North Carolina Council of School Attorneys�2018 Summer Law Conference��July 27, 2018��“Promises … Promises:” Initial and Renewed Teacher and Administrator Contracts

Presenter:

Christopher Z. Campbell�Campbell Shatley, PLLC�Asheville, NC 28804

Teacher Contracts: Tale of Two Statutes�(G.S. 115C-325 & 325.1 et seq)

Campbell Shatley, PLLC

Attorneys at Law

1, 2 or 4 Year Teacher Contracts?

115C-325.3 “Teacher Contract” – Superintendent’s Recommendation

• 1 Year Contracts (2 groups)
• Teacher who “has been employed by the LEA for less than three years;” or
• Teacher who has not “shown effectiveness as demonstrated by proficiency on the evaluation instrument”
• 2 and 4 Year Contracts (1 group)
• Teacher “who has been employed by the LEA for three years or more;” and
• Teacher has “shown effectiveness as demonstrated by proficiency on the evaluation instrument”

Campbell Shatley, PLLC

Attorneys at Law

1, 2 or 4 Year Teacher Contracts?

The Superintendent’s recommendation must include the length of term of the contract.

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The Board may:

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(1) Approve the Superintendent’s recommendation

(2) “Decide not to offer the teacher a new or renewed contract”  (i.e. contract non-renewal); or

(3) “Decide to offer the teacher a renewed contract for a different term than recommended by the superintendent.

Campbell Shatley, PLLC

Attorneys at Law

Initial Legal Call

The employee must have been employed by the LEA for “three years or more” to be eligible. What timeframe counts as a year?

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Option #1: G.S. 115C-325.1(7) defines a “year” as “a calendar year beginning July 1 and ending June 30.” Most teachers don’t work 12 months!

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Option #2: Former G.S. 115C-325(a)(8) defined a “year” for probationary teachers as at least “120 workdays performed.”

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Option #3: NCDPI benefits manual considers employment of less than 6 months to be temporary. Therefore, count any year where teacher was given a regular teaching contract.

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Campbell Shatley, PLLC

Attorneys at Law

Policy Decisions

Question one:  What does “has been employed by the LEA for three years or more” mean?

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Answer #1: Any ole’ three years will do!  (i.e. “cumulative”)

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Answer #2: “three or more consecutive years immediately preceding the contract offer”

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Campbell Shatley, PLLC

Attorneys at Law

Policy Decisions

Question two:  Can we establish criteria to define “has shown effectiveness as demonstrated by proficiency on the evaluation instrument”?

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Answer:  Yes, you should, and these criteria can include the following:

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• Teacher must be at least “proficient” on all standards for the two most recent summative evaluations

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• Teacher is not on a monitored or directed growth plan, mandatory improvement plan, or corrective action plan within the last 2 years

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Campbell Shatley, PLLC

Attorneys at Law

Policy Decisions

Criteria Continued:

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• Teacher has no written reprimands, written warnings (?), demotions, suspensions without pay, or other documented disciplinary action(?) within the last 2 years.

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• Teacher has no other relevant performance or conduct information in their file that would disqualify them from consideration.

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Campbell Shatley, PLLC

Attorneys at Law

NCSBA Model Policy 7410, Teacher Contracts

Option #1 – one standard contract length

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• Grant 1, 2 or 4 year contracts to all eligible teachers

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• Can be modified: “unless the superintendent or board determines that a longer or shorter contract is justified on the basis of criteria established by the board or by the superintendent and approved in advance by the board.”

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• What criteria?  Superintendent should recommend criteria to the Board with legal review.

