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TOP TEN THINGS PRINCIPALS NEED

To KNOW ABOUT THE


NONRENEWAL AND TERMINATION PROCESS

Presented at the Eleventh Annual TASSP-Legal Digest


Conference on Education Law for Principals

June 9,1998
Austin Convention Center
Austin, Texas

Presented By:
David M. Feldman

Prepared By: David M.


Feldman and Debra M. Esterak

FELDMAN & ROGERS, L.L.P.


12 Greenway Plaza, Suite 1202
Houston, Texas 77046
Telephone: 713/960-6000
Top Ten Things Principals Need to Know about
the Nonrenewal and Termination Process

I. Contracts Come in Several Shapes and Sizes—Always Know What


You're Dealing With. Before a principal considers recommending any
adverse employment action on a teacher's contract, he or she should know
the type of contract the teacher is under and the characteristics of the
contract. Districts must employ their "teachers" (defined as supervisors,
classroom teachers, librarians, nurses, principals, counselors, or other
employees required to be certified), under a contract. See Tex. Educ. Code
§§ 21.002, 21.101, 21.151, 21.201. There are three possible contracts that a
teacher may hold: 1
.'' '. *
A. Probationary Contracts. Teachers who are employed for the first
time by a school district or who have not worked for the district for
two consecutive years must be employed by a probationary contract.
A probationary contract may not be for a term of more than one
school year. The contract may be renewed for two additional one-
year periods unless the teacher has been employed in public
education for five of the last eight years. If the board is uncertain
whether a teacher who has not been employed five of the last eight
years should receive a term or continuing contract, it may extend the
teacher a probationary contract for the fourth year. See generally,
Tex. Educ. Code, Ch. 21, Subchapter C.

B. Term Contracts. After completing the probationary period, a


teacher may be given a term contract, which extends for a certain
term, such as one or two years. These contracts may not, however,
exceed a term of five years. At the end of each term, the board must
either renew the contract, nonrenew the contract, or take no action,
which results in the teacher being employed in the same professional
capacity for the following school year. See generally, Tex. Educ.
Code, Ch. 21, Subchapter E.

C. Continuing Contracts. As their name implies, continuing contracts


are not for a set term, but continue indefinitely until the teacher
retires, resigns, is discharged, or is returned to probationary status as
an alternative to discharge. See generally, Tex. Educ. Code, Ch. 21,
Subchapter D.
II. Look Before You Leap

A principal's role in the suspension/termination process is to "recommend


to the superintendent the termination or suspension of an employee
assigned to the campus or the nonrenewal of the term contract of an
employee assigned to the campus." Tex. Educ. Code § 11.202 (b)(6).
There is a vast difference between the procedure used to terminate a term or
probationary contract employee at the end of the school year and that used
for discharging a person prior to the end of the contract term. Before
making any recommendation regarding an employee's contract, the
principal needs to develop a working understanding of what each process
entails, including an appreciation of the inherent pitfalls.
/" .. *
A. Basics of Termination at the End of the Year. An employee's
term contract may be nonrenewed at the end of the contract term for
reasons established by board policy (found at DFBB Local for
TASB Policy Manual subscribers). See Tex. Educ. Code §
21.203(b). A probationary contract may be terminated at the end of
the contract term if it is in the best interests of the District. Tex.
Educ. Code § 21.103. A continuing contract cannot be
"nonrenewed" at the end of the school year, as a continuing contract
continues indefinitely until the employee is discharged for good
cause (see below).

1. Probationary Contracts. Before a probationary contract


may be terminated at the end of the year, the teacher must be
given notice of the Board's intention to terminate not later
than 45 calendar days before the last day of instruction. The
Board's decision is final and may not be appealed. Tex.
Educ. Code §21.103.

