Transcript #10 - Lee County Schools

PANC FALL CONFERENCE
OCTOBER 8, 2014
TEACHER CONTRACT LAW,
INJUNCTIONS, NEW LEGISLATION
AND IMPLICATIONS FOR PERSONNEL
Richard A. Schwartz
Schwartz & Shaw PLLC
19 W. Hargett Street, Suite 1000
Raleigh, NC 27601
(919) 821-9011
© 2014 Schwartz & Shaw, P.L.L.C
1
What The Heck Happened Over the
Last Year?
• Model Contract
• Give up Tenure? = 11% Senate Raise
• Professional Status Teacher Contract?
• Guilford/Durham Injunction
• Due Process?
• Statewide Injunction (NCAE)
• 4 Yr Contract?
• New Court for Constitutional Claims
• Masters Pay?
• Teacher Nonrenewals
• Longevity Pay?
• Administration Nonrenewals
• 2 Yr Contract?
• 3 year Contract?
• Probationary Contract?
• Local Board of Education Tenure/Due Process?
• 1 Yr. Contract
• Career Pathways
• Raise?
• Advanced Degree Pay?
• Career Contract
• Career Status as Teacher for Contract Administrator
• 25% Selection Process?
• 37 to 6-Step Salary Schedule
• 35% Selection Process?
• Local Plans for Differentiated Pay
• 5% Raise?
• 5-Year Vesting
• 5.5% Raise?
• Pension Spiking
• 7% Raise?
• Employing Career Teacher from another LEA?
• Evaluations for Non-Career Status Teachers
• (Insert your own new idea here…)
• Career Status for Teachers
• Career Status for Administrators
• Keep Tenure = Frozen Salary Schedule?
2
• Back in the old days…….
• (before July 26, 2013)
• Tenure Law – since July 1972
3
TENURE LAW PROVIDED
• Teachers served probationary period
• Probationary teachers protected during
contract year
• Could be renewed (nonrenewed) annually
• Awarded career status or not renewed at
end of probation
• 15 potential grounds for
dismissal/demotion
• Extensive due process rights
4
TENURE LAW PROVIDED
• At its essence, tenure law provides a
way to earn a property interest (career
status) and the method by which it can
be removed.
• 14th Amendment – no person shall be
deprived of property without due
process of law.
5
BUT THAT WAS BEFORE ……
THE
2013
GENERAL ASSEMBLY
RODE INTO TOWN
6
2013 GENERAL ASSEMBLY
• Massive changes to tenure law included in 2013
Appropriations Act (S.L. 2013-360, sec. 9.6).
 Ineligible to earn tenure on or after August 1, 2013.
 All tenure eliminated June 30, 2018.
 25% selection process for teachers to relinquish any
interest in tenure and get 4-year contract with $500
annual salary increases.
 Created new system of employment (G.S. §115C-325.1
to -325.13) for non-tenured teachers now and for all
teachers after 6/30/18
 Tenure law (G.S. §115C-325) repealed effected
6/30/18
 Beginning 7/1/18, all teachers employed on 1, 2 or 4year contracts.
7
LEGAL CHALLENGES
• 2013 – NCAE and individual teachers
file lawsuit vs. State of N.C. in Wake
County claiming violations of
constitutional and contract rights of
teachers (the “NCAE Case”)
8
LEGAL CHALLENGES
• 2014 – Guilford Board of Education and
its Superintendent Mo Green and
Durham Board of Education file lawsuit
vs. State of N.C. claiming violations of
their contract rights and constitutional
rights (the “Guilford case”)
9
INJUNCTION #1
THE GUILFORD CASE
10
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
• Plaintiffs (school boards and
superintendent) claimed the new laws
interfered with the boards’ existing
contracts with teachers and required
them to implement an
unconstitutionally vague process (the
25% plan) to require teachers to give
up their vested rights to tenure.
11
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
• Judge Richard Doughton entered an
Order May 9, 2014, granting Plaintiffs’
Motion for a Preliminary Injunction.
• Order denied State’s Motion to Dismiss.
• Order applied only to Guilford and
Durham.
12
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
• Order prevented from being implemented
those sections of the new law dealing with
25% selection process and 4-year
contracts (9.6(g) and 9.6(h) of S.L. 2013360) and prevented them from being
applied to the Boards’ existing contracts
with tenured teachers and relieved Plaintiff
school boards and superintendent of any
duty to make any selection or to offer
contracts pursuant to those provisions.
13
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
• The Court’s findings were significant
and included:
 The Act was to retroactively abolish vested
career status rights (tenure) and thereby
invalidate existing tenure contracts between
boards and their teachers.
 The 25% selection process would require
local boards to engage in a process where
teachers who sign 4-year contracts would
have to waive their vested tenure rights.
14
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
• The Court’s findings were significant
and included:
 The 25% provisions were “vaguely and
obscurely drafted” and “provide no
discernible, workable standards to guide
local boards of education and their
superintendents.”
 The substantive and procedural protections
of tenure help to incentivize teachers to
remain employed by their LEAs.
15
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
• The Court’s findings were significant
and included:
 Both the State and local school boards tell
teachers, from the beginning and
throughout their employment, that tenure
is a significant benefit, providing important
rights and protections, earned as a result of
excellent performance.
16
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
• The Court’s findings were significant
and included:
 Local boards benefit directly from the value
of awarding tenure, which helps provide a
stable professional workforce and thus
enables the boards’ ability to provide
educational opportunities mandated by the
N.C. Constitution.
17
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
• The Court’s findings were significant
and included:
 The court took note of resolutions passed
by school boards across the state
expressing concerns about the negative
impact of the Act’s retroactive abolition of
tenure and the impact the 25% provision
would have on job satisfaction, workforce
stability, collegiality and on the boards’
ability to provide high quality education to
their students.
18
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
• The Court’s findings were significant
and included:
 The court also noted that Plaintiffs raised a
legitimate concern that the salary increases
that were part of the 25% provision may
not be funded by the General Assembly for
the 4-year terms of the contracts to be
offered.
