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Barbara A. Thompson & Dr. W.A. Kritsonis, employment law






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Barbara A. Thompson & Dr. W.A. Kritsonis, employment law Barbara A. Thompson & Dr. W.A. Kritsonis, employment law Document Transcript

  • The United States Constitutional Requirements of Due Process Applied to the Public Employment Relationship of School Personnel in Texas Barbara A. Thompson, M.S. PhD Student in Educational Leadership College of Education Prairie View A&M University Administrative Assistant College of Engineering Graduate Affairs and Research William Allan Kritsonis, Ph.D. Professor and Faculty Mentor PhD Program in Educational Leadership Prairie View A&M University Member of the Texas A&M University System Visiting Lecturer (2005) Oxford Round Table University of Oxford, Oxford England Distinguished Alumnus (2004) Central Washington University College of Education and Professional Studies December 5, 2009 ABSTRACTMost of the legal disputes arise out of the employment of public school personnel. Lawsthat affect the employment relationship, the constitutional concept of due process of law,different employment arrangements available to public schools in Texas, the hiring andfiring process, and the legal issues that arise in these contexts are examined. Introduction The United States (U.S.) Constitution applies to the public employmentrelationship (Walsh, Kemerer & Maniotis, 2005). This fact distinguishes publicemployment from private employment. The due process of the Fourteenth Amendment isnot invoked in the private sector and it is not a guarantee against incorrect or poor
  • Public Employment of School Personnel 2advisement. According to the U.S. Constitutional requirement of the due process clause,states must afford certain procedures before depriving individuals of certain interests.Laws and legal proceedings must be fair. When a person is treated unfairly by thegovernment, including the courts, he is said to have been deprived of or denied dueprocess. (The Lectric Law Library’s Lexicon on Due Process, n.d.). The focus is ondeprivation of liberty or property. Certain procedures are considered due process andcertain interests are life, liberty, or property. The Supreme Court requires individuals toshow that the interest in question is either their life, their liberty, or their property. If theinterests are not in either of these categories, life, liberty or property, no matter howimportant it is, it doesnt qualify for constitutional protection. The U.S. Constitution onlyrestricts governmental action. Rights can be regulated or taken away altogether if due process of law is provided(Walsh, Kemerer & Maniotis, 2005). The due process clause serves to the use of fairprocedures, more accurate results that would prevent the wrongful deprivation ofinterests. Due process provides individuals the opportunity to be heard from their pointof view. This allows the individual to feel that the government has treated them fairly.The due process clause is essentially a guarantee of basic fairness by giving propernotice, providing an opportunity to be heard at a meaningful time in a meaningful way ora decision supported by substantial evidence. The more important the individual right inquestion is, the more process that must be afforded (Exploring Constitutional Conflicts,2009).
  • Public Employment of School Personnel 3 The Purpose of the Article The purpose of this article is to focus on the constitutional concept of due processof law, different employment arrangements available to public schools in Texas, thehiring and firing process and the legal issues that arise in these areas. The Constitutional Concept of Due Process In any personnel decision, the question is whether the employee was deprived ofany property or liberty with the constitutional guarantee of due process of law. The 1972U.S. Supreme Court case of Board of Regents v. Roth, ruled that teachers are protectedunder the 14th amendment property right of continued employment if the state law givesthem a legitimate claim of entitlement to it (Walsh, Kemerer & Maniotis, 2005). Beforeany process is due, there must be state action and a significant, more sudden and dramaticdeprivation of life, liberty or property. For example, The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies. We must accept the harsh fact that numerous individual mistakes are inevitable in the day to day administration of our affairs. The United States Constitution cannot feasibly be construed to require federal judicial review for every such error. In the absence of any claim that the public employer was motivated by a desire to curtail or to penalize the exercise of an employee’s constitutionally protected rights we presume that official action was regular and, if erroneous, can best be corrected in other ways. The Due Process Clause of the Fourteenth Amendment is not a View slide
