Teacher Tenure Act Clint Daughtrey, Esq. Legal Assistant to the Associate Executive Secretary April 12, 2008 A New Approach Instead of 75 minutes of me talking, we are going to try a more hands-on, interactive approach to the Teacher Tenure Act We are going to do it though the story of a fictitious teacher member, Amy Ellen Adams (AEA for short). Background on AEA AEA graduates from the University of Alabama in May 2008. She is certified in elementary education and is HQ. She is hired by the Greenbow County Board of Education for the 2008-09 school year to teach first grade. Year 1 AEA is evaluated, but not in compliance with PEPE, and gets 3’s and 4’s Her principal tells her that she is non- renewed the first week of May She never gets anything in writing Question 1 1. What impact does the principal’s failure to follow PEPE have on AEA? Answer 1 1. None. PEPE has no impact on a decision to non-renew a teacher. Question 2 2. Did her principal properly non-renew AEA? Answer 2 2. No. A principal cannot non- renew a teacher. Only the board, on the superintendent’s recommendation, can. Also, a non-renewal must be in writing and delivered to a teacher on or before the last working day of the school year. Bonus Question Who else lives “in the county of Greenbow?” Bonus Answer Year 2 A 2nd grade teacher retires at Christmas and AEA is told that she must take her class in a written notice from the superintendent (after a board vote) because there are enough first grade teachers to divide her class among her colleagues. At 5:00 pm on the last working day of the year, AEA receives a pink slip at home by hand delivery from the superintendent that had been approved by the board. Question 3 3. Can AEA refuse to move to the 2 nd grade class? Answer 3 3. No. Non-tenured teachers can be transferred at-will. Question 4 4.Can AEA challenge her non-renewal? Answer 4 4. No. As long as a non- tenured teacher receives written notice by the last working day of the school year, even after working hours, their non-renewal is valid. A non-renewal can only be challenged if it is for personal, political, or constitutionally impermissible reasons. Year 3 With a change in superintendents, AEA is rehired for her third year at the end of November. Everything is great: good evaluations, principal loves her, recommends her for tenure. Superintendent finds out that AEA is pregnant, but isn’t married, which goes against his religious beliefs. He tells this to AEA and says this is why he recommends her for non-renewal. The board votes to concur. When the bell rings on the last working day of the school year, the principal “forgets” to hand her the non-renewal notice. AEA went straight from school to the airport, but the superintendent left a pink slip in her mail box at home at 7pm that night. The superintendent tells AEA that she can come back if she agrees to remain probationary one more year. Question 5 5. If the superintendent recommended and the board voted to non-renew AEA, does she have a job for next year? If so, does she have tenure? Answer 5 5. Yes. Because she did not receive written notice, regardless of whose fault it was, she was re-employed for the next school year. Delivery at home does not apply except for certified delivery She is now tenured because she was renewed for her 4th consecutive year in the system. Question 6 6. What effect does the fact that she was not re- hired at the start of the year have on her tenure status? Answer 6 6. None. Partial years count toward tenure. Question 7 7. What effect does the superintendent’s reason have on anything? Answer 7 7. If she had been timely given notice, she could have challenged her non-renewal as a personal reason of the superintendent. AEA also supported litigation 20+ years ago which held that pregnancy was not a valid reason to terminate a teacher. Question 8 8. Can AEA agree to return as probationary? Answer 8 8. No. The courts have held that a teacher cannot waive her right to obtain tenure by continuing to remain probationary after 3 consecutive years. Year 4 AEA starts her new life as a tenured teacher but she is still not placed on the salary schedule as a 4th-year teacher. Her checks for September, October, and November are the same as last year. Question 9 9. Should AEA’s pay have gone up at the start of the year? Answer 9 9. No. Salary and tenure are independent of each other. Salary is based upon years of experience in public education and highest degree earned. Years are calculated by months of service. Thus, AEA has to wait until she works the first three months of Year 4. Year 5 On June 30, AEA signs for a certified letter from the board. It tells her that for Year 6, she will be teaching 3rd grade at Forrest Gump Elementary. Question 10 10. What rights does AEA have regarding her new proposed assignment? Answer 10 10. Now that AEA is a tenured teacher, she