A GUIDE TO NONRENEWING TEACHER CONTRACTS by Michael J. Julka and Richard F. Verstegen Lathrop & Clark LLP P.O. Box 1507 740 Regent Street, Suite 400 Madison, WI 53701-1507 (608) 257-7766 2011 Prepared for the Wisconsin School Attorneys Association Copyright 2011 Wisconsin Association of School Boards
TABLE OF CONTENTS PAGE I. INTRODUCTION... 1 II. PRELIMINARY CONSIDERATIONS... 3 A. IS NONRENEWAL THE APPROPRIATE COURSE OF ACTION?... 3 B. IS THE EMPLOYEE A TEACHER SUBJECT TO NONRENEWAL?... 3 C. IS THE TEACHER PROBATIONARY?... 4 III. COLLECTIVE BARGAINING AGREEMENT PROVISIONS AFFECTING NONRENEWAL... 5 A. GENERAL... 5 B. JUST CAUSE... 6 (1) Definition... 6 (2) Relevant Factors of Just Cause and Practical Considerations... 8 (3) Scope of Review... 9 (4) Burden of Proof...10 IV. STATUTES AFFECTING NONRENEWAL...11 A. 121.02(1) (PROFESSIONAL DEVELOPMENT AND PERFORMANCE EVALUATION)...11 (1) Statutory Requirements...11 (2) Practical Considerations...11 B. 118.21 (INDIVIDUAL TEACHING CONTRACTS)...13 C. 115.31 (LICENSE REVOCATION AND REPORTING)...14 (1) Revocation for Serious Felonies...14 i
(2) Mandatory Reporting Requirements...14 (3) Investigation...15 (4) Revocation for Incompetency or Immoral Conduct...15 (5) Mandatory Background Checks...16 D. 118.22 (RENEWAL OF TEACHING CONTRACTS)...16 (1) Statutory Procedural Requirements...16 (2) Private Conference...18 (3) Teacher Resignation...20 (4) Constructive Discharge...22 (5) Co-curricular Assignments...23 (6) Reductions in Staff...24 (a) Applicability of 118.22...24 (b) Applicability of Layoff Clause...27 E. 118.23 (TEACHER TENURE IN POPULOUS COUNTIES)...28 F. SUBCHAPTER IV OF CHAPTER 19 (OPEN MEETINGS LAW)...28 (1) Nonrenewal of Teacher Without Job Security...29 (2) Nonrenewal of Teacher With Job Security...30 (3) Deliberations and Final Action...30 G. 111.70 (COLLECTIVE BARGAINING)...32 (1) Duty to Bargain Over Staff Reductions During Term of Collective Bargaining Agreement...32 (2) Discriminatory Nonrenewal Based Upon Concerted Activity...32 ii
(3) Right to Representation...32 H. 103.13 (TEACHER INSPECTION OF PERSONNEL RECORDS)...33 I. EMPLOYMENT STATUTES...34 (1) General...34 (a) Selected Examples...34 (b) Disabilities...39. (2) Mandatory Retirement...41 (3) Veterans Reemployment...41 J. UNEMPLOYMENT COMPENSATION LAW...42 (1) Voluntary Termination...42 (2) Misconduct...43 (3) Failure to Notify Employer of Absenteeism or Tardiness...44 (4) School Year Employees/Reasonable Assurance...45 (a) School Year Employee...45 (b) Reasonable Assurance...46 (c) Reasonably Similar...47 K. HOSPITAL AND MEDICAL INSURANCE CONTINUATION AND CONVERSION RIGHTS...48 L. GRIEVANCE PROCEDURE...49 V. CONSTITUTIONAL ASPECTS OF NONRENEWAL...49 A. DUE PROCESS...49 (1) When Due Process Is Required...50 iii
(a) Liberty Interest...50 (b) Property Interest...52 (2) What Due Process Requires...55 (a) Procedural Due Process...55 (i) Time of Hearing...57 (ii) Impartiality of Decisionmaker...59 (iii) Participation by Legal Counsel...61 (iv) Procedure for Full Due Process Hearing...62 (b) Substantive Due Process...63 B. IMPERMISSIBLE REASONS...64 (1) First Amendment...65 (2) Fourth Amendment...71 (3) Fifth Amendment...72 C. LIABILITY...73 VI. COMMON LAW WRONGFUL DISCHARGE...76 APPENDIX A -- 118.22...78 APPENDIX B -- CHECKLIST FOR NONRENEWAL...79 ENDNOTES...82 iv
I. INTRODUCTION The validity of the nonrenewal of a Wisconsin public school teacher s individual contract is affected by numerous legal factors. State and federal constitutions, statutes, court decisions, regulatory agency decisions, employee handbooks, and board policies all play an important role in shaping the rules of law that govern the nonrenewal of such contracts. In addition, collective bargaining agreements, employee handbooks, individual teacher contracts, and board policies may provide greater job security for teachers by limiting the powers of nonrenewal of school boards. Failure to recognize a teacher s legal rights, whether substantive or procedural, may render a nonrenewal void and entitle the teacher to reinstatement, back pay, damages, costs, and attorney fees. This edition of the Guide was sponsored by the Wisconsin School Attorneys Association in cooperation with the Wisconsin Association of School Boards. The Guide is a synopsis of the legal considerations that generally control the substantive and procedural aspects of the nonrenewal of individual teacher contracts. Its purpose is to serve as a resource for attorneys and to inform school district personnel. It is not intended to be used as a substitute for legal counsel. Due to the complexity of some issues involved in nonrenewal and the lack of definitive authority concerning them, in some instances, the Guide can do no more than point to the potential legal problems that may arise in the nonrenewal process. 1 The Guide incorporates legal developments affecting nonrenewal that have occurred since the prior edition was published at the end of the 2008-09 school year, as that term is defined in 115.001(13) (unless noted otherwise, all references are to Wisconsin Statutes). This version of the Guide is designed to be current through December 15, 2011. Judicial and agency interpretations as well as any other changes in the laws rendered after publication may well affect the analyses and conclusions. Many sections of the Guide have been affected by 2011 Wisconsin Act 10 (Act 10), commonly referred to as the Budget Repair Bill, which became effective on June 29, 2011. This law significanly changed collective bargaining in Wisconsin in a number of respects. Some of the important changes are noted below. First, Act 10 prohibits a school district from negotiating with a labor organization with respect to any subject, fringe benefit, or condition of employment other than total base wages. This change in the duty to bargain is effective upon publication of the new law, unless a collective bargaining agreement is in effect. If a collective bargaining agreement is in effect, the prohibition becomes effective on the day on which the collective bargaining agreement expires, is terminated, extended, modified, or renewed, whichever occurs first. Considering the various effective dates of Act 10, school district personnel must be aware that a school district may have a collective bargaining agreement that includes provisions related to nonrenewal that are still in effect and that are not subject to Act 10 yet. As a result, school district personnel must factor these collective bargaining provisions into their consideration of nonrenewal. -1-
