Dear Legal Mailbag:

It is that time again. My superintendent sent out the annual memorandum last week asking all of us principals if we have any non-tenured teachers whose contracts we recommend not renewing. If I may be candid (this is attorney-client privileged, right?), I have serious doubts about one teacher who just started this year because he seems quite disorganized every time I pop into his classroom unannounced. But I am not sure that I have enough to recommend his non-renewal.

I scheduled a meeting with this teacher last week to talk about his need to up his game. However, as soon as I started to explain my concerns, he got hyper-defensive and he asked for union representation. I told him to relax, that I just wanted to ask him a few questions about how he prepares for class. But he insisted, and we have rescheduled the meeting for next week.

In the meantime, I have been thinking about this teacher, and I do have concerns about his teaching. The problem is that he isn’t terrible, and I don’t really have strong evidence to justify his termination. Would it be a problem if I just tell my superintendent that things are fine and do my best to help this weak teacher improve?

Holding Back

Dear Holding:

Letting this teacher scrape by is not in your interest or that of the students in your school. If things with this teacher do not improve, Legal Mailbag would not want to be in your shoes as you explain your dereliction to your superintendent.

The Teacher Tenure Act confers significant employment protections on teachers, but for the first forty months of employment (twenty months for teachers who achieved tenure status at any Connecticut school district in the preceding five years), teachers are probationary employees. “Probationary” means just that, and non-tenured teachers have the right to be treated fairly, but they do not have the right to continue in employment. It is therefore important that you (and principals throughout the state) take a careful look at the performance of non-tenure teachers each spring. Such teachers are subject to non-renewal of their employment contract, which occurs if they receive written notification of non-renewal by May 1 in any year, which then will be effective at the end of the school year.

Your question suggests that you think that you must have “just cause” to recommend non-renewal of contract. You do not. School officials simply must have a reasoned basis for a decision not to renew. Some school districts frame the question as whether the teacher has demonstrated excellence in teaching or the potential for such excellence. While teachers who are recommended for non-renewal have the right under the Teacher Tenure Act to request reasons for the non-renewal and a hearing, few do, because the standard for such hearing is that the non-renewal decision should be affirmed unless after hearing the board of education finds the non-renewal decision to be “arbitrary and capricious.” Accordingly, most non-renewal recommendations are resolved through a resignation.

Legal Mailbag acknowledges that non-renewal recommendations are a serious business, decisions not to be taken lightly. But a probationary teacher must demonstrate the potential for future success, and principals and other administrators are simply expected to be fair. That means that a teacher is entitled to fair warning that his or her teaching is not meeting your expectations. To be fair, such warning should be given promptly, and it can be unfair to give a teacher good evaluations and then suddenly decide in the third or fourth year of employment that a teacher’s contract should not be renewed.

Finally, Legal Mailbag wants to clarify the teacher’s right to union representation. The Connecticut State Board of Labor Relations has ruled that teachers (and other union employees) are entitled to union representation whenever their employers asks them questions and they reasonably fear for their job security. Almost forty years ago, the SBLR extended that right to teacher evaluation conferences when teacher performance is under scrutiny. You are fortunate that the teacher insisted on waiting for union representation. Going forward with the meeting without union representation for the teacher after the teacher requested it would invite an unfair labor practice charge. That could be a problem in any subsequent non-renewal proceedings. Sometimes it is better to be lucky than good.

Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.