can contest a transfer. A transfer is a change of “position, grade, or school.” A tenured teacher has a right to a hearing in front of the board and an appeal of the board’s decision to a hearing officer on the record of the board hearing. Year 6 AEA hates it at FGES. She decides at Thanksgiving that she has had enough and notice that she is leaving to go to the Maycomb City Schools to fill a vacancy for 2nd semester at Maycomb Elementary. Question 11 11. Can AEA go to Maycomb? If not, why not? If she does, what can happen? Answer 11 11. She can, but she risks her teaching certificate if she does. If a teacher resigns during the school year or less than 45 days before students return for the next school year, without a release from the board, she is guilty of “unprofessional conduct.” The local superintendent can ask the State Superintendent to take action against the teacher’s certificate, up to and including revocation. Bonus Question Bonus question: Who else lives in Maycomb, AL? Bonus Answer Year 7 While she had to stick out Year 6, she timely notified Greenbow that she was leaving at start teaching in Maycomb for Year 7. Question 12 12.Is AEA tenured in Maycomb City? Answer 12 12. No. Tenure is specific to a school system. AEA has to work 3 years and be renewed for a 4th to get tenure in Maycomb. Question 13 13. How should AEA be paid? Answer 13 13. Once she gets to the right number of months, she’ll be paid as a 4th year teacher. Remember salary has nothing to do with tenure. Year 8 AEA found the grass was not greener and jumped at the chance to return home to Greenbow Elementary. She also got certified as a counselor, but was rehired as a teacher. Question 14 14. Since she came back to a system where she had tenure, does AEA have tenure now in Greenbow? Answer 14 14. No. Once AEA resigned, she gave up her tenure. While she’ll be paid for 5 years of service, she will be in her first year of the tenure track. Years 9 & 10 After Year 8, AEA accepts a position as counselor at Greenbow Elementary, and stays there for Year 9. After year 9, AEA is hired as a counselor at Greenbow High School for Year 10. Year 11 On August 1 of Year 11, the superintendent tells AEA that she will have to go back to the classroom for Year 11. Disgusted, AEA submits a letter of resignation to the superintendent. After speaking with her UniServ Director, she rushes back to hand him a letter saying she takes it back and the board members are walking into the central office for a called board meeting. Question 15 15. What is AEA’s status at the end of Year 10? Answer 15 15. She is a tenured counselor. She has been back 3 years and been renewed for a 4th. For tenure purposes, teacher, counselor, librarian, and all other non-supervisor certified jobs are on the same level. Question 16 16. What can AEA do about the proposal to send her back to the classroom at the start of Year 11? Answer 16 16.She can object and refuse to go. A tenured teacher cannot be transferred in the middle of a school year.* * Except for emergency transfers 15 days before to 15 days after the first day of school. Question 17 17. Can AEA take back her letter of resignation? Answer 17 17. Yes. A teacher can rescind a letter of resignation up until the board votes to accept it, unlike an ESP. Year 12 AEA has another new principal. They get along like fire and gasoline. Principal tells AEA that she is going to go back to the classroom. AEA refuses in rather strong language. The new principal and the superintendent went to school together, so the superintendent sends AEA a certified letter informing her that she is proposing her termination for insubordination. Question 18 18. What happens now? Answer 18 18. AEA contacts her UniServ Director, completes a PR&R form, submits it to Dr. Reed, an attorney is assigned, and we go through the termination process. How does the termination process start? The superintendent sends a notice to the teacher and to the school board stating that he or she recommends that the teacher be fired. The teacher has the right, but not the obligation, to have an informal conference with the school board before it votes on the recommendation, if the teacher makes a request within 15 days of her receipt of the notice. What happens at the conference? The conference is designed to be an informal opportunity for a teacher to present her side of the story to the board before it takes action. That is why in most cases AEA assigns UniServ Directors to assist at the conference. However, some school board’s treat it as a formal hearing. In those systems, we usually advise members not to appear. In very few cases is it advisable for a member to appear at a conference. What happens after the conference? If the board votes to uphold the superintendent’s recommendation, a notice will be sent to the teacher within 5 days. The teacher then has 15 days