Teacher Tenure Act

Clint Daughtrey, Esq.

Legal Assistant to the Associate
Executive Secretary
April 12, 2008
A New Approach

 Instead of 75 minutes of me talking,

we are going to try a more hands-on,
interactive approach to the Teacher
Tenure Act
 We are going to do it though the story
of a fictitious teacher member, Amy
Ellen Adams (AEA for short).
 Background on AEA
 AEA graduates from the
University of Alabama in May
2008.

 She is certified in elementary

education and is HQ.

 She is hired by the Greenbow

County Board of Education for
the 2008-09 school year to
teach first grade.
Year 1

 AEA is evaluated, but not in

compliance with PEPE, and gets 3’s
and 4’s

 Her principal tells her that she is non-

renewed the first week of May

 She never gets anything in writing

Question 1

 1. What impact does the

principal’s failure to
follow PEPE have on
AEA?
Answer 1

 1. None. PEPE has no

impact on a decision to
non-renew a teacher.
Question 2

 2. Did her principal

properly non-renew
AEA?
Answer 2
 2. No. A principal cannot non-
renew a teacher. Only the
board, on the superintendent’s
recommendation, can. Also, a
non-renewal must be in writing
and delivered to a teacher on
or before the last working day
of the school year.
Bonus Question

 Who else lives “in the

county of Greenbow?”
Bonus Answer
Year 2
 A 2nd grade teacher retires at Christmas and
AEA is told that she must take her class in a
written notice from the superintendent (after
a board vote) because there are enough
first grade teachers to divide her class
among her colleagues.

 At 5:00 pm on the last working day of the

year, AEA receives a pink slip at home by
hand delivery from the superintendent that
had been approved by the board.
Question 3

 3. Can AEA refuse to

move to the 2nd grade
class?
Answer 3

 3. No. Non-tenured
teachers can be
transferred at-will.
Question 4

4.Can AEA challenge

her non-renewal?
 Answer 4
 4. No. As long as a non-
tenured teacher receives
written notice by the last
working day of the school
year, even after working
hours, their non-renewal is
valid. A non-renewal can
only be challenged if it is for
personal, political, or
constitutionally impermissible
reasons.
Year 3
 With a change in superintendents, AEA is rehired for her
third year at the end of November.
 Everything is great: good evaluations, principal loves
her, recommends her for tenure.
 Superintendent finds out that AEA is pregnant, but isn’t
married, which goes against his religious beliefs. He tells
this to AEA and says this is why he recommends her for
non-renewal. The board votes to concur.
 When the bell rings on the last working day of the school
year, the principal “forgets” to hand her the non-renewal
notice.
 AEA went straight from school to the airport, but the
superintendent left a pink slip in her mail box at home at
7pm that night.
 The superintendent tells AEA that she can come back if
she agrees to remain probationary one more year.
Question 5

 5. If the superintendent
recommended and the
board voted to non-renew
AEA, does she have a job
for next year?
If so, does she have
tenure?
Answer 5

 5. Yes. Because she did not receive

written notice, regardless of whose fault it
was, she was re-employed for the next
school year. Delivery at home does not
apply except for certified delivery
She is now tenured because she was
renewed for her 4th consecutive year in
the system.
Question 6

 6. What effect does the

fact that she was not re-
hired at the start of the
year have on her tenure
status?
Answer 6

 6. None. Partial years

count toward tenure.
Question 7

 7. What effect does the

superintendent’s reason
have on anything?
 Answer 7

 7. If she had been timely given notice, she

could have challenged her non-renewal as
a personal reason of the superintendent.
AEA also supported litigation 20+ years
ago which held that pregnancy was not a
valid reason to terminate a teacher.
Question 8

 8. Can AEA agree to

return as probationary?
Answer 8

 8. No. The courts have

held that a teacher cannot
waive her right to obtain
tenure by continuing to
remain probationary after 3
consecutive years.
Year 4

 AEA starts her new life as a tenured

teacher but she is still not placed on
the salary schedule as a 4th-year
teacher. Her checks for September,
October, and November are the same
as last year.
Question 9

 9. Should AEA’s pay

have gone up at the
start of the year?
Answer 9

 9. No. Salary and tenure are

independent of each other. Salary is
based upon years of experience in
public education and highest degree
earned. Years are calculated by
months of service. Thus, AEA has to
wait until she works the first three
months of Year 4.
Year 5

 On June 30, AEA signs for a certified

letter from the board. It tells her that
for Year 6, she will be teaching 3rd
grade at Forrest Gump Elementary.
Question 10

10. What rights does

AEA have regarding her
new proposed
assignment?
Answer 10

 10. Now that AEA is a tenured

teacher, she can contest a transfer. A
transfer is a change of “position,
grade, or school.” A tenured teacher
has a right to a hearing in front of the
board and an appeal of the board’s
decision to a hearing officer on the
record of the board hearing.
Year 6

 AEA hates it at FGES.

