Transcript Company Meeting Title

Teacher Tenure
- An Overview
Presented to PEP’s
Leadership Program for Aspiring
Principals
December 4, 2008 & May 6, 2009
Ken Soo
Tharrington Smith, L.L.P.
©2008 Tharrington Smith, L.L.P.
Statutory
Overview
The Constitution requires due
process of law before the
government may deprive a
person of:
Life
Liberty,
or
Property.
Continuing employment rights
are property under the
Constitution.
Dismissal from employment also may
implicate a liberty interest.
Questions:
 Does
a probationary teacher have a
constitutionally protected right at
the end of his contract?
 Does
an athletic coach have a
constitutionally protected right to
continue coaching?
G.S. 115C-325
Suspension With Pay
G.S. 115C-325(f1)




Does a suspension with pay implicate
constitutional rights?
Requires employee and Board be notified
of suspension within two working days.
Employee must be given a reason for the
suspension.
Suspension may last up to 90 calendar
days and may be extended with
agreement of employee.
Disciplinary Options

Disciplinary suspension without pay. G.S.
115C-325(f)(2)

Demotion (in the case of a career school
administrator). G.S. 115C-325(f2)

Dismissal.
Disciplinary Suspension
Without Pay
 Maximum
 If
length is 60 calendar days.
the suspension is 10 days or less, the
hearing is a record review by the Board
under 115C-325(j2), unless the suspension
is for intentional misconduct, in which case
the employee is entitled to an evidentiary
hearing under 115C-325(j3).
Disciplinary SWOP (cont’d)
 If
the suspension is for more than 10 days,
the full hearing procedures of -325(j3) apply.
 Intentional
misconduct includes, but is not
limited to, inappropriate sexual or physical
conduct, immorality, insubordination, habitual
or excessive alcohol or nonmedical use of a
controlled substance, any cause that
constitutes grounds for the revocation of a
teaching license, or providing false
information.
Demotion of a Career School
Administrator

Requires a full evidentiary hearing under
115C-325(j3).
Dismissal
 Process
begins with suspension without pay
and notice to employee of Superintendent’s
intent to recommend dismissal.
 Suspension without pay triggers
constitutional and statutory protections.
 Employee must receive a meeting, written
explanation of the charges, and the bases
for the charges. 115C-325(h).
 Employee must receive a copy of the
statute and a list of case managers.
Grounds for Dismissal






Inadequate Performance  Conviction of a felony or
crime involving moral
Immorality
turpitude
Insubordination
 Advocating overthrow of
Neglect of Duty
the government
Physical or Mental
Incapacity
 Failure to fulfill the duties
and responsibilities
Habitual or excessive
use of alcohol, or
imposed upon teachers by
nonmedical use of
the general statutes
controlled substances
Grounds for Dismissal (cont’d)
Failure to comply with
reasonable board
requirements
 Any cause that
constitutes grounds for
revocation of the
teacher’s certificate
 R.I.F.
 Failure to maintain
teaching license in
current status

Providing false
information or knowingly
omitting a material fact
on an application for
employment or in
response to a
preemployment inquiry
 Failure to repay money
owed to the state

Inadequate Performance

Leading case: Nestler v. Chapel Hill/
Carrboro Board of Educ.

Prior notice rule: “Failure to notify a
career employee of an inadequacy in his
performance shall be conclusive evidence
of satisfactory performance.” 115C325(e)(3).
Immorality
Includes more than sexual misconduct.
Leading case: Barringer v. Caldwell Co. Board
of Educ. Holding: A reasonable public school
teacher of ordinary intelligence would know
that going to a pool room with a loaded
shotgun constituted conduct likely to be known
to the general student population and would
manifest a poor example.
 Three year rule doesn’t apply if based on
sexual misconduct toward or sexual harassment
of students or staff.

Insubordination

A “willful disregard of express or implied
directions of the employer and a refusal to
obey reasonable orders.” Thompson v.
Wake County Board of Educ.

