was nonrenewed because of a decreasein the number of positions triggered by decreased funding, decreased enrollment, or a district reorganization, andtherefore the teacher's nonrenewal did not constitute a break in service for purposes of determining eligibility forcareer status. The local school administrative unit shall notify the teacher of the 60-day deadline as described hereinin the employment application, contract, or in some other method reasonably calculated to provide the teacher actualnotice within 30 calendar days after the first day of employment for the rehired teacher. The burden is on the teacherto submit information establishing that the teacher was nonrenewed because of a decrease in the number of positionstriggered by decreased funding, decreased enrollment, or a district reorganization. If the local school administrativeunit fails to provide notice to the teacher within this 30-day period, then the teacher's obligation to notify the localschool administrative unit within 60 days does not commence until such time that the teacher is notified of the 60-day deadline.

The superintendent or designee will inform the teacher on whether the teacher qualifies for the benefit of this subsectionwithin a reasonable period of time after receiving the information submitted by the teacher. This decision is final and theteacher has no right to a hearing or appeal except that the teacher may petition the board in writing within 10 calendardays after receiving the decision of the superintendent or designee, and the board or board panel shall review the matteron the record and provide the teacher a written decision. Notwithstanding any other provision of law, no appeal to courtor otherwise is permitted in regard to the benefits provided under this subsection. This subsection creates no privateright of action or basis for any liability on the part of the school system, nor does it create any reemployment rightsfor a nonrenewed probationary teacher.

The provisions of this subsection also shall apply to a probationary teacher in a full-time permanent position who resignseffective the end of the school year in good standing after receiving documentation that the teacher's position may beeliminated because of a decrease in the number of positions triggered by decreased funding, decreased enrollment, or adistrict reorganization, and is subsequently rehired by the same school system.

Appendix p. 4



(6) Status of Exchange Teachers. - Exchange teachers shall not be eligible to obtain career status. However, for purposesof determining eligibility to receive employment benefits under this Chapter, including personal leave, annual vacationleave, and sick leave, an exchange teacher shall be considered a permanent teacher if employed with the expectation ofat least six full consecutive monthly pay periods of employment and if employed at least 20 hours per week.

(d) Career Teachers and Career School Administrators.

(1) A career teacher or career school administrator shall not be subjected to the requirement of annual appointment nor shallhe be dismissed, demoted, or employed on a part-time basis without his consent except as provided in subsection (e).

(2) a. The provisions of this subdivision do not apply to a person who is ineligible for career status as provided by G.S.115C-325(c)(3).

b. Repealed by S.L. 1997-221, § 13(a), eff. June 24, 1997.

c. Subject to G.S. 115C-287.1, when a teacher has performed the duties of supervisor or principal for three consecutiveyears, the board, near the end of the third year, shall vote upon his employment for the next school year. The boardshall give him written notice of that decision by June 1 of his third year of employment as a supervisor or principal.If a majority of the board votes to reemploy the teacher as a principal or supervisor, and it has notified him of thatdecision, it may not rescind that action but must proceed under the provisions of this section. If a majority of the boardvotes not to reemploy the teacher as a principal or supervisor, he shall retain career status as a teacher if that statuswas attained prior to assuming the duties of supervisor or principal. A supervisor or principal who has not held thatposition for three years and whose contract will not be renewed for the next school year shall be notified by June 1 andshall retain career status as a teacher if that status was attained prior to assuming the duties of supervisor or principal.

A year, for purposes of computing time as a probationary principal or supervisor, shall not be less than 145 workdaysperformed as a full-time, permanent principal or supervisor in a contract year.

A principal or supervisor who has obtained career status in that position in any North Carolina public school systemmay be required by the board of education in another school system to serve an additional three-year probationaryperiod in that position before being eligible for career status. However, he may, at the option of the board of education,be granted career status immediately or after serving a probationary period of one or two additional years. A principalor supervisor with career status who resigns and within five years is reemployed by the same school system neednot serve another probationary period in that position of more than two years and may, at the option of the board, bereemployed immediately as a career principal or supervisor or be given career status after only one year. In any event,if he is reemployed for a third consecutive year, he shall automatically become a career principal or supervisor.

(e) Grounds for Dismissal or Demotion of a Career Employee.

(1) Grounds.--No career employee shall be dismissed or demoted or employed on a part-time basis except for one or moreof the following:

Appendix p. 5



a. Inadequate performance.

b. Immorality.

c. Insubordination.

d. Neglect of duty.

e. Physical or mental incapacity.

f. Habitual or excessive use of alcohol or nonmedical use of a controlled substance as defined in Article 5 of Chapter90 of the General Statutes.

g. Conviction of a felony or a crime involving moral turpitude.

h. Advocating the overthrow of the government of the United States or of the State of North Carolina by force, violence,or other unlawful means.

i. Failure to fulfill the duties and responsibilities imposed upon teachers or school administrators by the General Statutesof this State.

j. Failure to comply with such reasonable requirements as the board may prescribe.

k. Any cause which constitutes grounds for the revocation of the career teacher's teaching license or the career schooladministrator's administrator license.

l. A justifiable decrease in the number of positions due to district reorganization, decreased enrollment, or decreasedfunding, provided that there is compliance with subdivision (2).

m. Failure to maintain his or her license in a current status.

n. Failure to repay money owed to the State in accordance with the provisions of Article 60, Chapter 143 of the GeneralStatutes.

o. Providing false information or knowingly omitting a material fact on an application for employment or in responseto a preemployment inquiry.

Appendix p. 6



(2) Reduction in Force.--Before recommending to a board the dismissal or demotion of the career employee pursuant toG.S. 115C-325(e)(1)l., the superintendent shall give written notice to the career employee by certified mail or personaldelivery of his intention to make such recommendation and shall set forth as part of his or her recommendation thegrounds upon which he or she believes such dismissal or demotion is justified. The notice shall include a statementto the effect that if the career employee within 15 days after receipt of the notice requests a review, he or she shallbe entitled to have the proposed recommendations of the superintendent reviewed by the board. Within the 15-dayperiod after receipt of the notice, the career employee may file with the superintendent a written request for a hearingbefore the board within 10 days. If the career employee requests a hearing before the board, the hearing proceduresprovided in G.S. 115C-325(j3) shall be followed. If no request is made within the 15-day period, the superintendentmay file his or her recommendation with the board. If, after considering the recommendation of the superintendentand the evidence adduced at the hearing if there is one, the board concludes that the grounds for the recommendationare true and substantiated by a preponderance of the evidence, the board, if it sees fit, may by resolution order suchdismissal. Provisions of this section which permit a hearing by a hearing officer shall not apply to a dismissal or demotionrecommended pursuant to G.S. 115C-325(e)(1)l.

When a career employee is dismissed pursuant to G.S. 115C-325(e)(1)l. above, his or her name shall be placed on a listof available career employees to be maintained by the board.

(3) Inadequate Performance.--In determining whether the professional performance of a career employee is adequate,consideration shall be given to regular and special evaluation reports prepared in accordance with the published policyof the employing local school administrative unit and to any published standards of performance which shall havebeen adopted by the board. Failure to notify a career employee of an inadequacy or deficiency in performance shallbe conclusive evidence of satisfactory performance. Inadequate performance for a teacher shall mean (i) the failure toperform at a proficient level on any standard of the evaluation instrument or (ii) otherwise performing in a manner that isbelow standard. However, for a probationary teacher, a performance rating below proficient may or may not be deemedadequate at that stage of development by a superintendent or designee. For a career teacher, a performance rating belowproficient shall constitute inadequate performance unless the principal noted on the instrument that the teacher is makingadequate progress toward proficiency given the circumstances.

(4) Three-Year Limitation on Basis of Dismissal or Demotion.--Dismissal or demotion under subdivision (1) above, exceptparagraphs g. and o. thereof, shall not be based on conduct or actions which occurred more than three years before thewritten notice of the superintendent's intention to recommend dismissal or demotion is mailed to the career employee.The three-year limitation shall not apply to dismissals or demotions pursuant to subdivision (1)b. above when the chargeof immorality is based upon a career employee's sexual misconduct toward or sexual harassment of students or staff.

(f)(1) Suspension without Pay.--If a superintendent believes that cause exists for dismissing a career employee for any reasonspecified in G.S. 115C-325(e)(1) and that immediate suspension of the career employee is necessary, the superintendent maysuspend the career employee without pay. Before suspending a career employee without pay, the superintendent shall meet withthe career employee and give him written notice of the charges against him, an explanation of the bases for the charges, and anopportunity to respond. Within five days after a suspension under this paragraph, the superintendent shall initiate a dismissal,demotion, or disciplinary suspension without pay as provided in this section. If it is finally determined that no grounds fordismissal, demotion, or disciplinary suspension without pay exist, the career employee shall be reinstated immediately, shall bepaid for the period of suspension, and all records of the suspension shall be removed from the career employee's personnel file.

(2) Disciplinary Suspension Without Pay.--A career employee recommended for suspension without pay pursuant to G.S.115C-325(a)(4a) may request a hearing before the board. If no request is made within 15 days, the superintendent

Appendix p. 7



may file his recommendation with the board. If, after considering the recommendation of the superintendent and theevidence adduced at the hearing if one is held, the board concludes that the grounds for the recommendation are trueand substantiated by a preponderance of the evidence, the board, if it sees fit, may by resolution order such suspension.

a. Board hearing for disciplinary suspensions for more than 10 days or for certain types of intentional misconduct.--Theprocedures for a board hearing under G.S. 115C-325(j3) shall apply if any of the following circumstances exist:

1. The recommended disciplinary suspension without pay is for more than 10 days; or

2. The disciplinary suspension is for intentional misconduct, such as inappropriate sexual or physical conduct,immorality, insubordination, habitual or excessive alcohol or nonmedical use of a controlled substance as definedin Article 5 of Chapter 90 of the General Statutes, any cause that constitutes grounds for the revocation of theteacher's or school administrator's license, or providing false information.

b. Board hearing for disciplinary suspensions of no more than 10 days.--The procedures for a board hearing underG.S. 115C-325(j2) shall apply to all disciplinary suspensions of no more than 10 days that are not for intentionalmisconduct as specified in G.S. 115C-325(f)(2)a.2.

(f1) Suspension with Pay.--If a superintendent believes that cause may exist for dismissing or demoting a career employeefor any reasons specified in G.S. 115C-325(e)(1), but that additional investigation of the facts is necessary and circumstancesare such that the career employee should be removed immediately from his duties, the superintendent may suspend the careeremployee with pay for a reasonable period of time, not to exceed 90 days. The superintendent shall notify the board of educationwithin two days of his action and shall notify the career employee within two days of the action and the reasons for it. If thesuperintendent has not initiated dismissal or demotion proceedings against the career employee within the 90-day period, thecareer employee shall be reinstated to his duties immediately and all records of the suspension with pay shall be removed fromthe career employee's personnel file at his request. However, if the superintendent and the employee agree to extend the 90-day period, the superintendent may initiate dismissal or demotion proceedings against the career employee at any time duringthe period of the extension.

(f2) Procedure for Demotion of Career School Administrator.--If a superintendent intends to recommend the demotion of acareer school administrator, the superintendent shall give written notice to the career school administrator by certified mail orpersonal delivery and shall include in the notice the grounds upon which the superintendent believes the demotion is justified.The notice shall include a statement that if the career school administrator requests a hearing within 15 days after receipt ofthe notice, the administrator shall be entitled to have the grounds for the proposed demotion reviewed by the local board ofeducation. If the career school administrator does not request a board hearing within 15 days, the superintendent may filethe recommendation of demotion with the board. If, after considering the superintendent's recommendation and the evidencepresented at the hearing if one is held, the board concludes that the grounds for the recommendation are true and substantiatedby a preponderance of the evidence, the board may by resolution order the demotion. The procedures for a board hearing underG.S. 115C-325(j3) shall apply to all demotions of career school administrators.

(g) Repealed by S.L. 1997-221, § 13(a), eff. June 24, 1997.

(h) Procedure for Dismissal or Demotion of Career Employee.

Appendix p. 8



(1) a. A career employee may not be dismissed, demoted, or reduced to part-time employment except upon thesuperintendent's recommendation.

b. G.S. 115C-325(f2) shall apply to the demotion of a career school administrator.

(2) Before recommending to a board the dismissal or demotion of the career employee, the superintendent shall give writtennotice to the career employee by certified mail or personal delivery of his or her intention to make such recommendationand shall set forth as part of his or her recommendation the grounds upon which he or she believes such dismissal ordemotion is justified. The superintendent also shall meet with the career employee and provide written notice of thecharges against the career employee, an explanation of the basis for the charges, and an opportunity to respond if thecareer employee has not done so under G.S. 115C-325(f)(1). The notice shall include a statement to the effect that if thecareer employee within 14 days after the date of receipt of the notice requests a review, he or she may request to havethe grounds for the proposed recommendations of the superintendent reviewed by an impartial hearing officer appointedby the Superintendent of Public Instruction as provided for in G.S. 115C-325(h)(7). A copy of G.S. 115C-325 shall alsobe sent to the career employee. If the career employee does not request a hearing before a hearing officer within the 14days provided, the superintendent may submit his or her recommendation to the board.

(3) Within the 14-day period after receipt of the notice, the career employee may file with the superintendent a writtenrequest for either (i) a hearing on the grounds for the superintendent's proposed recommendation by a hearing officer or(ii) a hearing within 10 days before the board on the superintendent's recommendation. If the career employee requestsan immediate hearing before the board, he or she forfeits his or her right to a hearing by a hearing officer. If no requestis made within that period, the superintendent may file his or her recommendation with the board. The board, if itsees fit, may by resolution (i) reject the superintendent's recommendation or (ii) accept or modify the superintendent'srecommendation and dismiss, demote, reinstate, or suspend the employee without pay. If a request for review is made,the superintendent shall not file the recommendation for dismissal with the board until a report of the hearing officer isfiled with the superintendent. Failure of the hearing officer to submit the report as required by G.S. 115C-325(i1)(1) shallentitle the career employee to a hearing before the board under the same procedures as provided in G.S.115C-325(j).

(4) Repealed by S.L. 1997-221, § 13(a), eff. June 24, 1997.

(5) Repealed by S.L. 2011-348, § 1, eff. July 1, 2011.

(6) If a career employee requests a review by a hearing officer, the superintendent shall notify the Superintendent of PublicInstruction within five days of his or her receipt of the request.

(7) Within five days of being notified of the request for a hearing before a hearing officer, the Superintendent of PublicInstruction shall submit to both parties a list of hearing officers trained and approved by the State Board of Education.Within five days of receiving the list, the parties may jointly select a hearing officer from that list, or, if the partiescannot agree to a hearing officer, each party may strike up to one-third of the names on the list and submit its strikeoutlist to the Superintendent of Public Instruction. The Superintendent of Public Instruction shall then appoint a hearingofficer from those individuals remaining on the list. Further, the parties may jointly agree on another hearing officernot on the State Board of Education's list, provided that individual is available to proceed in a timely manner and is

Appendix p. 9



willing to accept the terms of appointment required by the State Board of Education. No person eliminated by the careeremployee or superintendent shall be designated as the hearing officer for that case.

(8) The superintendent and career employee shall serve a copy to the other party of all documents submitted to theSuperintendent of Public Instruction and to the designated hearing officer and include a signed certificate of servicesimilar to that required in court pleadings.

(h1) Hearing Officers; Qualifications; Training; Compensation.