2. Term Contracts. Term contract employees must receive


notice at least 45 calendar days before the last day of
instruction that the Board intends to nonrenew the contract at
the end of its term. Tex. Educ. Code § 21.206(a). Not later
than 15 days after the teacher receives notice of the proposed
. action, the teacher may request a hearing. Tex. Educ. Code §
21.207. Depending upon the process chosen by the Board,
the employee will receive a hearing either before the Board or
before an independent hearing examiner. Id. If the employee
does not request a hearing, the Board must notify the teacher
of the final action not later than 30 days after the initial notice
was sent. Tex. Educ. Code 21.208(a). If a hearing is
conducted, the teacher is then notified of the final action
following the hearing. Tex. Educ. Code § 21.208(b). The
teacher may appeal an adverse decision to the Commissioner
of Education. Tex. Educ. Code 21.209.

3. Notice. Failing to provide timely notice to a teacher will


result in the action being overturned. In order to avoid such a
result, be sure to recommend nonrenewal or propose
termination early, thereby allowing the Superintendent to
meet the requisite timeliness.

B. Basics of Discharge. A district may discharge a term or


probationary contract employee during the school year or a
continuing contract employee at any time, for good cause. A teacher
proposed for termination may request a hearing before an
independent hearing examiner within 15 days of receiving the
notice. Tex. Educ. Code § 21.253.

C. Other Alternatives. In lieu of discharge and for good cause, an


employee may be suspended without pay until the end of the school
year. Tex. Educ. Code §§ 21.104(b), 21.156(b), 21.21 l(b). A
contract employee who is suspended without pay may appeal the
decision to an independent hearing examiner. Tex. Educ. Code §
21.251. Alternatively, in lieu of discharging a continuing contract
teacher or terminating or nonrenewing a term contract employee, the
district may, with the written consent of the teacher, return the
employee to probationary status. Tex. Educ. Code § 21.106. The
employee may be returned to probationary status only after receiving
written notice of the proposed action.

III. Nonrenewals are Tough, but Mid-Year Terminations are Tougher.


While it is fairly easy to terminate a probationary contract at the end of the
school year, nonrenewing a term contract at the end of the year requires
more effort. Terminations based on good cause are still more difficult to
support and successfully conduct.

A. Standard of Review.

1. Substantial Evidence. Nonrenewals heard by the board are


subject to a "substantial evidence" standard of review if
appealed to the Commissioner. See Tex. Educ. Code §
21.209. "Substantial evidence" means that there is evidence
in the record upon which a reasonable person could rely to
reach the same decision as the Board.

2. Preponderance of the Evidence. An independent hearing


examiner must evaluate all cases (whether termination or
nonrenewal) based on a "preponderance of the evidence"
standard. See Tex. Educ. Code § 21.256(h). In other words,
the district has the burden of proving that the reason(s) for
termination (or nonrenewal) are more likely true than not.

B. "Good Cause" for Termination. While districts must set forth


reasons for nonrenewal in Board policy, Tex. Educ. Code § 21.203
(e.g., failure to comply with policies or directives, failure to fulfill
job responsibilities, etc.), no similar requirement exists for
specifying reasons that constitute "good cause" for termination.

1. Defined. The definition of "good cause" differs depending


upon the type of contract in question. In continuing and
probationary contract situations, good cause is defined as the
failure to meet the accepted standards of conduct for the
profession as generally recognized and applied in similarly
situated school districts in this state. Tex. Educ. Code §
21.104. Conversely, a term contract may be terminated for
"good cause as determined by the board" — good cause not
being specifically defined. Tex. Educ. Code § 21.211.

2. Examples. A district must present evidence of serious or


egregious misconduct in order to constitute "good cause" for
termination. Examples of "good cause" for termination have
included romantic involvement with a student, falsification of
documents, theft of district property, allowing a student to
orally castrate a pig, harming a student, and other serious
misconduct.

C. Independent Hearing Examiners. The Education Code allows


teachers who receive notice of proposed suspension without pay or
discharge before the end of the year (or, for continuing contract
employees, discharge at any time) to request a hearing before an
independent hearing examiner ("IHE"). See generally, Tex. Educ.
Code, Ch. 21, Subchapter F. During the hearing, a teacher has the
right to representation, cross-examine adverse witnesses, and present
and hear evidence. The IHE then issues a recommendation that
includes findings of fact and conclusions of law. The board
considers the IHE's recommendation and hears oral argument from
the teacher and the administration's representatives, and may either
adopt, reject, or change the IHE's conclusions of law. Id. The board
may also reject or change a finding of fact, but only if the finding is
not supported by substantial evidence. Id.

