1. 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.

2. Statutory Overview

3. The Constitution requires due process of law before the government may deprive a person of: Life Life Liberty, or Liberty, or Property. Property.

4. Continuing employment rights are property under the Constitution. Dismissal from employment also may implicate a liberty interest.

5. 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?

6. G.S. 115C-325

7. 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.

8. 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.

9. Disciplinary Suspension Without Pay  Maximum length is 60 calendar days.  If 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).

10. 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.

11. Demotion of a Career School Administrator Requires a full evidentiary hearing under 115C-325(j3). Requires a full evidentiary hearing under 115C-325(j3).

12. 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.

13. Grounds for Dismissal Inadequate Performance Inadequate Performance Immorality Immorality Insubordination Insubordination Neglect of Duty Neglect of Duty Physical or Mental Incapacity Physical or Mental Incapacity Habitual or excessive use of alcohol, or nonmedical use of controlled substances Habitual or excessive use of alcohol, or nonmedical use of controlled substances Conviction of a felony or crime involving moral turpitude Conviction of a felony or crime involving moral turpitude Advocating overthrow of the government Advocating overthrow of the government Failure to fulfill the duties and responsibilities imposed upon teachers by the general statutes Failure to fulfill the duties and responsibilities imposed upon teachers by the general statutes

14. Grounds for Dismissal (cont’d) Failure to comply with reasonable board requirements Failure to comply with reasonable board requirements Any cause that constitutes grounds for revocation of the teacher’s certificate Any cause that constitutes grounds for revocation of the teacher’s certificate R.I.F. R.I.F. Failure to maintain teaching license in current status 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 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 Failure to repay money owed to the state

15. Inadequate Performance Leading case: Nestler v. Chapel Hill/ Carrboro Board of Educ. 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.” 115C- 325(e)(3). Prior notice rule: “Failure to notify a career employee of an inadequacy in his performance shall be conclusive evidence of satisfactory performance.” 115C- 325(e)(3).

16. 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. 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. Three year rule doesn’t apply if based on sexual misconduct toward or sexual harassment of students or staff.

17. 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. 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. 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.

18. Insubordination (cont’d) May be effective ground when employee fails to comply with principal’s performance directives. Hope v. Charlotte-Mecklenburg Board of Educ. May be effective ground when employee fails to comply with principal’s performance directives. Hope v. Charlotte-Mecklenburg Board of Educ.

19. 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. 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.

20. 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. 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. This ground raises many ADA/Section 504 issues.

21. 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. Evidence a teacher came to work smelling of alcohol after oral warnings supports dismissal. Faulkner v. New Bern-Craven Board of Educ. ADA issues? ADA issues? Fourth amendment issues: to test or not to test? Fourth amendment issues: to test or not to test? Out of school conduct: DUIs and drug arrests. Out of school conduct: DUIs and drug arrests.

22. Conviction of a Crime Must be a felony or a crime “of moral turpitude.” Must be a felony or a crime “of moral turpitude.” Three year rule does not apply. Three year rule does not apply.

23. Failure to Fulfill Duties Prescribed by State Law G.S. 115C-307 prescribes duties of teachers. 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. 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.

24. Failure to Comply with Board Requirements Look to the Board policy manual for these standards. Look to the Board policy manual for these standards.

25. 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. 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.

26. 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. 115C- 303 prohibits boards from maintaining on their payroll any person who lacks a certificate as required by law. 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. 115C- 303 prohibits boards from maintaining on their payroll any person who lacks a certificate as required by law.

27. 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.” 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. The three year rule does not apply.

28. Documenting and Improving Employee Performance Strategies for...

29. Action Plans Required by state law for teachers rated below standard or worse on an evaluation. G.S. 115C-288(i), -333. 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. May be used even when not required by state law.

30. North Carolina Law Concerning Personnel Files

31. 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.”

32. 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.”

33. 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.

34. 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.

35. 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.