By Kevin Lungwitz
Perhaps you’ve done all you can do where you are. Maybe you’re tired of the scenery, and the scenery is tired of you. Spring has sprung, and maybe you are soon to follow. If you have been wondering if the grass is greener in another school district, here are a few pointers on making the big transition.
The Penalty-Free Resignation Date is Key
There aren’t many places in Texas school employment where employees might have the upper hand, but the penalty-free resignation date might be such a place. When you sign your contract in the spring for the following school year, the district is immediately bound. But you can wiggle out of the contract, penalty-free, until the 45th day before the first day of instruction of the following school year (the penalty-free date). This is usually in the neighborhood of July 4.
Every professional school employee with a contract protected by Chapter 21 of the Texas Education Code may resign by doing so in writing before the penalty-free date. Chapter 21 says, “A written resignation mailed by prepaid certified or registered mail to a board president or a board’s designee at the post office address of the district is considered filed at the time of mailing.” But, you don’t have to mail it. You might hand-deliver it. You might email it. Look at your district’s policy DFE (legal) and (local) to learn how to appropriately resign. Usually, the superintendent or HR may receive your written resignation. Just be able to prove they received it before the penalty-free date.
A fun fact about a written resignation tendered by the penalty-free date: There is no need for the district to formally accept it. Case law from the commissioner of education says that such a resignation is effective upon filing with the district. Beware: Once you tender it, there are no takebacks! Pointer: Don’t tender your resignation from District A until you have a new contract in your hand from District B.
What is Chapter 21?
Chapter 21 provides myriad contract protections, but employee contracts will look different from district to district. Don’t know whether you have a Chapter 21 contract? Find your contract and read the fine print. There are probably a few references to Chapter 21, though the absence of a Chapter 21 reference is not determinative. Some contracts may contain language like this: “This Contract will also terminate if you provide written notice of resignation before the penalty-free resignation date in Chapter 21.”
The Action Plan
Get a copy of your school district’s 2021-22 school calendar. Find the first day of student instruction. Count backwards 45 days and add an extra day for good measure. Mark this date on your personal calendar. This is your drop-dead, penalty-free resignation date. Now, hit the streets and try to find a better job way before that date.
What Happens After the Penalty-free Resignation Date?
Unlike the resignation tendered before the penalty-free date, here you will have to secure the district’s written permission/acceptance of the resignation. Consult policy DFE (legal) and (local) for the fine print. Again, usually the superintendent or HR can legally accept, but this can vary by district.
What is Contract Abandonment?
If you resign after the penalty-free date, and you do not get the district’s written acceptance, you could be accused of contract abandonment. Unless you can prove “good cause” for walking off of the job without acceptance, TEA/SBEC may penalize your educator certificates. TEA/SBEC may consider the following good cause factors:
- Serious illness or health condition of the educator or close family member of the educator;
- Relocation to a new city as a result of change in employer of the educator’s spouse or partner who resides with the educator; or
- Significant change in the educator’s family needs that requires the educator to relocate or to devote more time than allowed by current employment.1
If TEA/SBEC decides that contract abandonment occurred, TEA/SBEC may consider the following mitigating factors in determining punishment. The TEA may examine whether the educator:
- Gave written notice to school district 30 days or more in advance of the first day of instruction for which the educator will not be present;
- Assisted the district in finding a replacement to fill the position;
- Continued to work until the school district hired a replacement;
- Assisted in training the replacement;
- Showed good faith in communications and negotiations with the district; or
- Provided lesson plans for classes following educator’s resignation.2
Absent any of the good cause or mitigating factors from the lists above, TEA/SBEC will likely issue a mandatory, minimum one-year suspension of your certificates for contract abandonment.3
What If I Am Being Pushed Out?
Springtime is also the season when employees are asked to resign or be pushed out. If you have a term or continuing contract, you have due process or quasi-due-process rights to consider, and you should consult a lawyer before being pushed out. If you would prefer to resign, consider these Top Ten Pointers:
- Do not tender your written resignation until you have gotten what you can reasonably expect in return. Once you tender your resignation, the district will no longer negotiate.
- What is the “effective” date of the resignation? This is almost always different than the date you tender the resignation. Be clear.
- What will the school district say about you in an employment reference and who will say it? Note: A reference is only as good as the willingness of the person giving it.
- If there is an unfavorable evaluation or write-up, see if you can get the district to agree those will remain confidential and will not be disclosed to an inquiring, prospective employer.
- What will be the date and amount of your last paycheck? When will your benefits expire? Get this in writing from HR.
- Can you use available leave until the effective resignation date? Do you want to? What will this look like to the next prospective employer? There are pros and cons.
- Be sure to collect your belongings and turn in all district property by the effective resignation date or earlier, if requested. Leave your work products and all student and employee information behind. As a general rule, that belongs to the district, not to you.
- If it is your objective to retire, call TRS for information.
- Use your remaining time to salvage professional relationships, if possible. Those could come in handy down the road. Cooperate with reasonable requests of your employer so you can leave on a high note.
- Every case is different and no checklist can fully capture every issue. If you are threatened with dismissal (nonrenewal or termination), especially if you are given a resignation agreement to sign, you should speak to a lawyer.
Here’s hoping that your next resignation is completely on your terms, and that your next job is a perfect fit.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
1Title 19 Tex. Admin. Code Sec. 249.17(d)(1)
2Title 19 Tex. Admin. Code Sec. 249.17(d)(2)
3Title 19 Tex. Admin. Code Sec. 249.17(d)(3)
TEPSA News, May/June 2021, Vol 78, No 3
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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.
