The Employment Relationship

William Allan Kritsonis, PhD

DUE PROCESS HOW MUCH PROCESS IS DUE?

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.

How Much Process Is Due?•As for the level of formality of due process in a typical

employee termination case, the essentials are:3.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;4.Be advised of the names and the nature of the testimony of witnessed against him/her;5.At a reasonable time after such advice, be given a meaningful opportunity to be heard in his or her own defense; and6.Be given an opportunity for a hearing before a tribunal that both possesses some academic expertise and has an apparent impartiality

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

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.

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.

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.

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

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

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

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.

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

Requires that all teacher be hired on a high qualified status.

2005-2006 schools requirements for NCLB applied to all school receiving NCLB fund.

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

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.

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

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.

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

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

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 employer’s action

illegal

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

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 Board’s decision is final and may not be appealed

Does not prevent teacher from filing suit alleging a wrongful discharge

Contract can be non-renewed even with the superintendent’s recommendation

Immediate termination rather than waiting District must provide teacher with formal due

process Must demonstrate good reason for ending

relationship early

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

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

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 teacher’s evaluation prior to any decision not to renew

Board must consider the most recent evaluations before making a decision not to renew a teacher’s contract if the evaluations are relevant to the reason for the board’s action

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 district’s funding for the next school year

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

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

relationship

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

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 employee’s working conditions “intolerable?” Was there “illegal conduct” on the part of the

employer?

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

William Allan Kritsonis, PhDWilliam Allan Kritsonis, PhDProfessorProfessor

PhD Program in Educational LeadershipPhD Program in Educational LeadershipWhitlowe R. Green College of EducationWhitlowe R. Green College of Education

Prairie View A&M UniversityPrairie View A&M UniversityMember of the Texas A&M University SystemMember of the Texas A&M University System

Prairie View, Texas 77446Prairie View, Texas 77446