Second, Act 10 includes a provision that requires the Wisconsin Employment Relations Commission to conduct an annual election to certify that the representative of a collective bargaining unit continues to have majority support, i.e., at least 51% of the votes of the entire bargaining unit. The first such election in each school district was held during November and December 2011, and the results were announced in December 2011. For employees covered by a collective bargaining agreement at the time the law became effective, the first certification election will be held following the expiration, termination, extension, modification, or renewal, whichever occurs first, of the existing collective bargaining agreement. As a result of this provision, some school districts may no longer have a labor organization representing employees in the school district. Third, Act 10 requires each school district to establish a civil service system or grievance procedure to address employee terminations, employee discipline, and workplace safety. The system/procedure must specify the process that the grievant and the school district must follow and provide for a hearing before an impartial hearing officer and the opportunity to appeal the decision to the school board. All school districts must have such a system or procedure in place, and legal counsel must be aware of the language of this provision, especially as it relates to a nonrenewal of a teacher contract. Fourth, Act 10 repealed 118.22(4). This statutory provision allowed parties to a collective bargaining agreement to waive, modify, or replace any of the provisions under 118.22, which governs the nonrenewal of teacher contracts. Section 118.22(4) authorized school districts to agree to collective bargaining provisions which modified the deadlines and other provisions of the teacher nonrenewal statute. For employees who are covered by a current collective bargaining agreement, this repeal becomes effective upon the expiration, modification, termination, extension, or renewal of the collective bargaining agreement. For employees not covered by a current collective bargaining agreement, this repeal became effective immediately upon publication of Act 10. School district personnel must be aware of this repeal and consider the effect of this repeal on any nonrenewal of a teacher contract, particularly the importance of complying with the statutory deadlines. In light of the above, it is clear that school districts throughout the state will vary drastically with respect to the terms and conditions that apply to any nonrenewal of a teacher contract in the district. For this reason, school district personnel must be very aware of the terms and conditions that apply to any nonrenewal and consider the language in this Guide carefully in light of the district s status. -2-
II. PRELIMINARY CONSIDERATIONS A. IS NONRENEWAL THE APPROPRIATE COURSE OF ACTION? An important first step for school district personnel in the nonrenewal process is to determine whether nonrenewal is the appropriate course of action. For example, if the objective is immediate termination of the employee (e.g., discharge), it may not be proper, necessary, or wise for the board to nonrenew a teacher. In addition, in some cases, where a collective bargaining agreement (especially in the case of a collective bargaining agreement which expires in 2013 or thereafter) includes a layoff provision, a nonrenewal may not be appropriate. Instead, the board may need to follow a different procedure to achieve its goal. Thus, at the outset, legal counsel and school district personnel must identify and properly characterize the desired course of action with respect to the employee at issue. Proper and accurate characterization of such proposed actions affecting teacher employment should occur at the earliest possible date and with the consultation of legal counsel. Ideally, potential nonrenewals should be assessed at the same time as, and in conjunction with, the district s staff planning for the ensuing school year. To aid in this determination, school district personnel should provide legal counsel with pertinent material from the files of each teacher who may be affected by the proposed employment actions and with a memorandum from administrative staff setting forth the staff members evaluations of the proposed employment actions and the reasons for the recommendations under consideration. The memorandum to legal counsel should include references to all board policies, 2 employee handbook provisions, individual contract provisions, and clauses of any applicable collective bargaining agreement that may bear on the proposed actions. The memorandum should also set forth all school policies, rules, guidelines, past practices, or circumstances that relate to nonrenewals and other actions affecting employment. Legal counsel should review copies of any applicable collective bargaining agreement, employee handbook, board policies, and the individual contract(s) of the potentially affected teachers. This full and early analysis should result in an accurate determination at the outset concerning whether nonrenewal is the appropriate and necessary course of action. If nonrenewal is the appropriate and intended action, the behavior of the board and administration must be consistent with the concepts embodied in nonrenewal. If the board fails to follow the concepts associated with a nonrenewal, the teacher may be successful in claiming the board s actions resulted in something other than a nonrenewal. For example, in one case, the teacher successfully argued that she had been laid off (and thus had recall rights) rather than nonrenewed. 3 Therefore, the board and administration must follow all necessary procedures. B. IS THE EMPLOYEE A TEACHER SUBJECT TO NONRENEWAL? Another important initial step with nonrenewal is to assess whether the employee at issue is a teacher that is subject to the nonrenewal statute. This determination is made by examining the two-part definition of teacher under 118.22(1)(b) and by considering the exceptions within -3-
