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Whether you are a veteran district administrator  or new to school administration, it is imperative that you know the general standards that apply to Chapter 21 contract employees and keep up with changes in the law, so that you are prepared to protect your district and make smart personnel decisions.   In addition to legislative changes that occur, administrators need to keep abreast of the decisions handed down by the Texas Commissioner of Education  regarding  Chapter 21 rights and responsibilities. If you are a diligent reader of the Legal Digest, this article will serve as a reminder of some key cases which have been decided over the course of the past couple of years, and serve as a quick primer on what issues you need to be thinking about each spring when deciding what to do with your contract employees for the next year.

By the time you are reading  this article, it is likely that you are already well into the review of all your employees’ job performance over the course of the year and making tough employment decisions, including what staffing changes you believe you will need to make.   Part of that decision-making  is based on how your district believes your students can best be served next year, including the possibility of changing entire programs within the district.  Unfortunately, not all employees who are under contract have successful performance and so you need to make some decisions about their continued employment.  All of these issues will require you to know and apply different board policies that cover employee job determinations,  as well as assignments and reassignments.

As with any personnel decision, when you are looking at a possible change to an employee’s job status, the first thing you always must consider is what type of employment  relationship you have with that employee.  Do they hold a contract with the district?  If so, what type of contract?  Does the contract entitle the employee to a specific job?  The answers to these questions will have a direct impact on what actions you can take with the employee, as well as what process the employee is entitled to if you do decide to make some change.

 

How Do You Employ the Employee?

Before you make any personnel decisions, you should first figure out what rights the employee has and that question generally revolves around whether the employee holds a contract; and if so, what type of contract.  Generally, there are five employment “relationships” in the educational context: (1) at-will employees (there is no contract between the district and the employee); (2) non-certified contracts (an employment contract exists, but it is not subject to the rights provided in Chapter 21 of the Texas Educa- tion Code); (3) probationary contracts (pursuant to Chapter 21); (4) term contracts (pursuant to Chapter 21); and (5) continuing contracts (pursuant to Chapter 21).  Before you take any action regarding an employee’s job status, or potentially even their work assignment, you need to make certain you know what type of employment relationship the employee holds with the district.

 

Employment Relationships Outside of Texas Education Code, Chapter 21

 

At-will Employees

Other than your professional staff, usually most employees in your district are employed  on an at-will basis.   The default rule in Texas is that everyone is employed as an at-will employee unless there is a contract between the employee and the employer that changes the employment relationship.  The at-will employment  relationship  means that neither the employee  nor the district are bound to each other to continue working.   For at-will employees,  they can resign any time they desire when they no longer wish to work for the district.  Likewise, districts can also end the employment relationship at any time.

The main consideration  for the district when ending the employment of an at-will employee is making certain that they are not terminating the employee for some illegal reason.  When an employment decision is made based on an illegal motivation, the employee may well turn around and sue the district for the wrongful termination of their employment.  Illegal reasons include, but are not limited to: race, religious beliefs, gender, national origin, disability without considering  an accommodation  to allow them to work, retaliation against the employee for taking protected  leave, filing a grievance  or for reporting  a violation of law (whistleblower claim).  So long as the termination is not based on an illegal motivation,  the employee  has no process owed to them.  Be aware though that a terminated employee still can file a grievance and ultimately ask the board to weigh in on the decision to terminate them.  For these reasons, although not required by law, providing thorough documentation  concerning the reasons for the employment decision is recommended  even for at-will employee terminations.

 

Non-Certified Contract Employees

While the default employment relationship in Texas is that employees are employed on an at-will basis, every employer has the right to enter into a contract with an employee regarding the terms of employment.   Clearly the employee has to agree to the terms offered as well.  For these employees who are not required by law to hold an employment contract with Chapter 21 rights, a school district may choose to issue a Non-Certified Contract. As a general rule, these contracts are for one year and while they provide contractual rights during the term of the contract, they extinguish at the end of the contract term.  There is no action required by either party to end these contracts at the end of the contract term. Assuming the employment relationship continues to be to the desire of both the district and the employee, these non-certified contracts generally are issued each year at the same time Chapter 21 contracts are issued, but that timing choice is the district’s to make.