19
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
• The Court’s findings were significant
and included:
 The court determined that several state
laws authorize school boards to sue to
protect their property -- including their
property interests in their contracts with
their tenured teachers -- and to sue for a
declaration regarding the constitutionality
of laws they are required to apply.
20
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
• The Court’s findings were significant
and included:
 Believing the new laws to be
unconstitutional puts Plaintiffs in the
position of having to violate their oaths (to
uphold the Constitution of the U.S. and
N.C.) or violate the new law. Therefore,
they have standing to bring this action and
ask the court for a declaratory judgment as
to the constitutionality of the Act.
21
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
• The standard for ordering a preliminary
injunction requires the court to
determine two main things:
 First, is the plaintiff able to show a
likelihood of success on the merits of the
case at trial; and
 Second, whether a plaintiff is likely to suffer
irreparable harm if the injunction is denied,
or is the injunction necessary to protect a
plaintiff’s rights until the case is decided.
22
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Likelihood of Success on the Merits:
• Plaintiffs were likely to succeed on their
claim that the Act would impair their rights
to contract because:
 Contracts already exist between the boards and
career teachers under the statutory scheme
that is now repealed by the Act.
 The Act’s retroactive abolishment of tenure
invalidates those existing contracts.
 The state’s actions to impair those existing
contracts “is neither reasonable nor necessary
to further an important public purpose.”
23
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Likelihood of Success on the Merits:
 In making this determination, the court
specifically noted that, in 1995, the General
Assembly had replaced the former school
administrator tenure system with a
contract-based system, but applied it
prospectively only -- not to those already
vested in administrator tenure.
24
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Likelihood of Success on the Merits:
 The 25% provision effectively would require boards
and superintendents to violate their oaths of office
by requiring them to take actions in violation of the
Contracts Clause of the U.S. Constitution (Art. 1,
§10), which prevents any state from passing
legislation that “impair[s] the obligation of
contracts.”
 Boards are placed in a position “to impose economic
duress upon their teachers” by virtue of the 25%
provision of the Act, which would violate their duty
and oaths to uphold the U.S. Constitution.
25
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Likelihood of Success on the Merits:
 Plaintiffs demonstrated likelihood of success
on their claim that retroactive abolition of
vested tenure rights amounts to an
unconstitutional taking of their property and
liberty interests in their existing contracts
with tenured teachers, in violation of Article
I, sec. 19 of the N.C. Constitution.
26
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Likelihood of Success: Void for Vagueness
 “Void-for-vagueness” doctrine – requires
that laws must contain enough specificity to
allow regulated entities to know what is
required or prohibited and to provide
“suitably precise standards” to enable those
who apply the law to do so consistently and
fairly.
 Plaintiffs demonstrated a likely violation of
this doctrine by showing the 25% provision
is likely void for vagueness.
27
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Likelihood of Success: Void for Vagueness
 The 25% provision “is so obscurely and
imprecisely drafted” that boards cannot
know what is required or prohibited.
 25% provision fails to provide sufficiently explicit
guidelines for local boards:
• No workable standards to determine the eligible
pool of “teachers”
28
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Likelihood of Success: Void for Vagueness
• No standards to determine how to
select exactly 25%
• No definition of “teachers” to be
considered.
29
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Likelihood of Success: Void for Vagueness
• No guidance on determining when
“three consecutive years”
begins/ends.
• No guidance on determining when
“three consecutive years” of
employment begins/ends
• No guidance on period of time a
teacher must be “proficient” to be
eligible.
30
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Likelihood of Success: Void for Vagueness
 How is proficiency to be measured for nonclassroom teachers (if they are included in
“teachers” in the eligible pool)?
 How is “proficiency” to be determined” Is it
proficient on all ratings? An average?
31
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Likelihood of Success: Void for Vagueness
 How does “proficiency” meet the Act’s purpose
to “recognize and reward excellent teachers” if
proficiency is a measure of basic competence?
 No discernible standards or guidance for
superintendents to select 25% from the pool of
eligible teachers. The court noted a wide
variety of schemes being developed across the
state, including volunteers to de-select or
select, point systems, random lotteries, etc.,
leaving boards open to claims of “arbitrariness,
bias, discrimination and disparate impact.”
32
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Likelihood of Success: Void for Vagueness
 No guidance or standards for a board to
override superintendent’s recommendation
and select others. The court noted this
disrupts and is contrary to the ordinary
process for all other employment matters,
where the superintendent recommends, and
the board either approves or disapproves,
but does not substitute its own judgment
for that of its superintendent.
33
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Likelihood of Success: Void for Vagueness
 The court noted resolutions from local
school boards across the state reflected
uncertainty about how to fairly apply the
25% provision.
34
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Irreparable Harm
 The court had no difficulty determining that
the unconstitutional taking of a vested
property and liberty interest in the boards’
existing contracts with tenured teachers
would constitute irreparable harm.
35
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Irreparable Harm
 Similarly the lack of guidance on standards
in the 25% provision exposes boards to
multiple threats of litigation from:
 “teachers” who claim they met the standards to
be in the eligible pool but were not included.
 The 75% of teachers in the pool who were not
selected.
 Teachers who sign 4-year contracts and claim
they “waived” their tenure rights under economic
duress.
36
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Irreparable Harm
 General Assembly’s staff had offered
opinion that board members could face
criminal prosecution for failing/refusing to
enforce the law.
 Salary obligations for the 25%, if not
funded, could expose boards to financial
liability.
37
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
Irreparable Harm
 Irreparable harm would result from
undermining both teacher morale and
plaintiffs’ relationships with tenured
teachers, and their ability to provide a
constitutionally adequate education to their
students.
38
COURT ORDERS - INJUNCTIONS
Injunction #1 – The Guilford Case
• The court determined injunction was
necessary to protect plaintiffs’ rights
during the course of this litigation.
• Injunction GRANTED: Applies only to
tenure contracts in Guilford and
Durham that were in effect on July 26,
2013, the date the Act became
effective.
39
INJUNCTION #2
THE NCAE CASE
40
COURT ORDERS – INJUNCTIONS
Injunction #2 – The NCAE Case
• Plaintiffs (NCAE and individual tenured
and probationary teachers) challenged
the constitutionality of the Act’s
provision abolishing their vested career
status/tenure rights and the rights of
probationary teachers who accepted
their contracts with the promise they
would be eligible for tenure at the end
of their probationary period.