this definition. Specifically, under this definition, a teacher must hold a teacher s certificate or license issued by the state superintendent or a classification status under the technical college system and must have his or her legal employment require this certificate, license, or classification status. As a result, if an employee holds a teacher s license issued by the state superintendent, but the employee is working in a capacity that does not require this license, the nonrenewal statute will not apply to this employee. Under the definition, the nonrenewal statute will also not apply to part-time teachers or teachers employed by the board of school directors in a 1 st class city. School district personnel, in consultation with legal counsel, should identify any employees to whom the nonrenewal statute does not apply at the earliest possible date. Consideration must also be given to any applicable board policies, employee handbook provisions, individual contract provisions, and any collective bargaining agreement to ensure that these one or more of these documents has not made the nonrenewal statute applicable to any teacher who does not fall within the definition of teacher under 118.22(1)(b). C. IS THE TEACHER PROBATIONARY? For purposes of nonrenewal, legal counsel and school district personnel should also determine at the earliest possible date whether the teacher at issue is a probationary or nonprobationary employee. 4 State statutes do not provide a definition for probationary employee in the school context. Instead, the status of a probationary employee is typically established by board policy, employee handbook, or any collective bargaining agreement. Legal counsel and school district personnel must identify all such applicable provisions when considering nonrenewal. [see also IV.E for application of probationary employees under 118.23]. In particular, legal counsel and school district administrators must be aware of any language affecting the procedure for nonrenewal of a probationary teacher. In some cases, collective bargaining agreements may establish that the nonrenewal process will not apply to probationary teachers. Such language in collective bargaining agreements may be valid, considering the language may have been included in the agreement prior to the repeal of 118.22(4). However, in light of the repeal of 118.22(4), it is questionable whether any modifications to the nonrenewal procedure for probationary employees will be permitted pursuant to any future collective bargaining agreement, board policy, individual contract, or employee handbook. In general, the requirements under 118.22 apply to the nonrenewal of such probationary teachers, including the requirement that the board give written notice of nonrenewal to such teachers. District officials must identify all such procedural requirements and plan appropriately to accommodate these requirements well before any mandatory deadlines. -4-
III. COLLECTIVE BARGAINING AGREEMENT PROVISIONS AFFECTING NONRENEWAL A. GENERAL This section addresses the effect of collective bargaining provisions on nonrenewal. Currently, many school districts have collective bargaining agreements that extend until June 30, 2012, or until June 30, 2013, and as a result, this section will have particular relevance. Certainly, however, with the enactment of 2011 Wisconsin Act 10, there are many school districts that no longer have collective bargaining agreements in place. In those districts, there may be board policies or employee handbooks in place that contain similar provisions as those formerly contained in a collective bargaining agreement. Because of the similarities, some of the discussion below may be also relevant to board policies and employee handbook provisions. To this end, the discussion below includes some reference to board policies and employee handbooks. In some instances, however, the concepts related to collective bargaining agreements will not apply equally to board policies and employee handbooks. As a result, school districts should confer with legal counsel to consider the proper application. Collective bargaining agreements between school boards and teacher unions often contain provisions that affect nonrenewals of teachers, and legal counsel must be aware of such provisions. In particular, such agreements may include nonrenewal procedures for part-time teachers 5 and/or temporary replacement teachers; 6 legal standards for nonrenewals, such as arbitrary or capricious, 7 cause, or just cause; [see III.B]; 8 observation, evaluation, notice, conferences, and the like as conditions precedent to nonrenewal [see IV.A]; 9 requirements that the board consider or not consider certain evidence in determining to nonrenew; 10 particular procedures and limitations applicable to reductions in the teaching staff that may or may not require nonrenewal [see IV.D(6)]; or specific actions relative to withdrawal of co-curricular assignments [see IV.D(5)]. In addition, any applicable collective bargaining agreement may incorporate by reference the teacher s individual contract. Board policies and employee handbooks may also include similar provisions that affect the nonrenewal of teacher contracts. A collective bargaining agreement or the individual teacher contract may also include provisions that require particular action on the part of the board or administrative staff well in advance of the February and March dates by which, under 118.22, consideration of nonrenewal must take place. 11 For example, in some cases, a collective bargaining agreement may contain a provision requiring an administrator to observe the teacher in the classroom at least three times during the school year. If administrators fail to abide by such provisions, a teacher might have to be retained, even though the teacher, in the best interest of the district, should be nonrenewed. 12 Again, board policies and employee handbooks may include similar provisions that require action well before the dates by which consideration of nonrenewal must take place. Collective bargaining agreements may also contain provisions that affect nonrenewal but do not specifically mention nonrenewal. 13 Such provisions may include conditions precedent to nonrenewal, such as l) requirements for written notices and/or conferences in addition to those -5-