The important distinction between a non-certified contract and the contracts which are issued in compliance with Chapter 21 of the Texas Education  Code are the rights provided to the employee before the contract can be terminated.  A non-certified contract provides for a minimal amount of due process to end the contract during the term. Additionally, as discussed above, at the end of the term, the contract extinguishes and the employment relationship either ends or would change into an at-will employment relationship if no new contract is given. These contracts are governed by TASB policy DEC, which generally states that non- certified contracts are not governed by the provisions of Chapter 21 of the Texas Education Code, and do not provide a property interest in continued employment. Further, these contracts may be appealed only through the district’s DGBA grievance policy, as opposed to using Chapter 21 procedures, such as the formal termination or non-renewal hearing process.

Carefully check the termination provisions of a non-certified contract if you are considering ending the employment relationship in the middle or at the end of the term to be sure you have not provided rights beyond the standard language provided above. If you have, then you may need to comply with the terms of the contract. You should also contact your legal counsel to discuss your options prior to contract action and options for the next contract.


Employment Relationship Pursuant to Texas Education Code, Chapter 21

Chapter 21 of the Texas Education Code requires that all certified educators be provided employment under some specific terms.  Chapter 21 contracts are required for certified educators. Certified educators include principals, classroom teachers, counselors, diagnosticians, librarians and nurses (must be an RN).  In addition to the group that is required to hold Chapter 21 contracts, your board can provide additional employees Chapter 21 rights through policy.   If your district uses the TASB policy services, you need to check Policy DCB(Local) to see if any additional positions  have been given Chapter  21 protections.   Another way that your district can end up needing to provide Chapter 21 protections to an employee is if your job description for the position requires that the employee hold some form of certification issued by the State Board for Educator Certification (SBEC). For example, if you require that your district’s human resources officer also holds some SBEC certification to be qualified for the position, then you are making that position subject to Chapter 21 contract protection.   If you have not provided a Chapter 21 contract to these types of employees, before you take any type of employment  action, you should consult with your district’s legal counsel to determine the best approach to your situation.

 

Types of Chapter 21 Contracts

There are three different types of Chapter 21 contracts: probationary, term and continuing.  While each contract type provides  similar  general  contractual  rights  as def ined  by Chapter 21, each has a different way in which the contract can be ended by the district.

Probationary Contracts.  Probationary contracts are provided to employees who are new to a school district. Probationary contracts cover two different types of situations.  The first is for an employee who is new to the education realm.  If an employee has not worked in public education as an employee entitled to a Chapter 21 contract for five of the last eight school years, then that person is someone you can provide a probationary contract for up to three years.  Each probationary contract can only be issued for a one-year term. The district may extend the probationary period for a fourth consecutive school year if, during the third year, the board determines that it is “doubtful whether the teacher should be given a continuing or term contract.”  If an employee is new to your district, but they are an experienced  teacher, you have the right to offer them one full year of a probationary contract. This allows you the chance to review their job performance and make certain that the employee is a good fit.

When reviewing an employee’s prior experience to determine how many probationary contracts you can give, you make the determination  the first year only.   So, a teacher with four years of prior experience  still is eligible to receive three years of probationary contracts with you.  If the teacher left you, the next district would only get to give one year of a probationary contract because that teacher would have five out of eight years as a teacher.

Once the probationary  period for an employee  has ended, the district must end the probationary contract or the employee will be entitled to a term or continuing contract the next school year.  For a year to count, the employee must work for the district for the entire year.  Meaning, if an employee starts for your district at some point after the first day on which that type of employee reports for duty, the year they started working for your district is not a probationary year in the sense of the number of probationary  contracts they can receive.   [Note:   This “counting” of years is limited to the type of contract the employee is entitled to receive pursuant to Chapter 21, it is not the same as whether the year “counts” for purposes of calculating benefits under the Texas Retirement System (TRS) or for placement on the salary schedule.]

It is an important practice for districts to be aware of which teachers are in the last year of their probationary period so that you make a conscious decision about whether you wish to employ the teacher the next year under a contract other than a probationary contract.  The due process requirement to end a probationary contract versus ending a term or continuing contract is very different and while certainly not impossible to do, it is much more expensive and time consuming for both the administration  and for the board to end a term or continuing contract.