  • Public Employment of School Personnel 4 guarantee against incorrect or ill-advised personnel decisions. (Russell v. El Paso I.S.D., 1976, p. 565.) When the government deprives an individual of life, liberty or property, the dueprocess clause is invoked. A property right protected by the Fourteenth Amendment maynot be taken away without providing a person with due process (Walsh, Kemerer &Maniotis, 2005). Governmental action is restricted by the U.S. Constitution. In theprivate section, the due process clause is not invoked. Due process is not an absolute. Itvaries according to the deprivation of property. When a person accepts a position with a school district on an at-will basis, he orshe has no property right in the job (Walsh, Kemerer & Maniotis, 2005). There is an at-will employee contract that incorporates an at-will relationship. If the at-will employeepoints to the employee’s policies and procedures manual as reasons not to be fired, noprocess is due. The at-will employee has a contact where the at-will relationship is statedand each party is free to end the employment relationship without notice, hearing or goodcause (Walsh, Kemerer & Maniotis, 2005). There is no property right in the job,therefore no process is due. If the employee’s contract is not renewed and the contracthas run its full course, there is no process due. If the contract is not renewed and there isanother year on the contract, then due process is invoked. The employee who has acontract is entitled to due process. Due process for a terminated employee includes giving timely notice of why thetermination is occurring, a fair hearing so that the employee can defend himself, namesand the nature of the testimony of witnesses against the employee must be available, andsufficient evidence to establish a good cause for dismissal must be presented (Walsh, View slide
  • Public Employment of School Personnel 5Kemerer & Maniotis, 2005). The employee can be on the job for thirty years or theemployee can be a one year probationary teacher. If the contract was terminated beforethe stated expiration date, the property right of the individual is in question and dueprocess is invoked. Texas employees are allowed an independent hearing. Any decisionto terminate a contract comes back to the school Board before it is final. The employeemust produce clear evidence if they charge the Board with partiality. The liberty right of the individual addressed in the Fourteenth Amendmentsuggests that the parent has a right to select a non-public school, the right to privacy andthe right to a good reputation. In the 1972 Supreme Court case Wisconsin v.Constantineau (p.437), the employee stated the government put his name, honor andreputation at state, therefore a notice and an opportunity to be heard was essential.Stigmatizing statements create a right to a name clearing hearing only if they arise inconjunction with termination or non-renewal of employment as in the Siegert v. Gilley,1991 court case. If the employee publicized the defamatory remarks, due process is notinvoked. There is no right to a name clearing hearing. In Burris v. Willis I.S.D., 1983, ateacher claimed that when a board official read a letter about him at an open boardmeeting and in so doing, it violated his constitutional rights by depriving him of a libertyright to a good reputation. The teacher’s claim was rejected because the file was keptconfidential. Employment Arrangements, Contracts and Legal Recourse There are six types of employees within the public school (Walsh, Kemerer &Maniotis, 2005). They are at-will employees, non-chapter 21 contract employees,probationary contract employees, term contract employees, continuing contract
  • Public Employment of School Personnel 6employees and third-party independent contract employees. Legal issues arise withineach area when the relationship is ended. At Will Contracts The at-will employee has a contact where the at-will relationship is stated andeach party is free to end the employment relationship without notice, hearing or goodcause. This employee can be terminated for good reasons, bad reasons, or ‘no reason atall’. ‘No reason at all’ refers to a reason based on a bad reason that violates state orfederal law. If the decision is a wrongful discharge and the employer violated state orfederal law, the employee can sue (Walsh, Kemerer & Maniotis, 2005). The at-willrelationship is the norm in the private sector. For example, an employee in at at-willrelationship in the private sector can be described as an employee working for 30 yearsand quit his or her job tomorrow. Also, an employee can go into work the next day andbe fired (Walsh, Kemerer & Maniotis, 2005). The terminated at-will employee can filesuit alleging his discharge was due to retaliation for his exercise of his constitutionalrights when he or she blew the whistle on wrongdoing. The terminated employee canalso file discrimination based on race, sex, religion, age, national origin, or disability if itcan be proven. Chapter 21 and Non Chapter 21 Contracts Teachers certified under chapter 21 of the Education code must have a contract.Chapter 21 employees include the classroom teacher, librarian, nurse or counselor, whichmeans a probationary, term or continuing contract. Section 21:201 describes a teacherunder term contract law as a supervisor, classroom teacher, counselor or other full-timeprofessional who must be certified under Subchapter B or a nurse. Non-chapter 21
