The impacts of COVID-19 and decreasing oil prices on the Texas economy will likely be significant, and spring contract offers should be undertaken with an eye toward anticipating potential statewide budget shortfalls for 2021-2022.
While federal and state authorities scramble to mitigate the impact of COVID-19 and plunging oil prices on the economy, Texas school boards will be making hiring decisions in April and early May, well before the impact of the current economic crisis is fully understood. This article provides an overview of the available procedures for planning purposes.
Term Contract Nonrenewal - An educator who is employed under a term contract of employment is entitled to be employed in the same professional capacity in the succeeding school year unless the contract is nonrenewed at the end of the term. Written notice of a school board’s proposal to nonrenew a term contract must be made no later than 10 calendar days prior to the last day of student instruction; in the current climate, a day of student
instruction has become a fluid concept. Make decisions early to avoid missing this critical deadline. Any term contract employee who does not timely receive written notice of nonrenewal will be automatically renewed under a term contract for the succeeding school year by operation of law. The critical legal steps are:
Notice - Written notice of the proposal to nonrenew the educator’s term contract and a brief description of the reason(s) for the proposed nonrenewal must be either hand delivered to the educator if the educator is present on campus, or if the educator is working from home, the notice must be mailed by prepaid certified or express delivery to the educator’s residence of record within the District and postmarked by the 10-day deadline.
E-mail is insufficient.
Hearing - The educator will have 15 days to request a hearing before the Board. The hearing will be conducted in a duly called meeting, posted under the Texas Open Meetings Act (in 2020, as modified by Governor Abbott’s statewide Order), or before a hearing examiner if such a process has been established by board policy. The administration will present evidence in support of the proposed nonrenewal, and the Board or hearing examiner must decide
whether the evidence supports the administrative recommendations.
Board Action - Within 30 days of the written notice of nonrenewal, and irrespective of whether the educator has requested a hearing, the Board must take action on the proposal to nonrenew the educator’s term contract.
There are other methods to reduce staffing that a district may consider as alternatives to nonrenewal of term contracts:
Hiring Freeze/Attrition - Advance planning for a statewide budgetary shortfall in the next biennium should include consideration of planning for downsizing by freezing or decreasing hiring and allowing for natural attrition. Consider offering early resignation payments to incentivize early retirement decisions in the 2020-21 school year.
Terminate Probationary Contracts - A probationary contract may be terminated at the end of the contract term in the best interests of the District. The board of trustees must give written notice of its decision to terminate the employment to the teacher not later than the 10th day before the last day of instruction, in the manner described above. The board's decision is final and may not be appealed.
Extend Probationary Period - Many local board policies provide for a probationary period to extend for the first three years of a teacher’s employment. At the end of the third year, the board of trustees may determine that it is doubtful whether the teacher should be given a term contract. If the board makes that determination, the district may offer to extend the probationary period for an additional year without the need to commit to a term
contract. For spring 2020, this may be a tool to increase flexibility at the end of the 2020-2021 school year.
Return to Probationary Status - Any term contract employee may be returned to probationary status by agreement. This is a useful tool to consider when considering alternatives to a formal nonrenewal process. A teacher may agree to be returned to probationary contract status after receiving written notice of 1) the Board’s action to propose nonrenewal; or 2) the superintendent's intent to recommend termination, or nonrenewal. The
written notice must inform the teacher of the school district’s offer to return the teacher to probationary contract status, the period during which the teacher may consider the offer, and the teacher's right to seek counsel. The district must provide the teacher at least three business days after the date the teacher receives this notice subsection to agree to be returned to probationary contract status.
Reduction in Force - Program Change- The process for a program change is outlined in local board policy, and such policies should be strictly adhered to. A district that implements a program change will be required to notify impacted teachers on or before the 10-day notice deadline in the manner described above. In general, the procedural steps are:
- The Superintendent identifies the impacted program, consistent with Board policy DFB (Local). Typically, a “program change” is broadly defined and may include the elimination, curtailment, or reorganization of a program, department, school operation, or curriculum offering; a modification of the schedule; the restructuring of an instructional delivery method; or a modification or reorganization of staffing patterns in a
department, on a particular campus, or District-wide.
- The Board adopts a resolution identifying the employment areas impacted by the program change.
- The Superintendent applies the criteria in local policy that should be used to identify individuals who will be impacted by the program change and identifies those individuals whose positions will be eliminated.
- The Board acts to give timely notice of proposed contract nonrenewal and offers nonrenewal hearings as requested in the manner described above.
While a reduction in force requires strict adherence to procedure, if the process is followed closely, the likelihood of a successful challenge is low. Note that there are several steps involved, but the resolution of the board identifying areas for program change can take place at the same meeting that action is proposed on individual contracts. If a district has the opportunity to plan well in advance and notify employees of the
anticipated changes, individuals can make personal decisions that will reduce the need for contract nonrenewals and possible unemployment compensation claims.
Texas educators have responded with grace and flexibility in taking on the task of continuing to educate the children of this state under drastically changed conditions. School leaders will also be faced with the difficult task of making employment commitments this spring with anticipated shortfalls in local and state resources in the coming biennium. Planning ahead, and using a combination of strategies, will be helpful in making any changes with a minimum of
disruption to the district and the community.
Article written by Sara Leon.