Term Contracts.   Most Chapter 21 contracts are term contracts.   There is nothing  in Chapter  21 that def ines how long of a term you can have for your term contracts.   From the legal perspective, the wisest choice of a term contract is to have it only one year in length.  The benefit to a one-year term contract is that it gives the District an easier way to evaluate and potentially end the employment relationship with the employee at the end of each school year.   Many districts  give teaching staff one-year contracts, while administrators are given two-year contracts.  There is no legal requirement to offer different terms, it is merely a choice made by each district generally related to administrative  stability.

Continuing Contracts.   There was a time when many districts issued continuing  contracts.   While it has been many years since most districts issued a continuing  contract, as the name implies, once given to an employee it is continuous until it is ended by the board or the employee resigns their contract. Just as a term contract provides the employee more rights and protections than a probationary contract, a continuing contract provides more rights and protections than a term contract.  The key difference for all these contracts is what process is required to end the contract.

 

Ending a Chapter 21 Contractual Relationship

Chapter 21 contracts have two different ways through which the district can move to end the employment relationship.   One way is to end the contract at the end of the contract period and the other is to do so within the contract period.   If the district is seeking to end a contract during the middle of the contract, the type of contract  the employee  holds mostly is irrelevant. The district is required to show “good cause” to terminate any contract during the term of the contract.   While there are different legal definitions for “good cause” depending on the type of contract,  the general standard  is the same.   There must be legally admissible evidence showing a valid reason to end the employment  relationship,  and that the same reason also would be a good reason in another similarly-situated  school district. The process of ending a contract in the middle of the contract term is always called a “termination.”


Mid-Contract Termination. As you might suspect, ending a contract during the middle of the contract is the most difficult and most costly method of ending the employment of a Chapter 21 employee.  If a situation has developed where you believe you need to end a Chapter 21 contract before the end of the contract period, you should contact your legal counsel to discuss the situ- ation.   The process for terminating  a contract during the term likely will lead to a termination hearing process.  The employee has the right to request a hearing from the Texas Education Agency to make a determination on whether good cause exists. TEA will appoint a third party to sit as the judge (independent hearing examiner or IHE).  The IHE, after hearing all the witness testimony and reviewing all the evidence admitted at the hearing, will make the decision on whether good cause exists to end the contract.  At the hearing, the District has the burden to prove that good cause exists to end the contract.  Leading up to the actual hearing, the parties can issue written requests for information (discovery) and take depositions.  Throughout the process, the civil rules of evidence are applied. This complicated process is costly for the district.   In addition to the discovery costs and preparing for the hearing, the employee continues to receive his/her salary during the pendency of the termination process which generally takes two to three months to complete. Finally, the district also is paying the IHE’s costs for conducting the process and the costs of a court reporter who transcribes the good cause hearing.   Because the process requires application of the rules of evidence, the district would be wise to use legal counsel throughout the termination process.

The reason continuing contracts provide the most protection to an employee is because regardless of the time of the year, the only way a district can try and end a continuing contract is to invoke this mid-contract termination process.  Similar to the continuing contract, when a district provides a Chapter 21 employee a multiple-year  term contract, if something goes awry with the employee  in the first year of the contract, you lose the ability to make an “end of the year” contract decision until the end of the multiple-year term of the contract.  Ending a contract at the end of the contract period, as discussed below, is the preferred method to end a term contract because it is the most efficient and least costly.

Ending Contracts at the End of the Contract Term. While probationary  and term contracts  both state a specific term that the contract is in effect, because of the provisions of Chapter 21, neither contract truly ends at the end date that is included in the contract.  This lack of an automatic end to the contract, as is the case with the non-certified contract discussed above, is why it is so important that district administrators make conscious decisions each spring regarding bringing an employee back for the next year.  If you wish to end a term contract or a probationary contract, unless the employee resigns their contract, you must have the board take action at a board meeting to end that employee’s employment with the district.

