INDIVIDUAL CONTRACTS FOR TEACHERS AND ADMINISTRATORS

Transcription

1 INDIVIDUAL CONTRACTS FOR TEACHERS AND ADMINISTRATORS Presented by: Mark L. Olson Kevin C. Pollard Buelow Vetter Buikema Olson & Vliet, LLC Watertown Road, Suite 200 Waukesha, WI Mark: Kevin: WATERTOWN ROAD, SUITE 200.WAUKESHA, WI T F:

2 INDIVIDUAL CONTRACTS FOR TEACHERS AND ADMINISTRATORS PART ONE: TEACHERS I. The School Board is required to enter into written employment agreements with teachers. (Wis. Stats. `118.21(1) and ). A. Requirements of teacher contracts: 1. Must be in writing. 2. The contract, with a copy of the teacher s authority to teach attached, must be filed with the school district clerk. 3. Must set forth the teacher s wage. 4. May provide for compensating the teacher for necessary travel expenses. B. A teacher contract with any person not legally authorized to teach or not properly certified is void. 1. Teacher s lack of authority to teach assigned courses, although known to the school board at the time of hiring and subsequent assignments, was sufficient ground for dismissal despite the fact that the school superintendent repeatedly assured the teacher that the certification problem was an administrative omission which would be cured by the board. Grams v. Melrose-Mindoro Jt. School Dist. No. 1, 78 Wis. 2d 569, 254 N.W.2d 730 (1977). 2. The teacher must meet two requirements. a. Must hold a teacher s certification or license issued by the state superintendent under the technical college system board. b. The legal employment of the teacher must require such certificate, license or classification status. II. Consider Each Position as to Whether or Not Wis. Stats and Apply or Not. A. Part-time teachers No. B. Teachers employed by MPS No. 1

3 C. Administrators covered under Wis. Stats No. D. Consider and make case-by-case determination as to positions in which the incumbent has a teaching license but it is not required to do so. III. Written notice of renewal. A. On or before May 15 of the school year during which a teacher holds a contract, the board by which the teacher is employed or an employee at the direction of the board, shall give the teacher written notice or refusal to renew the teacher s contract for the ensuing school year. B. Must be in writing. C. Preliminary Notice of Consideration of Nonrenewal must be provided on or before April Issued by School Board. 2. Request for private conference with School Board must be provided, in writing, within five (5) days of receiving preliminary notice of consideration. 3. Private conference does not mean a full due process hearing. D. Nonrenewal decision must be made by a majority vote of the full membership of School Board. 1. Standard for nonrenewal will normally be stated in employee handbook, or teacher s individual contract, or both. 2. Arbitrary and Capricious standard: Any reasons which are documented, and bear some relation to the job. 3. Not Just Cause. IV. If no notice is given on or before May 15, the contract then in force shall continue for the ensuing school year. V. Since the Adoption of Acts 10 and 25 individual contracts and handbooks have replaced collective bargaining agreements. A. Components of the individual contract take on added importance. There is no longer a need to negotiate with the union regarding the content of the individual contract. B. Review individual components for year-to-year relevance. 2

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5 C. Reference appropriate policies and handbook provisions for heightened visibility. D. Strict adherence to timing of issuance of notices is imperative! VI. Historically, prior to Act 10, a teacher could not agree with the district to waive the procedure rights afforded by Wis. Stats in an individual contract. Faust v. Ladysmith-Hawkins School Systems, 88 Wis. 2d 525, 533 (Wis. 1979). A. But may a teacher who has been given a preliminary notice of nonrenewal waive the right to subsequent procedures in Wis. Stats ? 4. On a motion for consideration, the Faust court confined its holding to the facts in the case and noted that it did not mean to suggest that a teacher who has been given a preliminary notice of nonrenewal does not have the right to waive the subsequent procedures set forth in Wis. Stats Time constraints before March 15 may be the basis of a mutual timeline waiver. B. Wis. Stats (4) exception and its repeal. 1. Prior to Act 10, Wis. Stats contained subparagraph (4), which provided that a CBA may modify, waive, or replace any of the provisions of Wis. Stats for teachers in a collective bargaining unit. 2. Act 10 repealed (4). Districts cannot bargain over the procedures set forth in Wis. Stats for nonrenewals. VII. Since Act 10, the individual teacher contract has received the attention of Wisconsin Courts. A. Is a contract defective where it included only a base wage amount and a statement that any supplemental compensation was subject to adjustment by the superintendent. Judge Kelley concluded that the contracts inclusion of only a base wage amount for a specific number of days to be worked during the school year satisfied the legislative mandate set forth in Sec He also ruled that the provision allowing the superintendent sole discretion to establish additional supplemental compensation did not violate the statutory requirements... Schneider v. Howard Suamico School District, (Brown County Circuit Court, January 23, 2014). 4