 She decides at Thanksgiving that she

has had enough and notice that she is
leaving to go to the Maycomb City
Schools to fill a vacancy for 2nd
semester at Maycomb Elementary.
Question 11

11. Can AEA go to

Maycomb?
If not, why not?
If she does, what can
happen?
Answer 11
 11. She can, but she risks her teaching
certificate if she does. If a teacher resigns
during the school year or less than 45 days
before students return for the next school
year, without a release from the board, she
is guilty of “unprofessional conduct.” The
local superintendent can ask the State
Superintendent to take action against the
teacher’s certificate, up to and including
revocation.
Bonus Question

Bonus question: Who

else lives in Maycomb,
AL?
Bonus Answer
Year 7

 While she had to stick out Year 6, she

timely notified Greenbow that she was
leaving at start teaching in Maycomb
for Year 7.
Question 12

12.Is AEA tenured in

Maycomb City?
Answer 12

 12. No. Tenure is specific

to a school system. AEA
has to work 3 years and be
renewed for a 4th to get
tenure in Maycomb.
Question 13

13. How should AEA be

paid?
Answer 13

 13. Once she gets to the right

number of months, she’ll be
paid as a 4th year teacher.
Remember salary has nothing
to do with tenure.
Year 8

 AEA found the grass was not greener

and jumped at the chance to return
home to Greenbow Elementary.

 She also got certified as a counselor,

but was rehired as a teacher.
Question 14

 14. Since she came

back to a system where
she had tenure, does
AEA have tenure now in
Greenbow?
Answer 14

 14. No. Once AEA

resigned, she gave up her
tenure. While she’ll be
paid for 5 years of service,
she will be in her first year
of the tenure track.
Years 9 & 10

 After Year 8, AEA accepts a position

as counselor at Greenbow
Elementary, and stays there for Year
9.

 After year 9, AEA is hired as a

counselor at Greenbow High School
for Year 10.
Year 11
 On August 1 of Year 11, the
superintendent tells AEA that she will have
to go back to the classroom for Year 11.
 Disgusted, AEA submits a letter of
resignation to the superintendent. After
speaking with her UniServ Director, she
rushes back to hand him a letter saying
she takes it back and the board members
are walking into the central office for a
called board meeting.
Question 15

 15. What is AEA’s

status at the end of Year
10?
Answer 15

 15. She is a tenured counselor.

She has been back 3 years and
been renewed for a 4th . For tenure
purposes, teacher, counselor,
librarian, and all other non-
supervisor certified jobs are on the
same level.
Question 16

16. What can AEA do

about the proposal to
send her back to the
classroom at the start of
Year 11?
Answer 16

 16.She can object and refuse to

go. A tenured teacher cannot be
transferred in the middle of a
school year.*

* Except for emergency transfers 15 days before to

15 days after the first day of school.
Question 17

 17. Can AEA take back

her letter of resignation?
Answer 17

 17. Yes. A teacher can

rescind a letter of
resignation up until the
board votes to accept it,
unlike an ESP.
Year 12
 AEA has another new principal. They get
along like fire and gasoline. Principal tells
AEA that she is going to go back to the
classroom. AEA refuses in rather strong
language. The new principal and the
superintendent went to school together, so
the superintendent sends AEA a certified
letter informing her that she is proposing her
termination for insubordination.
Question 18

18. What happens now?

Answer 18

 18. AEA contacts her

UniServ Director, completes a
PR&R form, submits it to Dr.
Reed, an attorney is
assigned, and we go through
the termination process.
 How does the termination
process start?
 The superintendent sends a notice to the
teacher and to the school board stating that
he or she recommends that the teacher be
fired.
 The teacher has the right, but not the
obligation, to have an informal conference
with the school board before it votes on the
recommendation, if the teacher makes a
request within 15 days of her receipt of the
notice.
 What happens at the
conference?
 The conference is designed to be an
informal opportunity for a teacher to
present her side of the story to the board
before it takes action. That is why in
most cases AEA assigns UniServ
Directors to assist at the conference.
 However, some school board’s treat it
as a formal hearing. In those systems,
we usually advise members not to
appear.
 In very few cases is it advisable for a
member to appear at a conference.
What happens after the
conference?
 If the board votes to uphold the
superintendent’s recommendation, a
notice will be sent to the teacher within 5
days.
 The teacher then has 15 days to demand
a hearing with the hearing officer.
 If a teacher does not timely demand a
hearing, the termination is final.
Who hears an appeal?
 The parties can
mutually agree on
someone to hear
the case.
 If not, a hearing
officer from the
Federal Mediation
and Conciliation
Service (FMCS) is
selected.
 Who is FMCS?

