William Allan Kritsonis, School Law, Ch 4 Termination

1
The Employment Relationship

• William Allan Kritsonis, PhD

2
CONSTITUTIONAL ISSUES

• DUE PROCESS
• HOW MUCH PROCESS IS DUE?

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• What Is Due Process?
• An established course for judicial proceedings or
  other governmental activities designed to
  safeguard the legal rights of the individual. Due
  process dictates that everyone is equal in the
  eyes of the law, and it also states that the law
  must be fair and clearly stated to prevent
  arbitrary actions by the state.
• Fifth Fourteenth Amendment
• Perry v. Sindermann (1972)
• Contractual employee has a property right in the
  job during the term of the contract. Any effort
  of the school to terminate the contract prior to
  its stated date of expiration is a deprivation of
  property. Thus, some amount of due process of
  required. Whether the employee is a continuing
  contract teacher with twenty years on the job or
  a first-year probationary teacher, the
  constitutional analysis and the constitutional
  right to due process are the same.

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• How Much Process Is Due?
• As for the level of formality of due process in a
  typical employee termination case, the essentials
  are
• Be advised of the cause or causes of the
  termination in sufficient detail to fairly enable
  him/her to show any error that may exist
• Be advised of the names and the nature of the
  testimony of witnessed against him/her
• At a reasonable time after such advice, be given
  a meaningful opportunity to be heard in his or
  her own defense and
• Be given an opportunity for a hearing before a
  tribunal that both possesses some academic
  expertise and has an apparent impartiality

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Types of Employment Arrangements

• At-Will Employment
• Non-Chapter 21 Contracts
• Probationary Contracts
• Term Contracts
• Continuing Contracts
• Third-Party Independent Contract Educators

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At-Will

• Simply means that either the employer or employee
  is free to end the relationship at any time and
  for almost any reason. The employee has no
  contractual obligation to work for the employer
  for a set period of time. In addition, the
  employer does not guarantee the employee
  continued employment for a set period of time as
  well.

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Probationary 

• Given to new employees who are usually first year
  teachers who are fully certified. (Ch. 21 TEC)
• Educator will serve a probationary period that is
  basically the same in all school districts
  throughout the state. After designated period,
  educators will split into term or continuing
  contract employees.
• Probationary period can be as long as three
  years, except for teachers coming to the district
  after having been employed in public education
  for five of the eight preceding years. The
  teacher will be employed on a contract that
  cannot exceed one year in length. Thus, in the
  typical situation, the teacher will serve under
  three consecutive one-year probationary
  contracts.
• Probationary teachers can resign without penalty
  up to forty-five days before the first day of
  instruction.

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Non- Chapter 21

• Certain employees are entitled to a written
  contract under the Texas Education Code
• According to 21.002 of the TEC, school
  districts are required to employ each classroom
  teacher, principal, librarian, nurse, or
  counselor under a Ch. 21 contract, meaning a
  probationary, a term, or a continuing contract.

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Term

• Determined by local school board
• Any non-probationary Ch. 21 contract for a fixed
  term
• Length of contract can be up to five school
  years.
• Key factor lays out a beginning and ending date
• Resign forty-five days prior to instruction

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Continuing

• Automatically rolls over from one year to the
  next without the necessity of board action
• No specific length of time
• Contract remains in effect until the teacher
  resigns, retires, is terminated, or is returned
  to probationary status

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3rd party independent

• Private companies offered to provide teachers for
  public school districts
• Baby boom generation of teachers nearing
  retirement (TRS)
• Retire, begin drawing benefits, and then go to
  work at a salary equivalent to or better than
  what they had been making

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SELECTION OF STAFF Certification and the Role of
SBEC Nondiscrimination Laws The Hiring
Laws Criminal Records The Impact of
NCLB Restrictions on Employment
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State board for Educators Certification

• Power to adopt rules specify the various classes
  for educators certification.
• The rules for out state educators.
• The disciplinary procedures by which the
  certification may be revoked.

• SBEC must appoint an advisory committee with
  respect to each class of educators certification.
• Rules adopted by SBEC and review by SBOE
• SBOE is limited by the provision of the SBEC.
• SBOE must vote and can only reject by two thirds
  vote.

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SBEC Selection of Staff

• 14 members only eleven of them can vote.
• 3 NONVOTING MEMBERS
• TEA employee, Texas higher education
  coordinating board member, dean of the college of
  education
• 4 public school teacher
• 2 public administrators
• 1 public school counselor
• 4 citizens

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NO Child Left Behind

• Requires that all teacher be hired on a high
  qualified status.
• 2005-2006 schools requirements for NCLB applied
  to all school receiving NCLB fund.

16
Restrictions on Employment

• Employees under state law may not hold two
  legally incompatible offices.
• ex. Being a teacher and a trustee
• Hiring immediate family
• Requiring that employees live with the district

17
Nondiscrimination Law

• Laws that prohibit discrimination based on race,
  sex, religion, age, national origin, and
  disability apply to all major employers,
  including Texas public school districts.
• First, law apply to all employees, regardless of
  contractual status.
• Second, the laws that prohibit discrimination
  have implications for hiring process itself.
• Third, sexual harassment
• Fourth, there is no law that requires school
  districts either to advertise vacancies or to
  post them internally.