41
COURT ORDERS – INJUNCTIONS
Injunction #2 – The NCAE Case
• Judge Robert Hobgood entered an
Order June 6, 2014, that applies
statewide.
42
COURT ORDERS – INJUNCTIONS
Injunction #2 – The NCAE Case
• The Order grants Summary Judgment in
favor of all of the plaintiffs (except for
the one probationary teacher) on their
claims that the Act would violate the
rights of already tenured teachers but
grants Summary Judgment for the
State on the claims brought by
probationary teacher.
43
COURT ORDERS – INJUNCTIONS
Injunction #2 – The NCAE Case
• The Order declares Sections 9.6 and 9.7
of Session Law 2013-360
“unconstitutional with regard to
teachers who had received career
status before July 26, 2013,” and
declares “that the 25% Provision is
unconstitutional” and permanently
enjoins the State from implementing
and enforcing the 25% Provision and
Sections 9.6 and 9.7 with regard to
tenured teachers.
44
COURT ORDERS – INJUNCTIONS
Injunction #2 – The NCAE Case
Findings of this Order include:
• Background and workings of the tenure
law since 1970’s
• Plaintiff teachers were “statutorily
promised career status rights in
exchange for meeting the
requirements” of the tenure law and
relied on that promise when they made
decisions to accept and remain in their
teaching positions.
45
COURT ORDERS – INJUNCTIONS
Injunction #2 – The NCAE Case
Findings of this Order include:
• “The protections of the Career Status Law
are a valuable part of the overall package
of compensation and benefits” for teachers
“that they bargained for both in accepting
employment as teachers in North Carolina
school districts and remaining in those
positions.”
• School administrators believe tenure
protections “help attract and retain
teachers despite the low salaries
established by state salary schedules.”
46
COURT ORDERS – INJUNCTIONS
Injunction #2 – The NCAE Case
Findings of this Order include:
• The 4-year probationary period provides
adequate time to evaluate teachers and
make informed tenure decisions.
47
COURT ORDERS – INJUNCTIONS
Injunction #2 – The NCAE Case
Findings of this Order include:
• The tenure law provides school
administrators adequate tools to address
poorly performing teachers and “[i]n the
vast majority of cases” where a district
seeks to remove a tenured teacher, the
teacher resigns without a hearing. On
“those few occasions” where there are
dismissal hearings, “school administrators
have found that the process is not onerous
for the districts.”
48
COURT ORDERS – INJUNCTIONS
Injunction #2 – The NCAE Case
Findings of this Order include:
• There is no evidence the tenure law
prevents the separation of teachers
when the LEA believes it is necessary
and administrators “are able to make all
necessary personnel changes within the
framework of the Career Status Law.”
49
COURT ORDERS – INJUNCTIONS
Injunction #2 – The NCAE Case
Findings of this Order include:
• The act “fundamentally alters” the system of
employment in 3 crucial ways:
 First, as of August 1, 2013, no more tenure will be granted
and teachers without it will only be employed on one-year
contracts until 2018 (except for those in the 25% provision).
 Second, all tenure is revoked July 1, 2018. Thereafter career
status teachers will only be employed on one, two or 4-year
contracts that may be non-renewed, when previously they
could only be dismissed for 15 enumerated grounds. If
nonrenewed, boards “will have unfettered discretion to decide
whether or not” to grant a hearing.
 Third, the 25% provision, apart from referencing “proficiency
on the teacher evaluation instrument,” provides no
discernible standards to (1) identify teachers eligible for 4year contracts and related salary and (2) select the 25%.
50
COURT ORDERS – INJUNCTIONS
Injunction #2 – The NCAE Case
This Court concluded:
•
The Act substantially impairs the contract rights of tenured
teachers in violation of the Contract Clause in Art I, section
10 of the U.S. Constitution because: (1) a contract obligation
exists for those teachers with career status as of July 26,
2013; (2) the State’s actions will impair those contract rights
that already exist; and (3) the repeal of career status “does
not further any public purpose because the undisputed facts
demonstrate that under the Career Status Law, school
administrators already have the ability to dismiss career
status teachers for inadequate performance whenever
necessary … Moreover, eliminating career status hurts North
Carolina public schools by making it harder for school
districts to attract and retain quality teachers.” Even if there
was need for more latitude to remove ineffective tenured
teachers, the state could have done so by less drastic means
that do not impair the contractual rights of tenured teachers.
51
COURT ORDERS – INJUNCTIONS
Injunction #2 – The NCAE Case
• Contract rights, including those created
by statute constitute property rights
within the Law of the Land Clause of the
N.C. Constitution (Art I, sec. 19) which
provides that no person shall be
deprived of his property by the State
without just compensation. The Act
does just that, and this provides a
separate, independent ground for
concluding it is unconstitutional.
52
COURT ORDERS – INJUNCTIONS
Injunction #2 – The NCAE Case
• Probationary teachers also haven’t yet
earned career status do not have
contractual rights protected by the Land
of the Land Clause.
53
COURT ORDERS – INJUNCTIONS
Injunction #2 – The NCAE Case
• The 25% provision “is inextricably tied”
to the revocation of tenure rights that
would occur for all in 2018 and it
cannot be severed from the
unconstitutional revocation of tenure.
54
LEGAL CHALLENGES
• Guilford Case – injunction has been
issued and the case is still pending,
awaiting trial in superior court.
• NCAE Case – The Order for Summary
Judgment has been appealed by both
sides to the N.C. Court of Appeals.
55
SO……
What happened next?
56
SINCE THE INJUNCTIONS
• Although it considered many options,
the 2014 General Assembly ultimately
took no direct action dealing with the
injunctions.
57
SINCE THE INJUNCTIONS
• While the NCAE lawsuit is on appeal this
is what is (currently) left of the Act:
 Tenure remains for those who earned it
prior to 8/1/13 and will not be abolished in
2018.