Example: Driver’s education teacher
properly dismissed for disobeying principal’s
directive that he not be alone in the car
with a female student. Crump v. Board of
Educ.
Insubordination (cont’d)

May be effective ground when employee
fails to comply with principal’s
performance directives. Hope v.
Charlotte-Mecklenburg Board of Educ.
Neglect of Duty

A failure to perform some duty imposed by
contract or law including, for example, the
failure to report to work. A charge of
neglect of duty will stand only if the school
can prove that a reasonable man would
have recognized the duty. Overton v.
Goldsboro City Board of Educ.
Physical or Mental Incapacity

An inability to perform the duties and
meet the responsibilities and physical
demands of the job, which will continue
long-term or indefinitely. Bennett v.
Hertford County Board of Educ.

This ground raises many ADA/Section 504
issues.
Use of Alcohol or Drugs
Evidence a teacher came to work smelling
of alcohol after oral warnings supports
dismissal. Faulkner v. New Bern-Craven
Board of Educ.
 ADA issues?
 Fourth amendment issues: to test or not
to test?
 Out of school conduct: DUIs and drug
arrests.

Conviction of a Crime

Must be a felony or a crime “of moral
turpitude.”

Three year rule does not apply.
Failure to Fulfill Duties Prescribed
by State Law

G.S. 115C-307 prescribes duties of
teachers.

Other duties could include completing
accurate reports (G.S. 115C-302) and
complying with ethical and testing
standards adopted by the State Board of
Education.
Failure to Comply with Board
Requirements

Look to the Board policy manual for these
standards.
Any Cause that is Grounds for
License Revocation

Includes conviction or entry of no contest
plea, as an adult, of a crime “if there is a
reasonable and adverse relationship between
the underlying crime and the continuing
ability of the person to perform any of his/her
professional functions in an effective manner.”
16 N.C. Admin. Code § 6C.0312.
Failure to Maintain License in a
Current Fashion

This ground suggests that a teacher
should be afforded the due process
procedures of G.S. 115C-325 for failure to
maintain a license, although G.S. 115C303 prohibits boards from maintaining on
their payroll any person who lacks a
certificate as required by law.
Providing False Information

Allows dismissal for “[p]roviding false
information or knowingly omitting a
material fact on an application for
employment or in response to a
preemployment inquiry.”

The three year rule does not apply.
Strategies for . . .
Documenting and
Improving Employee
Performance
Action Plans
 Required
by state law for teachers rated
below standard or worse on an evaluation.
G.S. 115C-288(i), -333.
 May
be used even when not required by
state law.
North Carolina Law
Concerning Personnel
Files
G.S. 115C-317
“[A] personnel file consists of any information
gathered by the local board of education which
. . . relates to the individual’s application,
selection or nonselection, promotion, demotion,
transfer, leave, salary, suspension, performance
evaluation, disciplinary action, or termination of
employment wherever located or in whatever
form.”
G.S. 115C-320
Requires boards of education to maintain a
public record of employees showing “name,
age, date of original employment or
appointment, current position, title, current
salary, date and amount of most recent
promotion, demotion, transfer, suspension,
separation, or other change in position
classification and the office or station to which
the employee is currently assigned.”
G.S. 115C-321
 The
employee or her representative
may examine the employee’s personnel
file “at all reasonable times in its
entirety.”
 Others permitted to examine the file
include supervisors, board members,
the board attorney and any party under
authority of a court order or subpoena.
G.S. 115C-325(b)
 Covers
“teachers” only.
 Requires
Superintendent to maintain a
personnel file that contains any “complaint,
commendation, or suggestion for correction
or improvement about the teacher’s
professional conduct.”
 Superintendent
may elect not to place
certain documents in a teacher’s file.
G.S. 115C-325(b) (cont’d)
 Requires
that the teacher have five days
notice before the document is placed in the
teacher’s file.
 Requires
that any response the teacher
makes also be placed in the file.
 Allows
the teacher to petition the board of
education to remove documents that are
invalid, irrelevant or outdated.