 

Termination of a Probationary Contract

Terminating a probationary contract at the end of the contract term is by far the most simplistic  way to end a Chapter 21 contract because the process owed is limited as is the legal standard necessary to support that decision.  As opposed to the two-step  process  for a non-renewal  which will be discussed below, the process for ending a probationary  contract requires only one board meeting vote.  The board agenda must state that the board will be considering the termination of the probationary contract.  What makes this process even more simplistic is that the board need only make a finding that termination  is in the best interest of the district.  While the agenda item does not need to include the name of the employee, the board’s motion must. The employee has no right to any formal hearing regarding the termination.  The only action the employee can take in response to the board’s termination decision is to file a grievance with the board and ask that it reconsider.   Further, a board decision to terminate a probationary contract is not appealable to the Commissioner of Education.

 

Non-Renewal  of a Term Contract

To end a term contract at the end of the contract term, the process is simpler than doing a mid-contract termination; how- ever, it still requires that the board take action.  If the employee invokes the process provided in Chapter 21, the board must provide a hearing to determine  if there are grounds to end of the employee’s employment with the district.1  The good answer here is that the hearing to “non-renew”  a term contract is far less arduous than is a mid-contract termination hearing process.

The non-renewal process requires that the Board of Trustees engage in two separate steps.   The first step requires that the Board  propose the non-renewal of the employee’s contract. This action must happen at a duly called board meeting and the board meeting agenda must specifically state that the board will be considering the proposed non-renewal of a term contract.  At this first meeting, the board gets preliminary information from administration regarding the basis for the requested vote to propose the non-renewal of the employee.  The board must vote in open session to  propose non-renewal  and to provide notice of that action to the employee.  The motion for this action must include the name of the employee.

The notice provided should include the reasons for the proposed non-renewal, which must come from Board Policy DFBB(Local).   While the board could state in its motion the specific reason or reasons  under DFBB for the proposed  action, it is not necessary.   For practical reasons, the selection of the reasons should be left to the administration  to provide in the notice letter in case more reasons develop as the process moves forward.  If the board announced the reasons in the motion, adding additional reasons may require further board action before the hearing on the proposed non-renewal.  It also will be the administration’s  job at a requested  hearing to demonstrate to the board why provisions  within policy DFBB(Local)  have been violated.

Once the board proposes non-renewal, the employee has fifteen calendar days to request a hearing before the board from when he or she was provided the written notice of the proposed non-renewal.  The board then has fifteen calendar days from the date the employee requests a hearing to hold a second board meeting which will constitute the full hearing on the proposed contract action.2  Unless the employee requests that the hearing be open, the hearing shall be conducted in closed session with only the members of the board, the superintendent,  their representatives,  and any witnesses  as they are called to testify.   At this meeting, the administration presents all of its information to the board as to why the employee’s employment with the district should be ended based on the cited reasons from DFBB(Local) and included in the notice letter.  The employee has an equal opportunity to present information to the board disputing the reasons administration  is proposing  the action.   The burden is on the administration to prove by a preponderance of the evi- dence that the conduct falls within the grounds for non-renewal proposed and that all procedures have been followed.

After both sides present their information and arguments to the board, the board then must vote to non-renew the employee’s contract  if that is its desire.   Alternatively,  the board could decide that sufficient evidence does not exist to non-renew the employee and then the employee would be entitled to a new contract for the next year.  If the board does vote to non-renew the employee, the employee can appeal the board’s decision to the Commissioner  of Education.   As discussed below, the standard on appeal to the Commissioner  makes it difficult to overturn a board’s non-renewal decision.

 

Timing of Proposed Non-Renewal  or Termination

There are no legal requirements  about when a board must consider employee contracts for renewal, nor regarding when a contract must be issued to employees. The long-standing practice of most districts includes reviewing the superintendent’s contract in January, administrators in February, and then teachers in March. This practice is based on nothing more than historical practices which grew from the timing requirement  for ending a contract at the end of the year.  In truth, all contracts can be considered at the same board meeting.  The only legal importance about timing is that the meeting  to consider  contracts  should  take place before the deadline by which the district must take negative contract action.  In the past, Texas law required boards to consider contract action in March, but a change in the law has pushed that deadline out and so your board may want to consider changing that process.

