14 Points of Employee Dismissal
Releasing school employees is an unpleasant but sometimes necessary role of a school board. Discharge procedures are complex and confusing because, in the public school context, the process is governed by state, federal, constitutional and contract law.
Discharge proceedings often involve several players, such as the superintendent, an attorney for the administration, the teacher and defense representative, the board attorney and the school board members. This brochure generally describes the process of releasing school employees and the school board’s role.
1.Are the discharge procedures the same for all school employees?
No. The appropriate procedures will vary depending on the type of employee involved.
2. For purposes of identifying the appropriate discharge procedure, what are the various types of school employees?
“At will” employees, meaning those employees who serve without an employment contract or entitlement to one; Employees with an employment contract that does not automatically renew, e.g. bus drivers; Nonpermanent teachers, generally meaning first and second year teachers; Semipermanent and permanent teachers, meaning certificated persons with an indefinite (tenure) contract.
3.How can “at will” employees be discharged?
Absent an agreement or contract that specifies the time or duration of service, the employment is at the will of the employer and employee. The “at will” employee can quit or be discharged at any time for any reason as long as the employer’s reason is not a prohibited discharge ground (See question 14). There are no requisite procedures absent local school board policy or collective bargaining agreement.
“At will” employees typically include cafeteria workers, custodians, and secretaries. The decision to release “at will” employees is sometimes delegated to the superintendent with subsequent ratification by the school board. (Indianapolis Public School “at will” employees must, however, be afforded a hearing and an appeal to the board. IC 20-25-3-12)
4. How are employees who have an employment contract that does not automatically renew discharged ?
The board can release an employee with an employment contract that does not automatically renew by either refusing to continue the contract once it expires or by cancelling it mid-term. Refusing to renew a contract after it expires does not require any due process procedures (unless the board has created a right to continue, a form of local tenure). A mid-term contract cancellation, however, requires certain due process procedures because an employment contract is a property right protected by the due process clause of the United States Constitution. Absent specific procedures being stated in a collective bargaining agreement, employment contract or statute, mid-term discharge procedures should include adequate notice, a statement of reasons and an opportunity for a hearing. Likewise, if the employment contract, collective bargaining agreement and statutes are silent on discharge grounds, an employee with an employment contract may be discharged mid-term on any ground reasonably related to the school corporation’s interest. A mid-contract discharge requires a majority vote of the quorum at an open school board meeting. A refusal to renew the contract for the following year does not take board action because the contract expires by its own terms. Written notice from an administrator that the person will not be considered for contract renewal is necessary to avoid the creation of an expectation that there will be re-employment. Employees who receive a written employment contract that does not automatically renew include temporary contract teachers, coaches and bus drivers.
5. How are nonpermanent teachers discharged?
The school can release a nonpermanent teacher either by voting to nonrenew the teaching contract for another year or by cancelling it mid-term. The procedure for nonrenewing the contract of a nonpermanent teacher is governed by IC 20-28-7-9, which mandates strict compliance. The principal, for example, must provide the teacher with a written evaluation before January 1. The statute requires a board to give notice of consideration of nonrenewal to the teacher on or before June 1 in even-numbered years or in odd-numbered years on or before the later of June 15 or the date a budget is passed. There must also be a subsequent opportunity for a conference and a vote by the board. A nonpermanent teacher may be non-renewed for any reason considered relevant to the school corporation’s interest or because of inability to perform teaching duties.
A mid-contract discharge of a nonpermanent teacher requires due process procedures including adequate notice, reasons and an opportunity for a hearing. The state-prescribed regular teacher’s contract states that the contract can be cancelled if the teacher is found “guilty of incompetency, immorality, insubordination or other offense recognized as just cause according to law for cancellation of contract.” A mid- contract cancellation requires a majority vote of a quorum at an open school board meeting.
6. What occurs during a conference between the board and a nonpermanent teacher?The school administration “shall provide full and complete information supporting the reasons given for non-continuance; and the teacher shall provide any information demonstrating that non-continuance of the contract is improper.” The conference must be in executive session unless the teacher requests a public conference. A conference is not a hearing and, therefore, cross examination is not required. The board members listen to the nonpermanent teacher and the administrator. The school board must then vote on the nonrenewal of the teacher’s contract within 10 days of the conference.