(1) The State Board of Education shall select and maintain a master list of no more than 15 qualified hearing officers.The State Board shall, except for good cause shown, remove a hearing officer from the list who has failed to conduct ahearing or prepare a report within the time specified in G.S. 115C-325(i1) or who has failed to submit a supplementalreport in accordance with G.S. 115C-325(i1)(4) or (j1)(2). A hearing officer shall, except for good cause shown, alsobe removed from the list for failure to meet the terms and conditions of engagement established by the State Board.Additionally, if a hearing officer is not appointed to a case within a two-year period due to repeated strikes from the listby either party as provided in G.S. 115C-325(h)(7), the State Board may remove the hearing officer from the master list.

(2) Persons selected by the State Board as hearing officers shall be members in good standing of the North CarolinaState Bar who have demonstrated experience and expertise in the areas of education law, due process, administrativelaw, or employment law within the last five years. The State Board shall give special consideration in its selection topersons jointly endorsed by the largest by membership of each statewide organization representing teachers, schooladministrators, and local boards of education. Following State Board selection, hearing officers must complete a specialtraining course approved by the State Board of Education that includes training on the teacher evaluation instrumentand performance standards before they are qualified to hear teacher dismissal or demotion cases.

(3) The State Board of Education shall determine the compensation for a hearing officer. The State Board shall pay thehearing officer's compensation and authorized expenses.

(i) Repealed by S.L. 1997-221, § 13(a), eff. June 24, 1997.

(i1) Report of Hearing Officer; Superintendent's Recommendation.

(1) The hearing officer shall complete the hearing held in accordance with G.S. 115C-325(j) and prepare the report within90 days from the time of the designation. This time period may be extended only for extraordinary cause and upon writtenagreement by both parties. The State Board of Education shall determine an appropriate reduction in compensation tothe hearing officer for failure to submit a timely report to the superintendent within the maximum 90-day period setforth in this subdivision, except upon a showing of good cause by the hearing officer.

(2) The hearing officer shall make all necessary findings of fact, based upon the preponderance of the evidence, on allissues related to each and every ground for dismissal and on all relevant matters related to the question of whether thesuperintendent's recommendation is justified. The hearing officer shall not make a recommendation as to conclusionsof law or the disposition of the case. The hearing officer shall deliver copies of the report to the superintendent andthe career employee.

Appendix p. 10



(3) Within five days after receiving the hearing officer's report, the superintendent shall decide whether to submit a writtenrecommendation to the local board for dismissal, demotion, or disciplinary suspension without pay to the board or todrop the charges against the career employee. The superintendent shall notify the career employee, in writing, of thedecision.

(4) If the superintendent contends that the hearing officer's report fails to address a critical factual issue, the superintendentshall within five days' receipt of the hearing officer's report, request in writing with a copy to the career employee thatthe hearing officer prepare a supplement to the report. The superintendent shall specify what critical factual issue thesuperintendent contends the hearing officer failed to address. If the hearing officer determines that the report failed toaddress a critical factual issue, the hearing officer shall prepare a supplement to the report to address the issue and deliverthe supplement to both parties before the board hearing. In no event shall the hearing officer take more than 30 days toprovide a supplemental report. If the hearing officer fails to submit a timely supplemental report, the superintendent shallreport the hearing officer to the State Board. The State Board shall determine an appropriate reduction in compensationto the hearing officer for failure to submit a timely supplemental report to both parties, except upon a showing of goodcause by the hearing officer. The failure of the hearing officer to prepare a supplemental report or to address a criticalfactual issue shall not constitute a basis for appeal.

(j) Hearing by a Hearing Officer.--The following provisions shall apply to a hearing conducted by the hearing officer.

(1) The hearing shall be private.

(2) The hearing shall be conducted in accordance with reasonable rules and regulations adopted by the State Board ofEducation to govern such hearings.

(3) At the hearing the career employee and the superintendent or the superintendent's designee shall have the right to bepresent and to be heard, to be represented by counsel and to present through witnesses any competent testimony relevantto the issue of whether grounds for dismissal or demotion exist or whether the procedures set forth in G.S. 115C-325have been followed.

(4) Rules of evidence shall not apply to a hearing conducted by a hearing officer. The hearing officer may give probativeeffect to evidence that is of a kind commonly relied on by reasonably prudent persons in the conduct of serious affairs.

(5) At least five days before the hearing, the superintendent shall provide to the career employee a list of witnesses thesuperintendent intends to present, a brief statement of the nature of the testimony of each witness and a copy of anydocumentary evidence the superintendent intends to present. At least three days before the hearing, the career employeeshall provide to the superintendent a list of witnesses the career employee intends to present, a brief statement of thenature of the testimony of each witness and a copy of any documentary evidence the career employee intends to present.Additional witnesses or documentary evidence may not be presented except upon a finding by the hearing officer thatthe new evidence is critical to the matter at issue and the party making the request could not, with reasonable diligence,have discovered and produced the evidence according to the schedule provided in this subdivision.

Appendix p. 11



(5a) The hearing shall be completed within three days after commencement, unless extended by the hearing officer on ashowing of extraordinary cause. Neither party shall have more than eight hours to present its case in chief, which doesnot include cross-examination of witnesses, rebuttal evidence, or arguments of counsel.

(6) The hearing officer may issue subpoenas, at his or her discretion or upon written application by either party, and swearwitnesses and may require them to give testimony and to produce records and documents relevant to the grounds fordismissal.

(7) The hearing officer shall decide all procedural issues, including limiting cumulative evidence, necessary for a fair andefficient hearing.

(8) The superintendent shall provide for making a transcript of the hearing. If the career employee contemplates a hearingbefore the board or to appeal the board's decision to a court of law, the career employee may request and shall receiveat no charge a transcript of the proceedings before the hearing officer.

(j1) Board Determination.

(1) Within five days after receiving the superintendent's notice of intent to recommend the career employee's dismissalto the board, the career employee shall decide whether to request a hearing before the board and shall notify thesuperintendent, in writing, of the decision. If the career employee can show that the request for a hearing was postmarkedwithin the time provided, the career employee shall not forfeit the right to a board hearing. Within five days afterreceiving the career employee's request for a board hearing, the superintendent shall request that a transcript of thehearing be made. Within five days of receiving a copy of the transcript, the superintendent shall submit to the board thewritten recommendation and shall provide a copy of the recommendation to the career employee. The superintendent'srecommendation shall state the grounds for the recommendation and shall be accompanied by a copy of the hearingofficer's report and a copy of the transcript of the hearing.

(2) If the career employee contends that the hearing officer's report fails to address a critical factual issue the careeremployee shall, at the same time he or she notifies the superintendent of a request for a board hearing pursuant to G.S.115C-325(j1)(1), request in writing with a copy to the superintendent that the hearing officer prepare a supplement tothe hearing officer's report. The career employee shall specify the critical factual issue he or she contends the hearingofficer failed to address. If the hearing officer determines that the report failed to address a critical factual issue, thehearing officer shall prepare a supplement to the report to address the issue and shall deliver the supplement to bothparties before the board hearing. In no event shall the hearing officer take more than 30 days to provide a supplementalreport. If the hearing officer fails to submit a timely supplemental report, the superintendent shall report the hearingofficer to the State Board. The State Board shall determine an appropriate reduction in compensation to the hearingofficer for failure to submit a timely supplemental report to both parties, except upon a showing of good cause by thehearing officer. The failure of the hearing officer to prepare a supplemental report or to address a critical factual issueshall not constitute a basis for appeal.

(3) Within five days after receiving the superintendent's recommendation and before taking any formal action, the boardshall set a time and place for the hearing and shall notify the career employee by certified mail or personal deliveryof the date, time, and place of the hearing. The time specified shall not be less than 10 nor more than 30 days after

Appendix p. 12



the board has notified the career employee, unless both parties agree to an extension. If the career employee did notrequest a hearing, the board may, by resolution, reject the superintendent's decision, or accept or modify the decisionand dismiss, demote, reinstate, or suspend the career employee without pay.

(4) If the career employee requests a board hearing, it shall be conducted in accordance with G.S. 115C-325(j2).

(5) The board shall make a determination and may (i) reject the superintendent's recommendation or (ii) accept or modifythe recommendation and dismiss, demote, reinstate, or suspend the employee without pay.

(6) Within two days following the hearing, the board shall send a written copy of its findings and determination to thecareer employee and the superintendent.

(j2) Board Hearing.--The following procedures shall apply to a hearing conducted by the board:


(2) If the career employee requested a hearing by a hearing officer, the board shall receive the following:

a. The whole record from the hearing held by the hearing officer, including a transcript of the hearing, as well as anyother records, exhibits, and documentary evidence submitted to the case manager at the hearing.

b. The hearing officer's findings of fact, including any supplemental findings prepared by the hearing officer under G.S.115C-325 (i1)(4) or G.S. 115C-325(j1)(2).

c. Repealed by S.L. 2011-348, § 1, eff. July 1, 2011.

d. The superintendent's recommendation and the grounds for the recommendation.

(3) If the career employee did not request a hearing by a Hearing officer, the board shall receive the following:

a. Any documentary evidence the superintendent intends to use to support the recommendation. The superintendentshall provide the documentary evidence to the career employee seven days before the hearing.

b. Any documentary evidence the career employee intends to use to rebut the superintendent's recommendation. Thecareer employee shall provide the superintendent with the documentary evidence three days before the hearing.

c. The superintendent's recommendation and the grounds for the recommendation.

Appendix p. 13



(4) The superintendent and career employee may submit a written statement not less than three days before the hearing.

(5) The superintendent and career employee shall be permitted to make oral arguments to the board based on the recordbefore the board.

(6) No new evidence may be presented at the hearing except upon a finding by the board that the new evidence is critical tothe matter at issue and the party making the request could not, with reasonable diligence, have discovered and producedthe evidence at the hearing before the Hearing officer.

(7) The board shall accept the hearing officer's findings of fact unless a majority of the board determines that the findingsof fact are not supported by substantial evidence when reviewing the record as a whole. In such an event, the board shallmake alternative findings of fact. If a majority of the board determines that the hearing officer did not address a criticalfactual issue, the board may remand the findings of fact to the hearing officer to complete the report to the board. If thehearing officer does not submit the report within seven days receipt of the board's request, the board may determine itsown findings of fact regarding the critical factual issues not addressed by the hearing officer. The board's determinationshall be based upon a preponderance of the evidence.

(8) The board is not required to provide a transcript of the hearing to the career employee. If the board elects to make atranscript and if the career employee contemplates an appeal to a court of law, the career employee may request andshall receive at no charge a transcript of the proceedings. A career employee may have the hearing transcribed by acourt reporter at the career employee's expense.

(j3) Board Hearing for Certain Disciplinary Suspensions, Demotions of Career School Administrators, and for Reductions inForce.--The following procedures shall apply for a board hearing under G.S. 115C-325(e)(2), G.S. 115C-325(f2), and G.S.115C-325(f)(2)a:


(2) The hearing shall be conducted in accordance with reasonable rules adopted by the State Board of Education to governsuch hearings.

(3) At the hearing, the career employee and the superintendent shall have the right to be present and to be heard, to berepresented by counsel, and to present through witnesses any competent testimony relevant to the issue of whethergrounds exist for a disciplinary suspension without pay under G.S. 115C-325(f)(2)a., a demotion of a career schooladministrator under G.S. 115C-325(f2), or whether the grounds for a dismissal or demotion due to a reduction in forceis justified.

(4) Rules of evidence shall not apply to a hearing under this subsection and the board may give probative effect to evidencethat is of a kind commonly relied on by reasonably prudent persons in the conduct of serious affairs.

Appendix p. 14



(5) At least eight days before the hearing, the superintendent shall provide to the career employee a list of witnesses thesuperintendent intends to present, a brief statement of the nature of the testimony of each witness, and a copy of anydocumentary evidence the superintendent intends to present.

(6) At least six days before the hearing, the career employee shall provide the superintendent a list of witnesses thecareer employee intends to present, a brief statement of the nature of the testimony of each witness, and a copy of anydocumentary evidence the career employee intends to present.

(7) No new evidence may be presented at the hearing except upon a finding by the board that the new evidence is critical tothe matter at issue and the party making the request could not, with reasonable diligence, have discovered and producedthe evidence according to the schedule provided in this subsection.

(8) The board may subpoena and swear witnesses and may require them to give testimony and to produce records anddocuments relevant to the grounds for suspension without pay.

(9) The board shall decide all procedural issues, including limiting cumulative evidence, necessary for a fair and efficienthearing.

(10) The superintendent shall provide for making a transcript of the hearing. If the career employee contemplates an appealof the board's decision to a court of law, the career employee may request and shall receive at no charge a transcriptof the proceedings.

(k), (l) Repealed by S.L. 1997-221, § 13(a), eff. June 24, 1997.

(m) Probationary Teacher.

(1) The board of any local school administrative unit may not discharge a probationary teacher during the school yearexcept for the reasons for and by the procedures by which a career employee may be dismissed as set forth in subsections(e), (f), (f1), and (h) to (j3) above.

(2) The board, upon recommendation of the superintendent, may refuse to renew the contract of any probationary teacheror to reemploy any teacher who is not under contract for any cause it deems sufficient: Provided, however, that the causemay not be arbitrary, capricious, discriminatory or for personal or political reasons.

(3) The superintendent shall provide written notice to a probationary teacher no later than May 15 of the superintendent'sintent to recommend nonrenewal and the teacher's right, within 10 days of receipt of the superintendent'srecommendation, to (i) request and receive written notice of the reasons for the superintendent's recommendation fornonrenewal and the information that the superintendent may share with the board to support the recommendation fornonrenewal; and (ii) request a hearing for those teachers eligible for a hearing under G.S. 115C-325(m)(4). The failureto file a timely request within the 10 days shall result in a waiver of the right to this information and any right to ahearing. If a teacher files a timely request, the superintendent shall provide the requested information and arrange for

Appendix p. 15



a hearing, if allowed, and the teacher shall be permitted to submit supplemental information to the superintendent andboard prior to the board making a decision or holding a hearing as provided in this section. The board shall adopt a policyto provide for the orderly exchange of information prior to the board's decision on the superintendent's recommendationfor nonrenewal.

(4) If the probationary teacher is eligible for career status pursuant to G.S. 115C-325(c)(1) and (c)(2) and the superintendentrecommends not to give the probationary teacher career status, the probationary teacher has the right to a hearing beforethe board unless the reason is a justifiable board- or superintendent-approved decrease in the number of positions dueto district reorganization, decreased enrollment, or decreased funding.

(5) For probationary contracts that are not in the final year before the probationary teacher is eligible for career status,the probationary teacher shall have the right to petition the local board of education for a hearing, and the local boardmay grant a hearing regarding the superintendent's recommendation for nonrenewal. The local board of education shallnotify the probationary teacher making the petition of its decision whether to grant a hearing.

(6) Any hearing held according to this subsection shall be pursuant to the provisions of G.S. 115C-45(c).

(7) The board shall notify a probationary teacher whose contract will not be renewed for the next school year of its decisionby June 15; provided, however, if a teacher submits a request for information or a hearing, the board shall provide thenonrenewal notification by July 1 or such later date upon the written consent of the superintendent and teacher.

(n) Appeal. --Any career employee who has been dismissed or demoted under G.S. 115C-325(e)(2), or under G.S. 115C-325(j2),or who has been suspended without pay under G.S. 115C-325(a)(4a), or any school administrator whose contract is not renewedin accordance with G.S. 115C-287.1, or any probationary teacher whose contract is not renewed under G.S. 115C-325(m)(2)shall have the right to appeal from the decision of the board to the superior court for the superior court district or set of districtsas defined in G.S. 7A-41.1 in which the career employee is employed. This appeal shall be filed within a period of 30 days afternotification of the decision of the board. The cost of preparing the transcript shall be determined under G.S. 115C-325(j2)(8)or G.S. 115C-325(j3)(10). A career employee who has been demoted or dismissed, or a school administrator whose contractis not renewed, who has not requested a hearing before the board of education pursuant to this section shall not be entitled tojudicial review of the board's action.