58
SINCE THE INJUNCTIONS
• While the NCAE lawsuit is on appeal this
is what is (currently) left of the Act:
 Tenure remains for those who earned it
prior to 8/1/13 and will not be abolished in
2018. But, this is on appeal.
59
SINCE THE INJUNCTIONS
• While the NCAE lawsuit is on appeal this
is what is (currently) left of the Act:
 Tenure remains for those who earned it
prior to 8/1/13 and will not be abolished in
2018. But, this is on appeal.
 Those probationary teachers who thought
they were on the tenure track are no longer
eligible for tenure.
60
SINCE THE INJUNCTIONS
• While the NCAE lawsuit is on appeal this
is what is (currently) left of the Act:
 Tenure remains for those who earned it
prior to 8/1/13 and will not be abolished in
2018. But, this is on appeal.
 Those probationary teachers who thought
they were on the tenure track are no longer
eligible for tenure. But, this is on appeal.
61
SINCE THE INJUNCTIONS
 The 25% selection process, four-year
contracts and corresponding $500 annual
raises are out.
62
SINCE THE INJUNCTIONS
 The 25% selection process, four-year
contracts and corresponding $500 annual
raises are out. But, this is on appeal.
63
SINCE THE INJUNCTIONS
 The 25% selection process, four-year
contracts and corresponding $500 annual
raises are out. But, this is on appeal.
 Probationary teachers who thought they
were on the tenure track are currently oneyear contract teachers (under sec. 9.6(f) of
the Act) and on July 1, 2014, became
subject to the new “non-tenure laws” in
G.S. 115C-325.1 to -325.13 (under sec.
9.6(i) and (j)).
64
SINCE THE INJUNCTIONS
 The 25% selection process, four-year
contracts and corresponding $500 annual
raises are out. But, this is on appeal.
 Probationary teachers who thought they
were on the tenure track are currently oneyear contract teachers (under sec. 9.6(f) of
the Act) and on July 1, 2014, became
subject to the new “non-tenure laws” in
G.S. 115C-325.1 to -325.13 (under sec.
9.6(i) and (j)). But, this is on appeal.
65
SINCE THE INJUNCTIONS
 Currently we have only 2 types of full-time
teachers:
 Tenured teachers who earned career status prior
to 8/1/13 and are subject to G.S. 115C-325
(tenure law).
 Teachers on one-year contracts whose
employment is governed by new G.S. 115C325.1 to -325.13, which became effective July 1,
2014.
66
APPLYING THE NEW LAWS
For Contract Teachers:
• The definition of “year” is now July 1 –
June 30 (G.S. 115C-325.1(7)).
• Personnel files requirements in new
G.S. 115C.325.2 are the same as in
tenure law (G.S. 115C-325(b)).
67
APPLYING THE NEW LAWS
For Contract Teachers:
•
Teacher contracts and renewals – despite the language in
new G.S. 115C-325.3(a) allowing contracts or renewals to be
for terms of one, two or four school years for those teachers
employed by the local board “for three years or more,” and
despite the language in new G.S. 115C-325.3(b) allowing the
superintendent to recommend renewed contracts for a term
longer than one school year “if the teacher has shown
effectiveness by proficiency on the evaluation instrument,”
and despite language in new G.S. 115C-325.3(b) that would
allow board to offer renewed contract for a different term
than recommended by superintendent, these provisions are
overriden by sec. 9.6(f) of the Act (S.L. 2013-360) which still
applies to all teachers who did not have career status prior to
8/1/13. These teachers may now only be offered one-year
contracts until the 2018-19 school year. Thereafter, these
provisions will take effect.
68
APPLYING THE NEW LAWS
For Contract Teachers:
• Query: What does “year” mean as
applied to those teachers employed “for
three years or more”?
• Query: What does “shown
effectiveness by proficiency on the
evaluation instrument” mean, and how
is it applied?
69
APPLYING THE NEW LAWS
For Contract Teachers:
Nonrenewals (G.S. 115C-325.3(d)(e)(f)):
• Superintendent gives notice to teacher by
June 1 of decision not to recommend a new
contract. No reasons are required to be
provided. (G.S. 115C-325.3(d)).
• Teacher has the right to petition board for a
hearing within 10 days of receipt of
superintendent’s notice. Board has complete
discretion whether or not to grant hearing and
must notify teacher. There is no right to a
hearing or to appeal to court.
70
APPLYING THE NEW LAWS
For Contract Teachers:
Nonrenewals (G.S. 115C-325.3(d)(e)(f)):
• Board shall notify teacher of decision to
not renew by June 15, unless it decides to
grant a hearing.
• If board grants a hearing it is conducted
under G.S. 115C-45(c) and board must
notify teacher of its decision within 10
days of hearing or later date agreed to in
writing by superintendent and teacher.
71
APPLYING THE NEW LAWS
For Contract Teachers:
Nonrenewals (G.S. 115C-325.3(d)(e)(f)):
• Decision (by superintendent or the
board) not to offer renewed contract
may not be arbitrary, capricious,
personal, political, discriminatory, or on
any basis prohibited by state or federal
law.
72
APPLYING THE NEW LAWS
For Contract Teachers:
Nonrenewals (G.S. 115C-325.3(d)(e)(f)):
• If teacher does not receive a new contract
offer or notice of nonrenewal and
continues to teach without a contract, the
board, upon discovery of this, shall either:
 Offer a contract expiring no later than June 30
of the current school year; or
 Dismiss the teacher without a hearing or appeal
(this teacher is “considered an at-will
employee”) and provide one additional month of
pay.
73
APPLYING THE NEW LAWS
For Contract Teachers:
Dismisssal or Demotion (G.S. 115C-325.3(c). -325.4,
-325.6 and -325.7):
• Same 15 grounds as in tenure law, but in different
order.
• Inadequate performance is defined in G.S. 115C325.4(a)(1):
 Still must look to evaluation data and local board
standards
 Failure to be proficient “on any standard” of the
evaluation
 Otherwise performing below standard
74
APPLYING THE NEW LAWS
For Contract Teachers:
• Procedure for Notice of intent to
recommend dismissal or demotion
under G.S. 115C-325.6 is essentially
the same as under tenure law.
