Current Legal Issues in Risk Management February 16, 2011 Presented by: Phillip L. Hartley Harben, Hartley & Hawkins, LLP

Preparing for Spring Annual Evaluations Renewals and Nonrenewals Tenure RIFs Other employment issues 2

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 Evaluation Must be completed for each certified employee by April 1 Superintendent responsible for ensuring compliance PSC has investigated and sanctioned lack of compliance 4

Two Types of Employment Relationships Employees with a written contract “At will” employees Remember, all employees are employed by the Board on recommendation of the Superintendent. 5

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. 6

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 8

Administrative Tenure No 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. 9

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. 10

Procedure for Non-Renewing Tenured Employees May 15 th notice (at least through 2013) Right to request a hearing and other rights in the letter Certified mail Thereafter, process is essentially the same as terminating teacher under contract. 11

Procedure for Terminating Employee and Nonrenewing Tenured Employee “Charge” letter Hearing before the board or a tribunal selected by the board Evidence required Appeal rights 12

13 Re-Examining the RIF Policy O.C.G.A. § , 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.

14 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 BoE April 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 15

Recent SBOE Decisions on RIFs Porter v. Heard County BoE 5 high school science teachers, only needed 4. FTE projected to decline, actual enrollment expected to increase. SBOE: FTE is appropriate measure of declining enrollment Purpose of RIF – to economize Method of using test scores to identify lowest performing teacher to eliminate is acceptable. 16

Recent SBOE Decisions on RIFs Evans v. Jefferson County BoE Certified 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. 17

Recent SBOE Decisions on RIFs Sampson v. Ware County BoE OK 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. 18

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. 19

When Federal Law Takes Over Federal laws protect employees against “adverse employment actions.” Many of these federal laws have anti- retaliation protections. 20

Questions 21