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Hiring Process

• Provision 1
• School board and the Superintendent
• Provision 2
• Campus principal and central office

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Criminal Records

• SBEC now has the duty to obtain criminal history
  record information on all holders of and
  applicants for educator certification.
• The school district are no longer required such
  background check.
• School districts will still do back ground checks
  on noncertified employees and volunteers
• When school district will do background checks on
  contracts with another entity for transportation.

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ENDING THE RELATIONSHIP

• At-will Employees
• Non-chapter 21 Contracts
• Probationary Contracts
• Term Contracts
• Continuing contracts
• 3rd party independent contractors
• The independent hearing systems
• A few final thoughts on Good Clause
• Constructive Discharge

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AT-WILL EMPLOYEES

• Contract renewal/nonrenewal do not apply
• All federal and state mandates prohibiting
  discrimination apply with equal force
• Due process does not apply, no property interest
• Can at-will employees be terminated for no
  reason at all?
• Can be terminated for any legally permissible
  reason
• Can be terminated at anytime
• No constitutional requirement of predetermination
  due process

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AT-WILL EMPLOYEES contd

• May file a grievance or lawsuit asserting
  termination impermissibly motivated
• If employee does seek legal recourse
• Must show something more than unfair treatment
• Burden on employee to show employers action
  illegal

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NON-CHAPTER 21 CONTRACTS

• Termination determined by the school board
• Not subject to the independent hearing system or
  statutory nonrenewal process
• If contract contains a specific term, employee is
  entitled to constitutional due process

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PROBATIONARY CONTRACTS

• Intent to make easy to terminate the relationship
  between the teacher and school district
• Board simply gives notice to teacher of its
  decision to terminate employment
• No specific reason is required
• Law does not require district to afford teacher a
  hearing, although they could choose to do so
• Boards decision is final and may not be appealed

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PROBATIONARY CONTRACTS contd

• Does not prevent teacher from filing suit
  alleging a wrongful discharge
• Contract can be non-renewed even with the
  superintendents recommendation
• Immediate termination rather than waiting
• District must provide teacher with formal due
  process
• Must demonstrate good reason for ending
  relationship early

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PROBATIONARY CONTRACTS contd

• State law permits early termination, or
  suspension without pay for the rest of the school
  year
• For good cause as determined by the board of
  conduct for the profession as generally
  recognized and applied in similarly situated
  school districts in this state
• Next process would be independent hearing system
• Full blown due process hearing
• Right too present evidence
• Cross examine witnesses
• Be represented by counsel

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TERM CONTRACTS

• School can take one of three actions
• Renew, non-renew, terminate
• Non renewal contract refers to decision of school
  district to let term contract expire.
• Multiyear term contract
• common practice is to extend the contract each
  year
• Decision to non-renew can be made only in the
  final year of contract

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TERM CONTRACT contd

• Requirements
• Board must give notice of proposed renewal or
  nonrenewal by the 45th day before the last day of
  instruction in the school year
• Board must consider the teachers evaluation
  prior to any decision not to renew
• Board must consider the most recent evaluations
  before making a decision not to renew a teachers
  contract if the evaluations are relevant to the
  reason for the boards action

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TERM CONTRACTS contd

• Entitled to a closed hearing with board prior to
  nonrenewal 15 days to request
• Teacher may appeal to commissioner of education
• Superintendents nonrenewal contract
• Entitled to notice no later than the 30th day
  before last day of contract
• Reasonable notice of the reason for proposed
  renewal
• Cost of buyout if the payment exceeds one year
  of his or her salary, TEA must deduct excess
  amount for districts funding for the next school
  year

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CONTINUING CONTRACTS

• No such thing as nonrenewal
• May be terminated anytime at any time for good
  cause
• Reduction in days served has been approved in
  more recent cases

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THIRD-PARTY INDEPENDENT CONTRACTORS

• School district never employed the teacher
• no contract and no legal requirements for ending
  the relationship

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GOOD CAUSE

• Means that convincing evidence has been presented
  to indicate the school district is justified in
  breaking off it contractual commitment to the
  teacher

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CONSTRUCTIVE DISCHARGE

• Employee resigns and then claims that the
  resignation was not voluntary
• Actions of the employer forced employee into an
  involuntary resignation
• Focus is twofold
• Were employees working conditions intolerable?
• Was there illegal conduct on the part of the
  employer?

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CONSTRUCTIVE DISCHARGE contd

• If a case can be proven, employer is liable for
  the illegal conduct leading to the discharge,
  just as he/ she would be in the case of formal
  discharge
• Does not prevent him/her from filing a federal
  lawsuit claiming the resignation was forced due
  to intolerable conditions created by the employer

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William Allan Kritsonis, PhDProfessorPhD
Program in Educational LeadershipWhitlowe R.
Green College of EducationPrairie View AM
UniversityMember of the Texas AM University
SystemPrairie View, Texas 77446