• Hearing is only before school board
under G.S. 115C-325.7. No option for
separate hearing before stateappointed hearing officer, as under
tenure law.
75
APPLYING THE NEW LAWS
For Contract Teachers:
• New G.S. 115C-325.8 provides for appeal
to superior court only on grounds that the
decision was:
 In violation of constitutional provisions;
 In excess of board’s authority or jurisdiction.
 Made upon unlawful procedure.
 Affected by other error of law.
 Unsupported by substantial evidence.
 Arbitrary or capricious.
76
APPLYING THE NEW LAWS
For Contract Teachers:
• Superior court may affirm or reverse
board’s decision or send the case back
to the board, but it “shall not” award
monetary damages or direct the board
to enter into an employment contract of
more than one year ending June 30.
77
APPLYING THE NEW LAWS
For Contract Teachers:
Low Performing Schools:
• New laws provide separate procedures for
dismissals of principals and teachers and other
professionals in low performing schools.
 Principals – G.S. 115C-325.12
 Teachers, asst. principals, directors – G.S. 115C325.13
• Right to hearing.
• Proceedings are before State Board of
Education.
78
APPLYING THE NEW LAWS
Classified Employees Dismissal or
Demotion
• New law essentially establishes two
classes of classified employees with
different rights regarding employment
(sec. 9.6(k) of Act).
79
APPLYING THE NEW LAWS
Classified Employees Dismissal or Demotion
• Employees employed before 7/1/14 remain
“super employees not quite at-will” with
right to appeal any “final administrative
decision” to the BOE regarding the “terms
or conditions of employment” or their
“employment status” and may appeal BOE
decision to superior court. They are
entitled to written notice of reasons for
dismissal, demotion or suspension without
pay, prior to any BOE hearing.
80
APPLYING THE NEW LAWS
Classified Employees Dismissal or
Demotion
• Employees employed on or after
7/1/14, have no “super powers” and are
now employees at will. They are not
entitled to written notice of reasons for
dismissal, demotion or suspension
without pay, but may still appeal “final
administrative decision” on these
matters to BOE, but not beyond.
81
APPLYING THE NEW LAWS
Administrators (sec. 9.6(d) and 9.6(k) of the
Act)
• For “employees employed on or after 7/1/14,”
G.S. 115C-287.1 (the contract administrator
law) is revised as follows:
 Dismissal/demotion is under new G.S. 115C-325.4.
 Nonrenewal – written notice by May 1, but no longer
any right to receive reasons.
 Right to BOE hearing on nonrenewal, but not appeal.
Decision to nonrenew may not be arbitrary,
capricious, personal, political, discriminatory or in
violation of state or federal law.
82
APPLYING THE NEW LAWS
• No right to return to teaching position if
held career status as a teacher prior to
administrator contract.
• Query: Does Judge Hobgood’s order
restore career teacher status/rights to
administrators?
83
APPLYING THE NEW LAWS
• For “employees employed before
7/1/14” G.S. 115C-287.1 is unchanged,
including retention of administrator
tenure and career teacher status (in
some LEA) upon expiration of contract.
• NOTE: Questions remain as to
whom/how this applies to “employees”
(not “administrators”) employed on or
after 7/1/14.
84
2014 GENERAL ASSEMBLY
• After considering a variety of proposals
to address/respond to the problems
with 25% provision, tenure and
injunctions, the 2014 General Assembly
did nothing to alter what is in the 2013
Appropriations Act.
• 2015 General Assembly may amend
these provisions, or may wait to see
how appeals are decided.
85
The New Model Teacher Contract
S.L. 2013-360 (S.B. 402), The
Appropriations Act, sec. 9.6.(e) provides:
SBE shall develop, by rule under the
Administrative Procedures Act, a model
contract for use by local boards of education
in awarding teacher contracts. SBE may
adopt a temporary rule by “no later than
January 1, 2014,” but shall replace the
temporary rule with a permanent rule “as
soon as practicable.”
86
The New Model Teacher Contract
SBE did not adopt the model contract until its
meeting on February 6, 2014, and “temporary
rule” has been rejected by the Rules Review
Commission (RRC) because it was after the
deadline in the law.
SBE will now have to go through normal rule
making process, which can take 18 months.
See copy of “Model Employment Contract for
Teachers” as adopted by SBE on February 6,
2014, on next two slides.
87
88
89
The New Model Teacher Contract
You may still choose whether or not to
use the “Model Employment Contract for
Teachers,” with or without changes.
Get your local attorney’s advice.
You are not required to use the model
contract.
90
THE NEW MODEL TEACHER CONTRACT
Provisions in the model contract:
• Preamble – lists the position the teacher shall
hold, while section 4, “Duties,” states that the
contract “creates no right to any particular
assignment or school site.” Consider whether
you want to keep the sentence in the preamble
or add to it so that it might say, “subject to
section 4 below,…”
• The model contract would be used for any
teacher who does not retain career status after
June 30, 2014.
91
THE NEW MODEL TEACHER CONTRACT
• Term
• Compensation
• Qualifications
• Duties
• Extra or Special Duties – consider whether to include this
in the contract. This provision states that special duties or
assignments “will be described in a separate agreement
and the additional compensation will not be considered
salary for the purposes of computing” the Teacher’s salary,
and that any return to regular duties “is not a demotion”
as defined by the new [non-tenure] law (G.S. §§115C325.1 et seq.).
92
THE NEW MODEL TEACHER CONTRACT
• Benefits
• Termination of Contract by Teacher – will be
under the provisions and procedures of new G.S.
§§115C-325.1 et seq.
• Termination of Contract by Board – provides that
the Board may alter the terms or terminate the
contract pursuant to G.S. §§115C-325.1 et seq.
• Boilerplate Provisions – modification,
severability, governing law.
