Originally appeared in the CAS Weekly Newsletter. Written by Attorney Thomas B. Mooney
Dear Legal Mailbag:
As the days get longer and the weather gets warmer, I am reminded that we are approaching that time of the year – non-renewal season. But I am always afraid that I will be challenged if I recommend that a teacher be non-renewed. I do my best to evaluate these non-tenured teachers and this year one of them is really pretty bad. But if I recommend that he not be renewed, I am concerned that the union will come after me hammer and tongs. What if the union comes up with some technical defect in the evaluation process? It could be terribly embarrassing if the teacher I recommend for non-renewal asks for a hearing and some smarty-pants lawyer puts me through the wringer.
I was thinking that it may be better to simply tell the teacher too bad/so sad but we are reducing staff and the teacher’s position will be eliminated. In these tough times, that is certainly plausible. And by characterizing the separation as a layoff, we can avoid a messy hearing, can’t we? How does all that sound to you, Legal Mailbag?
You should really grow a spine. The courts have held that non-renewal is a discretionary act concerning a probationary employee. If a non-tenured teacher is “really pretty bad,” as you say, you have a professional obligation to make the call and recommend non-renewal.
I understand your concern about a hearing – no one likes to be challenged. But almost all non-renewal decisions result in a negotiated resignation, not a hearing. That is likely because requesting a non-renewal hearing is unlikely to help a teacher retain his or her job. Such hearings have long been available as part of the process but, since 1997, the law has provided that, after such a hearing, the non-renewal decision should be affirmed unless it is “arbitrary and capricious.” Given that standard, it is little wonder that when teachers are notified that their contracts will not be renewed, they almost never ask for a hearing.
To make matters worse, your bright idea could result in this “really pretty bad” teacher being recalled to employment. To be sure, if a teacher is notified of non-renewal due to reduction in force, that teacher is not entitled to a hearing. However, that same teacher may be subject to recall. Depending on the terms of the collective bargaining agreement with your district’s teachers, even a non-tenured teacher who is laid off may be entitled to be called back to employment if a vacancy occurs. So straighten up and fly right. Be honest and recommend non-renewal when appropriate.