Teacher TenureTeacher Tenure- An Overview - An Overview

Teacher TenureTeacher Tenure- An Overview - An Overview

Presented to PEP’sPresented to PEP’s

Leadership Program for Aspiring Leadership Program for Aspiring PrincipalsPrincipals

December 4, 2008 & May 6, 2009December 4, 2008 & May 6, 2009Ken SooKen Soo

Tharrington Smith, L.L.P.Tharrington Smith, L.L.P.©2008 Tharrington Smith, L.L.P.©2008 Tharrington Smith, L.L.P.

Statutory Statutory OverviewOverview

The Constitution requires due The Constitution requires due process of law before the process of law before the government may deprive a government may deprive a person of:person of:

LifeLife

Liberty, orLiberty, or

Property.Property.

Continuing employment Continuing employment rights are property under rights are property under the Constitution.the Constitution.

Dismissal from employment also Dismissal from employment also may implicate a liberty interest.may implicate a liberty interest.

Questions:Questions:

Does a probationary teacher Does a probationary teacher

have a constitutionally protected have a constitutionally protected

right at the end of his contract?right at the end of his contract?

Does an athletic coach have a Does an athletic coach have a

constitutionally protected right constitutionally protected right

to continue coaching?to continue coaching?

G.S. 115C-G.S. 115C-325325

G.S. 115C-G.S. 115C-325325

Suspension With Pay Suspension With Pay G.S. 115C-325(f1)G.S. 115C-325(f1)

Does a suspension with pay Does a suspension with pay implicate constitutional rights?implicate constitutional rights?

Requires employee and Board be Requires employee and Board be notified of suspension within two notified of suspension within two working days.working days.

Employee must be given a reason Employee must be given a reason for the suspension.for the suspension.

Suspension may last up to 90 Suspension may last up to 90 calendar days and may be extended calendar days and may be extended with agreement of employee.with agreement of employee.

Disciplinary OptionsDisciplinary OptionsDisciplinary OptionsDisciplinary Options Disciplinary suspension without pay. Disciplinary suspension without pay.

G.S. 115C-325(f)(2)G.S. 115C-325(f)(2)

Demotion (in the case of a career Demotion (in the case of a career

school administrator). G.S. 115C-school administrator). G.S. 115C-

325(f2)325(f2)

Dismissal.Dismissal.

Disciplinary SuspensionDisciplinary SuspensionWithout PayWithout Pay

Maximum length is 60 calendar days.Maximum length is 60 calendar days.

If the suspension is 10 days or less, the If the suspension is 10 days or less, the

hearing is a record review by the Board hearing is a record review by the Board

under 115C-325(j2), unless the under 115C-325(j2), unless the

suspension is for intentional misconduct, suspension is for intentional misconduct,

in which case the employee is entitled to in which case the employee is entitled to

an evidentiary hearing under 115C-an evidentiary hearing under 115C-

325(j3). 325(j3).

Disciplinary SWOP (cont’d)Disciplinary SWOP (cont’d) If the suspension is for more than 10 days, If the suspension is for more than 10 days,

the full hearing procedures of -325(j3) apply.the full hearing procedures of -325(j3) apply. Intentional misconduct includes, but is not Intentional misconduct includes, but is not

limited to, inappropriate sexual or physical limited to, inappropriate sexual or physical conduct, immorality, insubordination, conduct, immorality, insubordination, habitual or excessive alcohol or nonmedical habitual or excessive alcohol or nonmedical use of a controlled substance, any cause that use of a controlled substance, any cause that constitutes grounds for the revocation of a constitutes grounds for the revocation of a teaching license, or providing false teaching license, or providing false information.information.

Demotion of a Career Demotion of a Career School AdministratorSchool Administrator

Requires a full evidentiary hearing Requires a full evidentiary hearing

under 115C-325(j3).under 115C-325(j3).

DismissalDismissal Process begins with suspension without Process begins with suspension without

pay and notice to employee of pay and notice to employee of Superintendent’s intent to recommend Superintendent’s intent to recommend dismissal.dismissal.

Suspension without pay triggers Suspension without pay triggers constitutional and statutory protections.constitutional and statutory protections.

Employee must receive a meeting, Employee must receive a meeting, written explanation of the charges, and written explanation of the charges, and the bases for the charges. 115C-325(h).the bases for the charges. 115C-325(h).

Employee must receive a copy of the Employee must receive a copy of the statute and a list of case managers.statute and a list of case managers.