(o) Resignation. --

(1) If a career employee has been recommended for dismissal under G.S. 115C-325(e)(1) and the employee chooses toresign without the written agreement of the superintendent, then:

a. The superintendent shall report the matter to the State Board of Education.

b. The employee shall be deemed to have consented to (i) the placement in the employee's personnel file of the writtennotice of the superintendent's intention to recommend dismissal and (ii) the release of the fact that the superintendenthas reported this employee to the State Board of Education to prospective employers, upon request. The provisionsof G.S. 115C-321 shall not apply to the release of this particular information.

Appendix p. 16



c. The employee shall be deemed to have voluntarily surrendered his or her license pending an investigation by theState Board of Education in a determination whether or not to seek action against the employee's license. This licensesurrender shall not exceed 45 days from the date of resignation. Provided further that the cessation of the licensesurrender shall not prevent the State Board of Education from taking any further action it deems appropriate. The StateBoard of Education shall initiate investigation within five working days of the written notice from the superintendentand shall make a final decision as to whether to revoke or suspend the employee's license within 45 days from thedate of resignation.

(2) A teacher, career or probationary, who is not recommended for dismissal should not resign without the consent of thesuperintendent unless he or she has given at least 30 days' notice. If a teacher who is not recommended for dismissaldoes resign without giving at least 30 days' notice, the board may request that the State Board of Education revoke theteacher's license for the remainder of that school year. A copy of the request shall be placed in the teacher's personnel file.

(p) Section Applicable to Certain Institutions.--Notwithstanding any law or regulation to the contrary, this section shall applyto all persons employed in teaching and related educational classes in the schools and institutions of the Departments of Healthand Human Services and Public Instruction and the Divisions of Juvenile Justice and Adult Correction of the Department ofPublic Safety regardless of the age of the students.

(p1) Procedure for Dismissal of School Administrators and Teachers Employed in Low-Performing Residential Schools. --

(1) Notwithstanding any other provision of this section or any other law, this subdivision shall govern the dismissal by theSecretary of Health and Human Services of teachers, principals, assistant principals, directors, supervisors, and otherlicensed personnel assigned to a residential school that the State Board has identified as low-performing and to whichthe State Board has assigned an assistance team under Part 3A of Article 3 of Chapter 143B of the General Statutes. TheSecretary shall dismiss a teacher, principal, assistant principal, director, supervisor, or other licensed personnel whenthe Secretary receives two consecutive evaluations that include written findings and recommendations regarding thatperson's inadequate performance from the assistance team. These findings and recommendations shall be substantialevidence of the inadequate performance of the teacher or school administrator.

The Secretary may dismiss a teacher, principal, assistant principal, director, supervisor, or other licensed personnelwhen:

a. The Secretary determines that the school has failed to make satisfactory improvement after the State Board assignedan assistance team to that school under Part 3A of Article 3 of Chapter 143B of the General Statutes; and

b. That assistance team makes the recommendation to dismiss the teacher, principal, assistant principal, director,supervisor, or other licensed personnel for one or more grounds established in G.S. 115C-325(e)(1) for dismissal ordemotion of a career employee.

Within 30 days of any dismissal under this subdivision, a teacher, principal, assistant principal, director, supervisor,or other licensed personnel may request a hearing before a panel of three members designated by the Secretary. TheSecretary shall adopt procedures to ensure that due process rights are afforded to persons recommended for dismissalunder this subdivision. Decisions of the panel may be appealed on the record to the Secretary, with further right ofjudicial review under Chapter 150B of the General Statutes.

Appendix p. 17



(2) Notwithstanding any other provision of this section or any other law, this subdivision shall govern the dismissal bythe Secretary of Health and Human Services of licensed staff members who have engaged in a remediation plan underG.S. 115C-105.38A(c) but who, after one retest, fail to meet the general knowledge standard set by the State Board.The failure to meet the general knowledge standard after one retest shall be substantial evidence of the inadequateperformance of the licensed staff member.

Within 30 days of any dismissal under this subdivision, a certificated staff member may request a hearing before a panelof three members designated by the Secretary of Health and Human Services. The Secretary shall adopt proceduresto ensure that due process rights are afforded to certificated staff members recommended for dismissal under thissubdivision. Decisions of the panel may be appealed on the record to the Secretary, with further right of judicial reviewunder Chapter 150B of the General Statutes.

(3) The Secretary of Health and Human Services or the superintendent of a residential school may terminate the contractof a school administrator dismissed under this subsection. Nothing in this subsection shall prevent the Secretary fromrefusing to renew the contract of any person employed in a school identified as low-performing under Part 3A of Article3 of Chapter 143B of the General Statutes.

(4) Neither party to a school administrator contract is entitled to damages under this subsection.

(5) The Secretary of Health and Human Services shall have the right to subpoena witnesses and documents on behalf ofany party to the proceedings under this subsection.

(q) Procedure for Dismissal of School Administrators and Teachers Employed in Low-Performing Schools.

(1) Notwithstanding any other provision of this section or any other law, this subdivision governs the State Board'sdismissal of principals assigned to low-performing schools to which the Board has assigned an assistance team:

a. The State Board through its designee may, at any time, recommend the dismissal of any principal who is assignedto a low-performing school to which an assistance team has been assigned. The State Board through its designeeshall recommend the dismissal of any principal when the Board receives from the assistance team assigned to thatprincipal's school two consecutive evaluations that include written findings and recommendations regarding theprincipal's inadequate performance.

b. If the State Board through its designee recommends the dismissal of a principal under this subdivision, the principalshall be suspended with pay pending a hearing before a panel of three members of the State Board. The purpose ofthis hearing, which shall be held within 60 days after the principal is suspended, is to determine whether the principalshall be dismissed.

c. The panel shall order the dismissal of the principal if it determines from available information, including the findingsof the assistance team, that the low performance of the school is due to the principal's inadequate performance.

Appendix p. 18



d. The panel may order the dismissal of the principal if (i) it determines that the school has not made satisfactoryimprovement after the State Board assigned an assistance team to that school; and (ii) the assistance team makes therecommendation to dismiss the principal for one or more grounds established in G.S. 115C-325(e)(1) for dismissalor demotion of a career employee.

e. If the State Board or its designee recommends the dismissal of a principal before the assistance team assigned tothe principal's school has evaluated that principal, the panel may order the dismissal of the principal if the paneldetermines from other available information that the low performance of the school is due to the principal's inadequateperformance.

f. In all hearings under this subdivision, the burden of proof is on the principal to establish that the factors leadingto the school's low performance were not due to the principal's inadequate performance. In all hearings under sub-subdivision d. of this subdivision, the burden of proof is on the State Board to establish that the school failed to makesatisfactory improvement after an assistance team was assigned to the school and to establish one or more of thegrounds established for dismissal or demotion of a career employee under G.S. 115C-325(e)(1).

g. In all hearings under this subdivision, two consecutive evaluations that include written findings and recommendationsregarding that person's inadequate performance from the assistance team are substantial evidence of the inadequateperformance of the principal.

h. The State Board shall adopt procedures to ensure that due process rights are afforded to principals under thissubdivision. Decisions of the panel may be appealed on the record to the State Board, with further right of judicialreview under Chapter 150B of the General Statutes.

(2) Notwithstanding any other provision of this section or any other law, this subdivision shall govern the State Board'sdismissal of teachers, assistant principals, directors, and supervisors assigned to schools that the State Board hasidentified as low-performing and to which the State Board has assigned an assistance team under Article 8B of thisChapter. The State Board shall dismiss a teacher, assistant principal, director, or supervisor when the State Board receivestwo consecutive evaluations that include written findings and recommendations regarding that person's inadequateperformance from the assistance team. These findings and recommendations shall be substantial evidence of theinadequate performance of the teacher or school administrator.

The State Board may dismiss a teacher, assistant principal, director, or supervisor when:

a. The State Board determines that the school has failed to make satisfactory improvement after the State Board assignedan assistance team to that school under G.S. 115C-105.38; and

b. That assistance team makes the recommendation to dismiss the teacher, assistant principal, director, or supervisor forone or more grounds established in G.S. 115C-325(e)(1) for dismissal or demotion of a career teacher.

A teacher, assistant principal, director, or supervisor may request a hearing before a panel of three members of the StateBoard within 30 days of any dismissal under this subdivision. The State Board shall adopt procedures to ensure that dueprocess rights are afforded to persons recommended for dismissal under this subdivision. Decisions of the panel may

Appendix p. 19



be appealed on the record to the State Board, with further right of judicial review under Chapter 150B of the GeneralStatutes.

(2a) Notwithstanding any other provision of this section or any other law, this subdivision shall govern the State Board'sdismissal of licensed staff members who have engaged in a remediation plan under G.S. 115C-105.38A(a) but who, afterone retest, fail to meet the general knowledge standard set by the State Board. The failure to meet the general knowledgestandard after one retest shall be substantial evidence of the inadequate performance of the licensed staff member.

A licensed staff member may request a hearing before a panel of three members of the State Board within 30 days of anydismissal under this subdivision. The State Board shall adopt procedures to ensure that due process rights are affordedto licensed staff members recommended for dismissal under this subdivision. Decisions of the panel may be appealedon the record to the State Board, with further right of judicial review under Chapter 150B of the General Statutes.

(3) The State Board of Education or a local board may terminate the contract of a school administrator dismissed underthis subsection. Nothing in this subsection shall prevent a local board from refusing to renew the contract of any personemployed in a school identified as low-performing under G.S. 115C-105.37.

(4) Neither party to a school administrator contract is entitled to damages under this subsection.

(5) The State Board shall have the right to subpoena witnesses and documents on behalf of any party to the proceedingsunder this subsection.

CreditsAdded by Laws 1981, c. 423, § 1. Amended by Laws 1981, c. 538, §§ 1 to 3; Laws 1981, c. 731, § 1; Laws 1981, c. 1127, §§39, 40; Laws 1981 (Reg. Sess., 1982), c. 1282, § 30; Laws 1983, c. 770, §§ 1 to 15; Laws 1983 (Reg. Sess., 1984), c. 1034,§ 34; Laws 1985, c. 791, § 5(a), (b); Laws 1985 (Reg. Sess., 1986), c. 1014, § 60(a); Laws 1987, c. 395, § 2; Laws 1987, c.540; Laws 1987, c. 571, § 3; Laws 1987 (Reg. Sess., 1988), c. 1037, § 109; Laws 1991 (Reg. Sess., 1992), c. 942, § 1; Laws1991 (Reg. Sess., 1992), c. 1038, § 14; Laws 1993, c. 169, § 1, eff. June 16, 1993; Laws 1993, c. 210, §§ 1, 2, eff. July 1, 1993;Laws 1993, c. 210, § 3, eff. July 1, 1995; Laws 1993 (Reg. Sess., 1994), c. 677, §§ 10, 16(a), eff. July 5, 1994; Laws 1995, c.369, § 2, eff. July 1, 1995; Laws 1995 (Reg. Sess., 1996), c. 716, § 8, eff. June 21, 1996; S.L. 1997-221, §§ 11(a), 13(a), eff.June 24, 1997; S.L. 1997-443, § 11A.118(a), eff. July 1, 1997; S.L. 1998-5, § 2, eff. June 9, 1998; S.L. 1998-59, § 3, eff. July24, 1998; S.L. 1998-131, § 6, eff. July 1, 1998; S.L. 1998-202, § 4(o), eff. Jan. 1, 1999; S.L. 1998-212, § 28.24(c), eff. Jan. 1,1999; S.L. 1998-217, § 67.1(a), eff. Jan. 1, 1999; S.L. 1999-96, §§ 1 to 5, eff. May 27, 1999; S.L. 1999-456, § 34, eff. Aug. 13,1999; S.L. 2000-67, § 8.24(b), eff. July 1, 2000; S.L. 2000-137, § 4(r), eff. July 20, 2000; S.L. 2000-140, §§ 23, 24, eff. July 21,2000; S.L. 2001-376, § 2, eff. Aug. 17, 2001; S.L. 2001-424, §§ 28.11(g), 32.25(b), eff. July 1, 2001; S.L. 2001-487, § 74(c),eff. Dec. 16, 2001; S.L. 2002-110, §§ 2, 3, eff. July 1, 2002; S.L. 2002-126, § 7.38, eff. July 1, 2002; S.L. 2003-302, § 1, eff.July 4, 2003; S.L. 2004-81, § 2, eff. July 1, 2004; S.L. 2004-199, § 57(b), eff. Aug. 17, 2004; S.L. 2005-144, §§ 7A.1, 7A.3,7A.4, eff. June 29, 2005; S.L. 2005-276, § 29.28(b), eff. Aug. 1, 2005; S.L. 2007-326, § 2, eff. Oct. 1, 2007; S.L. 2009-326,§ 1, eff. July 24, 2009; S.L. 2010-31, § 7.14(a), eff. June 30, 2010; S.L. 2010-163, § 1, eff. July 30, 2010; S.L. 2011-145, §§7.23(b), 7.25(e), eff. July 1, 2011; S.L. 2011-348, §§ 1, 8.5(a), eff. July 1, 2011; S.L. 2012-83, § 40, eff. June 26, 2012; S.L.2012-194, §§ 21(a), (b), eff. July 17, 2012.

HISTORICAL AND STATUTORY NOTESS.L. 1997-221, § 11(b), provides:

Appendix p. 20

Session Law 2013-360 Senate Bill 402-Ratified

evaluation instrument and process be utilized in the implementation of a plan of performance pay for teachers in this State.

TEACHER CONTRACTS SECTION 9.6.(a) G.S. 115C-325 is repealed. SECTION 9.6.(b) Part 3 of Article 22 of Chapter 115C of the General Statutes is

amended by adding new sections to read: "§ 115C-325.1. Definitions.

As used in this Part, the following definitions apply: (1) "Day" means calendar day. In computing any period of time, Rule 6 of the

North Carolina Rules of Civil Procedure shall apply. (2) "Demote" means to reduce the salary of a person who is classified or paid by

the State Board of Education as a classroom teacher or as a school administrator during the time of the contract. The word "demote" does not include (i) a suspension without pay pursuant to G.S. 115C-325.5(a); (ii) the elimination or reduction of bonus payments, including merit-based supplements or a systemwide modification in the amount of any applicable local supplement; (iii) any reduction in salary that results from the elimination of a special duty, such as the duty of an athletic coach or a choral director; or (iv) any reduction of pay as compared to a prior term of contract.

(3) "Disciplinary suspension" means a final decision to suspend a teacher or school administrator without pay for no more than 60 days under G.S. 115C-325.5(b).

(4) "Residential school" means a school operated by the Department of Health and Human Services that provides residential services to students pursuant to Part 3A of Article 3 of Chapter 143B of the General Statutes or a school operated pursuant to Article 9C of Chapter 115C of the General Statutes.

(5) "School administrator" means a principal, assistant principal, supervisor, or director whose major function includes the direct or indirect supervision of teaching or any other part of the instructional program, as provided in G.S. 115C-287.1(a)(3).

