Teacher and School Administrator Contracts

I. Elimination of Career Status II. The New North Carolina Contract System of Employment III. Selection of 25% of Teachers for Four-Year Contracts IV. Issues for Teachers Making Choices V. How Can We Act Together

Teacher and School Administrator Contracts

Ann McColl, General Counsel

The Appropriations Act of 2013 includes legislation that radically alters employment for educators in North Carolina's public schools.1 Districts are scrambling to sort out the perplexing requirement to offer four-year contracts to 25 percent of educators on the teacher salary scale. This requirement is a drastic shift from a system that has been in place since 1971 and refined over time to balance administrative efficiency and fairness2.

This memorandum details the requirements of 1, 2, and 4 year contracts and explains the impact of eliminating career status on the teaching profession and the public school system. These assertions are the interpretation of the North Carolina Association of Educators (NCAE), an association representing thousands of educators across North Carolina. Members of the NCAE are encouraged to contact the NCAE Legal Advocacy Center with questions or individual concerns at . The NCAE welcomes the opportunity to work with school districts and their attorneys to implement the requirements of the legislation in a manner that minimizes harm and keeps quality educators in the classroom.

The most important context for local action is considering how to address the message implicit in this legislation that teachers are not valued in this State. As a public education community, we must respond in a way to give good teachers a reason to stay in our schools.

I. ELIMINATION OF CAREER STATUS

The Appropriations Act of 2013 ("budget bill") strips away career status from teachers and school administrators and denies the opportunity for career status to teachers in the pipeline. Career status ensures an opportunity to be heard and a reasonable basis for being dismissed or demoted. When state law changed the system of employment of school administrators from career status to contracts in 1993, it grandfathered those who had achieved career status and allowed those in the pipeline to continue on the path for career status.3 These career administrators now will have their career status removed on July 1, 2014. The budget bill takes away career status of teachers in 2018, forcing all teachers to be placed on 1-, 2-, or 4-year contracts. (The option for 25 percent of teachers to voluntarily relinquish their career status in 2014 is addressed below.)

1 Current Operations and Capital Improvements Appropriations Act of 2013, ? 9.6, 2013 N.C. Sess. Laws 360, available here.

2 An Act to Establish an Orderly System of Employment and Dismissal of Public School Personnel, ch. 883, 1971 N.C. Sess. Laws 1396. 3 N.C. Gen. Stat. ? 115C-287.1; Act of June 24, 1993, ch. 210, 1993 N.C. Sess. Laws 390.

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Educators who have already earned career status have a contractual right to maintain it. Career status is a part of a contractual right afforded by the State. It has long been understood that employment protections were a part of the package deal that made low salaries more attractive. The NCAE will be filing a lawsuit against the State for violating state and federal constitutional rights based on these contract principles. We anticipate the litigation to be filed later this year or the beginning of 2014.

II. THE NEW NORTH CAROLINA CONTRACT SYSTEM OF EMPLOYMENT

What happens in 2014? Types of employment: (School administrators lose their career status and are placed on contracts.

Teachers can maintain their career status in lieu of a contract.) 1-year contracts 4-year contracts

What happens in 2018? Types of employment: (Elimination of career status for all teachers.) 1-year contracts 2-year contracts 4-year contracts

Some in the public education community mistakenly believe that this legislation moves teachers to the same form of contract that school administrators have had since the 1990's. This has led some to say that since the system of contracts has been satisfactory for school administrators, it also should work for teachers. In addition to significant differences in the balance of interests reflected in employment of administrators and teachers, it is also very important to understand that this is not the same system of contracts that has been in place. This new contract system significantly diminishes the rights of school administrators and gives teachers even fewer rights. Some of these elements are described below.

1. Any single standard rating below proficient is an automatic ground for dismissal during the term of the contract. This completely undermines the use of the evaluation instrument as a formative assessment and will discourage innovation.

Inadequate performance has long been a ground for dismissal of career status employees, probationary teachers, and school administrators during the term of a contract. This law changes the definition of inadequate performance to include "the failure to perform at a proficient level on any standard of the evaluation instrument". 4Prior to this, the law allowed the principal to note "on the instrument that the teacher is making adequate progress toward proficiency given the circumstances."5

This language had been negotiated by the main membership organizations in 2011 (including the NCAE) as a means for making sure that it was not an absolute bright line, but rather that it allowed for times when it would be reasonable for a teacher to be

4 2013 N.C. Sess. Laws 360 (? 9.6(b) adding N.C. Gen. Stat. ? 115C-325.4(a)(1)). 5 N.C. Gen. Stat. ? 115C-325(e)(3).