to demand a hearing with the hearing officer. If a teacher does not timely demand a hearing, the termination is final. Who hears an appeal? The parties can mutually agree on someone to hear the case. If not, a hearing officer from the Federal Mediation and Conciliation Service (FMCS) is selected. Who is FMCS? The Federal Mediation and Conciliation Service is a federal agency whose role is to supply arbitrators in labor and employment cases. Under the Teacher Tenure Act, hearing officers for tenure cases come from FMCS region 6, which includes Alabama, Florida, Georgia, Mississippi, Tennessee, and the Carolinas. How is a hearing officer selected? After a teacher files a demand for a hearing, the board lawyer sends a request for a panel to FMCS. FMCS sends an identical list of 7 arbitrators to the board lawyer and the teacher’s lawyer. Each side ranks the 7 names in order of preference. The arbitrator with the highest average rank is the hearing officer. What is the hearing process? The hearing officer sets a date, between 30 and 60 days of her appointment, for the hearing. If the parties cannot agree on a location, it is held somewhere in the school district selected by the hearing officer. Each party must give the other a list of witnesses it intends to call and a copy of all documents it intends to use at the hearing. How is the hearing conducted? Both sides can subpoena witnesses or documents, just like in court. The hearing officer swears in witnesses. A court reporter is present to transcribe the hearing. The hearing officer has authority to rule on what evidence is admissible. The hearing officer is to give no weight to the board’s decision. What happens after the hearing? The hearing officer will receive a copy of the transcript from the court reporter. Often, a hearing officer will allow the parties to file post-hearing briefs. The hearing officer’s decision is due within 30 days of the conclusion of the hearing, which most hearing officers define as the date the briefs are due. What authority does a hearing officer have? Unlike the old Tenure Commission, the hearing officer conducts a “de novo” hearing. That means she can uphold the termination, reverse it entirely, or order some intermediate punishment, such as a suspension without pay. Can a hearing officer’s decision be appealed? Yes, but appeals are almost never filed. The Court of Civil Appeals has the right to decline to even hear the appeal, which is what usually happens. If the court agrees to hear the appeal, it cannot overturn the hearing officer’s decision unless it finds the ruling “arbitrary and capricious.” Even then, the only power the court has is to remand the case for a new hearing before a new hearing officer. Appeals beyond Civil Appeals The Court of Civil Appeals has overturned two arbitration decisions in favor of teachers. The Alabama Supreme Court has reversed that decision in the first case, reinstating the order of the hearing officer. The other case is still pending before the Alabama Supreme Court. Year 13 During the first week of school, a 2nd grade teacher leaves. Determined to get AEA back in the classroom, AEA receives a notice that she has been “emergency transferred” to the position. However, there are non-tenured teachers and tenured teachers with much less years of service than her. Question 19 19. Can AEA contest this action? Answer 19 19. Yes. A tenured teacher can contest an emergency transfer on the grounds that it was not performed in compliance with the law. The hearing if before the board and the burden of proof is on the board to show that it complied with the law and that there was no way to anticipate the emergency. Question 20 20. Does she have to go immediately or can she hold her ground? Answer 20 20. It is effective immediately and AEA must report to the new job while she contests it. Question 21 21. Does it matter that there are other teachers who could fill the vacancy? Answer 21 21. Yes. For an emergency transfer to be upheld, the system must ask for volunteers for 5 days. If there are no volunteers, they must try to find a certified non-tenured teachers. If there are none of those, certified tenured teachers are rank ordered by seniority and the least senior is subject to emergency transfer. Year 14 AEA and her colleagues get involved in the election and a GCEA member is elected superintendent. The new superintendent convinces the principal at GCES that it’s time to retire. The old assistant principal is promoted and AEA, who has received her administrative certification, is hired as assistant principal. At the end of the year, due to a RIF, all locally funded assistant principal units are eliminated, including AEA’s, and she receives a pink slip. Questions 22. Can AEA contest the non-renewal? Answer 22 22. No. She is not yet tenured as a supervisor. Question 23 23. If not, where does she