required by statute; 2) provisions relating to teacher evaluation, evaluation instruments, evaluation reports, evaluation conferences (which may include a right to union representation), and teacher files; 3) provisions relating to sufficiency of reasons for nonrenewal; 4) requirements for attempts by administrative staff to help the teacher overcome identified difficulties; 5) progressive discipline; and 6) a specific period of time for remediation. [See IV.A for a discussion of statutes affecting performance evaluation.] Similar provisions may also be included in employee handbooks and board policies. Although, in light of Act 10 and prior case law, a school board may have no duty to bargain over aspects of assistance to teachers having professional difficulties, 14 boards that have entered into collective bargaining agreements containing such provisions are bound thereby to the extent such provisions are valid and enforceable. One board was ordered to grant a teacher a year of back pay for having failed to provide the notice of deficiencies, counseling and assistance, and opportunity for remediation required under the agreement, despite having had just cause for the nonrenewal; another board was ordered to reinstate a teacher when it failed to give remedial action sufficient time to work or offer counseling or remedial courses to the teacher in light of her deficiencies. 15 The procedures for nonrenewal, as outlined below, will have to be supplemented to comply with any such collective bargaining agreement provisions. Likewise, board policies and employee handbooks may contain provisions concerning aspects of assistance to teachers, which, depending upon the language of the provision, may need to followed prior to nonrenewal of any contract. B. JUST CAUSE (l) Definition What is just cause? There is no universally accepted definition, but one can get an idea of what is meant by just cause by reviewing court decisions, 16 arbitration awards, 17 and prohibited practices cases decided by the Wisconsin Employment Relations Commission (WERC). 18 In one case, Arbitrator Carroll R. Daugherty set forth seven questions for determining whether an employer had just cause for discipline. 19 He stated that a no answer to any one or more of these questions normally signifies that just cause did not exist. The questions were as follows: 1. Did the employer give the employee forewarning or fore knowledge of the possible or probable disciplinary consequences of the employee s conduct? 2. Was the employer's rule or managerial order reasonably related to the orderly, efficient and safe operation of the employer s business? 3. Did the employer, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management? -6-
4. Was the employer s investigation conducted fairly and objectively? 5. At the investigation, did the judge obtain substantial evidence or proof that the employee was guilty as charged? 6. Has the employer applied its rule, orders and penalties even-handedly without discrimination to all employees? 7. Was the degree of discipline administered by the employer in a particular case reasonably related to (a) the seriousness of the employee s proven offense and (b) the record of the employee in his or her service with the employer? Based on this seven-part test, the legislature defined just cause for the first time in 1993 in the context of disciplinary proceedings for local law enforcement officers. 20 Arbitrators, however, have generally not adopted this statutory test. One arbitrator, after noting how the statutory just cause standards may assist him in his decision, reminded the parties that they were no more binding than the standards applied by other arbitrators. 21 Another Wisconsin arbitrator subsequently found the statutory test, which evolved in a blue-collar setting, inappropriate for reviewing teacher nonrenewals. 22 The arbitrator also found the statutory test, because it puts on trial the employer s decision making process rather than the employee s conduct, unsuitable where the arbitrator serves as a de novo trier of the charges brought against the employee. In practice, union representatives often cite to these seven questions and argue that the school district must satisfy these tests in order to show just cause pursuant to a collective bargaining agreement provision requiring this standard. However, often school districts will not be required to meet these tests pursuant to a just cause standard under the agreement unless the district and the union have specifically agreed to defining just cause by these tests, usually within the collective bargaining agreement. Nevertheless, school district administration should test any proposed discipline against these seven questions to ensure that it has cause to discipline an employee. Likewise, any school board that has adopted a just cause provision in its board policies or employee handbook should anticipate that an employee or the employee s attorney will argue that the board must meet the seven-part test above in order to support a conclusion of just cause. As a result, administration should test any discipline against this test. However, the board should still argue that the seven-part test does not need to be met under a board policy or employee handbook provision requiring just cause. Respected arbitrators in Wisconsin have cited the following factors to consider in deciding whether a school board has just cause to nonrenew a teacher. 23 l. The fairness of the procedure leading up to the decision to nonrenew, 24 with particular emphasis on compliance or noncompliance with any contractual obligation likely to have a substantial impact on the decision. -7-
