Erma Ennui had come with good reviews to teach Sixth Grade in Nutmeg after achieving tenure in a neighboring school district. For the first year, everything was fine. As the second year began, however, Mr. Principal took a closer look because Erma would attain tenure if she got past April 1 without being non-renewed. After just one visit, he realized that Erma did not bring rigor to the classroom. Everything was pleasant and comfortable, but in Mr. Principal’s opinion, Erma was not challenging her students.
In accordance with the district evaluation plan, Mr. Principal met with Erma and her representative from the Nutmeg Union of Teachers (NUTS). Mr. Principal told Erma that he would give her a fair shake, but he explained that Erma needed to align her lessons more closely with the district’s elementary curriculum. Mr. Principal assured her, she could be successful if she did that. Erma’s blank stare, however, gave Mr. Principal little comfort that in fact Erma would be able to improve her instruction.
Mr. Principal continued his supervision, but things remained the same. Ultimately, Mr. Principal informed Erma that her contract would not be renewed. As Erma started to argue, Bruno, her NUTS representative, took her outside. When they returned, Bruno asked whether Erma could simply resign in lieu of non-renewal. Mr. Principal readily agreed, and even offered to write her a recommendation.
With Erma’s resignation in hand, Mr. Principal thought the matter resolved. Months later, however, he got a rude surprise. Erma sent him a letter stating that she was rescinding her resignation and wanted a full hearing before the Board of Education over the non-renewal of her contract. After Mr. Principal called Mrs. Superintendent with the news, Mrs. Superintendent wrote back to Erma, explaining that her resignation had been accepted and that her employment would terminate at the end of the year.
At this point, Erma decided to fight. She hired local attorney, Bill Alot, to represent her. Bill promptly claimed publicly that Erma had been railroaded. Between them, Erma and Bill soon had garnered support from a number of parents who claimed that Erma was "nice" and should not be fired. Mrs. Superintendent sent Erma another letter, explaining her status, and even stated publicly that this matter was resolved. The parent group, however, was not buying it, and with Bill’s help, they filed a petition with the Nutmeg Board of Education. They demanded a public hearing on whether the Board should give Erma a hearing and whether the Board should investigate the "underhanded tactics" of the Administration in "forcing" Erma to resign in the first place.
After checking with Mr. Board Attorney, Mr. Chairperson scheduled the public hearing as required by statute. The turnout was not as large as Bill had predicted in an interview with the Nutmeg Bugle, but there were still some forty or so in attendance. Mr. Chairperson called the meeting to order, and the testimonials began.
It was not long before Bob Bombast, veteran Board member, started in. He thanked a speaker for her comments, and he wondered aloud why Nutmeg could not retain the "good" teachers. Mr. Chairperson ruled Bob out of order, and Bill Alot leapt to his feet in protest. What is the role of the Board members in this hearing?
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The statute requiring boards of education to grant a hearing when so petitioned is simple, but it provides no specific guidance on the board’s role. Section 10-238 provides that within three weeks of receiving a petition signed by one percent of the electors (or fifty persons, whichever is greater), a board of education must "hold a public hearing on any question specified in such petition." Notably, there is no requirement that a board of education take action on any such question. Rather, the statute simply requires that the petitioners may be "heard" at a hearing scheduled by the board of education.
Boards of education must not let petitioners seize control of their agenda. Accordingly, board discussion and/or action at the hearing itself is inadvisable, because the board may well be hearing only one side of the story. Moreover, there may be legal or other confidential information to consider that would not be presented at the hearing. Therefore, board members should simply listen at the hearing, and afterwards the board can decide as it sees fit whether to address matters brought up at the hearing.
The board of education may exercise control at the hearing as it would at any other meeting. It may impose limits on the time allotted to each speaker, and it may rule speakers out of order for inappropriate personal attacks, yelling or swearing. Any such controls, however, must be imposed with an even hand, and as a matter of free speech, boards should take care to ensure that they are not tougher on the speakers with an "unpopular" view than they are on the "friendly" speakers (if any).
The issues that Erma and Bill have brought forward for hearing are particularly inappropriate for board consideration and action. During the first four years of employment (two years if elsewhere tenured in Connecticut within the preceding five years), teachers are probationary employees. The superintendent is responsible for deciding whether to offer such teachers reemployment. If a teacher is notified by April 1 that his or her contract will not be renewed, his or her employment ends at the end of that year. Such a teacher has the right to request a statement of reasons and a hearing. However, the statute provides that the non-renewal decision must be affirmed unless it is arbitrary and capricious. Given that high standard, contracts may be non-renewed for various reasons, even because the teacher has not demonstrated excellent performance. In short, non-renewal of probationary teachers need not be limited to poor performers.
Here, the situation is even clearer because Erma resigned her employment in the first instance to avoid non-renewal. Once the Superintendent accepted her resignation, it was binding on her, and her employment ended on its effective date. Such resignations are common, and are fully consistent with the statute. Since the contract of a probationary teacher can be non-renewed for any proper purpose, teachers often conclude that they are better off to resign. Indeed, it is also common to provide recommendations for such teachers, because supervisors may believe that the teacher would find a better fit in a different school district.
Finally, when a teacher requests a non-renewal hearing (as is his/her right), the board’s role is clear, and rescission of the non-renewal decision is appropriate only if the decision was arbitrary and capricious. However, since Erma has already resigned, the Board is not authorized to conduct a non-renewal hearing. Moreover, the Board may only employ teachers who are nominated by the superintendent, and it is not likely that Mrs. Superintendent will be offering Erma reemployment. The petitioners here were entitled to be heard, but Board action is not required and would be inadvisable.
Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.