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7 B. Can individual contracts only be terminated for cause? 1. Employee s employment may be terminated by the Board during the term of this contract for non-arbitrary and non-capricious reasons. 2. Judge Kelley found the disputed language acceptable, stating that such contracts can include an agreed-upon termination standard and that the standard does not need to be for cause. Id. C. Can a contract include timelines that are inconsistent with the non-renewal timelines in ? Judge Kelley ruled that layoffs may be addressed in individual teacher contracts and that each individual teacher, by electing to enter into the contract, agreed to allow the contract to be terminated via layoff outside the nonrenewal process. Id. D. Can nonrenewals be excluded from grievance procedure? Under Act 10, municipalities are required to establish grievance procedures for discipline, termination and workplace safety issues. Using the Dodge County decision (supra) as a guide, Judge Kelley stated that certain nonrenewals could qualify as discipline which would trigger application of the grievance procedure because discipline encompasses punishment and some nonrenewals, such as those based on poor performance, could constitute punishment. Thus, nonrenewals cannot be categorically excluded from the statutory grievance procedure. Id. E. Can breach of contract language require liquidated damages or specific performance? If liquidated damages were not paid by those teachers seeking to resign during the term of the contract, Judge Kelley concluded that this provision (i.e., compelling the teacher to continue working for the district) violated the law, stating that specific performance is permissible in certain situations, but not where a teacher has failed to pay liquidated damages. PART TWO: ADMINISTRATOR CONTRACT PROVISIONS I. Administrators [Wis. Stat ] A. Preliminary Notice. 6

8 1. In writing at least five months prior to an expiration of employment contract. 2. Must be sent by registered mail. 3. Right to hearing before board if written request made within seven days. (Request either private or public hearing). 4. May request reasons for nonrenewal and board must furnish same in writing prior to hearing. B. Hearing. 1. Section does not define the nature of an administrator s hearing or the extent of an administrator s procedural or substantive rights. 2. Board need not be unbiased decision maker. Batagiannis v. West Lafayette Community School Corporation, 454 F (7th Cir. 2006). a. former school superintendent brought suit under 1983 alleging that she was deprived of due process at termination hearing because of biased school board members. She was unlawfully retaliated against for filing a suit challenging her suspension. b. Court held that superintendent did not have a due process right to termination hearing before a wholly neutral third party, that the school board members did not suffer from disqualifying bias by reason of their desire to fire the superintendent; and the board did not violate her constitutional rights by firing her in part in retaliation for filing a suit against the board rather than attempting to work out their differences. c. Court stated that she received exactly what she agreed to accept: a hearing by the school board, and she waived any entitlement to a wholly neutral decision maker by signing the contract. d. Court also acknowledged that administrative decision makers must still be unbiased, but that strong views about wise public policy has never been understood to be the sort of bias that commissioners or judges must avoid. The Court went on to state that So far as the Constitution is 7

9 concerned, then, members of the West Lafayette school board are entitled to act on their views about how schools should be run. 8

