It's Never Too Early to Think About Nonrenewal
It can never be too early to discuss the nonrenewal process. Although the Education Code says that a notice to propose a nonrenewal must be given to an employee by the 45th day before the last day of instruction, so much more must be done to have a successful nonrenewal process. That means now is the perfect time to discuss nonrenewal basics. There are three things to remember when it comes to the nonrenewal of contracts:
1) Time – is a crucial factor when it comes to implementing nonrenewals, and Texas Education Code Chapter 21 sets strict time guidelines for when a notice to propose a nonrenewal must be given to an employee and the steps that follow.
2) Policy – the district’s policy will have a detailed description of who falls under term contracts and nonrenewal process under the DCB(LOCAL). Reasons for nonrenewal and necessary steps the District must take to complete the nonrenewal process fall under the DFBB(LOCAL).
3) Documentation – The administrator recommending a nonrenewal must have sufficient documentation to show the board of trustees that there is a preponderance of the evidence in support of one or more stated reasons for nonrenewal.
Timelines on the front end must be strictly adhered to and not adhering to them will invalidate a nonrenewal. Here are some necessary time guidelines to remember, and all of them are for calendar days:
l Notice of proposed nonrenewal must be provided in writing to the employee at least 45 days before the last day of instruction. Failure to provide timely notice constitutes an election to employ the individual in the same professional capacity for the following school year. This notice should be given by hand or by mail. If it is given by hand make sure to acquire signed documentation from the employee that they received the document. If the proposed nonrenewal is sent by mail, make sure it is sent Return Receipt Requested and regular mail.
l After receipt of notice of proposed nonrenewal, the employee has 15 days to request a hearing before the board of trustees. If requested, the hearing must be held within 15 days unless the parties agree in writing to a different schedule. The hearing must be closed to the public unless the employee requests the hearing to be open. At the hearing, the employee may be represented, hear evidence supporting the reasons for the nonrenewal, cross-examine adverse witnesses, and present evidence.
l If no request for hearing is tendered, the board must notify the employee of its decision in writing within 30 days of the date on the notice of proposed nonrenewal. If the employee requests a hearing, the board must notify the employee of its action in writing within 15 days after the close of the hearing.
l Within 20 days of receipt of the board’s decision, the employee may appeal to TEA by filing a petition for review.
District policy will provide the mandatory steps to take in order to improve the chances of a smooth nonrenewal hearing and successful appeal. Here is a basic checklist:
þ Documentation of actions, attitudes, and events that support a reason for nonrenewal under DFBB (LOCAL). (This is discussed in detail later in the article.)
þ Attorney’s review of documentation and approval to proceed. Your attorney should be contacted and asked to review the district’s documentation package before there is any communication to the employee regarding the anticipated action.
þ Written recommendation on contract action from principal to superintendent. The recommendation should identify one or more reasons for nonrenewal as outlined in DFBB(LOCAL) and provide information supporting the identified reason(s). All principals must be familiar with DFBB(LOCAL) and mindful of it when drafting documentation throughout the year.
þ Written recommendation for nonrenewal from the superintendent to the board of trustees. Upon receipt of the administrator’s recommendation, the superintendent should review all the documentation/information provided by the campus administrator and consider whether there is evidence to support one or more reasons for nonrenewal listed in DFBB(LOCAL).
If the superintendent proceeds with the recommendation, the superintendent will (1) give the board a general description of the reasons for nonrenewal based on DFBB(LOCAL); (2) affirm that there is evidence/documentation to support the reasons; and (3) confirm that the district’s attorney has been consulted and finds legal basis for the recommendation. This conversation occurs in closed meeting when the superintendent is presenting recommendations about contracts to the board.
þ Minutes from board meeting reflecting vote from board to accept the superintendent’s recommendation and propose nonrenewal. After receiving the superintendent’s recommendation, the board will vote in open session to propose the nonrenewal and send notice to the employee. Your attorney should be contacted for appropriate motion language.
þ Notice letter to employee of the proposal to nonrenew the contract. If the board votes to accept the superintendent’s recommendation and proposes nonrenewal, notice must be provided to the employee no later than 45 days before the last day of instruction.
þ Written request for hearing from employee. An employee has 15 days after the date she receives notice to propose nonrenewal to notify the board in writing of her desire for a hearing. If the employee does not request a hearing within the 15 days, the board must vote to renew or nonrenew the contract and send notice to the employee of that action within 30 days of the date on the notice to propose nonrenewal was sent.
