Bob Bombast, veteran member of the Nutmeg Board of Education, had never liked Peter Principal. When the Board first interviewed him, he seemed quite arrogant, and three years later, Mr. Principal was more obnoxious than ever. The latest faux-pas was a newsletter to high school parents in which Mr. Principal used the word "I" fifty-seven times. Bob decided that it was time to move this egomaniac out.
Bob wrote an email to his fellow Board members asking them for their opinion on Mr. Principal, and several Board members promptly responded with scathing criticism. They complained that Mr. Principal’s one and only agenda seemed to be self-promotion, and that they described stories from teachers about his rude behavior at faculty meetings. Bob even conducted an informal poll at Stop & Shop, where he would stop people he knows and ask for their feedback. While some townspeople had no particular ax to grind, others were vitriolic. Bob provided the critics assurance that there would be "big changes" at the High School.
Mrs. Superintendent was acutely aware of Mr. Principal’s shortcomings, and she had tried valiantly to help him see the light. Despite her intensive assistance, however, Mr. Principal was incorrigible in his need for attention. Accordingly, Mrs. Superintendent sat Mr. Principal down last month and told him that she would recommend non-renewal of his contract unless he resigned. Mr. Principal abruptly stood up, and as he left simply said, "I don’t think so."
Mrs. Superintendent went ahead with her plan. She placed "Non-renewal of High School Principal’s Contract" on the agenda for the next Board meeting. Given their low opinion of Mr. Principal, the Board members were surprised to see a large group of angry parents in the audience. These parents talked at length during public comment about the "witch hunt" and the contribution Mr. Principal had made to the High School. However, the Board voted not to renew Mr. Principal’s contract.
The next day, Mrs. Superintendent received a fax from Bill Alot, local legal scourge, stating that he is representing Mr. Principal who "demands" a public hearing. Mrs. Superintendent promptly scheduled a hearing, and notified the Board by an email that included the following: "Buckle up. Bill Alot and Peter Principal will stop at nothing, and you will get pressured. I trust I can rely on your continued support."
Mrs. Superintendent’s words proved prophetic, as Mr. Principal invited four hundred of his closest friends to the hearing, which had to be adjourned to the High School Auditorium, the only venue large enough for the crowd. Bill Alot wasted no time making his one and only point. He demanded to know whether the Board members had made any previous comments about Mr. Principal. Bob Bombast responded that the Board members were not on trial, and that they would not be answering any questions.
Bill Alot then proceeded to call various parents to testify, who all described hearing statements from Bob Bombast and other Board members about how they would be "getting rid" of Mr. Principal. Bill promptly moved that the non-renewal action be voided because poor Mr. Principal had been denied an impartial decision-maker.
What should the Board do?
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The Board has created quite a problem for itself, and it is not clear whether or how the Board will be able to get out of this one.
To start, we should briefly review non-renewal procedures. Administrators are "teachers" under the Tenure Act, and all teachers serve a probationary period before achieving tenure. Teachers who have previously achieved tenure in another Connecticut school district achieve tenure after twenty months of uninterrupted service. Otherwise, teachers achieve tenure after forty months. During that time, teachers are subject to non-renewal. Non-renewal can be effected by assuring that teachers receive written notice prior to April 1st that the teacher’s contract will not be renewed for the following year. Such a teacher has the right to request a statement of reasons for non-renewal, and he or she may also request a hearing before the board of education. However, the statute provides that the board shall affirm the non-renewal decision unless it determines that the decision was "arbitrary and capricious."
Not surprisingly, most such teachers do not request hearings, given that standard. Indeed, once confronted with the prospect of non-renewal, most teachers opt for resignation rather than non-renewal. Given the superintendent’s right to recommend non-renewal, the courts have held that offering the choice of resignation or non-renewal is not coercive. However, to assure fairness in a difficult situation, superintendents typically involve the local teacher union in those discussions so that the teacher can have independent counsel on what is best for him or her.
Board of education members have two responsibilities regarding non-renewal. First, while it appears that the superintendent may independently notify a teacher of non-renewal, the statute is not completely clear on that point, and boards are often asked to vote on non-renewals. That vote should be taken without any information, because the statute confers the right to a hearing only after notification of non-renewal is received. The vote simply starts the process, and the board members will hear the full story if and when a hearing is requested.
Second, at any such hearing the board members must reconsider the non-renewal decision. Non-renewal is appropriate for any legitimate reason, including a judgment that the teacher, while competent, does not meet district standards. No probationary teacher has a "right" to continued employment. However, under the Tenure Act teachers have the right to due process at a fair hearing.
A basic tenet of due process is an impartial decision-maker. Thus, the same lawyer cannot both present the case for non-renewal and advise the board on what to do. Similarly, board members may not confer privately with the superintendent. Rather, board members must impartially consider the evidence presented at the hearing before making a decision.
Board members are responsible for evaluating only one employee – the superintendent. Other personnel matters are the province of the superintendent unless and until board action is required. Here, Bob and his colleagues were wildly inappropriate. Given Bob’s declared intent to get rid of Mr. Principal, it would be difficult or impossible for him later to argue that he could impartially consider the matter. By intruding prematurely into the matter of Mr. Principal’s non-renewal, the Board members in Nutmeg may have given Mr. Principal a claim for reinstatement.