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Teacher Tenure Act - Slideshow


									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

   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
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
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

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
    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
   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
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
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
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
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
 If not, why not?
 If she does, what can
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
Bonus Question

Bonus   question: Who
 else lives in Maycomb,
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
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
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
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

   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

   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
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
 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
         What happens at the
   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
   In very few cases is it advisable for a
    member to appear at a conference.
What happens after the
 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
 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
    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
 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
   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
   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
 The hearing officer will receive a copy
  of the transcript from the court
 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”
   That means she can uphold
    the termination, reverse it
    entirely, or order some
    intermediate punishment,
    such as a suspension without
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
 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

   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
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
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
   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.

 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
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
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
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

   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

   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

   From France, she asks
    for an extension into
    Year 26 and it is
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
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
Question 34

 34. How should she be
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
Answer 35

 35. So long as she
 stays below the
 ±$21,000 earning limit, it
 will have none.

   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!



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