By Kevin Lungwitz
Administrators are often asked to give a good reference for an employee. Maybe the employee is excellent, and you have no reservations. Maybe the employee is marginal, or worse, the employee is being pushed out, but a good reference will expedite the departure. Or—brace for a plot twist—maybe the employee is you, and the administrator is your boss! Two things are certain: 1. References from immediate supervisors are the gold standard; and 2. References are only as good as the willingness to give them. What are some of the considerations at play in these scenarios?
Employee Leaving Under Normal Circumstances
If the employee’s record is clean, has not been asked to leave or is not under any cloud of suspicion for wrongful conduct, the path is pretty straightforward. You are free to give (or not to give) a truthful, deserving reference. There is no law or rule that obligates giving the reference. This is within the supervisor’s discretion. If you feel moved to give a good reference, go for it.
What About the Marginal Employee?
Let us assume the employee is not under suspicion of wrongdoing, but is marginal. Maybe the employee is a decent performer, good with students, but doesn’t play well with other grown-ups. Now the employee wants to leave and seeks a good reference to make their great escape. If you are the supervisor, what do you do?
This could be your opportunity to send this employee to greener pastures. Teachers and principals are complex beings doing difficult jobs. Sometimes the chemistry doesn’t mix or the environment is off, and a change can make a big difference. Just because an employee is marginal here does not mean the employee won’t be successful elsewhere. You are free to give (or not give) the honest reference you think will allow this employee to flourish in a new setting. Educator appraisals are confidential to the general public, but can be legally shared with a prospective school district. Still, it is recommended to get the employee’s permission before releasing evaluations.
What About the Employee Who is Asked to Resign? What Will that Reference Look Like?
Often, cases where the employee is being pushed out will involve lawyers and negotiations. When an employee is asked to resign—or else be nonrenewed or terminated—the employee will often want a reference in exchange for the resignation. As above, if the employee has a history of marginal performance with no allegations of wrongdoing, maybe the employee can persuade a supervisor for a good reference. Maybe an administrator’s carefully worded, but honest reference, is a better alternative to a protracted and risky dismissal hearing. (By the way, you should never be directed by your supervisor to give an employee a reference you cannot support, even in a legal case.)
But, if the district has strong evidence of misconduct, and thus a strong chance of winning a dismissal hearing, the chances shrink that the district or any administrator will provide a good reference. In other words, the reference will depend on many things, including the allegations, the leverage of the school district and the employee, and the willingness of a supervisor to give one.
The Dreaded Negotiated Reference
For years, employees and school districts negotiated references to be included in the multipage, legalistic, resignation settlement agreement. These references were scripted by lawyers, to be read or fulfilled by the superintendent or HR or the principal; or the dreaded “neutral reference” usually given by HR usually including dates of employment, positions, last salary, and nothing else (aka “name, rank and serial number”).
As a lawyer for employees, I have concluded that the negotiated and neutral references generally stink. Recall the two certain things about references: 1. They are best when given by an immediate supervisor; and 2. They are best when given from the heart. There is no good way to enforce an administrator’s sincerity in reading a script: Superintendent: “Excuse me a second while I grab this script my lawyer said I have to read.” Nor do I believe a neutral reference is anything but a clanging, three-alarm fire bell that signals something terrible went wrong with the employee’s departure.
In recent years I have become a fan of leaving lawyers out of the reference business. The settlement agreement may command the district to officially give a neutral reference, ostensibly preventing an overtly bad reference. The employee is also free to seek a good reference from any district employee, and the district will not thwart that effort, nor is the district responsible for that reference. In other words, the employee sinks or swims on their relationships and job history. If the employee is successful, the reference will be meaningful. If the employee is not successful, the legally negotiated reference wasn’t going to work, might not be enforceable, and would do more harm than good
Can I Be Sued for Giving a Bad Reference?
Professional educators have immunity from lawsuits when they act within their scope of duties and use professional judgment or discretion.1 One could argue that giving references is within a supervisor’s scope of duties, and doing so involves judgment and discretion. If your critique is honest and truthful, and not malicious, you are likely immune from suit.
In one case, a teacher sued the superintendent for defamation for comments made to the press regarding the reasons for the teacher’s resignation. This occurred one day after the board approved a settlement agreement with the teacher that prohibited negative comments. The only issue was whether the superintendent’s conduct was discretionary. The teacher argued that the settlement agreement stripped the superintendent of his discretion, but the superintendent countered that interpreting the agreement required his use of discretion. The court agreed.2
When Things Go Terribly Wrong
To prevent a school district from hiding evidence about educator wrong-doing and passing a bad employee off to another school district, a campus principal has a legal duty to notify the superintendent when the principal knows:
- An educator who has a criminal record not reflected in the school district’s criminal background check.
- An educator who violated test security laws or TEA regulations.
- An educator who resigned or was terminated and there is evidence that the educator:
a. Committed an unlawful act with a student or minor;
b. Had or solicited a romantic relationship or sexual act with a student or minor;
c. Possessed or sold illegal drugs and/or controlled substances;
d. Misappropriated or illegally spent school money or property;
e. Committed educator certificate fraud;
f. Committed any crime on school property or at a school-sponsored event.3
The notification should be in writing or by email within seven business days of the principal’s knowledge. Then, the superintendent has a seven-day duty to report the educator to TEA. If a principal or superintendent fails to timely notify or report, TEA/SBEC may assess a $500 to $10,000 fine. Also, the principal and superintendent may be charged with a felony if either one acted with “intent to conceal.”
If the employee’s conduct triggers your notification requirements, and you still give a reference, it would be wise to point out the good and the bad or questionable, perhaps even pointing out the TEA report, so that you are not accused of sugar-coating allegedly unlawful conduct.
Whether you are on the giving or receiving end, the best references are from immediate supervisors and are given from the heart.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
1Tex. Educ. Code §22.0511.
2Deaver v. Bridges, 47 S.W.3d 549 (Tex. App. – San Antonio 2000, no pet.).
3For brevity, these are paraphrased. Consult Tex. Educ. Code Sec. 21.006. Also see Lungwitz, Kevin, “Serious New Notification Requirements for Campus Principals,” TEPSA News, August 2017.
TEPSA News, March/April 2022, Vol 79, No 2
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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.