(6) "Teacher" means a person meeting each of the following requirements: a. Who holds at least one of the following licenses issued by the State

Board of Education:1. A current standard professional educator's license.2. A current lateral entry teaching license.3. A regular, not expired, vocational license.

b. Whose major responsibility is to teach or directly supervise teachingor who is classified by the State Board of Education or is paid eitheras a classroom teacher or instructional support personnel.

c. Who is employed to fill a full-time, permanent position.(7) "Year" means a calendar year beginning July 1 and ending June 30.

"§ 115C-325.2. Personnel files. (a) Maintenance of Personnel File. – The superintendent shall maintain in his or her

office a personnel file for each teacher that contains any complaint, commendation, or suggestion for correction or improvement about the teacher's professional conduct, except that the superintendent may elect not to place in a teacher's file (i) a letter of complaint that contains invalid, irrelevant, outdated, or false information or (ii) a letter of complaint when there is no documentation of an attempt to resolve the issue. The complaint, commendation, or suggestion shall be signed by the person who makes it and shall be placed in the teacher's file only after five days' notice to the teacher. Any denial or explanation relating to such complaint, commendation, or suggestion that the teacher desires to make shall be placed in the file. Any teacher may petition the local board of education to remove any information from the teacher's personnel file that the teacher deems invalid, irrelevant, or outdated. The board may order the superintendent to remove said information if it finds the information is invalid, irrelevant, or outdated.

(b) Inspection of Personnel Files. – The personnel file shall be open for the teacher's inspection at all reasonable times but shall be open to other persons only in accordance with such rules and regulations as the board adopts. Any preemployment data or other information

Appendix p. 21

Senate Bill 402-Ratified Session Law 2013-360 Page 89

obtained about a teacher before the teacher's employment by the board may be kept in a file separate from the teacher's personnel file and need not be made available to the teacher. No data placed in the preemployment file may be introduced as evidence at a hearing on the dismissal or demotion of a teacher, except the data may be used to substantiate G.S. 115C-325.4(a)(7) or G.S. 115C-325.4(a)(14) as grounds for dismissal or demotion. "§ 115C-325.3. Teacher contracts.

(a) Length of Contract. – A contract between the local board of education and a teacher who has been employed by the local board of education for less than three years shall be for a term of one school year. A contract or renewal of contract between the local board of education and a teacher who has been employed by the local board of education for three years or more shall be for a term of one, two, or four school years.

(b) Superintendent Recommendation to Local Board. – Local boards of education shall employ teachers upon the recommendation of the superintendent. If a superintendent intends to recommend to the local board of education that a teacher be offered a new or renewed contract, the superintendent shall submit the recommendation to the local board for action and shall include in the recommendation the length of the term of contract. A superintendent shall only recommend a teacher for a contract of a term longer than one school year if the teacher has shown effectiveness as demonstrated by proficiency on the evaluation instrument. The local board may approve the superintendent's recommendation, may decide not to offer the teacher a new or renewed contract, or may decide to offer the teacher a renewed contract for a different term than recommended by the superintendent.

(c) Dismissal During Term of Contract. – A teacher shall not be dismissed or demoted during the term of the contract except for the grounds and by the procedure set forth in G.S. 115C-325.4.

(d) Recommendation on Nonrenewal. – If a superintendent decides not to recommend that the local board of education offer a renewed contract to a teacher, the superintendent shall give the teacher written notice of the decision no later than June 1.

(e) Right to Petition for Hearing. – A teacher shall have the right to petition the local board of education for a hearing no later than 10 days after receiving written notice. The local board may, in its discretion, grant a hearing regarding the superintendent's recommendation for nonrenewal. The local board of education shall notify the teacher making the petition of its decision whether to grant a hearing. If the request for a hearing is granted, the local board shall conduct a hearing pursuant to the provisions of G.S. 115C-45(c) and make a final decision on whether to offer the teacher a renewed contract. The board shall notify a teacher whose contract will not be renewed for the next school year of its decision by June 15; provided, however, if a teacher submits a request for a hearing, the board shall provide the nonrenewal notification within 10 days of the hearing or such later date upon the written consent of the superintendent and teacher. A decision not to offer a teacher a renewed contract shall not be arbitrary, capricious, discriminatory, for personal or political reasons, or on any basis prohibited by State or federal law.

(f) Failure to Offer Contract or Notify on Nonrenewal of Contract. – If a teacher fails to receive a contract offer but does not receive written notification from the superintendent of a recommendation of nonrenewal, and the teacher continues to teach in the local school administrative unit without entering into a contract with the local board, upon discovery of the absence of contract, the board by majority vote shall do one of the following:

(1) Offer the teacher a one-year contract expiring no later than June 30 of the current school year.

(2) Dismiss the teacher and provide the teacher with the equivalent of one additional month's pay. A teacher dismissed as provided in this section shall be considered an at-will employee and shall not be entitled to a hearing or appeal of the dismissal.

(g) Local boards of education and teachers employed by the local board may mutually modify the terms of the contract to permit part-time employment. An individual that mutually modifies a full-time contract to permit part-time employment or enters into a part-time contract is not a teacher as defined in G.S. 115C-325.1(6). "§ 115C-325.4. Dismissal or demotion for cause.

(a) Grounds. – No teacher shall be dismissed, demoted, or reduced to employment on a part-time basis for disciplinary reasons during the term of the contract except for one or more of the following:

Appendix p. 22


(1) Inadequate performance. In determining whether the professional performance of a teacher is adequate, consideration shall be given to regular and special evaluation reports prepared in accordance with the published policy of the employing local school administrative unit and to any published standards of performance which shall have been adopted by the board. Inadequate performance for a teacher shall mean (i) the failure to perform at a proficient level on any standard of the evaluation instrument or (ii) otherwise performing in a manner that is below standard.

(2) Immorality. (3) Insubordination. (4) Neglect of duty. (5) Physical or mental incapacity. (6) Habitual or excessive use of alcohol or nonmedical use of a controlled

substance as defined in Article 5 of Chapter 90 of the General Statutes. (7) Conviction of a felony or a crime involving moral turpitude. (8) Advocating the overthrow of the government of the United States or of the

State of North Carolina by force, violence, or other unlawful means. (9) Failure to fulfill the duties and responsibilities imposed upon teachers or

school administrators by the General Statutes of this State. (10) Failure to comply with such reasonable requirements as the board may

prescribe. (11) Any cause which constitutes grounds for the revocation of the teacher's

teaching license or the school administrator's administrator license. (12) Failure to maintain his or her license in a current status. (13) Failure to repay money owed to the State in accordance with the provisions

of Article 60 of Chapter 143 of the General Statutes. (14) Providing false information or knowingly omitting a material fact on an

application for employment or in response to a preemployment inquiry. (15) A justifiable decrease in the number of positions due to district

reorganization, decreased enrollment, or decreased funding. (b) Dismissal Procedure. – The procedures provided in G.S. 115C-325.6 shall be

followed for dismissals, demotions, or reductions to part-time employment for disciplinary reasons for any reason specified in subsection (a) of this section. "§ 115C-325.5. Teacher suspension.

(a) Immediate Suspension Without Pay. – If a superintendent believes that cause exists for dismissing a teacher for any reason specified in G.S. 115C-325.4 and that immediate suspension of the teacher is necessary, the superintendent may suspend the teacher without pay. Before suspending a teacher without pay, the superintendent shall meet with the teacher and give him or her written notice of the charges against the teacher, an explanation of the basis for the charges, and an opportunity to respond. Within five days after a suspension under this subsection, the superintendent shall initiate a dismissal, demotion, or disciplinary suspension without pay as provided in this section. If it is finally determined that no grounds for dismissal, demotion, or disciplinary suspension without pay exist, the teacher shall be reinstated immediately, shall be paid for the period of suspension, and all records of the suspension shall be removed from the teacher's personnel file.

(b) Disciplinary Suspension Without Pay. – A teacher recommended for disciplinary suspension without pay may request a hearing before the board. The hearing shall be conducted as provided in G.S. 115C-325.7. If no request is made within 15 days, the superintendent may file his or her recommendation with the board. If, after considering the recommendation of the superintendent and the evidence adduced at the hearing if one is held, the board concludes that the grounds for the recommendation are true and substantiated by a preponderance of the evidence, the board, if it sees fit, may by resolution order such suspension.

(c) Suspension With Pay. – If a superintendent believes that cause may exist for dismissing or demoting a teacher for any reasons specified in G.S. 115C-325.4 but that additional investigation of the facts is necessary and circumstances are such that the teacher should be removed immediately from the teacher's duties, the superintendent may suspend the teacher with pay for a reasonable period of time, not to exceed 90 days. The superintendent shall notify the board of education within two days of the superintendent's action and shall notify the teacher within two days of the action and the reasons for it. If the superintendent has

Appendix p. 23


not initiated dismissal or demotion proceedings against the teacher within the 90-day period, the teacher shall be reinstated to the teacher's duties immediately, and all records of the suspension with pay shall be removed from the teacher's personnel file at the teacher's request. However, if the superintendent and the teacher agree to extend the 90-day period, the superintendent may initiate dismissal or demotion proceedings against the teacher at any time during the period of the extension. "§ 115C-325.6. Procedure for dismissal or demotion of a teacher for cause.

(a) Recommendation of Dismissal or Demotion. – A teacher may not be dismissed, demoted, or reduced to part-time employment for disciplinary reasons during the term of the contract except upon the superintendent's recommendation based on one or more of the grounds in G.S. 115C-325.4.

(b) Notice of Recommendation. – Before recommending to a board the dismissal or demotion of a teacher, the superintendent shall give written notice to the teacher by certified mail or personal delivery of the superintendent's intention to make such recommendation and shall set forth as part of the superintendent's recommendation the grounds upon which he or she believes such dismissal or demotion is justified. The superintendent also shall meet with the teacher and provide written notice of the charges against the teacher, an explanation of the basis for the charges, and an opportunity to respond if the teacher has not done so under G.S. 115C-325.5(a). The notice shall include a statement to the effect that the teacher, within 14 days after the date of receipt of the notice, may request a hearing before the board on the superintendent's recommendation. A copy of Part 3 of Article 22 of Chapter 115C of the General Statutes shall also be sent to the teacher.

(c) Request for Hearing. – Within 14 days after receipt of the notice of recommendation, the teacher may file with the superintendent a written request for a hearing before the board on the superintendent's recommendation. The superintendent shall submit his or her recommendation to the board. Within five days after receiving the superintendent's recommendation and before taking any formal action, the board shall set a time and place for the hearing and shall notify the teacher by certified mail or personal delivery of the date, time, and place of the hearing. The time specified shall not be less than 10 nor more than 30 days after the board has notified the teacher, unless both parties agree to an extension. The hearing shall be conducted as provided in G.S. 115C-325.7.

(d) No Request for Hearing. – If the teacher does not request a hearing before the board within the 14 days provided, the superintendent may submit his or her recommendation to the board. The board, if it sees fit, may by resolution (i) reject the superintendent's recommendation or (ii) accept or modify the superintendent's recommendation and dismiss, demote, reinstate, or suspend the teacher without pay. "§ 115C-325.7. Hearing before board.

(a) The following procedures shall apply for a board hearing for dismissal, demotion, reduction to part-time employment for disciplinary reasons, or disciplinary suspension without pay:

(1) The hearing shall be private. (2) The hearing shall be conducted in accordance with reasonable rules adopted

by the State Board of Education to govern such hearings. (3) At the hearing, the teacher and the superintendent shall have the right to be

present and to be heard, to be represented by counsel, and to present through witnesses any competent testimony relevant to the issue of whether grounds exist for a dismissal, demotion, reduction to part-time employment for disciplinary reasons, or disciplinary suspension without pay.

(4) Rules of evidence shall not apply to a hearing under this subsection, and the board may give probative effect to evidence that is of a kind commonly relied on by reasonably prudent persons in the conduct of serious affairs.

(5) At least five days before the hearing, the superintendent shall provide to the teacher a list of witnesses the superintendent intends to present, a brief statement of the nature of the testimony of each witness, and a copy of any documentary evidence the superintendent intends to present.

(6) At least three days before the hearing, the teacher shall provide the superintendent a list of witnesses the teacher intends to present, a brief statement of the nature of the testimony of each witness, and a copy of any documentary evidence the teacher intends to present.

Appendix p. 24


(7) No new evidence may be presented at the hearing except upon a finding by the board that the new evidence is critical to the matter at issue and the party making the request could not, with reasonable diligence, have discovered and produced the evidence according to the schedule provided in this section.

(8) The board may subpoena and swear witnesses and may require them to give testimony and to produce records and documents relevant to the grounds for dismissal, demotion, reduction to part-time employment for disciplinary reasons, or disciplinary suspension without pay.

(9) The board shall decide all procedural issues, including limiting cumulative evidence, necessary for a fair and efficient hearing.

(10) The superintendent shall provide for making a transcript of the hearing. The teacher may request and shall receive at no charge a transcript of the proceedings.

"§ 115C-325.8. Right of appeal. (a) A teacher who (i) has been dismissed, demoted, or reduced to employment on a

part-time basis for disciplinary reasons during the term of the contract as provided in G.S. 115C-325.4, or has received a disciplinary suspension without pay as provided in G.S. 115C-325.5, and (ii) requested and participated in a hearing before the local board of education, shall have a further right of appeal from the final decision of the local board of education to the superior court of the State on one or more of the following grounds that the decision:

(1) Is in violation of constitutional provisions. (2) Is in excess of the statutory authority or jurisdiction of the board. (3) Was made upon unlawful procedure. (4) Is affected by other error of law. (5) Is unsupported by substantial evidence in view of the entire record as

submitted. (6) Is arbitrary or capricious.

(b) An appeal pursuant to this section must be filed within 30 days of notification of the final decision of the local board of education and shall be decided on the administrative record. The superior court shall have authority to affirm or reverse the local board's decision or remand the matter to the local board of education. The superior court shall not have authority to award monetary damages or to direct the local board of education to enter into an employment contract of more than one year, ending June 30. "§ 115C-325.9. Teacher resignation.

(a) Teacher Resignation Following Recommendation for Dismissal. – If a teacher has been recommended for dismissal under G.S. 115C-325.4 and the teacher chooses to resign without the written agreement of the superintendent, then:

(1) The superintendent shall report the matter to the State Board of Education. (2) The teacher shall be deemed to have consented to (i) the placement in the

teacher's personnel file of the written notice of the superintendent's intention to recommend dismissal and (ii) the release of the fact that the superintendent has reported this teacher to the State Board of Education to prospective employers, upon request. The provisions of G.S. 115C-321 shall not apply to the release of this particular information.

(3) The teacher shall be deemed to have voluntarily surrendered his or her license pending an investigation by the State Board of Education in a determination whether or not to seek action against the teacher's license. This license surrender shall not exceed 45 days from the date of resignation. Provided further that the cessation of the license surrender shall not prevent the State Board of Education from taking any further action it deems appropriate. The State Board of Education shall initiate investigation within five working days of the written notice from the superintendent and shall make a final decision as to whether to revoke or suspend the teacher's license within 45 days from the date of resignation.

(b) Thirty Days' Notice Resignation Requirement. – A teacher who is not recommended for dismissal should not resign during the term of the contract without the consent of the superintendent unless he or she has given at least 30 days' notice. If a teacher who is not

Appendix p. 25


recommended for dismissal does resign during the term of the contract without giving at least 30 days' notice, the board may request that the State Board of Education revoke the teacher's license for the remainder of that school year. A copy of the request shall be placed in the teacher's personnel file. "§ 115C-325.10. Application to certain institutions.