93
2014 LEGISLATION
AFFECTING PERSONNEL
94
IN ORDER TO OBTAIN A COPY OF ANY
PIECE OF LEGISLATION, YOU MAY DO
ONE OF THE FOLLOWING:
1.Go to the General Assembly’s website
at: www.ncga.state.nc.us
or
2. Call “printed bills” at: 919-733-5648.
95
S.L. 2014-13 (S.B. 370) – Respect for
Student Prayer/Religious Activity
Effective Date: 6/19/14
•
Adds to Public Schools Laws (Ch. 115C) a new Article 29D- Student Prayer
and Religious Activity
•
New N.C. Gen. Stat. § 115C-407.30, provides that students are
permitted to voluntarily do any of the following:
 Pray, either silently or audibly and alone or with other students, to the same extent
and under the same circumstances as a student is permitted to vocally or silently
reflect, meditate, or speak on nonreligious matters alone or with other students in
public schools.
 Express religious viewpoints in a public school to the same extent and under the same
circumstances as a student is permitted to express viewpoints on nonreligious topics
or subjects in the school.
 Speak to and attempt to share religious viewpoints with other students in a public
school to the same extent and under the same circumstances as a student is permitted
to speak to and attempt to share nonreligious viewpoints with other students.
 Possess or distribute religious literature in a public school, subject to reasonable time,
place, and manner restrictions, to the same extent and under the same circumstances
as a student is permitted to possess or distribute literature on nonreligious topics or
subjects in the school.
(cont.)
96
S.L. 2014-13 (S.B. 370) – Respect
for Student Prayer/Religious
Activity (cont.)
•
Organize prayer groups, religious clubs, "see you at the pole" gatherings, or other
religious gatherings before, during, and after school to the same extent that
students are permitted to organize other noncurricular student activities and
groups. Religious groups shall be given the same access to school facilities for
assembling as is given to other noncurricular groups without discrimination based
on the religious content of the students' expression. If student groups that meet for
nonreligious activities are permitted to advertise or announce meetings of the
groups, the school district shall not discriminate against groups that meet for
prayer or other religious speech. A local board of education and local school
administrative unit may disclaim school sponsorship of noncurricular
groups and events in a manner that neither favors nor disfavors groups
that meet to engage in prayer or religious speech.
•
Express beliefs about religion in homework, artwork, and other written or oral
assignments free from discrimination based on the religious content of the
submission. Homework and classroom assignments shall be judged by ordinary
academic standards of substance and relevance and against other legitimate
pedagogical concerns identified by the local board of education. A student shall not
be penalized or rewarded based on the religious content of the student's work.
(cont.)
97
S.L. 2014-13 (S.B. 370) – Respect for
Student Prayer/Religious Activity (cont.)
Limitations on Students
•
A student may be prohibited from engaging in any of these actions,
if the actions of the student would do any of the following:
 Infringe on the rights of the school to:
 Maintain order and discipline,
 Prevent disruption of the educational process, and
 Determine educational curriculum and assignments.
 Harass other persons or coerce other students to participate in
the activity.
 Otherwise infringe on the rights of other persons.
(cont.)
98
S.L. 2014-13 (S.B. 370) – Respect
for Student Prayer/Religious
Activity (cont.)
Remedies

New N.C. Gen. Stat. § 115C-407.31 provides administrative remedies and cause of
action for complaints regarding exercise of religious activity.

The local board of education may establish or make available an existing formal
grievance process to allow students or the parents or guardians of students to present
allegations that a right established under Article 29D has been violated by a public school.
The formal grievance process shall include the right of appeal to the local board of
education.

If a local board of education fails to provide a formal grievance process , the
following process shall be provided:

A student or a student's parent or guardian shall state the complaint to the school's principal,
who shall meet with the student or the student's parent or guardian, if requested.

If the student's concerns are not resolved by the meeting with the principal, the student or
student's parent or guardian may make a complaint in writing to the superintendent of the local
school administrative unit with the specific facts of the alleged violation. The superintendent
shall investigate and take appropriate action to ensure the alleged violation of the rights of the
student is resolved within 30 days of receiving the written complaint.

If the superintendent fails to resolve the student's concerns within 30 days, the student or
student's parent or guardian may appeal to the local board of education as provided in G.S.
115C-45.
(cont.)
99
S.L. 2014-13 (S.B. 370) – Respect for
Student Prayer/Religious Activity (cont.)
Remedies
• If a right of a student established under Article 29D is violated by a public
school and the student has exhausted the administrative remedies provided in
this section, the student may assert the violation as a cause of action or
defense in a judicial proceeding and obtain “appropriate relief” against the local
board of education. The action shall be brought in the superior court of the
county in which the local school administrative unit is located.
• No action may be maintained pursuant to Article 29D unless the student has
exhausted the administrative remedies.
• A student prevailing in a claim brought against a local school administrative unit
for a violation under Article 29D or any action brought by a public school
against a student for conduct covered by Article 29D shall be entitled to
reasonable attorneys' fees and court costs.
• The Attorney General shall intervene and shall provide legal defense of Article
29D in any action which includes claims challenging the constitutionality of
Article 29D.
(cont.)
100
S.L. 2014-13 (S.B. 370) – Respect
for Student Prayer/Religious
Activity (cont.)
Religious activity for school personnel

Nothing in Article 29D shall be construed to support, encourage, or permit a
teacher, administrator, or other employee of the local board of education to lead,
direct, or encourage any religious or antireligious activity in violation of that
portion of the First Amendment of the Constitution of the United States prohibiting
laws respecting an establishment of religion.

Local boards of education may not prohibit school personnel from participating in
religious activities on school grounds that are: initiated by students at reasonable
times before or after the instructional day so long as such activities are voluntary
for all parties and do not conflict with the responsibilities or assignments of such
personnel.

School employees supervising extracurricular activities, including coaches, may be
present while a student or group of students exercises their voluntary right to pray
as provided in G.S. 115C-407.30 and, if present, shall not be disrespectful of the
student exercise of such rights “and may adopt a respectful posture.”

Nothing in this section shall prohibit local boards of education from allowing school
personnel to participate in other constitutionally permissible religious activities on
school grounds.
(cont.)
101
S.L. 2014-13 (S.B. 370) – Respect for
Student Prayer/Religious Activity (cont.)