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given a rating of "developing" ? a standard below proficient . It was well understood that there would be times when a developing rating was appropriate, such as when teaching a new subject area or grade level or the introduction of new curricula such as the Common Core. Further, early career teachers would also be expected to be developing as they grow in their profession.

This new bright line approach is exacerbated by the failure of the law to provide any means to dispute an evaluation. Without the ability to challenge the rating in a timely manner, it will be much more difficult for a teacher or school administrator to dispute the rating at the time of a dismissal. While school districts may not choose to immediately seek dismissal every time a rating below proficient is given, it will have an extraordinary chilling effect of keeping educators from speaking up on any issue that may not be desired by supervisors ? knowing that the provision could be triggered at any time. This further could stifle creativity and innovation when educators are fearful of holding on to their jobs.

The evaluation instruments were designed, according to the Department of Public Instruction, "to assess performance in relation to the standards and to serve as a development model for individual growth and development for the practitioner."6 This primary intent will be undermined in an environment where any rating below proficient is a cause for dismissal. Further, school districts can effectively use professional development plans to help teachers grow and improve in specific areas.

2. The law eliminates the neutral fact finder in dismissal/demotion hearings.

Since the career status law was passed in 1971, there has been a role for an outside body to hear evidence in dismissal and demotion cases.7 The Excellent Schools Act in 1997 replaced the role of a Professional Review Committee with an experienced, trained neutral fact finder in the dismissal/demotion process. This ensured objectivity in the process of sifting through evidence and relieved local boards from lengthy trials.8

In 2011, modifications were made to the process to improve the use of neutral fact finders with the agreement of the main education membership organizations, including the NCAE.9 This law now eliminates that process. Under this law, all dismissal and demotion hearings will be heard by the local board of education. Two cases have made their way to the North Carolina Court of Appeals in recent months on the arbitrariness of decisions of local boards in making decisions on contracts, as well as the proper process the boards must follow to ensure fairness.10 The NCAE filed amicus curiae briefs in the cases, which are available here and here. These cases highlight the value of

6 7 1971 N.C. Sess. Laws 1396, 1399-1401. 8 The Excellent Schools Act, ch. 221, 1997 N.C. Sess. Laws 427. See also Tom Stern & Ann McColl, The Road to the Excellent

Schools Act, Educ. L., Dec. 1997, at 1, available here. 9 An Act to Modify the Law Relating to Career Status for Public School Teachers, ch. 348, 2011 N.C. Sess. Laws 1464. 10 Joyner v. Perquimans County Bd. of Educ., No. 13-446 (N.C. Ct. App. argued Sept. 10, 2013); Tobe-Williams v. New Hanover

County Bd. of Educ., No. 13-679 (N.C. Ct. App. appeal docketed June 11, 2013).

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a neutral fact finder and clear hearing procedures so that there is integrity in the decision-making process.

3. Salary can be reduced at the end of a contract without triggering any employment rights to dispute the reduction.

Demotion has always been defined as a reduction in salary.11 The legislation in the budget bill creates a new specific exemption to this for "(iv) any reduction of pay as compared to a prior term of contract."12 This makes clear that the $500 compounded raise during the term of the 4-year contracts offered in 2014 can be eliminated without triggering any employment rights. But this provision has much broader implications. In a merit pay system that is envisioned by some of the leadership of the General Assembly, this provision could allow salaries set in a specific contract to be reduced at the time of a renewal without any recourse for the teacher or school administrator.

4. Employees lose the right to appeal to court when they disagree with the local board's resolution of administrative decisions regarding employment conditions and status.

Since 2001, employees have had an explicit right to appeal final administrative decisions to local boards and then to court in regard to "the terms or conditions of employment or employment status."13 While a right to appeal to court remains if there is a violation of law or policy, this eliminates other issues that are grounded in fairness and equity. This law goes into effect July 1, 2014, and affects all employees.14

5. While school administrators continue to have a right to a hearing with the local board if recommended for non-renewal, the new law does not grant teachers this right.