Notwithstanding any law or regulation to the contrary, this Part shall apply to all persons employed in teaching and related educational classes in the schools and institutions of the Departments of Health and Human Services and Public Instruction and the Divisions of Juvenile Justice and Adult Correction of the Department of Public Safety, regardless of the age of the students. "§ 115C-325.11. Dismissal of school administrators and teachers employed in

low-performing residential schools. (a) Notwithstanding any other provision of this section or any other law, this section

shall govern the dismissal by the State Board of Education of teachers, principals, assistant principals, directors, supervisors, and other licensed personnel assigned to a residential school that the State Board has identified as low-performing and to which the State Board has assigned an assistance team. The State Board shall dismiss a teacher, principal, assistant principal, director, supervisor, or other licensed personnel when the State Board receives two consecutive evaluations that include written findings and recommendations regarding that person's inadequate performance from the assistance team. These findings and recommendations shall be substantial evidence of the inadequate performance of the teacher or school administrator.

(b) The State Board may dismiss a teacher, principal, assistant principal, director, supervisor, or other licensed personnel when:

(1) The State Board determines that the school has failed to make satisfactory improvement after the State Board assigned an assistance team to that school.

(2) That assistance team makes the recommendation to dismiss the teacher, principal, assistant principal, director, supervisor, or other licensed personnel for one or more grounds established in G.S. 115C-325.4 for dismissal or demotion of a teacher.

Within 30 days of any dismissal under this subsection, a teacher, principal, assistant principal, director, supervisor, or other licensed personnel may request a hearing before a panel of three members designated by the State Board. The State Board shall adopt procedures to ensure that due process rights are afforded to persons recommended for dismissal under this subsection. Decisions of the panel may be appealed on the record to the State Board.

(c) Notwithstanding any other provision of this section or any other law, this subsection shall govern the dismissal by the State Board of licensed staff members who have engaged in a remediation plan under G.S. 115C-105.38A(c) but who, after one retest, fail to meet the general knowledge standard set by the State Board. The failure to meet the general knowledge standard after one retest shall be substantial evidence of the inadequate performance of the licensed staff member.

Within 30 days of any dismissal under this subsection, a licensed staff member may request a hearing before a panel of three members designated by the State Board. The State Board shall adopt procedures to ensure that due process rights are afforded to licensed staff members recommended for dismissal under this subsection. Decisions of the panel may be appealed on the record to the State Board.

(d) The State Board or the superintendent of a residential school may terminate the contract of a school administrator dismissed under this section. Nothing in this section shall prevent the State Board from refusing to renew the contract of any person employed in a school identified as low-performing.

(e) Neither party to a school administrator or teacher contract is entitled to damages under this section.

(f) The State Board shall have the right to subpoena witnesses and documents on behalf of any party to the proceedings under this section. "§ 115C-325.12. Procedure for dismissal of principals employed in low-performing

schools. (a) Dismissal of Principals Assigned to Low-Performing Schools With Assistance

Teams. – Notwithstanding any other provision of this Part or any other law, this section

Appendix p. 26


governs the State Board's dismissal of principals assigned to low-performing schools to which the State Board has assigned an assistance team.

(b) Authority of State Board to Dismiss Principal. – The State Board through its designee may, at any time, recommend the dismissal of any principal who is assigned to a low-performing school to which an assistance team has been assigned. The State Board through its designee shall recommend the dismissal of any principal when the State Board receives from the assistance team assigned to that principal's school two consecutive evaluations that include written findings and recommendations regarding the principal's inadequate performance.

(c) Procedures for Dismissal of Principal. – (1) If the State Board through its designee recommends the dismissal of a

principal under this section, the principal shall be suspended with pay pending a hearing before a panel of three members of the State Board. The purpose of this hearing, which shall be held within 60 days after the principal is suspended, is to determine whether the principal shall be dismissed.

(2) The panel shall order the dismissal of the principal if it determines from available information, including the findings of the assistance team, that the low performance of the school is due to the principal's inadequate performance.

(3) The panel may order the dismissal of the principal if (i) it determines that the school has not made satisfactory improvement after the State Board assigned an assistance team to that school and (ii) the assistance team makes the recommendation to dismiss the principal for one or more grounds established in G.S. 115C-325.4 for dismissal or demotion of a teacher.

(4) If the State Board or its designee recommends the dismissal of a principal before the assistance team assigned to the principal's school has evaluated that principal, the panel may order the dismissal of the principal if the panel determines from other available information that the low performance of the school is due to the principal's inadequate performance.

(5) In all hearings under this section, the burden of proof is on the principal to establish that the factors leading to the school's low performance were not due to the principal's inadequate performance. In all hearings under this section, the burden of proof is on the State Board to establish that the school failed to make satisfactory improvement after an assistance team was assigned to the school and to establish one or more of the grounds established for dismissal or demotion of a teacher under G.S. 115C-325.4.

(6) In all hearings under this section, two consecutive evaluations that include written findings and recommendations regarding that principal's inadequate performance from the assistance team are substantial evidence of the inadequate performance of the principal.

(7) The State Board shall adopt procedures to ensure that due process rights are afforded to principals under this section. Decisions of the panel may be appealed on the record to the State Board.

(d) The State Board of Education or a local board may terminate the contract of a principal dismissed under this section.

(e) Neither party to a school administrator contract is entitled to damages under this section.

(f) The State Board shall have the right to subpoena witnesses and documents on behalf of any party to the proceedings under this section. "§ 115C-325.13. Procedure for dismissal of teachers employed in low-performing schools.

(a) Notwithstanding any other provision of this Part or any other law, this section shall govern the State Board's dismissal of teachers, assistant principals, directors, and supervisors assigned to schools that the State Board has identified as low-performing and to which the State Board has assigned an assistance team under Article 8B of this Chapter. The State Board shall dismiss a teacher, assistant principal, director, or supervisor when the State Board receives two consecutive evaluations that include written findings and recommendations regarding that person's inadequate performance from the assistance team. These findings and recommendations shall be substantial evidence of the inadequate performance of the teacher, assistant principal, director, or supervisor.

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(b) The State Board may dismiss a teacher, assistant principal, director, or supervisor when:

(1) The State Board determines that the school has failed to make satisfactory improvement after the State Board assigned an assistance team to that school under G.S. 115C-105.38; and

(2) That assistance team makes the recommendation to dismiss the teacher, assistant principal, director, or supervisor for one or more grounds established in G.S. 115C-325.4 for dismissal or demotion for cause.

A teacher, assistant principal, director, or supervisor may request a hearing before a panel of three members of the State Board within 30 days of any dismissal under this section. The State Board shall adopt procedures to ensure that due process rights are afforded to persons recommended for dismissal under this section. Decisions of the panel may be appealed on the record to the State Board.

(c) Notwithstanding any other provision of this Part or any other law, this section shall govern the State Board's dismissal of licensed staff members who have engaged in a remediation plan under G.S. 115C-105.38A(c) but who, after one retest, fail to meet the general knowledge standard set by the State Board. The failure to meet the general knowledge standard after one retest shall be substantial evidence of the inadequate performance of the licensed staff member.

(d) A licensed staff member may request a hearing before a panel of three members of the State Board within 30 days of any dismissal under this section. The State Board shall adopt procedures to ensure that due process rights are afforded to licensed staff members recommended for dismissal under this section. Decisions of the panel may be appealed on the record to the State Board.

(e) The State Board of Education or a local board may terminate the contract of a teacher, assistant principal, director, or supervisor dismissed under this section.

(f) Neither party to a school administrator or teacher contract is entitled to damages under this section.

(g) The State Board shall have the right to subpoena witnesses and documents on behalf of any party to the proceedings under this section."

SECTION 9.6.(c) G.S. 115C-45(c) reads as rewritten: "(c) Appeals to Board of Education and to Superior Court. – An appeal shall lie to the

local board of education from any final administrative decision in the following matters: (1) The discipline of a student under G.S. 115C-390.7, 115C-390.10, or

115C-390.11; (2) An alleged violation of a specified federal law, State law, State Board of

Education policy, State rule, or local board policy, including policies regarding grade retention of students;

(3) The terms or conditions of employment or employment status of a school employee; and

(4) Any other decision that by statute specifically provides for a right of appeal to the local board of education and for which there is no other statutory appeal procedure.

As used in this subsection, the term "final administrative decision" means a decision of a school employee from which no further appeal to a school administrator is available.

Any person aggrieved by a decision not covered under subdivisions (1) through (4) of this subsection shall have the right to appeal to the superintendent and thereafter shall have the right to petition the local board of education for a hearing, and the local board may grant a hearing regarding any final decision of school personnel within the local school administrative unit. The local board of education shall notify the person making the petition of its decision whether to grant a hearing.

In all appeals to the board it is the duty of the board of education to see that a proper notice is given to all parties concerned and that a record of the hearing is properly entered in the records of the board conducting the hearing.

The board of education may designate hearing panels composed of not less than two members of the board to hear and act upon such appeals in the name and on behalf of the board of education.

An appeal of right brought before a local board of education under subdivision (1), (2), (3), or (4) of this subsection may be further appealed to the superior court of the State on the

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grounds that the local board's decision is in violation of constitutional provisions, is in excess of the statutory authority or jurisdiction of the board, is made upon unlawful procedure, is affected by other error of law, is unsupported by substantial evidence in view of the entire record as submitted, or is arbitrary or capricious. However, the right of a noncertified employee to appeal decisions of a local board under subdivision (3) of this subsection shall only apply to decisions concerning the dismissal, demotion, or suspension without pay of the noncertified employee. A noncertified employee may request and shall be entitled to receive written notice as to the reasons for the employee's dismissal, demotion, or suspension without pay. The notice shall be provided to the employee prior to any local board of education hearing on the issue. This subsection shall not alter the employment status of a noncertified employee."

SECTION 9.6.(d) G.S. 115C-287.1 reads as rewritten: "§ 115C-287.1. Method of employment of principals, assistant principals, supervisors,

and directors. (a) (1) Beginning July 1, 1995, allAll persons employed as school administrators

shall be employed pursuant to this section. (2) Notwithstanding G.S. 115C-287.1(a)(1), the following school administrators

shall be employed pursuant to G.S. 115C-325: a. School administrators who, as of July 1, 1995, are serving in a

principal or supervisor position with career status in that position; and

b. School administrators who, as of July 1, 1995, are serving in a principal or supervisor position and who are eligible to achieve career status on or before June 30, 1997.

A school administrator shall cease to be employed pursuant to G.S. 115C-325 if the school administrator: (i) voluntarily relinquishes career status or the opportunity to achieve career status through promotion, resignation, or otherwise; or (ii) is dismissed or demoted or whose contract is not renewed pursuant to G.S. 115C-325.

(3) For purposes of this section, school administrator means a: a. Principal; b. Assistant principal; c. Supervisor; or d. Director,

whose major function includes the direct or indirect supervision of teaching or of any other part of the instructional program.

(4) Nothing in this section shall be construed to confer career status on any assistant principal or director, or to make an assistant principal eligible for career status as an assistant principal or a director eligible for career status as a director.

(b) Local boards of education shall employ school administrators who are ineligible for career status as provided in G.S. 115C-325(c)(3), upon the recommendation of the superintendent. The initial contract between a school administrator and a local board of education shall be for two to four years, ending on June 30 of the final 12 months of the contract. In the case of a subsequent contract between a principal or assistant principal and a local board of education, the contract shall be for a term of four years. In the case of an initial contract between a school administrator and a local board of education, the first year of the contract may be for a period of less than 12 months provided the contract becomes effective on or before September 1. A local board of education may, with the written consent of the school administrator, extend, renew, or offer a new school administrator's contract at any time after the first 12 months of the contract so long as the term of the new, renewed, or extended contract does not exceed four years. Rolling annual contract renewals are not allowed. Nothing in this section shall be construed to prohibit the filling of an administrative position on an interim or temporary basis.

(c) The term of employment shall be stated in a written contract that shall be entered into between the local board of education and the school administrator. The school administrator shall not be dismissed or demoted during the term of the contract except for the grounds and by the procedure by which a career teacher may be dismissed or demoted for cause as set forth in G.S. 115C-325.G.S. 115C-325.4.

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(d) If a superintendent intends to recommend to the local board of education that the school administrator be offered a new, renewed, or extended contract, the superintendent shall submit the recommendation to the local board for action. The local board may approve the superintendent's recommendation or decide not to offer the school administrator a new, renewed, or extended school administrator's contract.

If a superintendent decides not to recommend that the local board of education offer a new, renewed, or extended school administrator's contract to the school administrator, the superintendent shall give the school administrator written notice of his or her decision and the reasons for his or her decision no later than May 1 of the final year of the contract. The superintendent's reasons may not be arbitrary, capricious, discriminatory, personal, or political.political, or prohibited by State or federal law. No action by the local board or further notice to the school administrator shall be necessary unless the school administrator files with the superintendent a written request, within 10 days of receipt of the superintendent's decision, for a hearing before the local board. Failure to file a timely request for a hearing shall result in a waiver of the right to appeal the superintendent's decision. If a school administrator files a timely request for a hearing, the local board shall conduct a hearing pursuant to the provisions of G.S. 115C-45(c) and make a final decision on whether to offer the school administrator a new, renewed, or extended school administrator's contract.

If the local board decides not to offer the school administrator a new, renewed, or extended school administrator's contract, the local board shall notify the school administrator of its decision by June 1 of the final year of the contract. A decision not to offer the school administrator a new, renewed, or extended contract may be for any cause that is not arbitrary, capricious, discriminatory, personal, or political.political, or prohibited by State or federal law. The local board's decision not to offer the school administrator a new, renewed, or extended school administrator's contract is subject to judicial review in accordance with Article 4 of Chapter 150B of the General Statutes.

(e) Repealed by Session Laws 1995, c. 369, s. 1. (f) If the superintendent or the local board of education fails to notify a school

administrator by June 1 of the final year of the contract that the school administrator will not be offered a new school administrator's contract, the school administrator shall be entitled to 30 days of additional employment or severance pay beyond the date the school administrator receives written notice that a new contract will not be offered.

(g) If, prior to appointment as a school administrator, the school administrator held career status as a teacher in the local school administrative unit in which he or she is employed as a school administrator, a school administrator shall retain career status as a teacher if the school administrator is not offered a new, renewed, or extended contract by the local board of education, unless the school administrator voluntarily relinquished that right or is dismissed or demoted pursuant to G.S. 115C-325.

(h) An individual who holds a provisional assistant principal's certificatelicense and who is employed as an assistant principal under G.S. 115C-284(c) shall be considered a school administrator for purposes of this section. Notwithstanding subsection (b) of this section, a local board may enter into one-year contracts with a school administrator who holds a provisional assistant principal's certificate.license. If the school administrator held career status as a teacher in the local school administrative unit prior to being employed as an assistant principal and the State Board for any reason does not extend the school administrator's provisional assistant principal's certificate, the school administrator shall retain career status as a teacher unless the school administrator voluntarily relinquished that right or is dismissed or demoted under G.S. 115C-325. Nothing in this subsection or G.S. 115C-284(c) shall be construed to require a local board to extend or renew the contract of a school administrator who holds a provisional assistant principal's certificate.license."

SECTION 9.6.(e) The State Board of Education shall develop by rule as provided in Article 2A of Chapter 150B of the General Statutes a model contract for use by local boards of education in awarding teacher contracts. The State Board may adopt a temporary rule for a model contract as provided in G.S. 150B-21.1 to provide a contract to local boards of education no later than January 1, 2014, but shall replace the temporary rule with a permanent rule as soon as practicable.