D. The Cost Factor. The IHE process has proved costly in several
regards: districts must bear the cost of the services of the IHE and
court reporter and, given the evidentiary standard involved as well as
fact finding by a third party who may not be as appreciative of the
district's concerns, districts appear to be losing more hearings under
this process than they are winning. Given the trial-like nature of the
process, the district also generally hires outside legal .counsel to
investigate and present the administration's case, thus incurring
additional expense.

IV. Practicalities of Nonrenewal vs. Mid-Year Termination. Given the fact


that end of year probationary contract termination and term contract
nonrenewal are not as difficult to support as mid-year terminations,
principals must rely on their common sense when making a
recommendation to terminate a teacher. A mid-year termination generally
takes several months to pursue, during which time the teacher is usually
suspended with pay pending the investigation into the misconduct. If a
term contract employee commits serious misconduct at the end of the year,
it is often better in terms of costs and risk to pursue nonrenewal as opposed
to termination; and this is especially true in the case of the probationary
teacher. Along those lines, if a teacher commits serious misconduct earlier
in the year, do not delay investigating the misconduct and, if warranted,
recommending termination.

V. Nice Guys Finish Last. As difficult as it may be to reprimand an


employee or otherwise be candid about an employee's deficiencies, doing
so is a necessary part of a principal's job.

A. Let Teachers Know Where They Stand. If problems become


apparent early in the year, do not sit back and hope they will
disappear. They usually don't. Counsel the employee early,
document your discussions, and use growth plans and written
reprimands as appropriate. Waiting until the middle or end of the
year to identify deficiencies for nonrenewal purposes, or waiting
until the last minute to come to grips with a pattern of misconduct
that warrants termination, not only hurts the district's position

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should a recommendation be in order, but also disserves teachers by
not giving them an accurate assessment of their performance.

B. Explore Your Options. Principals are not limited to recommending


nonrenewal or renewal — and nothing else — to the superintendent.
A recommendation for renewal of a term contract can also include a
recommended term. For example, a teacher on a three-year term
contract may be recommended for renewal for a one-year term, thus
allowing the district more flexibility at the end of the one-year term.
See George v. Bourgeois, 852 F. Supp. 1341 (E.D. Tex. —
Beaumont, 1994); Rison v. Houston ISD, Docket No. 141-R10-1294
(Tex. Comm'rEduc. 1995).
» VI.
Effective Documentation Will Make or Break a Case. Principals must
remember that documentation of performance problems is not limited to
the
formal appraisal process.

A. General Guidelines. Written documentation, when properly


prepared, can prove to be an invaluable source of information several
years down the road, after memories have begun to fade. More
importantly, written documentation can often provide the source of a
successful defense. Always keep in mind the intended purpose of the
documentation; then, tailor the contents of the documentation to your
purpose.

B. Performance Problems. In the case of employee performance


problems, the documentation should provide specific information
regarding:

1. the nature of the performance problem(s);

2. the steps that were taken to remediate the problem(s); and,

3. the employee's subsequent efforts (or lack thereof) to improve


his or her performance.

C. Misconduct. In the case of employee misconduct, the documentation


should provide specific information regarding:

1. the nature of the complaint or charges alleged against the


employee;

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,..,-..-..• 2. the steps that were taken to investigate the complaint and/or
verify the charges; and,

3. if the complaint is ultimately verified, the resulting disciplinary


action and/or recommendation for action (i.e., termination,
nonrenewal, suspension, reprimand, directives).

D. Caveat. Written documentation can prove to be a significant liability


if it is not carefully and thoughtfully prepared.

