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SEE YOU IN COURT! - February 2012

CABE Journal

February 2012

Authors: Thomas B. Mooney

“Reform” is the buzz word this year.  The Governor, the Commissioner of Education, CAPSS, CABE, ConnCAN, and the CT Council for Education Reform are all weighing in on how best to improve instruction in our state.  Indeed, when the CEA is making public statements about reforming teacher tenure, something is surely up.

Bob Bombast, veteran member of the Nutmeg Board of Education, loves the spotlight.  If “reform” is the agenda, he thought, Nutmeg should lead the way.  On his Twitter page, Bob announced an open forum at Nutmeg High School to discuss a reform agenda.  The night of the forum, Bob looked out at the sparse crowd, but was undeterred.  Most of the Board members were present, even if only to keep an eye on Bob.  Representatives of the PTOs were there, as well as Bruno and a couple other members of NUTS, the Nutmeg Union of Teachers.  Bob gaveled the meeting to order.

“Point of order,” interjected Bruno, NUTS President, before Bob could even welcome the participants to the meeting.  “This is an illegal meeting.  It is not posted, and if you hadn’t been bragging about this ‘reform initiative’ on Twitter, we would never have known about this.”

“Give it a rest, Bruno,” Bob responded.  “This is just a preliminary discussion.  Once we get input from the good citizens of Nutmeg, my Board member colleagues and I will have a meeting to vote on our reform package.  Now let’s get to work!”

Over the next three hours, the Board members and the members of the public talked through various ideas.  Bob kept bringing the discussion back to teacher tenure, and Bruno kept complaining about inadequate funding.  The other Board members were, as usual, all over the lot with a number of bright ideas.  Eventually, Bob thanked the participants and declared the meeting over.

Two days before the next meeting of the Nutmeg Board of Education, Bob sent out an email to all the Board members with a detailed description of his plan.  There, Bob boldly proclaimed that Nutmeg should adopt new standards.  First, only teachers with the potential for excellent performance should receive tenure.  Second, rather than leaving decisions of such importance to administrators, a Board of Education “Teacher Tenure Committee” will make that decision after reviewing the records and interviewing the teacher and his or her supervisor.  Third, the Board will increase the length of the school day, adding an hour to the end of each day.

Bob’s reform proposals were first on the agenda at the Board’s meeting last evening, and Bob dramatically read his email aloud.  “Hold on, Bob,” Bruno interjected without being recognized.  “You will have to negotiate over all of those changes.  We will be happy to schedule a first session.”

“I don’t think so, Bruno” Bob shot back.  “Each passing day deprives the children of Nutmeg of the excellent schooling to which they are entitled.  We will vote tonight.”  Bob signaled to Mr. Chairperson, who promptly called for a motion.  Bob promptly moved that the Board adopt reform in Nutmeg in accordance with his plan.  With no further discussion, the Board members voted unanimously in favor.

Will the Board have any problems in implementing this reform plan?

                                                                     *         *         *    

While some of the provisions of this plan may indeed be implemented unilaterally, it is important to understand the rules that affect such reform measures.

We start with the question of tenure and the board’s role in such matters.  Bob’s plan reflects his misunderstanding of how tenure currently works.  Boards of education and/or superintendents do not confer tenure.  Rather, a teacher achieves tenure simply by continuing in employment for the requisite forty continuous months (twenty months if they had previously had tenure in Connecticut in the preceding five years).  The evaluation of teacher performance, however, is by statute the responsibility of the superintendent.  Board members have no right or responsibility to get involved in such matters.  Indeed, such involvement conflicts with their possible role later as judges.

That said, teachers have no right to expect reemployment during their probationary (non-tenure) years, and the superintendent can indeed adopt a high standard for achieving tenure, including demonstrating excellent performance or the potential for same.  However, applying that standard requires that the superintendent take action.  By operation of law, the contract of a teacher is renewed from year to year unless prior to May 1 the teacher receives notification of non-renewal, in which case the teacher’s employment ends with the school year.  If a superintendent wants to adopt a high standard for renewal, that must be communicated and non-renewal notifications must be issued when teachers do not meet the prescribed standard.
 
The other elements of Bob’s plan also raise legal issues.  In adopting Bob’s plan, the Board extended the school day by one-half hour, a significant change in working conditions.  Under the Teacher Negotiation Act, boards of education have the right unilaterally to set the student school day and student school year.  Accordingly, Bruno was incorrect in his assertion that the Board would have to negotiate over the changes to the student school day.  However, the union does have the right to insist upon negotiations over the impact of the change in the student school day.  In such negotiations, any additional time will result in a demand for greater compensation.  In setting the baseline for discussing impact in any such negotiations, it is important to recognize that teachers work more than the time they are required to be in school.  Moreover, while arbitrators do not typically apply a pro rata formula for impact, any additional time will likely result in higher compensation for the affected teachers.
 
Finally, Bob’s actions raise Freedom of Information Act questions.  For once, Bob did nothing wrong by sending out his reform plan ahead of the meeting.  The problem of an unposted meeting arises only when a quorum of the Board discusses Board business (by email or otherwise), and here there is no evidence that any such discussion occurred outside the meeting.  However, while Bob had every right to host a meeting to discuss reform, attendance by other Board members created a problem.  When a quorum of the Nutmeg Board discussed educational reform at Bob’s forum, the Board inadvertently held a Board meeting that should have been posted.

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