10 3. Property interest in salary, not decision-making ability. C. Final Notice. a. The 7th circuit in Batagiannis also noted that every appellate decision addressing the issue has held that although a superintendent has a property interest in the salary of that office, there is no property interest in the ability to make decisions on behalf of the public. 1. In writing at least four months prior to expiration of employment contract. 2. An administrator who receives notice of renewal or who does not receive notice of renewal or refusal to renew at least four months prior to the contract s expiration shall accept or reject the contract in writing on or before three months prior to the contract s expiration. D. Failure to conform to statutory timelines. 1. If timely preliminary and final notice is not given, the contract then in force shall continue in force for two additional years. 2. No such person may be employed or dismissed except by majority vote of the full membership of the board. E. Rollover Provisions. 1. Frequently included in contracts but sometimes missed by Boards. 2. Consider revising rollover to require Board action to extend contract for another year. F. Changes in Assignment. Boards can reserve the right to make changes in assignment so not necessarily required to keep administrator in the same position. G. Layoffs. May be advisable to include a layoff provision in the contract so that an administrator can be laid off for economic reasons during the term of the contract. H. Timing of nonrenewal of administrators over 40 should take into account the notice requirements of the Older Workers Benefit Protection Act. 9

11 1. In order to waive an age claim an employee must be given up to 21 days to consider the waiver agreement. 2. After signing the agreement an employee has 7 days to revoke. 3. Be careful to avoid bumping up against the nonrenewal notice deadlines or inadvertently rolling a contract over for another year when complying with the notice requirements. I. Employees With a Contract Standard for Discharge during Term of Contract. 1. Contracts without a standard Millar v. Jt. School District, 2 Wis.2d 303 (1957). 2. Contracts with a different standard than just cause. Howard Suamico, supra. 3. Possible standards. a. Just cause. i. Should it be the standard? ii. How to define it if it is the standard. b. Arbitrary and capricious. i. In State ex re. Ball v. McPhee, 6 Wis.2d `190 (1979). If a school board dismisses a teacher for a cause named in the statute, such action is conclusive as not subject to review by the courts, unless the Board in taking such action acted in bad faith arbitrarily, corruptly, fraudulently, or in gross abuse of its discretion. Elwood v. State ex rel. Griffin, 203 Ind. 626, 631 (1932). (Emphasis in original) (at page 200). ii. The Wisconsin Supreme Court has defined arbitrary and capricious: as follows: Arbitrary or capricious action on the part of an administrative agency occurs when it can be said that such action is unreasonable or does not have a rational basis... Arbitrary action is the result of unconsidered, willful [sic] and irrational choice of 10

12 conduct and not the result of the winnowing and sifting process. Jt. District No. 2 v. State, 71 Wis.2d 276, 284 (1976) quoting Olson v. Rothwell, 28 Wis.2d 233, 239 (1965). 11

13 iii. The Wisconsin Court of Appeals has stated that: An arbitrary or capricious decision is either so unreasonable as to be without a rational basis or is the result of an unconsidered, willful or irrational choice of conduct. State ex rel. Irby v. Israel, 100 Wis.2ed 411, 423 (1981). iv. School Board applications of the arbitrary and capricious standard are reviewed by the courts. The courts consider whether the Board s decision is supported by the evidence on the record. In young v. Brashers, 560 F.2d 1337 (7th Cir., 1975), the Seventh Circuit Court of Appeals affirmed a lower court ruling that a decision to terminate an employee was arbitrary and capricious because the reasons provided by the employer for the decision were not supported by the record. v. A similar conclusion has been reached by the Wisconsin Supreme Court in Neufer v. Village Board of Palmyra, 92 Wis.2d 289 (1979). vi. Thus, in any attempt to nonrenew an administrator, in order to avoid a finding that a decision to nonrenew was reached arbitrarily or capriciously or in bad faith, there must be evidence in the record which will support the decision of the school board. The arbitrary and capricious standard is a lower standard that the just cause standard vii. vii. Nonarbitrary/noncapricious. c. Misconduct Willful and wanton disregard of the employer s interest. d. Substantial Fault Acts or omissions over which the employee exercised reasonable control and which violate reasonable requirements of the employer. II. Conclusion and Questions 12