2. Evidence of the board s compliance or noncompliance with employment practices the teacher might reasonably have expected it to follow. 3. The nature of the reasons advanced for the nonrenewal and the reliability of the evidence offered in support of those reasons. However, in recent cases, arbitrators have applied a simple two-part test for just cause. Under this two-part test, the employer must establish (1) that the employee engaged in conduct in which the employer has a disciplinary interest and (2) that the discipline imposed reasonably reflects its disciplinary interest. 25 Legal counsel should analyze his or her case for nonrenewal thoroughly, considering all relevant factors, and should consider whether this two-part test is more applicable under a standard for just cause in a collective bargaining agreement than the seven-part test. Likewise, if a provision in a board policy or employee handbook requires just cause, legal counsel should consider whether the two-part test should apply. (2) Relevant Factors of Just Cause and Practical Considerations Cases addressing just cause also demonstrate relevant factors to the just cause standard. In light of these cases and relevant factors, administrative staff should take certain steps in order to ensure that teacher nonrenewals will be upheld under the just cause standard. These steps, and a case description demonstrating the importance of each step, are set forth below: 1. Promulgate clear and reasonable rules Although the record did not show that a teacher was poor or ineffective, his failure to comply with repeated warnings to change his teaching techniques constituted just cause for his dismissal after 24 years with the district, where the administration s expectations were reasonable and were not applied to the teacher in an arbitrary, capricious, or discriminatory manner. 26 2. Issue prior warnings Stating that the notion of warning or notice is intrinsically tied to notions of fairness and due process, which are part and parcel of the principle of just cause, an arbitrator held just cause for termination did not exist when the teacher was not warned that his conduct was inappropriate or that his employment would be terminated unless his conduct improved. 27 3. Administer corrective and/or progressive discipline In spite of improvements in some areas, a shop teacher s continued failure to improve his performance in the area of housekeeping after repeated notifications of deficiencies constituted just cause for nonrenewal. 28 4. Consider special circumstances A school district had just cause to nonrenew a teacher s contract for improperly assisting students during the administration of a proficiency test. 29-8-
5. Allow time for remediation A teacher s continued tardiness for scheduled classes after receiving numerous warnings and reprimands constituted just cause for nonrenewal. 30 6. Apply rules consistently Because a school board had not disciplined a principal or other teachers who used corporal punishment in the past, it did not have just cause to terminate a teacher who administered corporal punishment to a student after a warning not to do so. 31 7. Conduct a fair and full investigation A veteran guidance counselor who allegedly kissed and hugged high-school girls and patted their buttocks and thighs was accused of conduct that, if proved, was just cause for discharge but was ordered reinstated because the arbitrator disbelieved the three complaining students. 32 8. Implement effective evaluation practices A district had just cause to terminate a ten-year veteran teacher for inability to control her class following years of evaluations reflecting this problem and the withholding of an increment for poor class control despite the fact that she was highly motivated and had a number of outstanding teaching qualities. 33 9. Adopt a detailed record-keeping system in order to document a teacher s performance Just cause was evidenced by well documented evaluations, reprimands, and specific recommendations for improvement allowing for the non-renewal of a twenty-year veteran teacher. 34 Some cases present unique circumstances, and legal counsel and administrative staff should be aware of how just cause applies in such cases. For example, in some cases, prior warnings and time for remediation are not necessary to establish just cause. In such cases, arbitrators have upheld nonrenewals based on outrageous conduct, especially if it has caused property damage or personal injury. 35 Other examples include cases where a collective bargaining agreement contains no layoff provisions and the nonrenewals are based on nondisciplinary factors like elimination of a program or position, declining enrollment, or fiscal constraints. 36 In such cases, just cause can be established by proving that the district s actions are consistent with collective bargaining agreement requirements and other pertinent rules and laws, and are not arbitrary or capricious with regard to the need for staff reduction and the specific teachers selected for nonrenewal. (3) Scope of Review If a teacher contends there was no just cause for nonrenewal and is entitled to proceed to arbitration to contest that action under an applicable collective bargaining agreeement, the arbitrator (under conventional collective bargaining agreement language) may make a completely independent determination whether there was just cause for the nonrenewal. 37-9-
Thus, in such instances, it is not enough for administrators and boards to know that a teacher is incompetent or ineffective. They may have to be able to prove it to an arbitrator in an independent proceeding if a collective bargaining agreement provides for such arbitration. However, an arbitrator is typically entitled to uphold a board s ultimate decision despite overturning some of the board s findings. 38 In one case, the Wisconsin Supreme Court held that an arbitrator was entitled to review the record to determine whether there was a rational basis for the board s decision not to renew a teacher s contract, despite a clause in the collective bargaining agreement saying a decision of the board could be reversed or modified only if it was arbitrary, capricious, discriminatory or in bad faith. 39 The court found this language did not restrict the arbitrator s scope of review because it did not specify how the arbitrator was to reach a decision. Had the board made findings of fact and conclusions of law showing it had considered the testimony in the record, the arbitrator would not have had to weigh the testimony and exercise his own discretion, the court said. However, in a case involving nonrenewal of an administrator s contract, the Wisconsin Court of Appeals observed that a board is under no legal obligation to make detailed findings and conclusions. 