Don’t Let Tenure Mistakes Saddle You with Low-Performing Teachers

With the end of the school year slowly approaching, remember that any recommendations to non-renew a probationary teacher’s employment for the next school year must likely be acted upon at the board’s March or April meeting. To refresh, to non-renew a probationary teacher’s employment, the board of education must provide the teacher with written notice of dismissal, including the specific reason(s) for dismissal if the teacher is in the final probationary year. The notice must be sent via certified mail, return receipt requested, at least 45 days before the end of the school term.

Thus, recommendations regarding any probationary teacher dismissals—and any corresponding resolutions—should be presented to the board of education for consideration and adoption at either the March or April board meeting, depending on the last day of your district’s school term. On this point, note that the IFT is currently taking the position that the 45-day period runs from the actual last day of the school term after the school calendar is amended based on the number of emergency days used. While we have a different interpretation of the law, we recommend calculating the 45-day period without consideration of emergency days to avoid litigation.

Also, keep in mind that certain eligible teachers first employed on or after your district’s PERA Implementation Date (which for most of you is September 1, 2016) could achieve non-traditional tenure, such as portable or accelerated tenure, as early as the end of this school term pursuant to the new PERA rules. We reviewed the new tenure rules in effect under PERA in our previous December 2018 [note] and July 2019 alerts. Here is a quick refresher on those non-traditional tenure provisions:

Portable Tenure: Teachers who attained tenure at another school district may be eligible for “portable tenure” after completing two consecutive school terms in your district if they receive excellent ratings in their first two years of employment. In order to be eligible for “portable tenure,” the following additional requirements apply:

• The teacher must have received at least “proficient” ratings on the teacher’s most recent two PERA evaluations in the former district.
• The teacher voluntarily departed or was honorably dismissed from the former district in the school term immediately prior to the teacher’s first school term in your district.
• The teacher provided official copies of the two most recent performance evaluations from the prior district within 60 days of the teacher’s first day of service in your district.

Unless a teacher is coming from a school district that implemented PERA early, certain eligible teachers can achieve “portable tenure” as early as the end of this 2019-2020 school term if all requirements are met and they are not given proper notice of non-renewal.

Accelerated Tenure: Accelerated tenure is available after a teacher completes three consecutive school terms of service in which the teacher receives three overall annual performance ratings of “Excellent.” Thus, if you have any third-year probationary teachers who received “Excellent” ratings in their first and second year, they will be eligible for accelerated tenure at the end of this school term if they receive an “Excellent” overall rating on their s 2019-2020 summative evaluation.

If you have any questions regarding non-traditional tenure under the new PERA rules or the process for dismissing final-year probationary teachers, please reach out to any Franczek attorney.

[1] Please note that we have updated our 12/18/18 alert on this topic.