Campbell Shatley, PLLC

Attorneys at Law

NCSBA Model Policy 7410, Teacher Contracts

Option #2 – 2 year contract followed by a 4 year

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• Grant a two year contract and renew for 4 years if the teacher meets criteria (discussed previously)

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• Failure to meet criteria results in a new 1 year contract

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Campbell Shatley, PLLC

Attorneys at Law

NCSBA Model Policy 7410, Teacher Contracts

Option #3 – 2 or 4 year contracts

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• Grant a two year contract based on criteria (discussed previously)
• Grant a four year contract based on additional criteria (“proficient plus”) including the following possible examples:                                        
• employment for 5 years, and
• receive “accomplished” rating on the majority of standards on the 2 most recent summative evaluations,
• be licensed in a high demand area as determined by the Superintendent and approved by the Board on a date certain,
• be licensed in multiple areas at the time of contract offer,
• be National Board certified at the time of contract offer,
• have earned a master’s degree or higher in relevant content area,
• be currently serving in an advanced leadership role, or
• be currently performing extra-duty services as determined by policy (i.e. coach, faculty sponsor, etc.)

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Campbell Shatley, PLLC

Attorneys at Law

NCSBA Model Policy 7410, Teacher Contracts

Option #4 – rolling two year contracts

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• Two years is the maximum
• At the end of year one, if the teacher meets criteria (discussed previously), the board may extend an extra year
• The failure to grant an extension “will be considered cautionary notice to the teacher that his or her performance requires improvement”
• Any teacher with a one year contract can receive a two year contract in the future if they meet the criteria

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Campbell Shatley, PLLC

Attorneys at Law

NCSBA Model Policy 7410, Teacher Contracts

• Proficient Plus?

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• Be afraid, be very afraid . . .

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• “Accomplished / Distinguished” and Principal Fidelity?

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• Inequities at elementary v. high school level to qualify?

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• “Reprimands” and “Warnings” – Principal consistency and advance knowledge of the consequences?

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• The “net” is too big, too small or just right?

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Campbell Shatley, PLLC

Attorneys at Law

The New Landscape of�Principal Performance Pay ©

2018-19 Principal Pay (S.L. 2018-05)�(Average salary increases of 6.1%)

• ADM based upon 2017-18 School Year until 12/31/18 (see mid year adjustment below)
• Growth scores based upon 2014-15 through 2017-18 school years until 12/31/18 (see mid year adjustment below)

Principal Salary Schedules

• “Placement on scale shall be determined according to the ADM of the current school year and the school growth score for each school the principal supervised in at least two of the three prior school years . . . .”
• Exceeded Growth Column: exceeded growth for 2 of the last 3 years
• Met Growth Column: met growth for 2 of the last 3 years; met growth for 1 year and exceeded growth for 1 year (out of last 3 years); or principal supervised school that was not eligible to receive a growth score 2 of last 3 years
• Base Column: did not meet or exceed growth 2 out of last 3 years; or has not been a principal at least 2 out of last 3 years

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Campbell Shatley, PLLC

Attorneys at Law

Break in Service

Technical Corrections Act (SL 2018-97)

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• “For purposes of determining the school growth scores for each school the principal supervised in at least two of the prior three school years, the following school growth scores shall be used during the following time periods:

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(1)  Between July 1, 2018, and December 31, 2018, the school growth scores from the 2014‑15, 2015‑16, and 2016‑17 school years. If a principal does not have a school growth score from any of the school years identified in this subdivision, the most recent available growth scores, up to the 2016‑17 school year, shall be used.

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(2)  Between January 1, 2019, and June 30, 2019, the school growth scores from the 2015‑16, 2016‑17, and 2017‑18 school years. If a principal does not have a school growth score from any of the school years identified in this subdivision, the most recent available growth scores, up to the 2017‑18 school year, shall be used."

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Campbell Shatley, PLLC

Attorneys at Law

Mid Year Adjustments to Principal Pay

Changes effective January 1, 2019 through June 30, 2019

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• School ADM category:

» use 2018-19 school size

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II. Met Growth or Exceeded Growth?:

» use 2015-16, 2016-17 and 2017-18 school years

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Campbell Shatley, PLLC

Attorneys at Law

Extension of Salary Hold Harmless

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• Principal will receive the greater of the following:

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• New Salary Schedule; or

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• The salary the principal received in 2016-17 (including longevity if they were eligible for longevity payment in 2016-17)

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• Applies for 2018-19 and for calendar year 2019

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Campbell Shatley, PLLC

Attorneys at Law

“Highest Pay” Calculation �G.S. 115C-285

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(8)  A teacher who becomes an assistant principal shall be paid, on a monthly basis, at least as much as he or she would earn as a teacher employed by that local school administrative unit.

