By Kevin Lungwitz
There are different ways to dismiss an employee. If the professional educator, such as a teacher, assistant principal, or principal, has a term contract, a nonrenewal is a tactic that has been around since the early 1980s. It is astonishing, however, that many seasoned education professionals do not grasp the basics of nonrenewals. Unless you regularly deal with nonrenewals—and no one in Texas education really does—you might not experience one often, if at all. Therefore, nonrenewals remain a mystery for teachers, administrators, and even human resources professionals.
How is a Nonrenewal Different from a Termination?
Termination: Used when the employee has allegedly done something so wrong that dismissal cannot wait until the end of the contract. It can happen at any time, to any school employee who holds any of the three Texas Education Code Chapter 21 contracts—probationary, term or continuing.1
Nonrenewal: Only occurs at the end of a term contract. Read that again.
Termination: Full due process applies. An employee is entitled to a hearing, to pre-trial discovery of evidence, to subpoena documents and witnesses, to put on evidence and cross-examine witnesses, and—importantly—to be heard by an impartial hearing examiner.
Nonrenewal: Quasi due process applies. The employee is entitled to some pre-trial evidence and a school board hearing at which the employee may cross-examine witnesses and put on evidence. There is no subpoena power. In most nonrenewal cases, the school board is the judge and jury.
Termination: More of a legal process. A hearing examiner applies the Texas rules of court and evidence.
Nonrenewal: More of a political process. The formal rules of court and evidence do not apply, and school board members make the decisions.
Termination: Can take anywhere from three to four months to complete and is expensive. After about Thanksgiving, a nonrenewal is a less expensive alternative for the district.
Nonrenewal: Can take anywhere from one to three months to complete and is not as expensive.
A Fluke with Probationary Contracts
A probationary contract is as good as any other contract, except when it comes to the end of the contract term. And that’s pretty important. A term contract employee is entitled to written notice of a proposed nonrenewal at least 10 days before the last day of instruction, after which the employee may request a nonrenewal hearing.
If the district does not want the probationary contract employee to return next school year, the employee is entitled to written notice of final termination at least 10 days before the last day of instruction. The employee is not entitled to a formal hearing.
Wait a minute. Didn’t we establish earlier that contract terminations occur when the district can’t wait until the end of the contract? And that all Chapter 21 contract employees are entitled to a due process hearing? Yes, we did, and we stand by that. What is described here is really a probationary contract nonrenewal at the end of the contract, but the law incorrectly calls it a termination. The nomenclature is skewed, but we must accept it and move on. Bottom line: Probationary contracts have far less protection than term contracts at the end of the contract term.
Campus Administrators are Responsible for Nonrenewals
Another difference between terminations and nonrenewals is that campus administrators are often the district’s star witnesses in a nonrenewal. Why? Because nonrenewals are usually used to dismiss marginally performing employees, and the burden to prove that rests squarely on the shoulders of campus administration. If you are going to recommend contract nonrenewal of a teacher, is your documentation in order?
How Much Documentation is Needed to Nonrenew?
The law doesn’t say. No one will ever weigh or measure a stack of memos to determine whether it is sufficient. There is not a required minimum number of reprimands, emails, growth plans or bad evaluations. But it certainly requires some documentation. It is the quality of documentation that matters most. Good documentation speaks for itself. It need not exaggerate, sound angry or threaten dismissal, and if it does, the documentation could backfire. If improvement does not occur, appropriate conclusions may be drawn from sound documentation. Said another way, documentation that shows you attempted to foster employee improvement is more valuable than a heavy stack of angry-sounding memos.
In most nonrenewal hearings, the school board sits as judge and jury. You need enough documentation to demonstrate the administration’s efforts to help the employee, and that you were not merely on the warpath of nonrenewal. You will need to convincingly testify to the board that you gave the employee fair opportunities to grow, but improvement was not noted. If you can do that, and if you have four votes on the board, you have enough documentation.
A Nonrenewal is Never a Surprise
Since the number one goal of employee evaluations is to encourage employee growth, there can be no secrets. It is incumbent upon you to give your employees feedback in almost real time. In T-TESS districts, you must share any documentation that will affect the evaluation within 10 days of your receipt. Staff evaluations are a poker game that you play with your cards facing up. Think of your documentation as breadcrumbs on a path that forks into improvement in one direction or nonrenewal in the other. This is why a nonrenewal is never a surprise. When given a fair opportunity to do so, and when the breadcrumbs have been fairly revealed, most employees will resign instead of risking a nonrenewal. Which probably explains why so many educators have never encountered the underbelly of the nonrenewal process, but in case you must, now you know.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
1This article is limited to professional contract employees. The termination rules for at-will employees are different and less burdensome on the employer.
TEPSA News, January/February 2024, Vol 81, No 1
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