Georgia School Boards AssociationRisk Management Fund

Current Legal Issues in Risk ManagementFebruary 16, 2011

Presented by: Phillip L. Hartley

Harben, Hartley & Hawkins, LLP

Preparing for Spring

Annual EvaluationsRenewals and NonrenewalsTenureRIFsOther employment issues

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Georgia Law and Evaluations

 All personnel employed by local units of administration … shall have their performance evaluated annually by appropriately trained evaluators. All such performance evaluation records shall be part of the personnel evaluation file and shall be confidential. Certificated professional personnel who have deficiencies and other needs shall have professional development plans designed to mitigate such deficiencies and other needs as may have been identified during the evaluation process. Progress relative to completing the annual professional development plan shall be assessed during the annual evaluation process.

Deadline for EvaluationMust be completed for each certified

employee by April 1Superintendent responsible for ensuring compliance

PSC has investigated and sanctioned lack of compliance

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Two Types of Employment Relationships

Employees with a written contract“At will” employeesRemember, all employees are

employed by the Board on recommendation of the Superintendent.

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Terminating “At Will” Employees

Board can terminate for any or no reason and at any time.

Is there a difference between nonrenewing and terminating?

No special procedures are required by law.

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What is Tenure and Who has It?

Tenure is the right to certain procedures if a teacher is not being recommended for a new one year contract with a school district in a certificated position at the conclusion of an existing contract.

Tenure is acquired by continuous service with a school district over time. 7

Who Acquires Tenure, When?Offered and accept a fourth

consecutive, full year, full time contract with the same local board of education

After getting tenure somewhere in Georgia, offered and accept a second, consecutive, full year, full time contract with a subsequent board in Georgia

Full time, full year and consecutive

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Administrative TenureNo tenure as an administrator unless

became an administrator prior to April 7, 1995 and stayed as administrator continuously since that time.

Administrators who had tenure as teachers prior to 4/7/95 and stay continuously employed with same district retain tenure rights as a teacher.

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Notice and Procedures for Nonrenewal

Nonrenewal of a non-tenured certified employee requires only written notice of intent not to renew prior to May 15 (at least through 2013), and;

“written explanation for failure to renew” if requested.

This applies to teachers and administrators without tenure, including part-time, on payroll first day of the school year.

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Procedure for Non-Renewing Tenured Employees

May 15th notice (at least through 2013)

Right to request a hearing and other rights in the letter

Certified mailThereafter, process is essentially the

same as terminating teacher under contract.

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Procedure for Terminating Employee and Nonrenewing Tenured Employee

“Charge” letterHearing before the board or a

tribunal selected by the boardEvidence required

Appeal rights

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Re-Examining the RIF Policy

O.C.G.A. § 20-2-940, the Fair Dismissal Act, provides for termination of a written employment contract during its term:“(6) to reduce staff due to loss of students or cancellation of programs”

This has been broadly interpreted by the State Board of Education and the courts to give local boards power to cut staff for any valid financial or reorganizational reason.

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Re-Examining the RIF Policy

While not required by law, a local Board of Education RIF (reduction in force) policy is highly recommended.

Given the number of RIFs school districts have faced, a reexamination of RIF policies may be in order.

Recent SBOE Decisions on RIFs

Ingram v. Mitchell County BoEApril 15 does not matter for a termination

due to a RIF.Only two issues for local board:

Was there elimination of a program? Was the employee part of that program?

OK to limit evidence of employee about alleged retaliation

No requirement to transfer employee when their position is eliminated

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Recent SBOE Decisions on RIFs

Porter v. Heard County BoE5 high school science teachers, only needed

4.FTE projected to decline, actual enrollment

expected to increase. SBOE: FTE is appropriate measure of declining

enrollmentPurpose of RIF – to economizeMethod of using test scores to identify

lowest performing teacher to eliminate is acceptable.

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Recent SBOE Decisions on RIFs

Evans v. Jefferson County BoECertified Nutrition Director position

eliminated and replaced with classified Nutrition Manager/Supervisor

RIF of position ok, even if nutrition program still exists.

OK for board to hear case, even if they had previously decided to eliminate the position.

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Recent SBOE Decisions on RIFs

Sampson v. Ware County BoEOK to eliminate teacher when school

eliminated positions, even if no loss of teachers at her grade level.

Selection of teacher due to parental complaints acceptable, even if not previously “on notice” of problem.

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When Federal Law Takes Over

All school district employees protected by Title VII, ADEA, ADA prohibiting discrimination based on race, color, national origin, sex, religion, disability or age;

Employees also have certain first and fourteenth amendment rights while employed by a school district.

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When Federal Law Takes Over

Federal laws protect employees against “adverse employment actions.”

Many of these federal laws have anti-retaliation protections.

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Questions

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