SECTION 9.6.(f) G.S. 115C-325(c)(1) through (c)(3) and G.S. 115-325(c)(5) and (c)(6) are repealed effective August 1, 2013. Individuals who have not received career status prior to the 2013-2014 school year shall not be granted career status during the 2013-2014

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school year. All teachers who have not been granted career status prior to the 2013-2014 school year shall be offered only one-year contracts, except for qualifying teachers offered a four-year contract as provided in subsection (g) of this section, until the 2018-2019 school year.

SECTION 9.6.(g) Beginning September 1, 2013, to June 30, 2014, all superintendents shall review the performance and evaluations of all teachers who have been employed by the local board for at least three consecutive years. Based on these reviews, the superintendent shall identify and recommend to the local board twenty-five percent (25%) of those teachers employed by the local board for at least three consecutive years to be awarded four-year contracts beginning with the 2014-2015 school year. The superintendent shall not recommend to the local board any teacher for a four-year contract unless that teacher has shown effectiveness as demonstrated by proficiency on the teacher evaluation instrument. The local board of education shall review the superintendent's recommendation and may approve that recommendation or may select other teachers as part of the twenty-five percent (25%) to offer four-year contracts, but the local board shall not offer any teacher a four-year contract unless that teacher has shown effectiveness as demonstrated by proficiency on the teacher evaluation instrument. Contract offers shall be made and accepted no later than June 30, 2014. A teacher shall cease to be employed pursuant to G.S. 115C-325 and voluntarily relinquishes career status or any claim of career status by acceptance of a four-year contract as provided in this section.

SECTION 9.6.(h) Teachers employed by a local board of education on a four-year contract beginning with the 2014-2015 school year shall receive a five hundred dollar ($500.00) annual pay raise for each year of the four-year contract.

SECTION 9.6.(i) Subsection (a) of this section becomes effective June 30, 2018, and no teacher employed by a local board of education on or after that date shall have career status. G.S. 115C-325 applies only to teachers with career status after June 30, 2014.

SECTION 9.6.(j) Subsection (b) of this section becomes effective July 1, 2014. G.S. 115C-325.1 through G.S. 115C-325.13, as enacted by this section, shall apply to all teachers on one- or four-year contracts beginning July 1, 2014. G.S. 115C-325.1 through G.S. 115C-325.13, as enacted by this section, shall apply to all teachers employed by local boards of education or the State on or after July 1, 2018.

SECTION 9.6.(k) Subsections (c) and (d) of this section become effective July 1, 2014, and apply to all employees employed on or after that date.

SECTION 9.6.(l) Except as otherwise provided in this section, this section is effective when this act becomes law. TEACHER CONTRACT CONFORMING CHANGES

SECTION 9.7.(a) G.S. 115C-105.26(b)(2) reads as rewritten: "(2) State rules and policies, except those pertaining to public school State salary

schedules and employee benefits for school employees, the instructional program that must be offered under the Basic Education Program, the system of employment for public school teachers and administrators set out in G.S. 115C-287.1 and G.S. 115C-325,in Part 3 of Article 22 of this Chapter, health and safety codes, compulsory attendance, the minimum lengths of the school day and year, and the Uniform Education Reporting System."

SECTION 9.7.(b) G.S. 115C-105.37B(a)(2) reads as rewritten: "(2) Restart model, in which the State Board of Education would authorize the

local board of education to operate the school with the same exemptions from statutes and rules as a charter school authorized under Part 6A of Article 16 of this Chapter, or under the management of an educational management organization that has been selected through a rigorous review process. A school operated under this subdivision remains under the control of the local board of education, and employees assigned to the school are employees of the local school administrative unit with the protections provided by G.S. 115C-325.Part 3 of Article 22 of this Chapter."

SECTION 9.7.(c) G.S. 115C-105.38A reads as rewritten: "§ 115C-105.38A. Teacher competency assurance.

… (d) Retesting; Dismissal. – Upon completion of the remediation plan required under

subsection (c) of this section, the certifiedlicensed staff member shall take the general knowledge test a second time. If the certifiedlicensed staff member fails to acquire a passing

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score on the second test, the State Board shall begin a dismissal proceeding under G.S. 115C-325(q)(2a).G.S. 115C-325(q)(2a) or G.S. 115C-325.13.

… (f) Other Actions Not Precluded. – Nothing in this section shall be construed to restrict

or postpone the following actions: (1) The dismissal of a principal under G.S. 115C-325(q)(1);G.S. 115C-325.12. (2) The dismissal of a teacher, assistant principal, director, or supervisor under

G.S. 115C-325(q)(2);G.S. 115C-325(q)(2) or G.S. 115C-325.13. (3) The dismissal or demotion of a career an employee for any of the grounds

listed under G.S. 115C-325(e);G.S. 115C-325(e) or G.S. 115C-325.4. (4) The nonrenewal of a school administrator's or probationary teacher's contract

of employment; oremployment. (5) The decision to grant career status.

…." SECTION 9.7.(d) G.S. 115C-105.39 reads as rewritten:

"§ 115C-105.39. Dismissal or removal of personnel; appointment of interim superintendent.

(a) Within 30 days of the initial identification of a school as low-performing, whether by the local school administrative unit under G.S. 115C-105.37(a1) or by the State Board under G.S. 115C-105.37(a), the superintendent shall take one of the following actions concerning the school's principal: (i) recommend to the local board that the principal be retained in the same position, (ii) recommend to the local board that the principal be retained in the same position and a plan of remediation should be developed, (iii) recommend to the local board that the principal be transferred, or (iv) proceed under G.S. 115C-325G.S. 115C-325.4 to dismiss or demote the principal. The principal may be retained in the same position without a plan for remediation only if the principal was in that position for no more than two years before the school is identified as low-performing. The principal shall not be transferred to another principal position unless (i) it is in a school classification in which the principal previously demonstrated at least 2 years of success, (ii) there is a plan to evaluate and provide remediation to the principal for at least one year following the transfer to assure the principal does not impede student performance at the school to which the principal is being transferred; and (iii) the parents of the students at the school to which the principal is being transferred are notified. The principal shall not be transferred to another low-performing school in the local school administrative unit. If the superintendent intends to recommend demotion or dismissal, the superintendent shall notify the local board. Within 15 days of (i) receiving notification that the superintendent intends to proceed under G.S. 115C-325,G.S. 115C-325.4 or (ii) its decision concerning the superintendent's recommendation, but no later than September 30, the local board shall submit to the State Board a written notice of the action taken and the basis for that action. If the State Board does not assign an assistance team to that school or if the State Board assigns an assistance team to that school and the superintendent proceeds under G.S. 115C-325G.S. 115C-325.4 to dismiss or demote the principal, then the State Board shall take no further action. If the State Board assigns an assistance team to the school and the superintendent is not proceeding under G.S. 115C-325G.S. 115C-325.4 to dismiss or demote the principal, then the State Board shall vote to accept, reject, or modify the local board's recommendations. The State Board shall notify the local board of its action within five days. If the State Board rejects or modifies the local board's recommendations and does not recommend dismissal of the principal, the State Board's notification shall include recommended action concerning the principal's assignment or terms of employment. Upon receipt of the State Board's notification, the local board shall implement the State Board's recommended action concerning the principal's assignment or terms of employment unless the local board asks the State Board to reconsider that recommendation. The State Board shall provide an opportunity for the local board to be heard before the State Board acts on the local board's request for a reconsideration. The State Board shall vote to affirm or modify its original recommended action and shall notify the local board of its action within five days. Upon receipt of the State Board's notification, the local board shall implement the State Board's final recommended action concerning the principal's assignment or terms of employment. If the State Board rejects or modifies the local board's action and recommends dismissal of the principal, the State Board shall proceed under G.S. 115C-325(q)(1).G.S. 115C-325.12.

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(b) The State Board shall proceed under G.S. 115C-325(q)(2) or G.S. 115C-325.13 for the dismissal of teachers, assistant principals, directors, and supervisors assigned to a school identified as low-performing in accordance with G.S. 115C-325(q)(2).G.S. 115C-325(q)(2) or G.S. 115C-325.13.

…." SECTION 9.7.(e) G.S. 115C-238.68(3) reads as rewritten: "(3) Career status.Leave of absence from local school administrative unit. –

Employees of the board of directors shall not be eligible for career status. If a teacher employed by a local school administrative unit makes a written request for a leave of absence to teach at the regional school, the local school administrative unit shall grant the leave for one year. For the initial year of the regional school's operation, the local school administrative unit may require that the request for a leave of absence be made up to 45 days before the teacher would otherwise have to report for duty. After the initial year of the regional school's operation, the local school administrative unit may require that the request for a leave of absence be made up to 90 days before the teacher would otherwise have to report for duty. A local board of education is not required to grant a request for a leave of absence or a request to extend or renew a leave of absence for a teacher who previously has received a leave of absence from that school board under this subdivision. A teacher who has career status under G.S. 115C-325 prior to receiving a leave of absence to teach at the regional school may return to a public school in the local school administrative unit with career status at the end of the leave of absence or upon the end of employment at the regional school if an appropriate position is available. If an appropriate position is unavailable, the teacher's name shall be placed on a list of available teachers in accordance with G.S. 115C-325(e)(2)."

SECTION 9.7.(f) G.S. 115C-276(l) reads as rewritten: "(l) To Maintain Personnel Files and to Participate in Firing and Demoting of Staff. –

The superintendent shall maintain in his or her office a personnel file for each teacher that contains complaints, commendations, or suggestions for correction or improvement about the teacher and shall participate in the firing and demoting of staff, as provided in G.S. 115C-325.Part 3 of Article 22 of this Chapter."

SECTION 9.7.(g) G.S. 115C-285(a)(7) reads as rewritten: "(7) All persons employed as principals in the schools and institutions listed in

subsection (p) of G.S. 115C-325 G.S. 115C-325.10 shall be compensated at the same rate as are teachers in the public schools in accordance with the salary schedule adopted by the State Board of Education."

SECTION 9.7.(h) G.S. 115C-304 is repealed. SECTION 9.7.(i) G.S. 115C-333 reads as rewritten:

"§ 115C-333. Evaluation of licensed employees including certain superintendents; mandatory improvement plans; State board notification upon dismissal of employees.

(a) Annual Evaluations; Low-Performing Schools. – Local school administrative units shall evaluate at least once each year all licensed employees assigned to a school that has been identified as low-performing. The evaluation shall occur early enough during the school year to provide adequate time for the development and implementation of a mandatory improvement plan if one is recommended under subsection (b) of this section. If the employee is a teacher with career status as defined under G.S. 115C-325(a)(6), or a teacher as defined under G.S. 115C-325.1(6), either the principal, the assistant principal who supervises the teacher, or an assistance team assigned under G.S. 115C-105.38 shall conduct the evaluation. If the employee is a school administrator as defined under G.S. 115C-287.1(a)(3), either the superintendent or the superintendent's designee shall conduct the evaluation.

All teachers in low-performing schools who have not attained career statusbeen employed for less than three consecutive years shall be observed at least three times annually by the principal or the principal's designee and at least once annually by a teacher and shall be evaluated at least once annually by a principal. This section shall not be construed to limit the duties and authority of an assistance team assigned to a low-performing school under G.S. 115C-105.38.

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A local board shall use the performance standards and criteria adopted by the State Board and may adopt additional evaluation criteria and standards. All other provisions of this section shall apply if a local board uses an evaluation other than one adopted by the State Board.

(b) Mandatory Improvement Plans. – … (2a) If a licensed employee in a low-performing school receives a rating on any

standard on an evaluation that is below proficient or otherwise represents unsatisfactory or below standard performance in an area that the licensed employee was expected to demonstrate, the individual or team that conducted the evaluation shall recommend to the superintendent that (i) the employee receive a mandatory improvement plan designed to improve the employee's performance or performance, (ii) the superintendent recommend to the local board that if the employee is a career status teacher the employee be dismissed or demoted and if the employee is a teacher on contract the teacher's contract not be recommended for renewal, or (iii) if the employee engaged in inappropriate conduct or performed inadequately to such a degree that such conduct or performance causes substantial harm to the educational environment that a proceeding for immediate dismissal or demotion be instituted. If the individual or team that conducted the evaluation elects not to make either any of the above recommendations, the said individual or team shall notify the superintendent of this decision. The superintendent shall determine whether to develop a mandatory improvement planplan, to not recommend renewal of the employee's contract, or to recommend a dismissal proceeding.

… (c) Reassessment of Employee in a Low-Performing School. – After the expiration of

the time period for the mandatory improvement plan under subdivision (2a) of subsection (b) of this section, the superintendent, the superintendent's designee, or the assistance team shall assess the performance of the employee of the low-performing school a second time. If the superintendent, superintendent's designee, or assistance team determines that the employee has failed to become proficient in any of the performance standards articulated in the mandatory improvement plan or demonstrate sufficient improvement toward such standards, the superintendent shall recommend that if the employee is a teacher with career status the teacher be dismissed or demoted under G.S. 115C-325, or if the employee is a teacher on contract the employee the employee's contract not be renewed or if the employee has engaged in inappropriate conduct or performed inadequately to such a degree that such conduct or performance causes substantial harm to the educational environment, that the employee be immediately dismissed or demoted under G.S. 115C-325.G.S. 115C-325.4. The results of the second assessment shall constitute substantial evidence of the employee's inadequate performance.

(d) State Board Notification. – If a local board dismisses an employee of a low-performing school who is a teacher with career status for any reason except a reduction in force under G.S. 115C-325(e)(1)l., or dismisses an employee who is a teacher on contract for cause or elects to not renew an employee's contract as a result of a superintendent's recommendation under subsection (b) or (c) of this section, it shall notify the State Board of the action, and the State Board annually shall provide to all local boards the names of those individuals. If a local board hires one of these individuals, within 60 days the superintendent or the superintendent's designee shall observe the employee, develop a mandatory improvement plan to assist the employee, and submit the plan to the State Board. The State Board shall review the mandatory improvement plan and may provide comments and suggestions to the superintendent. If on the next evaluation the employee receives a rating on any standard that was identified as an area of concern on the mandatory improvement plan that is again below proficient or otherwise represents unsatisfactory or below standard performance, the local board shall notify the State Board and the State Board shall initiate a proceeding to revoke the employee's license under G.S. 115C-296(d). If on this next evaluation the employee receives at least a proficient rating on all of the performance standards that were identified as areas of concern on the mandatory improvement plan, the local board shall notify the State Board that the employee is in good standing and the State Board shall not continue to provide the individual's name to local boards under this subsection unless the employee is a teacher with

Appendix p. 34


career status and is subsequently dismissed under G.S. 115C-325 except for a reduction in force.force, or the employee is a teacher on contract subsequently dismissed under G.S. 115C-325.4.

…." SECTION 9.7.(j) G.S. 115C-333.1 reads as rewritten:

"§ 115C-333.1. Evaluation of teachers in schools not identified as low-performing; mandatory improvement plans; State Board notification upon dismissal of teachers.

(a) Annual Evaluations. – All teachers who are assigned to schools that are not designated as low-performing and who have not attained career statusbeen employed for at least three consecutive years shall be observed at least three times annually by the principal or the principal's designee and at least once annually by a teacher and shall be evaluated at least once annually by a principal. All teachers with career status or on a four-year contract who are assigned to schools that are not designated as low-performing shall be evaluated annually unless a local board adopts rules that allow teachers with career status or on a four-year contract to be evaluated more or less frequently, provided that such rules are not inconsistent with State or federal requirements. Local boards also may adopt rules requiring the annual evaluation of nonlicensed employees. A local board shall use the performance standards and criteria adopted by the State Board and may adopt additional evaluation criteria and standards. All other provisions of this section shall apply if a local board uses an evaluation other than one adopted by the State Board.