  • Public Employment of School Personnel 7employees do not need a contract and do not require certification. They are not subject toan independent hearing system or statutory non-renewal process. Positions such asbusiness manager, director of transportation, director of construction and facilities ordirector of maintenance do not require certification. If there is a written employmentcontract, and the employee alleges the district violated the contract and meant himmonetary harm, the employee can appeal to the commissioner pursuant to TEC § 7.107. Probationary Contracts Probationary contracts are for those teachers who have never taught before or whohave not been employed for two consecutive years subsequent to August 28, 1967. (TEC§ 21.102. The probationary period can be as long as 3 years except for experiencededucators with previous employment in public school for 5 of the 8 preceding years. Theprobationary teacher will serve under a 3 consecutive one-year probationary contracts.Probationary periods can be for a semester when the school year falls in the middle of theyear. A probationary teacher can resign without penalty up to forty-five days before thefirst day of instruction. If school starts in mid-August, the teacher must resign beforeJuly 1 or suffer sanctions imposed by the State Board of Educator Certification. Aprobationary contract can be non-renewed by the board even if the superintendentrecommended that it be renewed (Berry v. Kemp I.S.D.). Term Contracts After the probationary period, the teacher must receive either a continuing or aterm contract (Walsh, Kemerer & Maniotis, 2005). The length of the contract and theprocess for renewal, nonrenewal, or termination determines which contract to offer. Aclassroom teacher, superintendent, principal, supervisor, counselor or other full-time
  • Public Employment of School Personnel 8professional employee who holds a certification or a nurse may be offered a termcontract. A term contract has a beginning date and an end date and is any probationaryChapter 21 contract for a fixed term that can be as long as 5 school years. As the enddate approaches, some action must be taken. The resignation date for a term employee is45 days prior to the first day of instruction which is the same for probationary employees(Walsh, Kemerer & Maniotis, 2005). A term teacher contract can be renewed by theschool, non-renewed or terminated. Termination refers to the action of the district to endthe contract prior to its normal expiration date. The teacher is deprived of propertyinterest and good cause, thus due process is required. A non-renewal of contract refers to the school district letting the contract expire.The employee is permitted to fulfill the terms of the contract and no new contract isoffered. If there is a multi-year contract, the district extends the contract each year or ifthe contract is not extended in the 2nd year, it is still valid for that year. The contract isnon-renewed. A term contract teacher is entitled to a hearing prior to nonrenewal. Oncethe teacher receives notice, a hearing can be scheduled within 15 days with the board oran independent hearing system that is closed to the public, unless the teacher requests anopen hearing. A term contract teacher can be suspended, but not beyond the school year,without pay for good cause as determined by the school board. The teacher is entitled torequest an independent hearing or the district can suspend the teacher with pay and non-renew the contract at the end of its term. The district must give notice of a proposed non-renewal to the teacher 45 calendar days before the last day of instruction. If the 45 daysare not adhered to, the contract is automatically renewed. Complaints of procedural
  • Public Employment of School Personnel 9irregularities in the appraisal process cannot be resurrected at the contract non-renewalprocess (Walsh, Kemerer & Maniotis, 2005). When the superintendent contract is up for non-renewal, reasonable notice of thereason for the proposed non-renewal must be given before the 30th day of the last day ofthe contract term. In contrast, the teacher term contract does not require reasonablenotice of the reason for the proposed non-renewal. Continuing Contracts A continuing contract is issued to a classroom teacher, superintendent, principal,supervisor, counselor or other full-time professional employee who was eligible for acontinuing contract. The contract rolls over form one year to the next year without thenecessity of board action. Non-renewal does not apply to continuing contracts. A formeradministrator, who moves into a teaching position and teaches children, can be issued acontinuing contract. There is no specific length of time for continuing contract. Thecontract remains in effect until the teacher resigns, retires, is terminated, or is returned toprobationary status. The continuing contract teacher can be terminated according to theindependent hearing system, at any time for good cause (failure to meet the standards ofconduct for the profession as generally recognized and applied in similarly situatedschool districts in the state) as determined by the board of trustees (TEC §21.156).Instead of discharge, a school can suspend a continuing teacher contract with notice,entitlement to an independent hearing, and without pay for a period of time not to exceedthe current school year. The continuing teacher contract can return to a probationarystatus, provided the teacher consents to the move (Walsh, Kemerer & Maniotis, 2005).