 The Federal Mediation and Conciliation

Service is a federal agency whose role is
to supply arbitrators in labor and
employment cases.
 Under the Teacher Tenure Act, hearing
officers for tenure cases come from
FMCS region 6, which includes Alabama,
Florida, Georgia, Mississippi, Tennessee,
and the Carolinas.
How is a hearing officer
selected?
 After a teacher files a demand for a
hearing, the board lawyer sends a request
for a panel to FMCS.
 FMCS sends an identical list of 7
arbitrators to the board lawyer and the
teacher’s lawyer.
 Each side ranks the 7 names in order of
preference.
 The arbitrator with the highest average
rank is the hearing officer.
 What is the hearing
process?
 The hearing officer sets a date, between 30 and
60 days of her appointment, for the hearing.

 If the parties cannot agree on a location, it is

held somewhere in the school district selected
by the hearing officer.

 Each party must give the other a list of

witnesses it intends to call and a copy of all
documents it intends to use at the hearing.
How is the hearing
conducted?
 Both sides can subpoena
witnesses or documents, just
like in court.
 The hearing officer swears in
witnesses.
 A court reporter is present to
transcribe the hearing.
 The hearing officer has
authority to rule on what
evidence is admissible.
 The hearing officer is to give
no weight to the board’s
decision.
What happens after the
hearing?
 The hearing officer will receive a copy of
the transcript from the court reporter.
 Often, a hearing officer will allow the
parties to file post-hearing briefs.
 The hearing officer’s decision is due
within 30 days of the conclusion of the
hearing, which most hearing officers
define as the date the briefs are due.
 What authority does a
hearing officer have?
 Unlike the old Tenure
Commission, the hearing
officer conducts a “de novo”
hearing.
 That means she can uphold
the termination, reverse it
entirely, or order some
intermediate punishment,
such as a suspension without
pay.
Can a hearing officer’s
decision be appealed?
 Yes, but appeals are almost
never filed.
 The Court of Civil Appeals has the
right to decline to even hear the
appeal, which is what usually
happens.
 If the court agrees to hear the
appeal, it cannot overturn the
hearing officer’s decision unless it
finds the ruling “arbitrary and
capricious.”
 Even then, the only power the
court has is to remand the case
for a new hearing before a new
hearing officer.
Appeals beyond Civil
Appeals
 The Court of Civil Appeals has
overturned two arbitration decisions in
favor of teachers.
 The Alabama Supreme Court has
reversed that decision in the first case,
reinstating the order of the hearing
officer.
 The other case is still pending before the
Alabama Supreme Court.
Year 13
 During the first week of school, a 2nd
grade teacher leaves. Determined to
get AEA back in the classroom, AEA
receives a notice that she has been
“emergency transferred” to the
position.

 However, there are non-tenured

teachers and tenured teachers with
much less years of service than her.
Question 19

19. Can AEA contest

this action?
Answer 19
 19. Yes. A tenured teacher can
contest an emergency transfer on the
grounds that it was not performed in
compliance with the law. The hearing
if before the board and the burden of
proof is on the board to show that it
complied with the law and that there
was no way to anticipate the
emergency.
Question 20

 20. Does she have to

go immediately or can
she hold her ground?
Answer 20

 20. It is effective
immediately and AEA
must report to the new
job while she contests it.
Question 21

 21. Does it matter that

there are other teachers
who could fill the
vacancy?
Answer 21

 21. Yes. For an emergency transfer

to be upheld, the system must ask for
volunteers for 5 days. If there are no
volunteers, they must try to find a
certified non-tenured teachers. If
there are none of those, certified
tenured teachers are rank ordered by
seniority and the least senior is
subject to emergency transfer.
Year 14
 AEA and her colleagues get involved in the
election and a GCEA member is elected
superintendent.
 The new superintendent convinces the
principal at GCES that it’s time to retire.
 The old assistant principal is promoted and
AEA, who has received her administrative
certification, is hired as assistant principal.
 At the end of the year, due to a RIF, all
locally funded assistant principal units are
eliminated, including AEA’s, and she
receives a pink slip.
Questions

 22. Can AEA contest

the non-renewal?
Answer 22

 22. No. She is not yet

tenured as a supervisor.
Question 23

 23. If not, where does

she go?
Answer 23

 23. She returns to the last

position in which she held
tenure, counselor at GCHS,
unless she is given due
process for a transfer or
consents to a new
assignment.
Years 15 & 16

 The RIF wasn’t as bad as everyone

thought, and AEA was rehired as an
assistant principal.