E. General Techniques. The following techniques may be utilized when


documenting virtually any type of performance problem and/or
employee misconduct: »

1. Always use precise, unambiguous language.

2. Focus the subject of the documentation. Avoid straying into


unrelated or extraneous issues.

3. Stick to the facts: who, what, where, when, why. Avoid


opinions and inflammatory words.

4. Avoid exaggeration — it destroys credibility.

5. Do not resort to personal attacks. Again, credibility will suffer.

6. When appropriate, refer the employee's attention to any


relevant rules, policies, procedures, laws, regulations, or
handbook provisions.

7. Try to document while the facts are "fresh.11

8. Always review any written documentation - for content and for


form. Documentation containing typographical errors and/or
grammatical mistakes looks unprofessional and tends to lack
credibility.

F. Other Considerations. Administrators need to assume that the


employee will request copies of any documentation related to his or
her performance problems and/or misconduct. Before drafting any
documentation, evaluate whether there are any special considerations
which may affect the manner in which the performance
problems/misconduct are described and discussed:

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1. Are students involved? If so, can you avoid identifying them
by name? If not, remember that an employee does not have a
right of access under the Texas Public Information Act
("TPIA") to student records that are otherwise confidential
under the Family Educational Rights and Privacy Act, 20 USC
§ 1232g. See Tex. Att'y Gen. Informal Letter Ruling OR94-
546.

2. Does the documentation concern allegations of sexual


harassment? If so, some of the documents you generate may be
exempt from public disclosure pursuant to Section 552.101 of
the TPIA. Examples: The names of witnesses who .participated
in the investigation and their statements or affidavits. See
Morales v. Ellen, 840 S.W.2d 519 (Tex. App. - El Paso 1992,
writ denied).

G. Timing. The timing of documentation is also crucial. In the case of


employee misconduct, the documentation should always be prepared
as the investigation progresses; do not wait until the investigation is
complete to try to summarize the various steps that have been taken
and the evidence generated. Similarly, performance problems should
also be documented as they occur or at the time they are identified. An
employee who is placed on a growth plan for on-going performance
deficiencies in February generally cannot be recommended for
nonrenewal in March based on the same performance deficiencies that
were first identified in February. The employee will surely argue that
he or she has not received an adequate opportunity to remediate his or
her deficiencies. Documentation of performance problems should be
constant and consistent. Little "flurries" or bursts of documentation
immediately prior to the nonrenewal deadline leave the
administration's recommendation subject to attack.

H. Acknowledgment. Notice is always an important consideration. To


ensure that an employee cannot claim that he or she did not receive
notice of a problem or deficiency, ask the employee to acknowledge
receipt of all documents by placing his or her signature and the date on
documents. If the employee is receiving the original, be sure to
maintain a copy for your files.

VII. Remediation Really is Important. Depending on the nature of an


employee's alleged misconduct or performance problems, remediation may be
required prior to termination and/or nonrenewal.

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A. When Required. In general, remediation is required unless the
employee's conduct is egregious or intolerable (e.g., physical assault of
student, employee, or parent; sexual-misconduct with a student;
offensive sexual behavior directed toward a student or fellow
employee).

1. In remediable situations, principals should take advantage of less


serious discipline techniques such as directives, growth plans,
evaluations, and other disciplinary measures that not only allow the
teacher to correct the deficiency, but also document the problem(s)
at hand. If conduct can be remediated — for example, tardiness,
failing to turn in lesson plans, etc. —the teacher must be given an
opportunity to remediate the deficiency in order for a nonrenewal
or termination based upon the conduct to successfully proceed.

2. If the conduct poses potential and significant harm to a student's


emotional or physical well-being, the Commissioner of Education
will support a district's decision to terminate employment without
remediation rather than risk the possibility that the teacher will
engage in similar conduct in the future. See Whalen v.
Rocksprings ISD, Docket No. 065-R2-284 (Tex. Comm'r Educ.
1984).