In 2011, the Texas Legislature made a key change to Chapter 21 which has changed the timing for contract decisions.  Chapter 21 used to require board action to propose the non-renewal or actual termination of a probationary contract forty-five days before the last day of instruction.  The Legislature changed that requirement to ten days before the last day of instruction.   Re- ducing the number of days before the end of the year by which a board must act allows districts to make contract decisions for the next year a little later in the spring and allows the board to make any needed vote in April or even potentially in early May. This is helpful to allow administration more of the academic year to review the employee’s  job performance,  including  allowing you to make those decisions  after most of the STAAR testing is completed. However, the legislative change is only important and useful to the district so long as you do not issue contracts to your employees for the next year until later in the spring as well.

If you issue an employee a contract before the tenth day before the last day of instruction, once the employee signs their contract for the next year you are no longer able to take action on their current year contract. While it might be administratively difficult to wait until the tenth day before the last day of instruction and still get all your employees to return their contracts before they leave for the summer, it is advisable to issue contracts to your near early to mid-May.   Keep in mind, a failure to meet the time line to provide notice is a fatal procedural error in terms of a successful non-renewal or termination.

 

Commissioner Decisions Affecting Non-Renewal

 

What Information is Sufficient to Support a Non-renewal?

In Vazquez v. Los Fresnos ISD, No. 062-R1-07-2013 (Comm’r Educ. Aug. 21, 2013), the key issue before the Commissioner was whether student statements were proper information for the board of trustees to consider during a non-renewal hearing.  As discussed above, in a mid-contract termination hearing before an IHE, the Texas Rules of Evidence apply and under those rules, written statements are not acceptable evidence for the fact finder to consider.  Written statements are considered hearsay because there is not a chance to cross examine  the person who wrote the statement.  The Commissioner reasoned that if the student statements were properly considered by the board, the statements would provide substantial evidence to support the non-renewal based on several reasons under policy DFBB.

The Commissioner provided some technical reasoning to answer the question.  The Commissioner determined that the hearsay rule does apply in administrative hearings; however, Texas Government Code § 2001.081 allows otherwise inadmissible evidence in administrative  proceedings  if the evidence is (1) necessary to ascertain facts not reasonably susceptible of proof, (2) not precluded by statute, and (3) of the type on which a reasonably prudent person commonly relies in the conduct of the person’s affairs.  The Commissioner then concluded that the statements were properly admitted as exceptions to the hearsay rule as set out in Texas Government Code § 2001.081. The Commissioner  observed that the statements  were made during the principal’s investigation into complaints that Vasquez made inappropriate comments to students. The Commissioner reasoned that statements given in an investigation were sufficiently reliable. Thus, according to the Commissioner, the student statements provided substantial evidence to support the district’s non-renewal of Vazquez’s term contract.

This case is important because situations with employees frequently involve interactions with students or student witnesses. In assessing cases, a key consideration is whether a student will be willing to provide testimony and whether the district wants to force the student to do so. In a mid-contract termination hearing, the district would have little choice but to have the witness testify because the hearsay exception used in Vazquez does not apply. So all witnesses need to provide trial testimony and be subject to cross examination  by the teacher’s  attorney.   What we take from Vazquez is that, so long as administration  has conducted a proper investigation and as part of that investigation student statements are procured, those statements can constitute evidence for the board to rely upon in making a non-renewal  decision. The students do not need to provide live testimony and are not subject to cross examination  by the teacher’s  attorney  during the hearing process.

 

What is Substantial Evidence?

As demonstrated in Vazquez, the Commissioner generally must defer to the board’s decision when it comes to non-renewals. This was also the case in Gaddy v. Kilgore ISD, No. 086-R1-0512 (Comm’r Educ. July 19, 2012).  Gaddy, a special education teacher, appealed the non-renewal of her term contract for an alleged violation of the district’s corporal punishment policy. Gaddy argued to the Commissioner  that the Board’s  decision was not supported  by substantial  evidence.   The board’s decision to non-renew Gaddy did not include any specific findings of fact, but instead included a motion stating that information supported  the administration’s  recommendation  to non-renew, and as a result, the board moved to non-renew.

The question on appeal to the Commissioner was whether substantial  evidence existed to support the board’s decision to non-renew Gaddy.  The Commissioner acknowledged that eye- witnesses  gave conflicting testimony  regarding  the incident at the non-renewal hearing.  Nevertheless, the Commissioner held that when there are conflicts in the testimony, the fact finder resolves the conflicts as they deem appropriate.   Because the board is the fact finder in this non-renewal hearing, the board could have made credibility determinations and concluded that Gaddy violated the district’s corporal punishment policy.  Based on the substantial  evidence  standard,  the Commissioner  could not overturn that finding because substantial evidence existed to support the board’s vote to non-renew Gaddy’s contract.