In the career status law, probationary teachers in their final year prior to career status have had the right to request a hearing before the local board if the superintendent has recommended non-renewal.15 School administrators have had the right to a board hearing if the superintendent has recommended non-renewal.16 This right to a hearing remains unchanged for school administrators. Teachers, however, will not be afforded the same right: they may petition for a hearing but it is within the local board's discretion whether to grant the right.17

Without a right to hearing, it will be extremely difficult for a teacher to present his or her position, to have any assurance that any documentation submitted is reliable and reviewed, or that standards for non-renewal are met. So while the law stipulates that a

11 N.C. Gen. Stat. ? 115C-325(a)(4); 1971 N.C. Sess. Laws 1397. 12 2013 N.C. Sess. Laws 360 (? 9.6(b) adding N.C. Gen. Stat. ? 115C-325.1(2)). 13 Act of June 29, 2001, ch. 260, 2001 N.C. Sess. Laws 687 (modifying prior provision that an appeal shall lie "in any action

of a local board of education affecting one's character or right to teacher"). 14 2013 N.C. Sess. Laws 360 (? 9.6(c), (k)). 15 N.C. Gen. Stat. ?? 115C-325(c)(1), (m)(4). 16 N.C. Gen. Stat. ? 115C-287.1(d). 17 2013 N.C. Sess. Laws 360 (? 9.6(b) adding N.C. Gen. Stat. ? 115C-325.3(e)).

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board cannot decide to non-renew a contract for a reason that is arbitrary, capricious, discriminatory, personal or political, or against state or federal law, it will be extremely difficult to know how decisions are carried out. And this is by design. Local boards are not held accountable in this model.

6. If a local board fails to act on renewals in the required time frame, the law allows the local board to dismiss the teacher as an at-will employee.

The failure of a local board to act becomes the burden of the teacher in this new law. For failing to take action in regard to renewal of the contract, the board has the option to "dismiss the teacher and provide the teacher with the equivalent of one additional month's pay."18 It further states that a "teacher dismissed as provided in this section shall be considered an at-will employee and shall not be entitled to a hearing or appeal of the dismissal. " Id. This suggests that it allows the board to dismiss without reaching the standard of non-renewals of a decision that is not arbitrary, capricious, discriminatory, personal or political. While the NCAE may challenge such actions by a local board, this law creates a greater potential for adverse actions against teachers and the need for litigation to address it. The use of the term "dismiss" also raises concern for unemployment benefits.

Collectively, these changes create great uncertainty in employment and fail to provide even minimal fairness. This law completely throws out of balance the interests of efficiency and fairness. Where will this lead us? It is hard to imagine how this will not generate lower morale and a greater exodus from the teaching profession in North Carolina.

III. SELECTION OF 25% OF TEACHERS FOR FOUR-YEAR CONTRACTS

Appropriations Act of 2013, 2013 N.C. Sess. Laws 360 SECTION 9.6.(g) Beginning September 1, 2013, to June 30, 2014, all superintendents shall review the performance and evaluations of all teachers who have been employed by the local board for at least three consecutive years. Based on these reviews, the superintendent shall identify and recommend to the local board twenty-five percent (25%) of those teachers employed by the local board for at least three consecutive years to be awarded four-year contracts beginning with the 2014-2015 school year. The superintendent shall not recommend to the local board any teacher for a four-year contract unless that teacher has shown effectiveness as demonstrated by proficiency on the teacher evaluation instrument. The local board of education shall review the superintendent's recommendation and may approve that recommendation or may select other teachers as part of the twenty-five percent (25%) to offer four-year contracts, but the local board shall not offer any teacher a four-year contract unless that teacher has shown effectiveness as

demonstrated by proficiency on the teacher evaluation instrument. Contract offers shall be made and

accepted no later than June 30, 2014. A teacher shall cease to be employed pursuant to G.S. 115C-325 and voluntarily relinquishes career status or any claim of career status by acceptance of a four-year contract as provided in this section.

SECTION 9.6.(h) Teachers employed by a local board of education on a four-year contract beginning with the 2014-2015 school year shall receive a five hundred dollar ($500.00) annual pay raise for each year of the four-year contract.

18 2013 N.C. Sess. Laws 360 (? 9.6(b) adding N.C. Gen. Stat. ? 115C-325.3(f)(2)). Teacher and School Administrator Contracts

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