B. Document Expectations. Be specific when describing what is


required of the employee to remediate his or her conduct. Give
specific time lines, when appropriate. However, make sure that the
time lines are reasonable: not too short or too long for demonstrating
sustained improvement. Explain what will happen if the employee
fails to show improvement. Will partial improvement suffice? If not,
the documentation should state as much. Use clear, unequivocal
language to express your expectations: "you are directed to refrain
from ..."; "you are directed to develop ..."; etc. Avoid telling an
employee that he "needs to" or "should" do something.

VIII. Student Witnesses: If You Can't Rely on Them to Turn in Their


Homework, You Can't Rely on Them to Make Your Case. Numerous
considerations come into play when utilizing child witnesses. For example,
you must receive parental consent in order for them to testify and their
dependability is sometimes an issue. Principals should be leery of
nonrenewal or termination situations in which the only evidence supporting
the action is the testimony of a child witness. Uncorroborated and/or
suspect allegations by students are not sufficient to support a termination.

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See e.g., Aguilar v. Ysleta ISD, Docket No. 067-R2-1190 (Tex. Comm'r
Educ. 1991); Woolworth v. Eagle Pass ISD, Docket No. 119-R2-1291 (Tex.
Comm'r Educ. 1994).

IX. As Bad as They May Seem to You, Some Reasons Simply Do Not
Support Nonrenewal or Termination. Before you recommend
nonrenewal of a term contract employee, always check to make sure that
the reasons supporting your recommendation are included in policy.
Likewise, before you recommend that an employee be discharged, check
with your district's local counsel to ensure that the offense is truly a
terminable one. Remember that in either situation, you will need
documentation to support your reasons for the recommended action.
*
A. The Commissioner of Education has determined the following
reasons to not support nonrenewal:

• A coach's failure to maintain a winning record. Hester v.


Canadian ISD, Docket No. 106-R1-585 (Tex. Comm'r Educ.
1985).

• Filing formal grievances. Ostroff v. Manor ISD, Docket No.


320-R2-694 (Tex. Comm'r Educ. 1996).

B. The Commissioner has also overturned terminations based on the


following:

• Incompetence, absent adequate notice of deficiencies and a


reasonable opportunity to remediate. See McRuiz v. Cleburn
ISD, Docket No 047-R2-1087 (Tex. Comm'r Educ. 1990).

• A single, isolated incident in which a teacher threatened a


student. Patterson v. Albany ISD, Docket No. 210-R2-890 (Tex.
Comm'r Educ. 1991).

• Selling pencils to students before or after class time. Rickaway


v. Elkhart, Docket No. 353-R2-792 (Tex. Comm'r Educ. 1995).

• A plea of no contest to indecent exposure as the plea was not a


finding of guilt, the evidence did not support the arrest, the
conduct did not involve children, and no publicity or community
reaction resulted from the arrest. Patton v. Dallas ISD, Docket
No. 093-R2-1192 (Tex. Comm'r Educ. 1995).

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• Shoplifting, when the charges were dropped and there was no
nexus between the shoplifting allegations and the teacher's
fitness to perform her duties. Duncan v. Pecos-Barstow-Toyah
ISD, Docket No. 351-R2-792 (Tex. Comm'rEduc. 1995).

• Giving evasive, but not necessarily false answers on an


employment application. Specifically, the District attempted to
terminate a teacher for falsifying her application when the
teacher had responded to the question "have you ever been
subjected to non-renewal" with "my jobs have always ended with
a move or a job change." Everton v. Round Rock ISD, Docket
No. 070-R2-1091 (Tex. Comm'r Educ. 1995).

X. Remember Your Role as Central Office's Eyes and Ears. The


superintendent is not omniscient and, in most situations, does not know the
particulars on any one teacher's deficiencies. Accordingly, it is the
principal's responsibility to recommend what actions should be taken on a
teacher's contract, provide the requisite documentation supporting that
recommendation, and advise the superintendent about the particulars of the
teacher's employment and contact status. Trust your instincts about an
employee—if you have questions about his or her abilities early on, start
documenting and, if possible, do not allow the marginal or problematic
teacher to advance from probationary status to term or continuing contract
status.

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