 

What Does This Mean to You?

Both of these decisions are important for districts to keep in mind when you are in a situation where you are considering the need to take negative contract action on a Chapter 21 employee. While a non-renewal  hearing will never be an experience  that any administrator or board wants to go through, districts should not fear the process or have a belief that the process is too difficult or costly.   So long as good documentation  exists for the issue, conducting a non-renewal hearing before the board is very manageable.  While live witness testimony is persuasive, if reliable witness statements have been gathered during investigations, those documents are appropriate information for the board to receive and rely upon in making a decision.  Further, any board decision to non-renew an employee is given great weight if an appeal of that decision is taken to the Commissioner.

 

Other Options Less than Ending a Chapter 21 Contractual Relationship

 

Non-extension

As discussed earlier, some districts use multiple-year con- tracts with their employees.  When you do use multiple-year contracts, you may choose to employ a multi-year process in working  to remediate  the employee’s  deficiencies  and if they are not remediated, then to ultimately take contract action.  For cost reasons, evidentiary issues, and the benefits of having the board be the decision-maker,  ending a contractual  relationship at the end of the contract term is the preferred method.   When an employee has a multi-year contract and the district gives the employee a new multi-year contract each year, it may take two or more years to be able to take action at the end of the contract.

In a year when you start to see your employee having job issues, your board should act in a manner that allows for the employee  to move into the second (or later) year of the contract.   This process is frequently  termed a “non-extension”  of the employee’s contract.  An employee has no legal right under Chapter 21, or any other laws, to continue to receive a multiple- year contract and so there is not a formal process that must be used to non-extend an employee.   All that needs to occur with a non-extension  is some action, or inaction,  by the board at the time contracts are considered and offered for the next year. A non-extension generally is handled by simply removing the employee’s name from the list of employees who the board is approving for a new two-year contract.  Some boards may prefer a more formalized board action where the board affirmatively votes to move the employee into the second year of the contract. Both methods are acceptable.   Some districts will offer a new one-year contract for the next year and some do not.   Even if you do offer a one-year contract, if the employee did not accept the contract, they would still continue to be employed under the second year of their two-year contract.  The purpose of all these actions is to get your employee to the end of their contract term in case you ultimately need to take action to end the employment relationship.   This type of action is a pretty strong indicator to an employee that they need to correct some behavior before the end of the next year.

The non-extension  process can be employed on a case-by- case basis, but it can also be used if your district and board make the decision that they want to move all employees  back to single-year  contracts.   Chapter 21 rights only extend to one year, so if at any time a district did wish to remove all multiple- year contracts,  or even some categories  only, there is no legal prohibition or process requirements owed to those employees to enact that change. Instead, the Board would just not issue new multiple-year  contracts  and then in the following  years offer one-year term contracts only.

 

Reassignments  and Reductions in Pay

While it does not end the contractual relationship, another common option when an employee is not meeting job expectations in one position is to transfer them to another position.  If the reassignment is to a job with less job responsibility and includes a reduction in the number of days or in the salary the position is paid, there are certain rules that apply.  The key consideration is that you can only reassign to a position that is in the “same professional  capacity”  as the prior position.   Texas Education Code § 21.206 requires that if a school district fails to give timely notice of proposed non-renewal when the teacher’s contract is about to expire, the district is required to employ the teacher in the “same professional capacity” for the following school year.

A number  of Commissioner  decisions  offer guidance  on how to determine whether a reassignment is properly within the “same professional capacity.”  The decisions are not surprising, but do provide clarity on what will be considered to determine whether the new assignment is in the “same professional capac- ity” as the old position.  The first consideration each time is what exactly does the contract state as the employee’s job?  If you use a specific designation in a contract, then that employee is entitled by their contract to that job.  So, giving an employee a contract with the title “campus principal”  means that they have a right to work as a campus principal.  Through the contract, you have defined their professional capacity as a campus principal.  If you use broader designations, then you broaden the range of positions you can include in their professional capacity.  Note, however, designations that are too broad have also been deemed improper.