Grounds for DismissalGrounds for Dismissal

Inadequate Inadequate PerformancePerformance

ImmoralityImmorality InsubordinationInsubordination Neglect of DutyNeglect of Duty Physical or Mental Physical or Mental

IncapacityIncapacity Habitual or excessive Habitual or excessive

use of alcohol, or use of alcohol, or nonmedical use of nonmedical use of controlled substancescontrolled substances

Conviction of a felony or Conviction of a felony or crime involving moral crime involving moral turpitudeturpitude

Advocating overthrow of Advocating overthrow of the governmentthe government

Failure to fulfill the Failure to fulfill the duties and duties and responsibilities imposed responsibilities imposed upon teachers by the upon teachers by the general statutes general statutes

Grounds for Dismissal Grounds for Dismissal (cont’d)(cont’d)

Failure to comply Failure to comply with reasonable with reasonable board requirementsboard requirements

Any cause that Any cause that constitutes grounds constitutes grounds for revocation of the for revocation of the teacher’s certificateteacher’s certificate

R.I.F.R.I.F. Failure to maintain Failure to maintain

teaching license in teaching license in current statuscurrent status

Providing false Providing false information or information or knowingly omitting a knowingly omitting a material fact on an material fact on an application for application for employment or in employment or in response to a response to a preemployment preemployment inquiryinquiry

Failure to repay Failure to repay money owed to the money owed to the statestate

Inadequate PerformanceInadequate Performance

Leading case: Leading case: Nestler v. Chapel Hill/ Nestler v. Chapel Hill/

Carrboro Board of EducCarrboro Board of Educ..

Prior notice rule: “Failure to notify a Prior notice rule: “Failure to notify a

career employee of an inadequacy in career employee of an inadequacy in

his performance shall be conclusive his performance shall be conclusive

evidence of satisfactory evidence of satisfactory

performance.” 115C-325(e)(3).performance.” 115C-325(e)(3).

ImmoralityImmorality Includes more than sexual misconduct. Includes more than sexual misconduct.

Leading case: Leading case: Barringer v. Caldwell Co. Barringer v. Caldwell Co. Board of EducBoard of Educ. Holding: A reasonable . Holding: A reasonable public school teacher of ordinary intelligence public school teacher of ordinary intelligence would know that going to a pool room with a would know that going to a pool room with a loaded shotgun constituted conduct likely to loaded shotgun constituted conduct likely to be known to the general student population be known to the general student population and would manifest a poor example.and would manifest a poor example.

Three year rule doesn’t apply if based on Three year rule doesn’t apply if based on sexual misconduct toward or sexual sexual misconduct toward or sexual harassment of students or staff.harassment of students or staff.

InsubordinationInsubordination

A “willful disregard of express or implied A “willful disregard of express or implied directions of the employer and a refusal directions of the employer and a refusal to obey reasonable orders.” to obey reasonable orders.” Thompson Thompson v. Wake County Board of Educv. Wake County Board of Educ..

Example: Driver’s education teacher Example: Driver’s education teacher properly dismissed for disobeying properly dismissed for disobeying principal’s directive that he not be alone principal’s directive that he not be alone in the car with a female student. in the car with a female student. Crump Crump v. Board of Educv. Board of Educ. .

Insubordination (cont’d)Insubordination (cont’d)

May be effective ground when May be effective ground when employee fails to comply with employee fails to comply with principal’s performance directives. principal’s performance directives. Hope v. Charlotte-Mecklenburg Board Hope v. Charlotte-Mecklenburg Board of Educof Educ..

Neglect of DutyNeglect of Duty

A failure to perform some duty A failure to perform some duty imposed by contract or law including, imposed by contract or law including, for example, the failure to report to for example, the failure to report to work. A charge of neglect of duty work. A charge of neglect of duty will stand only if the school can prove will stand only if the school can prove that a reasonable man would have that a reasonable man would have recognized the duty. recognized the duty. Overton v. Overton v. Goldsboro City Board of EducGoldsboro City Board of Educ..

Physical or Mental IncapacityPhysical or Mental Incapacity

An inability to perform the duties and An inability to perform the duties and

meet the responsibilities and physical meet the responsibilities and physical

demands of the job, which will demands of the job, which will

continue long-term or indefinitely. continue long-term or indefinitely.

Bennett v. Hertford County Board of Bennett v. Hertford County Board of

EducEduc..

This ground raises many ADA/Section This ground raises many ADA/Section

504 issues.504 issues.

Use of Alcohol or DrugsUse of Alcohol or Drugs

Evidence a teacher came to work Evidence a teacher came to work smelling of alcohol after oral warnings smelling of alcohol after oral warnings supports dismissal. supports dismissal. Faulkner v. New Faulkner v. New Bern-Craven Board of EducBern-Craven Board of Educ..

ADA issues?ADA issues?Fourth amendment issues: to test or Fourth amendment issues: to test or

not to test?not to test?Out of school conduct: DUIs and drug Out of school conduct: DUIs and drug

arrestsarrests..

Conviction of a CrimeConviction of a Crime

Must be a felony or a crime “of Must be a felony or a crime “of

moral turpitude.”moral turpitude.”

Three year rule does not apply.Three year rule does not apply.

Failure to Fulfill Duties Failure to Fulfill Duties Prescribed by State LawPrescribed by State Law

G.S. 115C-307 prescribes duties of G.S. 115C-307 prescribes duties of

teachers.teachers.