Limits on Article 29D
• This Article shall not be construed to direct any
local board of education to take any action in
violation of the Constitution of North Carolina or
the United States. The specification of rights in
this Article shall not be construed to exclude or
limit religious liberty or free speech rights
otherwise protected by federal, State, or local
law.
102
S.L. 2014-88 (H.B. 1195) – Fiscal Integrity/PensionSpiking Prevention
Effective Date: 7/30/14, except as noted otherwise
Effective: 1/1/15: Section 1-Establishes a contribution based benefit
cap for the Teachers’ and State Employees’ Retirement System (TSERS)
and the Local Government Employees’ Retirement System (LGERS). This
cap is intended to control the practice of “pension-spiking,” where
compensation increases significantly during or right before the four-year
period over which compensation is averaged for calculating the benefit.
The cap would not apply to members with an average final
compensation less than $100,000, indexed.
•
Effective: 1/1/15: Section 2-Allows State and Local Employees
who leave before 5 years of service to recoup their pension
contributions plus accumulated interest (currently 4%).
•
Section 3: Returns vesting period to 5 years. In 2011, the General
Assembly raised the vesting period to 10 years in hopes of saving
the State money.
103
BUDGET
PROVISIONS
S.L. 2014-100 (S.B. 744) –
Appropriations Act of 2014
104
S.L. 2014-100 (S.B. 744) –
Appropriations Act of 2014
• Due by July 1
• Senate passed S.B. 744, version 3 on May 31
• House passed S.B. 744, version 7 on June 13
• Chambers could not agree; Conference Committee
appointed June 18 and 19
• After over a month of offers and counter-offers, the
Senate and House finally approved the conference
report on August 1 and 2
• Teacher salaries and teacher assistants were major
points of contention
• Gov. McCrory signed the budget into law August 7
105
S.L. 2014-100 (S.B. 744) –
Appropriations Act of 2014 – Money
Report (cont.)
106
S.L. 2014-100 (S.B. 744) –
Appropriations Act of 2014 – Money
Report (cont.)
FY 14-15 Budget
Adjustments
107
S.L. 2014-100 (S.B. 744) –
Appropriations Act of 2014 – Money
Report (cont.)
FY 14-15 Budget
Adjustments
108
S.L. 2014-100 (S.B. 744) –
Appropriations Act of 2014 – Money
Report (cont.)
FY 14-15 Budget
Adjustments
109
S.L. 2014-100 (S.B. 744) –
Appropriations Act of 2014 – Money
Report (cont.)
FY 14-15 Budget
Adjustments
110
S.L. 2014-100 (S.B. 744) –
Appropriations Act of 2014 – Money
Report (cont.)
FY 14-15 Budget
Adjustments
111
S.L. 2014-100 (S.B. 744) –
Appropriations Act of 2014 – Money
Report (cont.)
FY 14-15
Budget
Adjustments
112
S.L. 2014-100 (S.B. 744) – Appropriations Act
of 2014 – Money Report (cont.)(S.B. 744) –
Appropriations Act of 2014 (cont.)
113
S.L. 2014-100 (S.B. 744) – 2014-15
Budget – Teacher Salaries (Sec. 9.1)
•
Appropriates $275.5 million (supplemented by $33.9 million in lottery proceeds)
•
Average 7% salary increase (including funds previously budgeted for longevity),
after weeks of debate between Senate’s 11% and House’s 5%
•
Average 5.5% salary increase, when longevity pay is not counted as part of the
increase
•
Salary increases vary significantly, depending on years of service
•
New salary schedule of 6 steps for bachelor teachers:
•
0-4: $33,000
•
5-9: $36,500
•
10-14: $40,000
•
15-19: $43,500
•
20-24: $46,500
•
25+: $50,000
•
Separate longevity payments eliminated, except those at current steps 30 -36 are
grandfathered
•
One-time $1,000 bonus for current steps 30-36
•
Not tied to elimination of tenure
•
Longevity earned in 2013-14 to be paid on prorated basis through 6/30/14
114
S.L. 2014-100 (S.B. 744) – 2014-15
Budget – Salary Supplements for Master’s/
Advanced Degrees (Sec. 8.3)
•
•
Restores “M” salary schedule and salary supplements for sixyear and doctoral degree levels for 2014-15 and going forward,
for:
•
Certified school nurses and instructional support positions
for which a master's degree is required for licensure
•
Teachers and instructional support personnel who were paid
on that salary schedule or received that salary supplement
prior to the 2014-15
•
Teachers and instructional support personnel who (i)
complete a degree at the master's, six-year, or doctoral
degree level for which they completed at least one course
prior to August 1, 2013, and (ii) would have qualified for the
salary supplement pursuant to SBE policy in effect on June
30, 2013
Provides for a legislative study of Master’s and advanced degree
supplements as well as differentiated pay for certain teachers
who demonstrate effectiveness or who assume certain
responsibilities/assignments
115
S.L. 2014-100 (S.B. 744) – 2014-15
Budget – Principal / A.P. Salaries (Sec.
9.11)
•
Appropriates $5.8 million
•
Principals
•
•
Increases to base salaries on the schedule and experienced-based step
increases (average 2% increase)
•
Principals no longer receive 1 extra step for every 3 years of experience
(Section 9.11(c))
•
Principals reassigned to higher or lower job classifications because they
were transferred to schools with larger or smaller numbers of stateallotted teachers will be placed on the salary schedule as if his/her entire
career as a principal was at the new job classification. This applies to all
transfers on or after July 1, 2014, except for transfers due to LEA
mergers, which are exempt for one calendar year following the merger.
