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SEE YOU IN COURT! - February 2009

February 1, 2009

Authors: Thomas B. Mooney

The economic news went from bad to worse, and the members of the Nutmeg Board of Education began to freak out.  As the Board members struggled at a Board meeting with the budget submitted by Mrs. Superintendent, it became apparent that significant cuts would be necessary.  But candid discussion in front of the watchful eyes of employees and others was very difficult.  Veteran Board member, Bob Bombast, moved that the Board convene into executive session to discuss “personnel matters,” and the other Board members promptly and gratefully voted to do just that. 

Once in executive session, Board members Red Cent and Penny Pincher questioned the propriety of Bob’s motion.  However, Ms. Chairperson waved off their concerns – “I don’t know about you, but I don’t think it is fair for us to cut people’s jobs in public.  It would be cruel and unusual for one of our loyal employees to wake up in the morning and read in the newspaper that his job is gone.”  With that rationalization, the Board members moved on to agonize over what positions to cut. 

During the discussion, Red Cent asked Mrs. Superintendent how she chooses the employees to lay off.  Mrs. Superintendent explained that reductions in force are done by seniority, and that non-tenure teachers have to be laid off first.  Bob Bombast interjected that bold action is needed in such difficult times.  “If non-tenured teachers go first, then let’s just pull the trigger now.”  Bob warmed to the topic, and continued.  “The Town is hurting, and it expects dramatic action from us.  I say that we just lay all the non-tenured teachers off right now.  Can we do that?”

Mrs. Superintendent flinched at the thought of wreaking such havoc on the teaching staff.  But she knew that non-renewal is a lot easier than going through dozens of termination hearings.  “OK,” she said.  “I will send out non-renewal letters to all non-tenured teachers.  Then, it will be easy when we have to let teachers go.”

Bob Bombast was pleased that Mrs. Superintendent actually took one of his suggestions, and thus emboldened, Bob pressed further.  “What about other employees?  Why don’t we tell some of them that they will be laid off as well?  Fair is fair, and we shouldn’t just pick on the teachers.  In these tough times, the Board should treat all groups with an even hand.”  Mrs. Superintendent told Bob that, as usual, he was getting carried away.  However, the other Board members thought that Bob was on to something.  They directed Mrs. Superintendent to send layoff notices to a number of paraprofessionals as well. 

As Mrs. Superintendent feared, the Nutmeg Public Schools were a gloomy place when all the layoff notices went out.  Sadly, the dark mood persisted as the Board’s budget was presented to the voters and repeatedly defeated.  Mrs. Superintendent knew that most of the non-tenure teachers and many of the paraprofessionals would be rehired anyway, but as the spring turned to summer, she thought she had better defer recalling these employees until the Town finally approved a final Board budget.

Did the Nutmeg Board of Education handle its budget challenges appropriately?


* * *

Not by a long shot.  By notifying more employees of layoff than was necessary and then delaying their recall, the Board may have exacerbated its financial problems.  Moreover, its actions may have caused other legal and practical concerns.

At the outset, we recognize that non-renewal presents some advantages in a time of budget stress.  The employment of teachers who have not yet attained tenure can be terminated either through non-renewal or termination.  Non-renewal can be a simpler process, because a teacher is not entitled to a hearing if she or he is notified of non-renewal because of elimination of position or loss of position to another teacher.  However, there are consequences, both legal and practical, to taking this approach.

First, the non-tenure years offer the opportunity to take a close look to decide whether a teacher should get the protections of tenure.  Non-renewal is appropriate whenever a teacher does not meet district standards for excellence.  However, when non-renewal is based on performance, it is inappropriate to take the easy way out and simply cite staff reduction as the reason.  Teachers who are non-renewed because of staff reduction may have a right of recall under the collective bargaining agreement, and once recalled, the district may not have another good opportunity to review their performance before they achieve tenure.

Second, there may be financial consequences for such action.  In general, school district employees are not entitled to unemployment compensation over the summer, due to a disqualification for employees who have a “contract or reasonable assurance” that they will be employed by the school district for the following academic year.  If a school district determines not to renew the contract of a non-tenured teacher, or if a paraprofessional is laid off, therefore, the employee will be eligible for unemployment compensation over the summer unless and until the employee is later recalled to employment. 

Finally, there is a practical problem with such extensive non-renewals and layoffs.  Since reduction in force is governed by contract, it is always possible to layoff employees.  By taking such action prematurely, the district may encourage excellent employees to seek other employment.  Given these concerns, school districts are well-advised to notify employees of layoff only if and when the need for such action is clear.

The Board also violated the Freedom of Information Act in various ways.  Discussion concerning the elimination of positions for budgetary reasons is not privileged to executive session.  That is clear by the fact here that individual employees were neither discussed nor notified that such a discussion would occur in executive session, giving them the choice to have such discussion held in open session. 

Bob’s reference to “personnel matters” violated the FOIA as well.  The Commission has repeatedly ruled that “personnel matters” fails to apprise the public appropriately of the reason for an executive session.  If the discussion had related to specific employees, and if those employees were apprised of the executive session, to comply with the FOIA a reason such as “discussion concerning the potential layoff of an employee” should have been cited as the reason for the executive session.

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