The information learned from recent Commissioner’s deci- sions that focused on professional capacity issues with reas- signments is that “administrator” is an acceptable professional capacity designation, as is certified educator.  If you use these broad categories, your district retains the flexibility to move a teacher to any teacher position and to move any administrator, like our campus principal above, to another administrator position, like an assistant principal.   When making a reassignment, the key factors the Commissioner will consider if it is challenged to that level include: what the contract states, what are the differences in authority between the two positions, the duties and responsibilities  in the two positions,  the skills required of the two positions and salary.3

Just recently, the Commissioner did an exhaustive analysis of this issue in Jenkins v. Crosby ISD Dkt. No. 043-R10-1211 (Comm’r Educ. December 19, 2013), which is analyzed in more detail on page 9 of this issue of the Legal Digest.  According to the Commissioner, the first question districts must ask is whether it could have contracted for the position at issue.  For example, an administrator  cannot be reassigned  as a classroom  teacher, a counselor  cannot be reassigned  as a nurse, and a nurse cannot be reassigned as a librarian.   The next question is whether there are any differences in authority, duties, salary and or any other differences so great as to actually render the position in another “professional  capacity.”   Districts should also consider the capacity set out in the employee’s  contract.   According  to the Commissioner,  if a school district hires a teacher under a term contract in a particular capacity, the district must rehire the teacher in that capacity for the next school year.

In the Jenkins case, the issue was whether a middle school principal could be reassigned to a high school assistant principal position.  The Commissioner observed that a principal can con- tract for an assistant principal position as a principal certificate is needed for both principal and assistant principal positions. There was little evidence in the record to indicate what duties Jenkins had in either of those positions.  Thus, the Commissioner was unable to compare the authority, duties, compensation  and other relevant factors to determine whether the reassignment was within the “same professional  capacity.”   As the two positions were not shown to be in different professional capacities, the district did not violate Education Code § 21.206, when it reassigned Jenkins from an intermediate school principal to a high school assistant principal.

With respect to reductions  in pay, if you are reassigning an employee into a new position that is at a lower salary (but is still in the “same professional  capacity”),  you can reduce the employee’s pay to the rate of the new position.  While the reassignment  can be started at any time in the school year, the reduction in pay cannot happen until you move into a new contract year.  It is critical, however, that when reducing pay or the number of days in the contract, you must give them as much specific notice of the salary reduction before the resignation-free deadline.  The resignation deadline is the summer date by which teachers need to inform the district if they are not coming back the next year, generally somewhere around the first week of July each year.   The specific date is forty-five days before the first day of instruction.4

CONCLUSION

Spring is definitely a busy time in the school world with all the state testing.  Based on Texas Education Code Chapter 21, it is also a time when we are required to make decisions regarding most of our professional  staff for the next school year.   When issues are job performance issues, hopefully you have been working to improve that employee’s performance and documenting performance issues. However, if in the end, you still do not believe that employee is one who will be a benefit to your district’s students, you need to make hard decisions now.  While there are required processes that must be invoked to handle ending the employment of Chapter 21 employees, those processes are not impossible hurdles to get over.  Your board still retains most of the decision-making  authority on whether to bring an employee back the next year.  The Commissioner has offered some good decisions in recent years, making clear that the board can make tough non-renewal and termination decisions and that those decisions will be upheld so long as the process is properly followed.

ENDNOTES

1.    Chapter 21 does allow a non-renewal hearing to use the IHE process if a district chooses to do so.  Unless there is good reason why the board cannot do the hearing, using an IHE is not a preferable method due to the higher standards, greater costs, and loss of control over the decision by the board.

2.     If both the employee and the district agree in writing, the non- renewal hearing can be held past the fifteenth day.

3.     See  Lopez v. West Oso ISD, Dkt. No. 015-R1-1010 (Comm’r Educ.  August 29, 2013).; Tuck v. Alief ISD, Dkt. No. 008-R10-1007 (Comm’r Educ. April 20, 2012).; Wheeler v. Austin ISD, Dkt. No. 008-R3-1108 (Comm’r Educ. July 19, 2011).

4.     Brajenovich v. Alief ISD, Dkt. No. 021-R10-1106 (Comm’r Educ. March 6, 2009).