40 Where there is no collective bargaining agreement in place, school district administration should review its board policies or employee handbook for any applicable grievance procedure to identify the method of review and scope of any such review. (4) Burden of Proof If any applicable collective bargaining agreement has a grievance procedure that concludes in arbitration, it is well settled that under the just cause standard for nonrenewal, the burden of proof in an arbitration proceeding challenging the nonrenewal of a teacher rests with the board of education. If a teacher has been nonrenewed due to a very serious offense, an arbitrator may require the board to submit evidence beyond a reasonable doubt, but most arbitrators have expressly rejected this test. 41 In cases involving criminal conduct or moral turpitude, clear and convincing evidence 42 has generally been accepted. Even though some arbitrators may argue that clear and convincing is the lowest level of proof, others believe 43 a lesser degree of proof, such as evidence sufficient to convince a reasonable man or preponderance of the evidence, 44 is sufficient. Where there is no collective bargaining agreement in place, school district administration should review its board policies or employee handbook for any applicable grievance procedure to determine whether the grievance procedure indicates which party bears the burden of proof and what standard applies to meet this burden. -10-
IV. STATUTES AFFECTING NONRENEWAL A. 121.02(1) (PROFESSIONAL DEVELOPMENT AND PERFORMANCE EVALUATION) (1) Statutory Requirements School boards are statutorily required to conduct written performance evaluations at the end of a teacher s first year and at least every third year thereafter. 45 To implement this statutory evaluation mandate, the Department of Public Instruction (DPI) has promulgated regulations requiring boards to adopt written position descriptions, to establish a systematic method of measuring teacher job performance, and to observe teacher performance. 46 Boards must ensure that evaluators have the training, knowledge, and skills necessary to judge teaching performance. 47 In addition, DPI requires a teacher s initial evaluation be made during the first year. However, the statute and regulations do not eliminate the need to make day-to-day observations (formal or informal) of teacher performance and conduct when warranted. Furthermore, boards annually must establish a professional staff development plan designed to meet the needs of individuals or curriculum areas in each school. The annual plan must be developed through the cooperative efforts of instructional, administrative, and support staff. 48 DPI does not view this provision as requiring a board to develop a plan directed at assisting an individual teacher having professional difficulties. School boards should also follow the statutory requirements under 118.225 if the school board intends to use the results of any examinations (administered to pupils pursuant to 118.30 and 20 U.S.C. 6311(b)(3)) to evaluate teachers during the 2011-2012 school year. As set forth under 118.30(2)(c), the results of these examinations may not be used as the reason for the nonrenewal of a teacher s contract. 2011 Wisconsin Act 105 revised 118.225 to indicate that the board may use the value-added analyses of scores on the examinations to evaluate teachers, rather than the results of the examinations. Act 105 also revised 118.30 to indicate that the results of the examinations may not be used as the sole reason for the nonrenewal of a teacher s contract. The revisions in Act 105 above become effective for examinations administered during the 2012-2013 school year. In addition, performance evaluation plans must comply with any applicable collective bargaining agreement, employee handbook, or board policies. [See III for a discussion of collective bargaining agreement provisions affecting performance evaluation.] (2) Practical Considerations In developing a method to implement the written performance evaluation mandate, districts should consider the following suggestions: 1. Set standards and expectations. Create an evaluation document that translates these standards and expectations into specific behavior that can be observed and measured by the evaluator. Review any board policies or other administrative directives that may address performance expectations or procedures for conducting evaluations. Remember -11-
that the Wisconsin Court of Appeals has held that the common law requires a board to follow its own performance evaluation policies. 49 Failure to comply with such policies may be enough, by itself, to invalidate a nonrenewal. 2. Apply all procedures and standards equally to all teachers. Do not negatively evaluate a teacher for tardiness or failure to turn in lesson plans timely if such behavior is ignored in other teachers. 3. Ensure that each teacher feels she or he has been fairly treated in the evaluation process. 4. Avoid rating a teacher too positively at the outset because it is easier to raise a prior evaluation than to lower it. 5. Set forth specific facts and examples in written evaluations upon which conclusions or opinions are based, not just the bare conclusions or opinions. Do not simply state a teacher s classroom is disorderly. Note specific examples of how it is disorderly. Be prepared to back up opinions or conclusions with facts and examples. 6. Personally observe the teacher on several occasions and in different settings, if possible. When observing in the classroom, try to remain for the entire class period. Observations should be done by the principal or other administrative staff, particularly someone with experience in the subject taught by the teacher being evaluated. If a new supervisor is conducting the evaluation, she or he should review the teacher s file prior to making a classroom observation. It may be desirable to have more than one person observe a teacher. This would help prevent personality conflicts from affecting the evaluation and (if all observers reach the same conclusion) would give credibility to the evaluation. 7. When describing a teacher s deficiencies, be specific. Give a narrative rather than a conclusory statement such as needs improvement in communicating with students. Give clear and specific suggestions or (in extreme cases) directives for improvement-- courses/inservice, tapes, videos, or the like to assist the teacher in improving job performance. These suggestions or directives should be reasonable and obtainable. Establish a realistic timetable for the correction of identified deficiencies. 50 8. Include the details of prior discussions in the evaluation, including formal and informal discussions with the teacher and notices to the teacher regarding job performance, the deficiencies discussed, and any directives given. Describe progress, or lack thereof, by the teacher. 51 9. Design the evaluation to place the teacher on notice of the possible consequences of failing to make improvements as directed. 52 10. In the evaluation, avoid the use of such inflammatory statements as I thought you were smarter than that. -12-