… (d) Reassessment of the Teacher. – Upon completion of a mandatory improvement plan

under subsection (b) of this section, the principal shall assess the performance of the teacher a second time. The principal shall also review and consider any report provided by the qualified observer under subsection (c) of this section if one has been submitted before the end of the mandatory improvement plan period. If, after the second assessment of the teacher and consideration of any report from the qualified observer, the superintendent or superintendent's designee determines that the teacher has failed to become proficient in any of the performance standards identified as deficient in the mandatory improvement plan or demonstrate sufficient improvement toward such standards, the superintendent may recommend that a teacher with career status be dismissed or demoted under G.S. 115C-325, or if the teacher is on contract that the teacher's contract not be renewed or if the teacher has engaged in inappropriate conduct or performed inadequately to such a degree that such conduct or performance causes substantial harm to the educational environment, that the teacher be immediately dismissed or demoted under G.S. 115C-325.G.S. 115C-325.4. The results of the second assessment produced pursuant to the terms of this subsection shall constitute substantial evidence of the teacher's inadequate performance.

(e) Dismissal Proceedings Without a Mandatory Improvement Plan. – The absence of a mandatory improvement plan as described in this section shall not prohibit a superintendent from initiating a dismissal proceeding against a teacher under the provisions of G.S. 115C-325. G.S. 115C-325 or G.S. 115C-325.4. However, the superintendent shall not be entitled to the substantial evidence provision in subsection (d) of this section if such mandatory improvement plan is not utilized.

(f) State Board Notification. – If a local board dismisses a teacher with career status for any reason except a reduction in force under G.S. 115C-325(e)(1)l., or dismisses a teacher on contract for cause or elects to not renew a teacher's contract as a result of a superintendent's recommendation under subsection (d) of this section, it shall notify the State Board of the action, and the State Board annually shall provide to all local boards the names of those teachers. If a local board hires one of these teachers, within 60 days the superintendent or the superintendent's designee shall observe the teacher, develop a mandatory improvement plan to assist the teacher, and submit the plan to the State Board. The State Board shall review the mandatory improvement plan and may provide comments and suggestions to the superintendent. If on the next evaluation the teacher receives a rating on any standard that was an area of concern on the mandatory improvement plan that is again below proficient or a rating that otherwise represents unsatisfactory or below standard performance, the local board shall notify the State Board, and the State Board shall initiate a proceeding to revoke the teacher's license under G.S. 115C-296(d). If on the next evaluation the teacher receives at least a proficient rating on all of the overall performance standards that were areas of concern on the

Appendix p. 35


mandatory improvement plan, the local board shall notify the State Board that the teacher is in good standing, and the State Board shall not continue to provide the teacher's name to local boards under this subsection unless the teacher has career status and is subsequently dismissed under G.S. 115C-325 except for a reduction in force.force or is a teacher on contract who is subsequently dismissed under G.S. 115C-325.4. If, however, on this next evaluation the teacher receives a developing rating on any standards that were areas of concern on the mandatory improvement plan, the teacher shall have one more year to bring the rating to proficient. If,proficient if the local board elects to renew the teacher's contract. If by the end of this second year,year the teacher is not proficient in all standards that were areas of concern on the mandatory improvement plan, the local board shall notify the State Board, and the State Board shall initiate a proceeding to revoke the teacher's license under G.S. 115C-296(d).

…." SECTION 9.7.(k) G.S. 115C-335(b) reads as rewritten:

"(b) Training. – The State Board, in collaboration with the Board of Governors of The University of North Carolina, shall develop programs designed to train principals and superintendents in the proper administration of the employee evaluations developed by the State Board. The Board of Governors shall use the professional development programs for public school employees that are under its authority to make this training available to all principals and superintendents at locations that are geographically convenient to local school administrative units. The programs shall include methods to determine whether an employee's performance has improved student learning, the development and implementation of appropriate professional growth and mandatory improvement plans, the process for contract nonrenewal, and the dismissal process under G.S. 115C-325.Part 3 of Article 22 of this Chapter. The Board of Governors shall ensure that the subject matter of the training programs is incorporated into the masters in school administration programs offered by the constituent institutions. The State Board, in collaboration with the Board of Governors, also shall develop in-service programs for licensed public school employees that may be included in a mandatory improvement plan created under G.S. 115C-333(b) or G.S. 115C-333.1(b). The Board of Governors shall use the professional development programs for public school employees that are under its authority to make this training available at locations that are geographically convenient to local school administrative units."

SECTION 9.7.(l) G.S. 115C-404(b) reads as rewritten: "(b) Documents received under this section shall be used only to protect the safety of or

to improve the education opportunities for the student or others. Information gained in accordance with G.S. 7B-3100 shall not be the sole basis for a decision to suspend or expel a student. Upon receipt of each document, the principal shall share the document with those individuals who have (i) direct guidance, teaching, or supervisory responsibility for the student, and (ii) a specific need to know in order to protect the safety of the student or others. Those individuals shall indicate in writing that they have read the document and that they agree to maintain its confidentiality. Failure to maintain the confidentiality of these documents as required by this section is grounds for the dismissal of an employee who is not employed on contract, grounds for dismissal of an employee on contract not a career employeein accordance with G.S. 115C-325.4(a)(9), and is grounds for dismissal of an employee who is a career employee,teacher in accordance with G.S. 115C-325(e)(1)i."

SECTION 9.7.(m) G.S. 143B-146.7(b) reads as rewritten: "(b) At any time after the State Board identifies a school as low-performing under this

Part, the Secretary State Board shall proceed under G.S. 115C-325(p1) or G.S. 115C-325.11 for the dismissal of certificatedlicensed instructional personnel assigned to that school."

SECTION 9.7.(n) G.S. 143B-146.8 reads as rewritten: "§ 143B-146.8. Evaluation of certificated licensed personnel and principals; action plans;

State Board notification. (a) Annual Evaluations; Low-Performing Schools. – The principal shall evaluate at

least once each year all certificated licensed personnel assigned to a participating school that has been identified as low-performing but has not received an assistance team. The evaluation shall occur early enough during the school year to provide adequate time for the development and implementation of an action plan if one is recommended under subsection (b) of this section. If the employee is a teacher as defined under G.S. 115C-325(a)(6), G.S. 115C-325(a)(6) with career status or a teacher as defined in G.S. 115C-325.1(6) on contract, either the principal or an assessment team assigned under G.S. 143B-146.9 shall

Appendix p. 36


conduct the evaluation. If the employee is a school administrator as defined under G.S. 115C-287.1(a)(3), the Superintendent shall conduct the evaluation.

Notwithstanding this subsection or any other law, the principal shall observe at least three times annually, a teacher shall observe at least once annually, and the principal shall evaluate at least once annually, all teachers who have not attained career status.been employed for less than three consecutive years. All other employees defined as teachers under G.S. 115C-325(a)(6) with career status or teachers as defined in G.S. 115C-325.1(6) on a four-year contract who are assigned to participating schools that are not designated as low-performing shall be evaluated annually unless the Secretary State Board adopts rules that allow specified categories of teachers with career status or on four-year contracts to be evaluated more or less frequently. The Secretary State Board also may adopt rules requiring the annual evaluation of noncertificated nonlicensed personnel. This section shall not be construed to limit the duties and authority of an assistance team assigned to a low-performing school.

The Secretary shall use the State Board's performance standards and criteria unless the Secretary develops an alternative evaluation that is properly validated and that includes standards and criteria similar to those adopted by the State Board. All other provisions of this section shall apply if an evaluation is used other than one adopted by the State Board.

(b) Action Plans. – If a certificated licensed employee in a participating school that has been identified as low-performing receives an unsatisfactory or below standard rating on any function of the evaluation that is related to the employee's instructional duties, the individual or team that conducted the evaluation shall recommend to the principal that: (i) the employee receive an action plan designed to improve the employee's performance; or (ii) the principal recommend to the Secretary that the employee who is a career teacher be dismissed or demoted as provided in G.S. 115C-325 or the employee who is a teacher on contract not be recommended for renewal; or (iii) if the employee who is a teacher on contract engages in inappropriate conduct or performs inadequately to such a degree that such conduct or performance causes substantial harm to the educational environment that a proceeding for immediate dismissal or demotion under G.S. 115C-325.4 be instituted. The principal shall determine whether to develop an action planplan, to not recommend renewal of the employee's contract, or to recommend a dismissal proceeding. The person who evaluated the employee or the employee's supervisor shall develop the action plan unless an assistance team or assessment team conducted the evaluation. If an assistance team or assessment team conducted the evaluation, that team shall develop the action plan in collaboration with the employee's supervisor. Action plans shall be designed to be completed within 90 instructional days or before the beginning of the next school year. The State Board, in consultation with the Secretary,Board shall develop guidelines that include strategies to assist in evaluating certificated licensed personnel and developing effective action plans within the time allotted under this section. The Secretary State Board may adopt policies for the development and implementation of action plans or professional development plans for personnel who do not require action plans under this section.

(c) Reevaluation. – Upon completion of an action plan under subsection (b) of this section, the principal or the assessment team shall evaluate the employee a second time. If on the second evaluation the employee receives one unsatisfactory or more than one below standard rating on any function that is related to the employee's instructional duties, the principal shall recommend that the employee with career status be dismissed or demoted under G.S. 115C-325, or that an employee's contract not be renewed or if the employee engages in inappropriate conduct or performs inadequately to such a degree that such conduct or performance causes substantial harm to the educational environment, that the employee be dismissed or demoted under G.S. 115C-325.G.S. 115C-325.4. The results of the second evaluation shall constitute substantial evidence of the employee's inadequate performance.

(d) State Board Notification. – If the Secretary dismisses an employee is dismissed for any reason except a reduction in force under G.S. 115C-325(e)(1)l.,cause or an employee's contract is not renewed as a result of a superintendent's recommendation under subsection (b) or (c) of this section, the Secretary shall notify the State Board shall be notified of the action, and the State Board annually shall provide to all local boards of education the names of those individuals. If a local board hires one of these individuals, that local board shall proceed under G.S. 115C-333(d).

…."

Appendix p. 37


SECTION 9.7.(o) G.S. 115C-105.38A, as amended by subsection (c) of this section, reads as rewritten: "§ 115C-105.38A. Teacher competency assurance.

… (d) Retesting; Dismissal. – Upon completion of the remediation plan required under

subsection (c) of this section, the licensed staff member shall take the general knowledge test a second time. If the licensed staff member fails to acquire a passing score on the second test, the State Board shall begin a dismissal proceeding under G.S. 115C-325(q)(2a) or G.S. 115C-325.13.

… (f) Other Actions Not Precluded. – Nothing in this section shall be construed to restrict

or postpone the following actions: (1) The dismissal of a principal under G.S. 115C-325.12. (2) The dismissal of a teacher, assistant principal, director, or supervisor under

G.S. 115C-325(q)(2) or G.S. 115C-325.13. (3) The dismissal or demotion of an employee for any of the grounds listed

under G.S. 115C-325(e) or G.S. 115C-325.4. (4) The nonrenewal of a school administrator's or teacher's contract of

employment. …."

SECTION 9.7.(p) G.S. 115C-105.39(b), as amended by subsection (d) of this section, reads as rewritten:

"(b) The State Board shall proceed under G.S. 115C-325(q)(2) or G.S. 115C-325.13 for the dismissal of teachers, assistant principals, directors, and supervisors assigned to a school identified as low-performing in accordance with G.S. 115C-325(q)(2) or G.S. 115C-325.13.

…." SECTION 9.7.(q) G.S. 115C-238.29F(e)(3) reads as rewritten: "(3) If a teacher employed by a local school administrative unit makes a written

request for a leave of absence to teach at a charter school, the local school administrative unit shall grant the leave for one year. For the initial year of a charter school's operation, the local school administrative unit may require that the request for a leave of absence be made up to 45 days before the teacher would otherwise have to report for duty. After the initial year of a charter school's operation, the local school administrative unit may require that the request for a leave of absence be made up to 90 days before the teacher would otherwise have to report for duty. A local board of education is not required to grant a request for a leave of absence or a request to extend or renew a leave of absence for a teacher who previously has received a leave of absence from that school board under this subdivision. A teacher who has career status under G.S. 115C-325 prior to receivingreceived a leave of absence to teach at a charter school may return to a public school in the local school administrative unit with career status at the end of the leave of absence or upon the end of employment at the charter school if an appropriate position is available.If an appropriate position is unavailable, the teacher's name shall be placed on a list of available teachers and that teacher shall have priority on all positions for which that teacher is qualified in accordance with G.S. 115C-325(e)(2)."

SECTION 9.7.(r) G.S. 115C-238.68(3), as amended by subsection (e) of this section, reads as rewritten:

"(3) Leave of absence from local school administrative unit. – If a teacher employed by a local school administrative unit makes a written request for a leave of absence to teach at the regional school, the local school administrative unit shall grant the leave for one year. For the initial year of the regional school's operation, the local school administrative unit may require that the request for a leave of absence be made up to 45 days before the teacher would otherwise have to report for duty. After the initial year of the regional school's operation, the local school administrative unit may require that the request for a leave of absence be made up to 90 days before the teacher would otherwise have to report for duty. A local board of

Appendix p. 38


education is not required to grant a request for a leave of absence or a request to extend or renew a leave of absence for a teacher who previously has received a leave of absence from that school board under this subdivision. A teacher who has career status under G.S. 115C-325 prior to receiving received a leave of absence to teach at the regional school may return to a public school in the local school administrative unit with career status at the end of the leave of absence or upon the end of employment at the regional school if an appropriate position is available. If an appropriate position is unavailable, the teacher's name shall be placed on a list of available teachers in accordance with G.S. 115C-325(e)(2)."

SECTION 9.7.(s) G.S. 115C-333, as amended by subsection (i) of this section, reads as rewritten: "§ 115C-333. Evaluation of licensed employees including certain superintendents;

mandatory improvement plans; State board notification upon dismissal of employees.

(a) Annual Evaluations; Low-Performing Schools. – Local school administrative units shall evaluate at least once each year all licensed employees assigned to a school that has been identified as low-performing. The evaluation shall occur early enough during the school year to provide adequate time for the development and implementation of a mandatory improvement plan if one is recommended under subsection (b) of this section. If the employee is a teacher with career status as defined under G.S. 115C-325(a)(6), or a teacher as defined under G.S. 115C-325.1(6), G.S. 115C-325.1(6) either the principal, the assistant principal who supervises the teacher, or an assistance team assigned under G.S. 115C-105.38 shall conduct the evaluation. If the employee is a school administrator as defined under G.S. 115C-287.1(a)(3), either the superintendent or the superintendent's designee shall conduct the evaluation.

All teachers in low-performing schools who have been employed for less than three consecutive years shall be observed at least three times annually by the principal or the principal's designee and at least once annually by a teacher and shall be evaluated at least once annually by a principal. This section shall not be construed to limit the duties and authority of an assistance team assigned to a low-performing school under G.S. 115C-105.38.

A local board shall use the performance standards and criteria adopted by the State Board and may adopt additional evaluation criteria and standards. All other provisions of this section shall apply if a local board uses an evaluation other than one adopted by the State Board.