  • Public Employment of School Personnel 10 Third-Party Independent Contracts Full vested educators in the Texas Teacher Retirement system (TRS) could retire,begin drawing benefits, and them go to work at a salary equivalent to or better than whatthey had been making. School Boards could begin hiring teachers and not be burdenedwith having to treat them as employees. The teachers would keep their benefits underTRS (Att’y Gen. Op. GA-0018, 2003). If a school principal was dissatisfied with ateacher, he would call and ask for a different teacher. The school district did not employthe teacher and there was no contract and no legal requirements to end the relationship. The Hiring and Firing Process In 1992, the legislature created State Board for Educator Certification (SBEC), a14 member board, as the key entity to oversee and regulate all aspects of the certification,continuing education, and standards of conduct of public school educators. SBEC haspower to adopt rules for out of state educators, certification, requirements for renewal ofcertificates, and disciplinary procedures for suspension and revoking a certificate as wellas approval and continuing accountability of such programs (Walsh, Kemerer &Maniotis, 2005). The board must annually review the accreditation status of eacheducator preparation program. An advisory committee has to be appointed by SBEC foreach class of educator certificates. These rules must be submitted and reviewed by theState Board of Education and can be rejected by SBOE by a 2/3 vote. A public schooldistrict can hire certified and licensed employees. Certified employees are teachers,teacher interns, teacher trainees, librarians, educational aids, administrators, andcounselors. Licensed employees are audiologists, occupational therapists, physical
  • Public Employment of School Personnel 11therapists, physicians, nurses, school psychologists, associate school psychologists, socialworkers, and speech pathologists (Walsh, Kemerer & Maniotis, 2005). Texas public school districts are governed by the same laws that prohibitdiscrimination laws based on race, sex, religion, age, national origin, sexual harassment,and disabilities. Nondiscrimination laws apply to all employees regardless of the contractand have implications for the hiring process. Those involved in the hiring process needspecific training (Walsh, Kemerer & Maniotis, 2005). School districts are not required to advertise or post vacancies in their school.Advertising is a choice the school makes so that they can defend themselves againstdiscrimination. The school board adopts policies regarding the employment and duties ofpersonnel. The superintendent has sole authority to make recommendations to the boardregarding the selection of all personnel and must be in the loop in hiring people. Theprincipal does not hire staff, but must approve each teacher, reassignment, or staffappointment to the principal’s campus except for necessary teacher transfers due toenrollment shifts (11.202; Att’y Gen. Op. DM-27, 1991). In this regard, thesuperintendent has final placement authority for a teacher. SBEC must obtain criminalhistory on all certified educators. Background checks are not required by each schooldistrict except on contracted bus drivers of transportation services. If the bus driver hasbeen convicted of a felony or misdemeanor involving moral turpitude, the bus drive maydrive the bus only with the school’s permission. If an applicant lies on an applicationabout the felony or misdemeanor involving moral turpitude, the applicant must beterminated (TEC 22.085). “Moral turpitude is a legal concept in the United States thatrefers to "conduct that is considered contrary to community standards of justice, honesty
  • Public Employment of School Personnel 12or good morals” (Moral turpitude, 2009). If an applicant has a clean record when hired,and is convicted of an offense while working for the district, a report must be madewithin seven calendar days by the superintendent or chief executive (19 TAC 249.14) Concluding Remarks In conclusion, school districts employ many people and must comply with manyfederal and state mandates. The purpose of this article is to focus on the constitutionalconcept of due process of law, different employment arrangements available to publicschools in Texas, the hiring and firing process and the legal issues that arise in theseareas. The relationship between employees in the public schools is determined byconstitutional restrictions and statutory provisions in the Education Code and otherlegislation. Regardless of the type of contract used by a school district, contract withteachers must be in writing. Verbal commitments from school administrators may not belegally binding. Terms of the contract must be approved by the school board. Accordingto Walsh, Kemerer & Maniotis (2008), the knowledge of the basics of the law shouldmove from the central office to each campus. The director of personnel for the districtshould be an expert and have full of the United States constitutional requirements of dueprocess applied to the public employment relationship of school personnel in Texas.
  • Public Employment of School Personnel 13 ReferencesAtt’y Gen Op DM-27, 1991Berry v Kemp I.S.D., Dkt. No. 103-R10-600 Comm’r Educ. 2001): 158-159Burris v Willis I.S.D., 713 F.2d 1087 (5th Cir. 1983): 131, 236Linder, D. (2009). Exploring constitutional conflicts. Retrieved November 1, 2009 from http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/home.html19 TAC 249.14Russell v El Pas I.S.D., 539 F.2d 563 (5th Cir. 1976): 128Siegert v Gilley, 500 U.S. 226 (1991): 131TEC 21:201TEC 7.107TEC 21.102TEC 11.202TEC 22.085The Letric Law (2009). Moral turpitude. Retrieved November 18, 2009 from http://www.lectlaw.com/def/d080.htmWalsh, J, Kemerer, F., & Maniotis, L. (2008). The educator’s guide to Texas school law. 6th ed. University of Texas Press: Austin, Texas.Wisconsin v Constantineau, 400 U.S. 433 (1971): 130, 327