11. Meet with the teacher to discuss the evaluation and the district s expectations. Allow the teacher the opportunity to challenge the opinions or observations included in the evaluation. If meeting at year end, schedule another meeting at the beginning of the next year to review the evaluation and the district s expectations. 12. Provide the teacher with a copy of the written evaluation and have him or her acknowledge receipt by signing a copy of the evaluation. 13. Conduct extensive follow-up of a teacher s job performance, particularly if deficiencies were noted in the evaluation. 53 B. 118.21 (INDIVIDUAL TEACHING CONTRACTS) A school board is required to enter into a written employment contract with each of its qualified teachers. Such an individual teaching contract with anyone not legally authorized to teach his or her assigned subject is void. Two cases illustrate issues that may arise regarding teaching contracts under 118.21: 1. The Wisconsin Supreme Court refused to reinstate a teacher who was discharged because she did not have the requisite certification for the subject she was assigned to teach, and as a result her discharge was proper because her contract was void. 54 2. An arbitrator ordered a school district to reinstate a teacher with back pay after the district issued a notice of nonrenewal to a teacher whose certification was insufficient for the course he was to teach the next year. 55 The arbitrator noted the teacher s license was still valid when the new contract was issued, his temporary certification could have been renewed, and there was time to obtain the necessary credits before having to begin teaching under the new contract. The relationship between individual teaching contracts under 118.21 and 118.22 and collective bargaining agreements under 111.70 was discussed by the Attorney General in a 1971 opinion. 56 He observed that 118.21 and 118.22 require boards to contract individually with each teacher each year. Individual contracts may be subservient to an applicable collective bargaining agreement, though, regarding terms and conditions of employment. Of course, in some cases, with the enactment of 2011 Wisconsin Act 10, a school district may no longer have an applicable collective bargaining agreement in place. Whether a collective bargaining agreement is in place or not, school district personnel should also be aware of any employee handbooks or board policies that may affect the individual contract. -13-
C. 115.31 (LICENSE REVOCATION AND REPORTING) (1) Revocation for Serious Felonies This statute forbids the state superintendent from granting a license to persons convicted of serious felonies under Ch. 940 (crimes against life and bodily security) or Ch. 948 (crimes against children) in Wisconsin or equivalent laws elsewhere. 57 Any license previously granted by the state superintendent must be revoked without a hearing upon conviction of the licensee of any Class A, B, C or D felony under Ch. 940 or 948 (except 940.08 and 940.205) for conduct engaged in on or after September 12, 1991, or any Class E, F, G or H felony under Ch. 940 or 948 (except 940.08 and 940.205) for conduct engaged in or or after February 1, 2003. A license revoked under one of these provisions may not be reinstated for 6 years following the date of conviction and may be reinstated only if the licensee establishes by clear and convincing evidence that he or she is entitled to reinstatement. A license may be reinstated prior to the expiration of the 6-year period, but only if the licensee receives from the court in which the conviction occurred a certificate stating that the conviction has been reversed, set aside or vacated. (2) Mandatory Reporting Requirements District administrators must report to the state superintendent for investigation and possible license revocation all persons employed by the district and licensed by the state superintendent who are convicted of 4th degree sexual assault or charged with or convicted of any crimes in which the victim was a child, crimes against children under Ch. 948, and felonies for which the maximum term of imprisonment is at least 5 years. Reports are also mandatory whenever a teacher is dismissed or nonrenewed based in whole or in part on evidence she or he engaged in immoral conduct, defined as conduct or behavior that is contrary to commonly accepted moral or ethical standards and endangers the health, safety, welfare or education of any pupil. Resignations are also subject to required reporting if the district administrator reasonably suspects they are related to immoral conduct by the teacher. In addition, an administrator who requests a resignation and suspects the teacher engaged in immoral conduct must inform the teacher of the duty to report to the state superintendent. Administrators must make required reports within 15 days after becoming aware of the charge, conviction, dismissal, nonrenewal, or resignation, and copies must be sent to the teachers. 2011 Wisconsin Act 84 also now defines immoral conduct to include the intentional use of an educational agency s equipment to download, view, solicit, seek, display, or distribute pornographic material. Act 84 also specifies that reports to the state superintendent must include a complete copy of the licensee s personnel file and all records related to any investigation of the licensee conducted by or on behalf of the educational agency. The Act exempts the transfer of these records from an educational agency to the state superintendent from that portion of the Wisconsin Public Records Law that requires a records authority to notify the record subject of its intent to disclose the records to the state superintendent. -14-