7. How are semipermanent and permanent teachers discharged?
Semipermanent and permanent teachers can only be released by cancelling their indefinite (tenure) contract. Depending on the number of years of service, a certificated person may be semipermanent or permanent, but the discharge procedures are the same. IC 20-28-7-3 contains these procedures that are very specific and include timelines, notice requirements, statement of reasons and an opportunity for a hearing before the school board.
8. What are the grounds for cancelling a semipermanent or permanent teacher’s contract?
The discharge grounds are separately stated for semipermanent and permanent teachers (IC 20-28-7-2 and IC 20-28-7-1, respectively). Unless indicated, the following grounds apply to semipermanent and permanent teachers:
- neglect of duty
- substantial inability to perform teaching duties (semipermanent only)
- incompetency (permanent only)
- justifiable decrease in the number of teaching positions
- conviction of certain felonies
- good and just cause
- cancellation is in the best interest of the school corporation (semipermanent only)
9. Before considering whether to cancel a contract, can board members assist in the fact- gathering stage of the case?
Constitutional due process requires the school board to be a fair, impartial decision maker. Discussing potential charges against an employee can give, if nothing else, the appearance of impropriety. This “appearance” must be balanced with the rule that mere familiarity with the facts will not necessarily disqualify a board member. Board members should, therefore, avoid being involved in the investigation of charges against an employee.
10. What occurs at a hearing to cancel a contract?
The school administration has the burden of proving that the contract should be cancelled for one or more of the grounds set forth in the notice to the employee. The representatives for the administration and the teacher will each be given an opportunity for a short opening statement. All witnesses are required to take an oath or give an affirmation that their testimony will be truthful. The administration proceeds with its case first. After the testimony of each administration witness, the employee may cross-examine the witness. After the administration concludes its case, the employee is given an opportunity to present witnesses. The administration is given an opportunity to cross-examine each witness called by the employee. Both the administration and the employee are allowed to make closing statements. The hearing should proceed on an informal basis with the formal rules of evidence not strictly followed. At the hearing or sometime before the board makes its decision, the superintendent is required to make a recommendation as to whether the employee’s indefinite contract should be cancelled.
11. What is the board’s role at a discharge hearing?
The school board is the decision-making body. Its members listen to the evidence and decide the case based solely on evidence presented at the hearing. After the hearing, the board makes its decision at an open board meeting and adopts formal findings of fact with the assistance of its attorney.
12. What role does the board president play during a hearing?
Customarily, the board president presides at the hearing. The hearing begins with an introductory statement and administration of the oath to all witnesses. The board president, with assistance from the board attorney, rules on evidentiary objections.
13. If a released employee challenges his/her contract cancellation, can the court substitute its judgment for that of the school board?
No. A trial court is prohibited from re-weighing and second-guessing the evidence. If the procedural requirements are followed, including the assignment of legal grounds for cancellation, and if the record from the hearing reveals that there is substantial evidence to support the decision, and if the hearing was fair, the board’s decision must be upheld by a trial court. (This does not apply to an arbitrator under a “just cause” provision of a bargaining agreement.)
14. What are the prohibited discharge grounds?
At least ten different discrimination laws protect employees. School board members should be aware that every employment decision has potential ramifications under these laws. School employers are prohibited from discharging an employee on the basis of the following:
- Race and color
- Sex, including pregnancy
- National origin, meaning the country where born
- or from where ancestors came
- Political reasons
- Marital status
- Union membership or activity
- Filing a worker’s compensation claim
- Serving as a juror or responding to summons
Moreover, with few exceptions, school employers may not make adverse employment decisions based on a constitutionally protected status or activity, such as an employee’s religion, association or speech.
This brochure is written and published for informational purposes only. It is not, nor is it to be used, as a substitute for the official statutes or legal advice from competent school corporation counsel.