 However, at the end of Year 15, AEA

receives a pink slip due to another
loss of funds.
Question 24

 24. Can AEA contest

this non-renewal?
Answer 24

 24. Yes, because at the end of the

year AEA is a tenured supervisor and
cannot be “non-renewed.” If a
tenured teacher is promoted to
supervisor in their school system, they
receive tenure if they complete their 3rd
year. They don’t have to be renewed
for the 4th.
Year 17

 AEA is hired as a contract principal.

 She signs a 2-year contract.

 She is not evaluated her first year, but

receives a notice of non-renewal.
Question 25

 25. What are AEA’s

rights?
Answer 25

 25. She can contest the non-

renewal because it is in the middle
of her contract. If a school system
gives a probationary contract
principal a 2-year contract, they
cannot non-renew it in the middle.
Question 26

 26. Does the failure to

evaluate her mean
anything?
Answer 26

 26. No. Failure to evaluate a

probationary principal does not
give the principal any rights.
However, after the probationary
contract, a failure to evaluate a
principal results in a one-year
extension of her/his contract.
Year 18
 AEA finishes her second year as
principal. At the end of the year, the
superintendent only offers her a one
year extension.

 She completes her contract without

signing the extension and the board
refuses to approve the
superintendent’s recommendation to
non-renew her.
Question 27

 27. What is AEA’s

status for next year?
Answer 27

 27. AEA is under a 3-year contract. If

a principal’s contract is not non-
renewed by action of the
superintendent and board, the
contract renews for a minimum 3-year
term. After the probationary period, a
principal’s contract must be non-
renewed 90 days in advance.
Years 19, 20, & 21

 AEA completes her term as contract

principal.

 At the end of Year 20, she is notified

that she is being non-renewed for
failure to make AYP in Year 20
because one student was one
question short of “proficient.”
Questions 28

 28. What are AEA’s

rights in this situation?
Answer 28
 28. Because AEA has completed her
probationary period, she can contest
the non-renewal of her contract. The
burden is on her to show that the
contract is being non-renewed for
personal/political reasons. The case
will be heard by a circuit judge or
his/her designee within 45 days.
Question 29

 29. If she is not retained

as a contract principal,
where does she go?
Answer 29

 29. She returns to her

last tenured position,
assistant principal.
Years 22 - 25
 AEA is fed up and decides to run for
superintendent.

 She is elected in a landslide, with help

from GCEA.

 She serves well, but she make some

politically-powerful people mad in
doing so and narrowly loses her re-
election campaign.
Question 30

 30. What happens to

AEA at the end of her
term as superintendent?
Answer 30

 30. You do not lose your

tenure by being elected
superintendent. Therefore,
she returns to her last tenured
position, assistant principal.
Years 26 & 27
 AEA decides that she
wants to take a
sabbatical to France to
teach English and asks
for a leave of absence
for Year 25.
 She board grants her
request.
 From France, she asks
for an extension into
Year 26 and it is
granted.
Question 31

 31. What is AEA’s

tenure status at the end
of Year 26?
Answer 31

 31. She remains a tenured

assistant principal. However,
she has exhausted her limit
for consecutive leaves of
absence without impacting
her tenure.
Year 28

 Refreshed and rejuvenated, AEA

returns as an assistant principal for
Year 28.

 With 25 years of service and being

over age 55, AEA enters DROP after
Year 28.
Question 32

 32. What effect does

her DROP status have
on her tenure in the
system?
Answer 32

 32. None. DROP is

separate from tenure.
Years 29 - 31
 After 3 years, AEA ends her DROP
and retires.

 After 3 months at home, she is bored

to tears and decides to use her new
certification in French to teach one
class a day.

 Greenbow County welcomes her back

to teach a new elective.
Question 33

 33. Is AEA tenured?

Answer 33

 33. No. She gave up

her tenure when she
retired.
Question 34

 34. How should she be

paid?
Answer 34

 34. She should be paid

1/6 of what her salary
would be on the teacher
salary schedule based
upon years of experience
and degree.
Question 35

 35. What effect does

this have on her
retirement?
Answer 35

 35. So long as she

stays below the
±$21,000 earning limit, it
will have none.
Epilogue

 After teaching for a few more years,

AEA becomes a recruiter for AEA.
When she talks with members, she
gives them 3 simple rules to guide
their career. What are they?
AEA Don’ts List

 1. DON’T RESIGN!

 2. DON’T SIGN ANYTHING!

 3. WE MEAN IT; DON’T RESIGN OR

SIGN ANYTHING!