Dear Legal Mailbag:

The smell of spring is in the air, and given my many years of service as a principal, I am reminded that it is “teacher non-renewal season.”

I have long known that teachers are probationary employees for the first four years of employment, and the corollary is that we may part company with these probationary employees simply by notifying them of non-renewal prior to May 1 in any of those first four years.

This year, I have my eye on one of those probationary teachers. He has worked in my building for almost four years now, and I am not impressed. Sure, he shows up for work, and he keeps his nose clean. But, how do I say this? He is . . . meh.

We have high standards in our district, and this terminally-mediocre teacher just doesn’t fit in. With the pandemic and all, I have not evaluated him or, in fact, said much to him since his first year. But “probationary” means “probationary,” and I write to confirm that I can send the standard non-renewal notification as I see fit.

A Harsh Critic

Dear Harsh:

At your recommendation, your superintendent can send a non-renewal notification – at your own risk. Depending on the teacher’s prior experience, you may or may not be correct on the law, but your supervisory skills certainly leave much to be desired.

As to the teacher’s legal status, you are correct to describe the teacher as “probationary” if the teacher has not previously achieved tenure in Connecticut. In general, teachers must be continuously employed for forty school months and they must be offered reemployment for the following year in order to achieve tenure. Conn. Gen. Stat. § 10-151(a). “Continuous” employment, however, is more than simply checking the calendar and counting the months. If a teacher is laid off and is reemployed by the same board of education within the next five years, prior service will count as part of the required forty months of continuous employment. Also, if a teacher goes on an authorized leave for fewer than ninety student school days, all such time counts toward the required forty months, and when the authorized leave exceeds ninety student school days, such leave time does not count, but credit for the prior months of service is retained when the teacher returns from leave.

A significant exception to the forty-month requirement applies when a teacher has previously achieved tenure with the same or a different Connecticut school district. In such case, as long as the teacher has been employed in the previous five years by any Connecticut school district, the teacher achieves tenure upon completion of twenty school months after reemployment by the original district or employment by the new school district. This alternative path to achieving tenure is commonly called “short track” tenure.

Given this provision in the Teacher Tenure Act, it is critically important for supervisors to know whether a non-tenure teacher has previously attained tenure. Indeed, if a teacher successfully completes forty school months in one school district and then leaves employment for another, he or she may be eligible for such “short track” tenure. In this regard, details matter. To successfully complete forty school months, a teacher must be offered reemployment for the following (fifth) year. Thus, if a teacher resigns employment in his or her fourth year before May 1 (the non-renewal deadline), the teacher has not met the conditions for tenure because the teacher was not offered re-employment. Conversely, if the resignation occurs after May 1 and the teacher had not received a non-renewal notification, the teacher was in effect offered reemployment. In such a case, by the end of that year, the teacher will have successfully completed forty school months of continuous service and thus will have attained tenure.

As to the merits of non-renewal decisions, you are correct to describe the status of non-tenure teachers as probationary. School district employers may end the employment of non-tenure teachers through contract non-renewal (by assuring that the teacher receives written notification of non-renewal by May 1) for any legitimate reason, and such reason need not raise to the level of just cause. It is therefore important for school administrators to review the performance of non-tenure teachers critically, and to recommend non-renewal of their contracts when the teacher’s performance is not excellent or does not demonstrate the potential for excellence.

The problem Legal Mailbag sees here is your failure to give this teacher the feedback that may have helped the teacher succeed. Common sense dictates that a supervisor should help a mediocre teacher improve by identifying areas of weakness and providing support, something you admit you did not do.

This obligation can be inferred from the Teacher Tenure Act itself. When a non-tenure teacher receives written notification of non-renewal, the teacher may request a statement of reasons. Unless the non-renewal is due to elimination of position, the teacher may also request a hearing before the employing board of education. To be sure, non-renewal hearings are exceedingly rare, because the statute further provides that “[t]he board of education shall rescind a nonrenewal decision only if the board finds such decision to be arbitrary and capricious.” However, through your inaction, you may have managed to give the teacher a successful argument. If one remains silent about concerns about a teacher’s performance for almost four years and then surprises a non-tenure teacher with a non-renewal notification mere weeks before the teacher achieves tenure, it is quite possible that a board of education would consider such actions “arbitrary and capricious.”