Other duties could include completing Other duties could include completing

accurate reports (G.S. 115C-302) and accurate reports (G.S. 115C-302) and

complying with ethical and testing complying with ethical and testing

standards adopted by the State Board standards adopted by the State Board

of Education.of Education.

Failure to Comply with Board Failure to Comply with Board RequirementsRequirements

Look to the Board policy manual for Look to the Board policy manual for these standards.these standards.

Any Cause that is Grounds for Any Cause that is Grounds for License RevocationLicense Revocation

Includes conviction or entry of no contest Includes conviction or entry of no contest plea, as an adult, of a crime “if there is a plea, as an adult, of a crime “if there is a reasonable and adverse relationship reasonable and adverse relationship between the underlying crime and the between the underlying crime and the continuing ability of the person to continuing ability of the person to perform any of his/her professional perform any of his/her professional functions in an effective manner.” 16 functions in an effective manner.” 16 N.C. Admin. Code § 6C.0312.N.C. Admin. Code § 6C.0312.

Failure to Maintain License in Failure to Maintain License in a Current Fashiona Current Fashion

This ground suggests that a teacher This ground suggests that a teacher should be afforded the due process should be afforded the due process procedures of G.S. 115C-325 for procedures of G.S. 115C-325 for failure to maintain a license, failure to maintain a license, although G.S. 115C-303 prohibits although G.S. 115C-303 prohibits boards from maintaining on their boards from maintaining on their payroll any person who lacks a payroll any person who lacks a certificate as required by law.certificate as required by law.

Providing False InformationProviding False Information

Allows dismissal for “[p]roviding false Allows dismissal for “[p]roviding false

information or knowingly omitting a information or knowingly omitting a

material fact on an application for material fact on an application for

employment or in response to a employment or in response to a

preemployment inquiry.”preemployment inquiry.”

The three year rule does not apply.The three year rule does not apply.

Documenting and Documenting and Improving Improving Employee Employee

Performance Performance

Strategies for . . .Strategies for . . .

Action PlansAction Plans

Required by state law for teachers Required by state law for teachers

rated below standard or worse on an rated below standard or worse on an

evaluation. G.S. 115C-288(i), -333.evaluation. G.S. 115C-288(i), -333.

May be used even when not required May be used even when not required

by state law.by state law.

North Carolina Law North Carolina Law Concerning Concerning

Personnel FilesPersonnel Files

North Carolina Law North Carolina Law Concerning Concerning

Personnel FilesPersonnel Files

G.S. 115C-317G.S. 115C-317““[A] personnel file consists of any [A] personnel file consists of any information gathered by the local board of information gathered by the local board of education which . . . relates to the education which . . . relates to the individual’s application, selection or individual’s application, selection or nonselection, promotion, demotion, nonselection, promotion, demotion, transfer, leave, salary, suspension, transfer, leave, salary, suspension, performance evaluation, disciplinary performance evaluation, disciplinary action, or termination of employment action, or termination of employment wherever located or in whatever formwherever located or in whatever form.”.”

G.S. 115C-320G.S. 115C-320Requires boards of education to maintain Requires boards of education to maintain a public record of employees showing a public record of employees showing “name, age, date of original employment “name, age, date of original employment or appointment, current position, title, or appointment, current position, title, current salary, date and amount of most current salary, date and amount of most recent promotion, demotion, transfer, recent promotion, demotion, transfer, suspension, separation, or other change suspension, separation, or other change in position classification and the office or in position classification and the office or station to which the employee is currently station to which the employee is currently assigned.”assigned.”

G.S. 115C-321G.S. 115C-321

The employee or her The employee or her representative may examine the representative may examine the employee’s personnel file “at all employee’s personnel file “at all reasonable times in its entirety.”reasonable times in its entirety.”

Others permitted to examine the Others permitted to examine the file include supervisors, board file include supervisors, board members, the board attorney and members, the board attorney and any party under authority of a any party under authority of a court order or subpoena.court order or subpoena.

G.S. 115C-325(b)G.S. 115C-325(b) Covers “teachers” only.Covers “teachers” only. Requires Superintendent to maintain a Requires Superintendent to maintain a

personnel file that contains any personnel file that contains any “complaint, commendation, or suggestion “complaint, commendation, or suggestion for correction or improvement about the for correction or improvement about the teacher’s professional conduct.”teacher’s professional conduct.”

Superintendent may elect not to place Superintendent may elect not to place certain documents in a teacher’s file. certain documents in a teacher’s file.

G.S. 115C-325(b) G.S. 115C-325(b) (cont’d) (cont’d)

Requires that the teacher have five Requires that the teacher have five days notice before the document is days notice before the document is placed in the teacher’s file.placed in the teacher’s file.

Requires that any response the teacher Requires that any response the teacher makes also be placed in the file.makes also be placed in the file.

Allows the teacher to petition the board Allows the teacher to petition the board of education to remove documents that of education to remove documents that are invalid, irrelevant or outdated.are invalid, irrelevant or outdated.