go? Answer 23 23. She returns to the last position in which she held tenure, counselor at GCHS, unless she is given due process for a transfer or consents to a new assignment. Years 15 & 16 The RIF wasn’t as bad as everyone thought, and AEA was rehired as an assistant principal. However, at the end of Year 15, AEA receives a pink slip due to another loss of funds. Question 24 24. Can AEA contest this non-renewal? Answer 24 24. Yes, because at the end of the year AEA is a tenured supervisor and cannot be “non-renewed.” If a tenured teacher is promoted to supervisor in their school system, they receive tenure if they complete their 3rd year. They don’t have to be renewed for the 4th. Year 17 AEA is hired as a contract principal. She signs a 2-year contract. She is not evaluated her first year, but receives a notice of non-renewal. Question 25 25. What are AEA’s rights? Answer 25 25. She can contest the non- renewal because it is in the middle of her contract. If a school system gives a probationary contract principal a 2-year contract, they cannot non-renew it in the middle. Question 26 26. Does the failure to evaluate her mean anything? Answer 26 26. No. Failure to evaluate a probationary principal does not give the principal any rights. However, after the probationary contract, a failure to evaluate a principal results in a one-year extension of her/his contract. Year 18 AEA finishes her second year as principal. At the end of the year, the superintendent only offers her a one year extension. She completes her contract without signing the extension and the board refuses to approve the superintendent’s recommendation to non-renew her. Question 27 27. What is AEA’s status for next year? Answer 27 27. AEA is under a 3-year contract. If a principal’s contract is not non- renewed by action of the superintendent and board, the contract renews for a minimum 3-year term. After the probationary period, a principal’s contract must be non- renewed 90 days in advance. Years 19, 20, & 21 AEA completes her term as contract principal. At the end of Year 20, she is notified that she is being non-renewed for failure to make AYP in Year 20 because one student was one question short of “proficient.” Questions 28 28. What are AEA’s rights in this situation? Answer 28 28. Because AEA has completed her probationary period, she can contest the non-renewal of her contract. The burden is on her to show that the contract is being non-renewed for personal/political reasons. The case will be heard by a circuit judge or his/her designee within 45 days. Question 29 29. If she is not retained as a contract principal, where does she go? Answer 29 29. She returns to her last tenured position, assistant principal. Years 22 - 25 AEA is fed up and decides to run for superintendent. She is elected in a landslide, with help from GCEA. She serves well, but she make some politically-powerful people mad in doing so and narrowly loses her re- election campaign. Question 30 30. What happens to AEA at the end of her term as superintendent? Answer 30 30. You do not lose your tenure by being elected superintendent. Therefore, she returns to her last tenured position, assistant principal. Years 26 & 27 AEA decides that she wants to take a sabbatical to France to teach English and asks for a leave of absence for Year 25. She board grants her request. From France, she asks for an extension into Year 26 and it is granted. Question 31 31. What is AEA’s tenure status at the end of Year 26? Answer 31 31. She remains a tenured assistant principal. However, she has exhausted her limit for consecutive leaves of absence without impacting her tenure. Year 28 Refreshed and rejuvenated, AEA returns as an assistant principal for Year 28. With 25 years of service and being over age 55, AEA enters DROP after Year 28. Question 32 32. What effect does her DROP status have on her tenure in the system? Answer 32 32. None. DROP is separate from tenure. Years 29 - 31 After 3 years, AEA ends her DROP and retires. After 3 months at home, she is bored to tears and decides to use her new certification in French to teach one class a day. Greenbow County welcomes her back to teach a new elective. Question 33 33. Is AEA tenured? Answer 33 33. No. She gave up her tenure when she retired. Question 34 34. How should she be paid? Answer 34 34. She should be paid 1/6 of what her salary would be on the teacher salary schedule based upon years of experience and degree. Question 35 35. What effect does this have on her retirement? Answer 35 35. So long as she stays below the ±$21,000 earning limit, it will have none. Epilogue After teaching for a few more years, AEA becomes a recruiter for AEA. When she talks with members, she gives them 3 simple rules to guide their career. What are they? AEA Don’ts List 1. DON’T RESIGN! 2. DON’T SIGN ANYTHING! 3. WE MEAN IT; DON’T RESIGN OR SIGN ANYTHING!