(b) Mandatory Improvement Plans. – … (2a) If a licensed employee in a low-performing school receives a rating on any

standard on an evaluation that is below proficient or otherwise represents unsatisfactory or below standard performance in an area that the licensed employee was expected to demonstrate, the individual or team that conducted the evaluation shall recommend to the superintendent that (i) the employee receive a mandatory improvement plan designed to improve the employee's performance, (ii) the superintendent recommend to the local board that if the employee is a career status teacher the employee be dismissed or demoted and if the employee is a teacher on contract the teacher's employee's contract not be recommended for renewal, or (iii) if the employee engaged in inappropriate conduct or performed inadequately to such a degree that such conduct or performance causes substantial harm to the educational environment that a proceeding for immediate dismissal or demotion be instituted. If the individual or team that conducted the evaluation elects not to make any of the above recommendations, the said individual or team shall notify the superintendent of this decision. The superintendent shall determine whether to develop a mandatory improvement plan, to not recommend renewal of the employee's contract, or to recommend a dismissal proceeding. …

(c) Reassessment of Employee in a Low-Performing School. – After the expiration of the time period for the mandatory improvement plan under subdivision (2a) of subsection (b) of this section, the superintendent, the superintendent's designee, or the assistance team shall

Appendix p. 39


assess the performance of the employee of the low-performing school a second time. If the superintendent, superintendent's designee, or assistance team determines that the employee has failed to become proficient in any of the performance standards articulated in the mandatory improvement plan or demonstrate sufficient improvement toward such standards, the superintendent shall recommend that if the employee is a teacher with career status the teacher be dismissed or demoted under G.S. 115C-325, or if the employee is a teacher on contract the employee's contract not be renewed or if the employee has engaged in inappropriate conduct or performed inadequately to such a degree that such conduct or performance causes substantial harm to the educational environment, that the employee be immediately dismissed or demoted under G.S. 115C-325.4. The results of the second assessment shall constitute substantial evidence of the employee's inadequate performance.

(d) State Board Notification. – If a local board dismisses an employee of a low-performing school who is a teacher with career status for any reason except a reduction in force under G.S. 115C-325(e)(1)l., or dismisses an employee who is a teacher on contract for cause or elects to not renew an employee's contract as a result of a superintendent's recommendation under subsection (b) or (c) of this section, it shall notify the State Board of the action, and the State Board annually shall provide to all local boards the names of those individuals. If a local board hires one of these individuals, within 60 days the superintendent or the superintendent's designee shall observe the employee, develop a mandatory improvement plan to assist the employee, and submit the plan to the State Board. The State Board shall review the mandatory improvement plan and may provide comments and suggestions to the superintendent. If on the next evaluation the employee receives a rating on any standard that was identified as an area of concern on the mandatory improvement plan that is again below proficient or otherwise represents unsatisfactory or below standard performance, the local board shall notify the State Board and the State Board shall initiate a proceeding to revoke the employee's license under G.S. 115C-296(d). If on this next evaluation the employee receives at least a proficient rating on all of the performance standards that were identified as areas of concern on the mandatory improvement plan, the local board shall notify the State Board that the employee is in good standing and the State Board shall not continue to provide the individual's name to local boards under this subsection unless the employee is a teacher with career status and is subsequently dismissed under G.S. 115C-325 except for a reduction in force, or the employee is a teacher on contract subsequently dismissed under G.S. 115C-325.4.

…." SECTION 9.7.(t) G.S. 115C-333.1, as amended by subsection (j) of this section,

reads as rewritten: "§ 115C-333.1. Evaluation of teachers in schools not identified as low-performing;

mandatory improvement plans; State Board notification upon dismissal of teachers.

(a) Annual Evaluations. – All teachers who are assigned to schools that are not designated as low-performing and who have not been employed for at least three consecutive years shall be observed at least three times annually by the principal or the principal's designee and at least once annually by a teacher and shall be evaluated at least once annually by a principal. All teachers with career status or on a four-year contractwho have been employed for three or more years who are assigned to schools that are not designated as low-performing shall be evaluated annually unless a local board adopts rules that allow teachers with career status or on a four-year contractemployed for three or more years to be evaluated more or less frequently, provided that such rules are not inconsistent with State or federal requirements. Local boards also may adopt rules requiring the annual evaluation of nonlicensed employees. A local board shall use the performance standards and criteria adopted by the State Board and may adopt additional evaluation criteria and standards. All other provisions of this section shall apply if a local board uses an evaluation other than one adopted by the State Board.

… (d) Reassessment of the Teacher. – Upon completion of a mandatory improvement plan

under subsection (b) of this section, the principal shall assess the performance of the teacher a second time. The principal shall also review and consider any report provided by the qualified observer under subsection (c) of this section if one has been submitted before the end of the mandatory improvement plan period. If, after the second assessment of the teacher and consideration of any report from the qualified observer, the superintendent or superintendent's designee determines that the teacher has failed to become proficient in any of the performance

Appendix p. 40


standards identified as deficient in the mandatory improvement plan or demonstrate sufficient improvement toward such standards, the superintendent may recommend that a teacher with career status be dismissed or demoted under G.S. 115C-325, or if the teacher is on contract that the teacher's contract not be renewed renewed, or if the teacher has engaged in inappropriate conduct or performed inadequately to such a degree that such conduct or performance causes substantial harm to the educational environment, that the teacher be immediately dismissed or demoted under G.S. 115C-325.4. The results of the second assessment produced pursuant to the terms of this subsection shall constitute substantial evidence of the teacher's inadequate performance.

(e) Dismissal Proceedings Without a Mandatory Improvement Plan. – The absence of a mandatory improvement plan as described in this section shall not prohibit a superintendent from initiating a dismissal proceeding against a teacher under the provisions of G.S. 115C-325 or G.S. 115C-325.4. However, the superintendent shall not be entitled to the substantial evidence provision in subsection (d) of this section if such mandatory improvement plan is not utilized.

(f) State Board Notification. – If a local board dismisses a teacherwith career status for any reason except a reduction in force under G.S. 115C-325(e)(1)l., or dismisses a teacher on contract for cause or elects to not renew a teacher's contract as a result of a superintendent's recommendation under subsection (d) of this section, it shall notify the State Board of the action, and the State Board annually shall provide to all local boards the names of those teachers. If a local board hires one of these teachers, within 60 days the superintendent or the superintendent's designee shall observe the teacher, develop a mandatory improvement plan to assist the teacher, and submit the plan to the State Board. The State Board shall review the mandatory improvement plan and may provide comments and suggestions to the superintendent. If on the next evaluation the teacher receives a rating on any standard that was an area of concern on the mandatory improvement plan that is again below proficient or a rating that otherwise represents unsatisfactory or below standard performance, the local board shall notify the State Board, and the State Board shall initiate a proceeding to revoke the teacher's license under G.S. 115C-296(d). If on the next evaluation the teacher receives at least a proficient rating on all of the overall performance standards that were areas of concern on the mandatory improvement plan, the local board shall notify the State Board that the teacher is in good standing, and the State Board shall not continue to provide the teacher's name to local boards under this subsection unless the teacher has career status and is subsequently dismissed under G.S. 115C-325 except for a reduction in force or is a teacher on contract who is subsequently dismissed under G.S. 115C-325.4. If, however, on this next evaluation the teacher receives a developing rating on any standards that were areas of concern on the mandatory improvement plan, the teacher shall have one more year to bring the rating to proficient if the local board elects to renew the teacher's contract. If by the end of this second year the teacher is not proficient in all standards that were areas of concern on the mandatory improvement plan, the local board shall notify the State Board, and the State Board shall initiate a proceeding to revoke the teacher's license under G.S. 115C-296(d).

…." SECTION 9.7.(u) Article 23 of Chapter 115C of the General Statutes is amended

by adding a new section to read: "§ 115C-344. Employment benefits for exchange teachers.

An exchange teacher is a nonimmigrant alien teacher participating in an exchange visitor program designated by the United States Department of State pursuant to 22 C.F.R. Part 62 or by the United States Department of Homeland Security pursuant to 8 C.F.R. Part 214.2(q). For purposes of determining eligibility to receive employment benefits under this Chapter, including personal leave, annual vacation leave, and sick leave, an exchange teacher shall be considered a permanent teacher if employed with the expectation of at least six full consecutive monthly pay periods of employment and if employed at least 20 hours per week. An exchange teacher is not a teacher for purposes of the Teachers' and State Employees' Retirement System of North Carolina as provided in G.S. 135-1(25)."

SECTION 9.7.(v) G.S. 115C-404(b), as amended by subsection (n) of this section, reads as rewritten:

"(b) Documents received under this section shall be used only to protect the safety of or to improve the education opportunities for the student or others. Information gained in accordance with G.S. 7B-3100 shall not be the sole basis for a decision to suspend or expel a

Appendix p. 41


student. Upon receipt of each document, the principal shall share the document with those individuals who have (i) direct guidance, teaching, or supervisory responsibility for the student, and (ii) a specific need to know in order to protect the safety of the student or others. Those individuals shall indicate in writing that they have read the document and that they agree to maintain its confidentiality. Failure to maintain the confidentiality of these documents as required by this section is grounds for the dismissal of an employee who is not employed on contract,contract and grounds for dismissal of an employee on contract in accordance with G.S. 115C-325.4(a)(9).G.S. 115C-325.4(a)(9), and grounds for dismissal of an employee who is a career teacher in accordance with G.S. 115C-325(e)(1)i."

SECTION 9.7.(w) G.S. 143B-146.7(b), as amended by subsection (m) of this section, reads as rewritten:

"(b) At any time after the State Board identifies a school as low-performing under this Part, the State Board shall proceed under G.S. 115C-325(p1) or G.S. 115C-325.11 for the dismissal of licensed instructional personnel assigned to that school."

SECTION 9.7.(x) G.S. 143B-146.8, as amended by subsection (n) of this section, reads as rewritten: "§ 143B-146.8. Evaluation of licensed personnel and principals; action plans; State Board

notification. (a) Annual Evaluations; Low-Performing Schools. – The principal shall evaluate at

least once each year all licensed personnel assigned to a participating school that has been identified as low-performing but has not received an assistance team. The evaluation shall occur early enough during the school year to provide adequate time for the development and implementation of an action plan if one is recommended under subsection (b) of this section. If the employee is a teacher as defined under G.S. 115C-325(a)(6) with career status or a teacher as defined in G.S. 115C-325.1(6) on contract,G.S. 115C-325.1(6), either the principal or an assessment team assigned under G.S. 143B-146.9 shall conduct the evaluation. If the employee is a school administrator as defined under G.S. 115C-287.1(a)(3), the Superintendent shall conduct the evaluation.

Notwithstanding this subsection or any other law, the principal shall observe at least three times annually, a teacher shall observe at least once annually, and the principal shall evaluate at least once annually, all teachers who have been employed for less than three consecutive years. All other employees who have been employed for three or more years and are defined as teachers under G.S. 115C-325(a)(6) with career status or teachers as defined in G.S. 115C-325.1(5) on a four-year contract G.S. 115C-325.1(6) who are assigned to participating schools that are not designated as low-performing shall be evaluated annually unless the State Board adopts rules that allow specified categories of teachers with career status or on four year contractsthree or more years employment to be evaluated more or less frequently. The State Board also may adopt rules requiring the annual evaluation of nonlicensed personnel. This section shall not be construed to limit the duties and authority of an assistance team assigned to a low-performing school.

(b) Action Plans. – If a licensed employee in a participating school that has been identified as low-performing receives an unsatisfactory or below standard rating on any function of the evaluation that is related to the employee's instructional duties, the individual or team that conducted the evaluation shall recommend to the principal that: (i) the employee receive an action plan designed to improve the employee's performance; or (ii) the principal recommend that the employee who is a career teacher be dismissed or demoted as provided in G.S. 115C-325 or the employee who is a teacher on contractthe employee's contract not be recommended for renewal; or (iii) if the employee who is a teacher on contract engages in inappropriate conduct or performs inadequately to such a degree that such conduct or performance causes substantial harm to the educational environment that a proceeding for immediate dismissal or demotion under G.S. 115C-325.4 be instituted. The principal shall determine whether to develop an action plan, to not recommend renewal of the employee's contract, or to recommend a dismissal proceeding. The person who evaluated the employee or the employee's supervisor shall develop the action plan unless an assistance team or assessment team conducted the evaluation. If an assistance team or assessment team conducted the evaluation, that team shall develop the action plan in collaboration with the employee's supervisor. Action plans shall be designed to be completed within 90 instructional days or before the beginning of the next school year. The State Board shall develop guidelines that include strategies to assist in evaluating licensed personnel and developing effective action

Appendix p. 42


plans within the time allotted under this section. The State Board may adopt policies for the development and implementation of action plans or professional development plans for personnel who do not require action plans under this section.

(c) Reevaluation. – Upon completion of an action plan under subsection (b) of this section, the principal or the assessment team shall evaluate the employee a second time. If on the second evaluation the employee receives one unsatisfactory or more than one below standard rating on any function that is related to the employee's instructional duties, the principal shall recommend that the employee with career status be dismissed or demoted under G.S. 115C-325, or that an employee onemployee's contract not be renewed renewed, or if the employee engages in inappropriate conduct or performs inadequately to such a degree that such conduct or performance causes substantial harm to the educational environment, that the employee be dismissed or demoted under G.S. 115C-325.4. The results of the second evaluation shall constitute substantial evidence of the employee's inadequate performance.

…." SECTION 9.7.(y) Subsection (u) of this section becomes effective August 1, 2013.

Subsections (a) through (n) of this section become effective July 1, 2014. Subsections (o) through (t) and (v) through (x) become effective June 30, 2018.

PART X. COMMUNITY COLLEGES

REORGANIZATION OF THE COMMUNITY COLLEGES SYSTEM OFFICE SECTION 10.1.(a) Notwithstanding any other provision of law, and consistent

with the authority established in G.S. 115D-3, the President of the North Carolina Community College System may reorganize the System Office in accordance with recommendations and plans submitted to and approved by the State Board of Community Colleges.

SECTION 10.1.(b) This section expires June 30, 2014.

CARRYFORWARD OF COLLEGE INFORMATION SYSTEM FUNDS SECTION 10.2. Of the funds appropriated to the Community Colleges System

Office for the 2013-2015 fiscal biennium for the College Information System, up to one million two hundred fifty thousand dollars ($1,250,000) shall not revert at the end of each fiscal year but shall remain available until expended. These funds may be used only to purchase periodic system upgrades.

BASIC SKILLS PLUS SECTION 10.3.(a) Notwithstanding any other provision of law, the State Board of

Community Colleges may authorize a local community college to use up to twenty percent (20%) of the State Literacy Funds allocated to it to provide employability skills, job-specific occupational and technical skills, and developmental education instruction to students concurrently enrolled in a community college course leading to a high school diploma or equivalent certificate.

SECTION 10.3.(b) Notwithstanding any other provision of law, if a community college is authorized by the State Board to provide employability skills, job-specific occupational or technical skills, or developmental education instruction to students concurrently enrolled in a community college course leading to a high school diploma or equivalent certificate, the college may waive the tuition and registration fees associated with this instruction.

ENROLLMENT FUNDING SECTION 10.4.(a) Beginning with the 2013-2015 fiscal biennium, community

colleges shall receive funding based on the number of full-time equivalent (FTE) students enrolled in curriculum, continuing education, and Basic Skills courses, by tiered funding level. Community colleges shall calculate this enrollment as the higher of the current year's total enrollment or the average enrollment of the last two academic years.

The State Board of Community Colleges shall report to the Joint Legislative Education Oversight Committee by February 1, 2014, on the use of nonrecurring funds appropriated to it to phase in this new enrollment funding model.

SECTION 10.4.(b) G.S. 115D-5 is amended by adding a new subsection to read:

Appendix p. 43