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(8a)  A teacher who becomes a principal shall be paid on a monthly basis, at least as much as he or she would earn as a teacher employed by that local school administrative unit.

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(9) An assistant principal who becomes a principal shall be paid, on a monthly basis, at least as much as he or she would earn as an assistant principal employed by that local school administrative unit.

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Campbell Shatley, PLLC

Attorneys at Law

Change to Definition of Demotion

“SECTION 8.2.(f)  G.S. 115C‑325.1(2) reads as rewritten:

"(2)      "Demote" means to reduce the salary of a person who is classified or paid by the State Board of Education as a classroom teacher or as a school administrator during the time of the contract. The word "demote" does not include (i) the following:

a.    a A suspension without pay pursuant to G.S. 115C‑325.5(a); (ii)G.S. 115C‑325.5(a).

b.   theThe elimination or reduction of bonus payments, including merit‑based supplements or a systemwide modification in the amount of any applicable local supplement; (iii)supplement.

c.    anyAny reduction in salary that results from the elimination of a special duty, such as the duty of an athletic coach or a choral director; or (iv)director.

d.  anyAny reduction of pay as compared to a prior term of contract.

e.   Any reduction in a principal's salary resulting from a reduction in State funds due to (i) school growth scores, as provided in the Principal Salary Schedule, or (ii) a decline in the average daily membership of the principal's school."

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Campbell Shatley, PLLC

Attorneys at Law

Change to Definition of Demotion

Remaining Questions: The Involuntary Transfer of a Principal

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1. to a smaller school;

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• to a school that will not meet growth; and/or

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• from a school with ADM and/or performance growth for 2018-19 by the mid-year adjustment?

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• Is this a demotion?

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Campbell Shatley, PLLC

Attorneys at Law

Possible Solutions

• Option # 1 – Treat any reduction in pay resulting from an involuntary transfer as an adjustment by “operation of law” and thus not a breach of contract. Caveat: The legislative change to clarify “demotion” significantly weakens this argument.

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• Option #2 – Hold Harmless until contract renewal.

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• Option # 3 – Contractual language to allow for due process for a) disciplinary demotions, b) reductions in force, and c) involuntary transfers.

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Campbell Shatley, PLLC

Attorneys at Law

Contractual Language

• “Any decrease in the Administrator’s Annual State Salary during the term of this Contract resulting from a change in the growth performance indicator of the Administrator’s assigned school(s), from a reduction of the average daily membership at the Administrator’s assigned school(s), or otherwise by operation of law, shall not be considered a demotion under N.C.G.S. §115C-325.1(2). However, if a reduction in the Administrator’s Annual State Salary during the term of this Contract is caused by a specific action by the Board or Superintendent as a disciplinary consequence, a reduction-in-force, or the involuntary transfer of the Administrator to a new school or position, Administrator shall be entitled to all due process rights as provided by applicable law.”

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Campbell Shatley, PLLC

Attorneys at Law

Statutory Demotions

• G.S. 115C-325.4 applies to principals per G.S. 115C-287.1 and provides for a “demotion” for a “justifiable decrease in the number of positions due to . . . decreased funding.”

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• Is a decrease in pay by Board action a lawful “demotion”?

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• HELL NO! – the position has not been taken away, or

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• HELL YES! – the statute refers to a “reduction in force” and specifically references the ability to demote: “In identifying which [principals] in similar positions shall be subject to a dismissal, demotion, or reduction of employment on a part-time basis . . .”

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• The answer? In the immortal words of Bob Joyce . . .

Campbell Shatley, PLLC

Attorneys at Law

Christopher Z. Campbell�Campbell Shatley, PLLC�674 Merrimon Ave., Suite 210�Asheville, NC 28804�(828) 398-2775