(Sec. 9.11(f))
Assistant Principals
•
•
Experienced-based step increases and salary schedule increases for years 9
and above
Bonus
•
All those employed on July 1, 2014, who do not receive an increase through the
provisions above receive one-time bonus of $809 base salary + $191 benefits
($1,000 total)
116
S.L. 2014-100 (S.B. 744) – 2014-15
Budget – Central Office (Sec. 9.12) and
Noncertified Personnel (Sec. 9.13)
Salaries
•
Appropriates $32.6 million
•
One-time bonus of $500 base salary + $118 benefits
($618 total)
•
Mirrors Senate position
• (House suggested $65.3 million, with permanent
salary increases of $1000)
117
S.L. 2014-100 (S.B. 744) – 2014-15
Budget – Retirement System
Contributions
• Appropriates $26,455,623 for LEA personnel
•
Senate wanted $21,514,025
•
House wanted $35,082,455
• Sets the employer contribution to the retirement
system for the 2014-15 fiscal year at 15.21% (was
14.69% in 2013-14) (Sec. 35.13)
• Sets the employer contribution for the State Health
Plan for the 2014-15 fiscal year at $5,378 (was
$5,435 in 2013-14) for non-Medicare eligible
employees/retirees and $4,179 (was $4,224 in
2013-14) for Medicare eligible employees/retirees
(Sec. 35.13)
118
S.L. 2014-100 (S.B. 744) – 2014-15
Budget – 25% Selection Procedure
•
No teacher selection process required, but local boards must
design and submit locally designed differentiated teacher
pay plans
•
Differentiated Teacher Pay Program (Section 8.41)
•
Local school boards must submit proposals for locally designed differentiated teacher pay
plans by January 15, 2015, to legislative committees
•
Proposals can include merit pay and/or bonuses for assignment to certain schools or
additional responsibilities
•
$1 million in non-recurring funds are appropriated for LEAs to implement through a newly
established NC Education Endowment Fund
•
No funding to design/submit the plans
•
Makes the $500 bonuses for 25% procedure selected
teachers a non-recurring budget item
•
Senate wanted to immediately require a new 25% 4-year
teacher contract selection procedure
•
House wanted to eliminate the $500 annual/increasing
bonuses for teachers put on 4-year contracts through the
25% procedure
119
S.L. 2014-100 (S.B. 744) – 2014-15
Budget – Teacher Career Status
• No guidance or language addressing the tenure law
• Background: judicial decision declared tenure changes in last
year’s budget unconstitutional
• Senate wanted to create two different pay scales; one with
generous raises for those who gave up tenure, the other
retaining the current salaries for those who kept tenure
• House wanted to clarify language and eliminate 2018 date for
repealing tenure, but give bonuses to teachers who voluntarily
gave up tenure
• So, where do we stand now on the elimination of tenure and
the 25% provision?
120
S.L. 2014-100 (S.B. 744) – 2014-15
Budget – Teacher Assistants
•
Funds TAs in grades K-3
•
$105 million recurring cut (reduction of per-ADM dollars)
•
$24.8 million of TA funding made non-recurring
•
•
Will be subject to expiration in the 2015-16 fiscal year unless action
is taken by lawmakers
$113.3 million of TA funding now provided by lottery
receipts
This will have to be authorized each year by the General Assembly or
expire
•
Senate wanted to eliminate all funding for grades 2-3
TAs, and reduce per-ADM funding for grades K-1 TAs
•
House wanted no change to TA funding
121
S.L. 2014-100 (S.B. 744) – 2014-15
Budget – N.C. Education Endowment
Fund (Sec. 8.11)
•
Creates fund to supplement teacher compensation
•
Monies in fund can only be appropriated by General Assembly
•
Only for teacher compensation that is “related directly to
improving student academic outcomes”
•
Funded by sale of “I Support Teachers” license plates ($10 per
plate) and gifts, contributions, NCGA appropriations, and income
tax elective contributions on refunds
•
Eliminates the “Support Public Schools” specialty license plate
•
Would take the sale of approximately 9.6 million new specialty
license plates each year to give each N.C. teacher a $1,000 raise
122
S.L. 2014-100 (S.B. 744) – 2014-15
Budget – Military Service Credit for
Newly Hired Educators (Sec. 8.12)
•
Clarifies eligibility for the educator military service salary
credit:
Adds the qualifying condition that the individual must
not have been previously employed by a North Carolina public
school
123
S.L. 2014-100 (S.B. 744) – 2014-15
Budget – NBPTS Supplement for
Instructional Coaches (Sec. 8.21)
•
Extends eligibility for National Board for Professional
Teaching Standards (NBPTS) salary supplements to
instructional coaches
•
“Instructional coaches” classified by DPI
•
Must be in a Title I school for at least 70% of work time
124
S.L. 2014-100 (S.B. 744) – 201415 Budget – Injury Prevention and
Return-to-Work Programs (Sec.
8.26)
•
Requires SBE develop policies that ensure LEAs
implement loss prevention and return-to-work programs
• The programs would be based on models adopted by
the SBE
• The models are to be designed to reduce the number
of injuries resulting in workers’ compensation claims
and to ensure injured employees with claims return to
work
125
S.L. 2014-100 (S.B. 744) – 2014-15
Budget – DPI Response Time (Sec.
8.28)
• Instructs DPI staff to respond to requests for
information by local superintendents, charter
school officers, or their designees within three
business days “whenever practicable”
• Requires DPI to answer requests “reasonably
and fully” within 14 business days, “absent
extraordinary circumstances”
126
S.L. 2014-100 (S.B. 744) – 2014-15
Budget – Anti-Bullying (Sec. 8.32)
•
Requires principals to provide at the beginning of each
school year the LEA policy prohibiting bullying and
harassing behavior, including cyber-bullying, to staff,
students, and parents
127
S.L. 2014-100 (S.B. 744) – 2014-15
Budget – School Counselors (Sec.
8.33)
• Clarifies that, while school counselors may not
be the testing coordinator, they may assist
other school personnel with test coordination
during the 20% of their work hours that are not
direct student services time
128
S.L. 2014-100 (S.B. 744) – 2014-15
Budget – Legal Challenges to
Legislative Actions
•
(Sec. 17.3A) Allows legislative leaders to hire outside
attorneys to represent the General Assembly and supersede
the state Attorney General as lead counsel in legal cases
challenging the constitutionality of state laws
•
(Sec. 18B.16) Creates a new process for any legal case
challenging a state law on grounds that it violates the
constitution or federal law, requiring the case to be heard
by a three-judge panel of superior court judges appointed
by the Chief Justice of the state Supreme Court
•
Prompted by lawsuits challenging the tenure and voucher laws
recently passed by the legislature
129
THE END
130