(3) Investigation In cases that do not involve felony convictions under Ch. 940 or Ch. 948, where revocation is mandatory, the statute superintendent must investigate to determine whether to initiate revocation proceedings. The state superintendent must post on the department s Internet site the name of the licensee who is under investigation. During the investigation, the state superintendent must keep confidential all information pertaining to the investigation, except for the fact that the investigation is being conducted and the date of the revocation hearing. The department must maintain a record of all such investigations that indicate the name of the licensee, the date the investigation began, the reason for the investigation, and the result of the investigation. Typically, the state superintendent will wait for the district to complete its investigation into the employee s conduct before it takes action. As a result, the school district should proceed and complete its investigation and nonrenewal proceeding without waiting for the state superintendent to take action on the employee s license revocation. (4) Revocation for Incompetency or Immoral Conduct In cases that do not involve felony convictions under Ch. 940 or Ch. 948, where revocation is mandatory, the state superintendent has discretion to revoke a teacher s license upon clear and convincing evidence of incompetency ( pattern of inadequate performance of duties or the lack of ability, legal qualifications or fitness to discharge required duties ) or immoral conduct, provided there is a nexus between the incompetency or immoral conduct and the health, welfare, safety, or education of any pupil. 58 In determining whether a nexus exists between immoral conduct and the health, welfare, safety, or education of any pupil, the state superintendent cannot rely exclusively on a role model standard and revoke a teacher s license on the basis that parents and students would lack confidence in the teacher because of the conduct. 59 Rather, the state superintendent must examine the conduct and its severity to determine the impact on the educational process. 60 Whenever an investigation results in the revocation of a license, the department must post on its Internet site the name of the person whose license was revoked. Immoral conduct is not limited to sexual acts, and revocations have involved falsification of credentials on a teaching license application, a felony theft conviction, excessive discipline of students, and recklessly causing bodily harm to a child. Most cases, however, concern allegations of sexual misconduct. In recommending revocation of a teacher s license, a hearing examiner ruled that sexual intercourse with a 13-year-old student constitutes immoral conduct and is detrimental to the student s health, welfare, and education as a matter of law. 61 But in another case, involving unwanted touching, the examiner recommended against revocation, in part because there was no evidence the teacher was seeking sexual gratification. 62 The examiner emphasized the role of board-imposed discipline in determining the need for revocation. Because the primary purpose of revoking a license is to protect the public, not to impose a second penalty, 63 revocation may not be warranted, even if immoral conduct is proved, 64 if the district has taken proper steps to protect students. -15-
(5) Mandatory Background Checks In support of the state superintendent s authority under 115.31, the legislature established mandatory background checking of all applicants for new and renewal teaching licenses and permits as well as all holders of state-issued life licenses. 65 Upon request, school districts must provide the state superintendent with identifying information about all life licensees in their employ. D. 118.22 (RENEWAL OF TEACHING CONTRACTS) (1) Statutory Procedural Requirements Section 118.22 [see text in Appendix A] sets forth the minimum and mandatory procedural requirements for nonrenewal of a full-time teacher s contract for the ensuing school year. 66 The Wisconsin Supreme Court has held it would be against public policy to allow teachers to waive by individual contract the procedural protections guaranteed by 118.22. 67 Therefore, any such waiver historically has been done pursuant to 118.22(4), which allowed parties to a collective bargaining agreement to waive, modify, or replace any of the provisions under 118.22. However, as previously mentioned, 2011 Wisconsin Act 10 repealed 118.22(4). Therefore, unless such modifications are already set forth in an existing collective bargaining agreement, the statutory requisites of 118.22(2) and (3) are likely required to be satisfied in each instance of nonrenewal of a full-time teacher. 68 In addition, further protections may be necessitated by constitutional considerations, school board policies, a collective bargaining agreement, employee handbook, and/or the individual teacher contract. The requirements of 118.22 are as follows: l. At least 15 days before giving formal written notice of refusal to renew and not later than the last day in February, the board must give the teacher preliminary written notice the board is considering nonrenewal of the teacher s contract. The preliminary notice must state that if the teacher files a request with the board within 5 days after receiving the preliminary notice, the teacher has a right to a private conference with the board prior to being given written notice of refusal to renew the contract. The Wisconsin Supreme Court has emphasized the proper procedure for a board to follow in giving preliminary notice of possible nonrenewal is compliance with the explicit language of 118.22(3). 69 Boards should assume the statutory time limits will be rigidly enforced. 70 The best practice is to hand deliver the notices required under 118.22 and have copies signed and dated by the teacher and placed in the teacher s file. It is also best practice for boards to formally act when issuing a preliminary notice of consideration of non-renewal. 2. Sound practice dictates, and the statute may require, that the decision not to renew a contract be made by a majority vote of the full membership of the school board. 71 The circuit court in Juneau County has stated: A majority vote of the full membership of -16-