By Kevin Lungwitz
Dismissal is an unpleasant process for the educator on the receiving end. It can also be taxing on the administrator leading the charge. In order to know the dos and don’ts, it is important to understand the basic distinctions between the different educator contracts in Texas as the dismissal burden can be different for each type of contract.
What are the types of educator contracts in Texas?
Why do I hear these contracts referred to as “Chapter 21 Contracts”?
There are three kinds of contracts: Probationary, Term and Continuing. Chapter 21 of the Texas Education Code governs educator contracts. A section of Chapter 21, Texas Education Code §21.002(a), says “A school district shall employ each classroom teacher, principal, librarian, nurse, or school counselor” under a contract. Chapter 21 provides contractual protections such as due process termination hearings, and quasi-due-process nonrenewal hearings.
What is the difference between terminations and nonrenewals?
Terminations: When we say “termination,” we usually mean “mid-contract” termination meaning the employee has done something that warrants termination before the end of the contract. In this instance, the same constitutional due process applies to all mid-contract terminations no matter which of the three contracts, because the school district is seeking to break an existing contractual agreement. This means the employee has the right to receive written notice of the reasons for termination and the right to challenge the reasons in a hearing usually heard by an independent hearing examiner.1 The employee has the right to discover evidence, subpoena witnesses and cross-examine witnesses. The administration has an elevated burden to prove “good cause” for termination.
Nonrenewals: Nonrenewals only arise at the end of a term contract. Nonrenewals most likely provide the bulk of all dismissal cases, because nonrenewals are generally easier on school districts. Courts have repeatedly said constitutional due process does not apply to nonrenewals, though what applies is something akin to statutory, quasi due process. The employee is still entitled to written notice of the reasons and the right to challenge those reasons, but the hearing is usually before the school board, as opposed to an independent hearing examiner.2 The administration only has the burden to prove a valid policy reason exists for nonrenewal, a low standard. In a school board nonrenewal setting, the employee has no right to the formal discovery of evidence, nor the right to subpoena witnesses. Recently, the commissioner of education and a court have said hearsay evidence may be used in a nonrenewal hearing.3
An oddity about continuing contracts: A continuing contract has no ending. Therefore, there is no such thing as a continuing contract non-renewal. The only way a continuing contract comes to an end is when the employee resigns, retires or is lawfully terminated.
An oddity about probationary contracts: As stated above, an educator with a probationary contract has full due process rights in a mid-contract termination just like a term or continuing contract educator. The weakness of the probationary contract comes at the end of the contract. The probationary contract employee is not entitled to a nonrenewal hearing. The employee is only entitled to receive a letter at least 10 days before the last day of instruction that the board has “terminated” the contract at the end of the term. State law errantly calls this a “termination” which can be confusing.
1. Document. If it is an incompetency case, the campus administrator is solely responsible for documentation in accordance with evaluation laws, rules and policies. If it is a one-bad-act case, documentation is still important, though HR may also be involved. How much documentation? No law or court case has specifically said, so focus on having enough to persuade the school board in a nonrenewal hearing or an independent hearing examiner in a termination case. Those fact finders will want to know if you were fair with the employee, and in an incompetency case, whether you provided ample opportunity to improve. If you haven’t properly documented, the employee’s lawyer will certainly exploit this.
2. Work with HR, the school attorney and your supervisor. These cases are often fraught with interesting technicalities. Look above your pay grade for assurance and guidance. Make sure your supervisor knows what is going on as soon as you think dismissal may be in the cards.
3. Know your audience. Is this a nonrenewal, which is more political than legal? Is this a termination, which is more of a legal event than political? Convincing your school board with hearsay evidence may be easier than convincing an independent hearing examiner who will apply the rules of evidence used in court. Either way, be prepared to look the board or the examiner in the eye and tell them why you believe the employee should be dismissed. If you can’t do this, you and the district should rethink its position.
4. Be respectful and professional. This is business. It is your job to professionally facilitate a dismissal when that time comes. Be respectful of the employee who may be emotional. If you sound angry, it could harm your case. If you have the facts, the facts will speak more clearly if you articulate them in a dignified and respectful way.
5. Give the employee a reasonable amount of time to consider resigning before you make your recommendation. A voluntary resignation is always better than a legal battle but don’t pressure or rush the employee.
6. Issue timely and accurate notice: Term contract nonrenewals and probationary end-of-contract “terminations” require written notice at least 10 days before the last day of instruction. A notice of proposed nonrenewal from the school board should give factual and policy reasons for the proposed action. There is no timeline for termination proposals since those could arise any time.
Don’t get too deeply sucked into the drama and don’t make it personal. Stay calm. Administrators who get sucked into drama might be prone to exaggerate. Never use exclamation marks on your documentation! And especially never use two!! Be candid with the employee in pre-dismissal meetings and never sugar-coat or exaggerate things. One exaggerated fact in your documentation or in your testimony can destroy your credibility. It’s better to lose a case by telling the truth and being respectful than the alternatives.
Kevin Lungwitz is TEPSA’s Outside General Counsel.
1This paper addresses routine nonrenewal and termination proceedings. Hybridized proceedings have crept into state law over the past few years especially regarding “financial exigency” terminations. This paper will not cover those. See Tex. Educ. Code Sec. 21.251 and Sec. 44.011.
2By policy, a school board can opt to have its nonrenewals heard by a hearing examiner and several of the larger school districts in Texas do. In these cases, the hearing examiner process kicks in and due process applies.
3Vasquez v. Los Fresnos Consol. Indep. Sch. Dist., Docket No. 062-R1-07-2013 (Comm’r Educ. 2013); affirmed on appeal, Los Fresnos Consol. Indep. Sch. Dist. v Vasquez, 481 S.W. 3d 742 (Tex. App. – Austin 2015, pet. denied)
TEPSA News, November/December 2018, Vol 75, No 6
Note: Information from Legal Ease is believed to be correct upon publication, but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.
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