þ Written correspondence between school district and employee setting hearing within 15 days of employee request or written agreement from employee to waive 15 day timeline.
Documentation is crucial to a successful nonrenewal because it creates the foundation in support of the reason(s) for nonrenewal.
The only way to face a nonrenewal with confidence is to have documentation evidencing actions, attitudes, and events supporting one or more of the listed reasons for nonrenewal in the policy. That documentation should be:
· Dated and signed or initialed by the person preparing and delivering it
· Addressed to the employee
· Acknowledged by the employee upon receipt
· Contain references to impact on PDAS
· Explain exactly what the problem is and WHY it’s a problem
So how much evidence do you need? Enough for the Board to say it is more likely than not that the administration proved its case on at least one of the proffered reasons. And, enough for reasonable minds to find that the employee engaged in conduct that is listed in DFBB(LOCAL) as a reason for nonrenewal. The Board is your audience.
The following kinds of documentation will greatly improve chances of a smooth nonrenewal hearing and successful appeal:
- Copies of letters/memos from supervisor to employee setting expectations and addressing performance deficiencies, signed by employee
- Follow-up letters/memos signed by employee that identify noncompliance with written or verbal directives, re-statement of previous directives, and additional directives
- Copy of Teacher In Need of Assistance (“TINA”) forms or other growth plan(s)
- Copies of letters/memos addressing progress on TINA; compliance issues and identification of additional work needed (signed by employee)
- Copies of letters/memos identifying workshops employee has been asked to attend in order to strengthen deficiencies
- Copies of letters reflecting other opportunities for remediation provided to employee, if remediation is warranted or possible
- PDAS Observation Summary Report and Summative Report (if completed and available)
- Written reports by Curriculum and Instruction staff who have observed classroom teaching (if applicable)
The nonrenewal process has a strict time guideline and procedure that must be followed in order for a nonrenewal to be successful. It is important to remember that a lot needs to happen before the notice to propose a nonrenewal is given to an employee: (1) contemporaneous documentation of concerns and problems, (2) the recommendation from the principal, (3) the recommendation from the superintendent, and (4) the board meeting at which the board acts on employment recommendations all take place before the employee is given a notice to propose contract nonrenewal 45 days before the last day of instruction.
If you ever have any questions about the process make sure to contact your district’s attorney for the correct guidance on how to proceed. Below are brief summaries of recent Commissioner Decisions regarding nonrenewal.
Commissioner Decisions in 2008
Sharan Dews v. Tyler Independent School District
The employee claimed that exhibits used in the nonrenewal rehearing were not entered into evidence and should not be part of the local record. The commissioner stated that because there was no official district policy on evidentiary procedure, the commissioner could only look at how the parties used the exhibits in the hearing. Because the exhibits were used as evidence, they were part of the record, but the commissioner urged the district to adopt an evidentiary policy for nonrenewal hearings.
Dale Jeffery v. Fort Bend Independent School District
The employee stated that instances of specific conduct were included in a supplemental notice of nonrenewal dated May 13, 2008 that were not part of the original notice to propose a nonrenewal on April 4, 2008. The commissioner ruled that because the original notice was presented at the correct time, the notice was timely and no specific incidents are necessary in the notice to propose a nonrenewal.
The commissioner also ruled that an employee does not have a right to remediation and that an employee’s acts themselves are sufficient to warrant nonrenewing a contract. However, this decision stresses the importance of documenting all disciplinary issues.
Rick Johnson v. Kenedy Independent School District
The commissioner ruled that a district can rely upon one single incident to support multiple reasons to support a decision to nonrenew.
Viola Wilkerson v. North Forest Independent School District
Because the District did not follow the timeline for nonrenewal set in the Texas Education Code, the employee was reinstated.
What's New - Upcoming Trainings
Legal Issues for Cheerleader and Drill Team Sponsors
February 2009
Seven Locations Around Texas
For more information and to register online, click here.
The New FMLA Regulations Including Military Webinar
February 11, 2009
For more information and to register online, click here.
Construction Essentials Workshop - Webinar Series
February 17-20, 2009
For more information and to register online, click here.
Copyright Fundamentals Webinar Series
March-April 2009
For more information and to register online, click here.
