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A recent decision by the Commissioner of Education has implications for schools all across the state dealing with financial exigency, program changes, and the reductions in force (RIF) they may necessitate.

The case, Butler v. Buna ISD, featured a long-time P.E. teacher (Belinda Kay Butler) who’d had her term contract nonrenewed when the Buna Independent School District imposed a program change affecting the physical education department. Much of Butler’s argument hinged on her perception that the program change was unnecessary and that the decision was predetermined.

Writing for the Commissioner, Administrative Law Judge Christopher Maska dismissed Butler’s claims, finding, among other things, that Buna ISD adhered correctly to its own local policy governing program changes, agreed with the school district that Butler had failed to “exhaust administrative remedies” at the local level, asserted that “an employment area may be populated by one person,” and ruled that a school district undergoing a RIF is under no obligation to terminate probationary contracts prior to long-term contracts.

Arguing before Maska on behalf of Buna ISD was Haley Turner, an associate attorney with Austin’s Walsh, Anderson, Gallegos, Green and Treviño. She articulated  the difference between reductions in force (RIF) based on program changes versus those based on financial exigency. “The primary distinction…is the circumstance in which they may be used,” she said, going on to explain that financial exigency RIFs have lately become a little harder to pull off, while one “based on the implementation of a program change is limited only by the district’s RIF policy. Any change or elimination of a program, department, or other specific area of operation may justify a RIF based on any legitimate justification and without regard for whether the program change is ‘necessary’. [It provides] a district with more flexibility to restructure existing programs and departments.”

According to Turner, with the passing of Senate Bill 8, RIFs based on financial exigency have become considerably more complex. “The commissioner passed emergency rules detailing specific circumstances in which a district’s financial condition may constitute a financial exigency. Circumstances not listed must be approved in writing by the Commissioner prior to district action. Given these new limitations, many districts may choose to conduct a program change RIF, [which] remains a matter of local discretion and does not require the Commissioner’s approval or involvement.”

For those school districts contemplating reducing personnel through program changes, Turner has specific advice: “Have a plan. A short, written plan with an outline of the recommended program change should be provided to the board for consideration prior to any official action to declare the need for a program change or RIF, including the reason for the change, how it will be accomplished, how many positions will be eliminated, and the anticipated end product of the change.”

She also urges her clients to consult the Campus Site-Based Decision Making Committee (SBDMC) before making any decisions. “Occasionally employees challenge a RIF based on a district’s failure to involve the Campus SBDMC. If a program change is considered at the campus level, seeking [their] input—and other school or community groups—at the beginning stages of the process may negate any argument that the district’s failure to involve the Campus SBDMC affects the validity of the RIF.”