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SEE YOU IN COURT! - September 2016

CABE Journal

September 2016

Authors: Thomas B. Mooney

Mayor Megillah is in his second term as Mayor of Nutmeg, and he is starting to feel his oats.  Sometimes he treats the Board of Education as a town department and tells the Board members what to do and when.  Some Board members resent his presumption, but those in the same political party do try to toe the party line.

Last month, the Mayor went too far.  One of his political cronies is a certified teacher who quit teaching some years ago to raise her children, and she is now looking for a job.  Mayor Megillah called Mr. Superintendent up to request a favor.

 “I understand that you have a vacancy at Median Middle School . . . .” the Mayor began.  “I have just the person for you – an outstanding educator who also understands our town and our people.  When can I tell her that she has a job this fall?”

 “Hold on, Mayor,” Mr. Superintendent responded irritably.  “We do have a vacancy, but we are in the middle of a hiring process.  I can’t just subvert that process to accommodate some political friend of yours.  Besides, applications are closed for that particular position, though something may come up in the future.  Feel free to encourage her to apply to the Nutmeg Public Schools if she wants, but don’t make any promises that you cannot keep.”

Mayor Megillah was miffed at Mr. Superintendent’s unwillingness to do him a simple favor, so he decided to go straight to his friends on the Board.  After a brief conversation, he lined up veteran Board member Bob Bombast to do his bidding.

Bob spoke up at the next meeting of the Board when the Board got to new business.  “Ms. Chairperson, I have a new item to add to the agenda.  We are fortunate here in Nutmeg to have Paula Pedant, one of the finest educators in the State.  The Mayor speaks very highly of her.  Paula is looking to return to education, and I move that we hire her immediately for the vacancy at Median Middle School before some other school district snatches her away.”

Mr. Superintendent started to object, but Ms. Chairperson shushed him.  Rather, she invited Board to make two motions, one to place a new item on the agenda and another to employ Paula at Median Middle School.  Mal Content, a Board member with no use for the Mayor, promptly spoke out, expressing concern that the Board should not be hiring staff, especially as the Mayor may recommend.  However, Bob responded that he was just doing his job as a Board member to bring outstanding candidates to the Board’s attention.  After a little more back and forth between Bob and Mal, the Board voted 6-3 to add the item to the agenda.  Bob then passed out Paula’s resume, which actually was quite impressive, and after brief further discussion the Board voted 7-2 to hire Paula immediately.

Are there any problems with the Board’s actions here?

*        *        *       

Yes.  The Board has exceeded its authority under the Teacher Tenure Act, and it also ignored extensive new responsibilities related to the hiring process imposed by recently-enacted Public Act 16-67, the provisions of which were effective July 1, 2016.

Starting with the Tenure Act, both the superintendent and the board of education have specific responsibilities.  Boards of education have the right to hire teachers, and “teachers” here includes all certified staff members below the rank of superintendent.  The law further provides that boards of education can delegate responsibility for hiring teachers to the superintendent, and most boards of education have delegated that authority to some extent.  The decision as to the scope of the delegation is for the board of education members to make.  It is common, however, for boards of education to retain hiring authority for administrators at or above a certain level, such as principals, and otherwise delegate hiring authority to the superintendent.

Significantly, the right of a board of education to hire teachers has long been subject to a basic limitation.  The Tenure Act provides in relevant part:

(b) Any board of education may authorize the superintendent to employ teachers. Any superintendent not authorized to employ teachers shall submit to the board of education nominations for teachers for each of the schools in the town or towns in such superintendent’s jurisdiction and, from the persons so nominated, teachers may be employed.

The statute goes on to provide that boards of education may reject all such nominations, but that the superintendent must then make further nominations.  School boards do not have the authority to hire as teachers persons not nominated by the superintendent.

The Board here has also ignored the new requirements imposed by Public Act 16-67, which was effective July 1, 2016.  This new law makes significant changes to Conn. Gen. Stat. Section 10-222c, which previously simply required that school officials “make a documented good faith effort to contact previous employers of the person in order to obtain information and recommendations which may be relevant to the person’s fitness for employment.”  Now, school districts are not permitted to hire any person whose employment will bring them into direct contact with students until they complete an elaborate new process including:

  • Requiring each such applicant to provide a list of all previous school district employers and previous employers that gave them contact with children.
  • Requiring the applicant to consent to disclosure by previous employers and the State Department of Education of the information required by the statute.
  • Requiring the applicant to provide written answers to a series of questions concerning they were ever the subject of or disciplined for or resigned as a result of investigation concerning allegations of sexual misconduct.

In addition, before a school district may hire any such person, it must comply with extensive new requirements, including the duty to contact all such previous employers and the State Department of Education to confirm that the applicant is not disqualified from employment because of sexual abuse allegations.  The law expressly forbids school districts from employing persons before completing the new statutory process.  However, the statute does permit temporary employment before then, not to exceed ninety days, provided that the applicant has provided written assurance that he or she is not disqualified from employment on such grounds and the district has no knowledge of any information that would disqualify the applicant.  Clearly, the Nutmeg Board of Education jumped the gun here in purporting immediately to hire Paula Pedant.

Public Act 16-67 also expressly prohibits school officials from making any agreement that would suppress information about an allegation or finding of sexual misconduct, limit their ability to report on such matters, or require them to expunge such information (unless after investigation an allegation is determined to be false).

It is impossible to cover all the requirements of the new law in this limited space, and board members and school administrators must study the new law carefully and adopt comprehensive new procedures to assure compliance with its various new requirements.

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