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 7. Terminating Employees and The Fair Dismissal Act

Boards of education and superintendents often find the task of terminating employees to be complicated. No other responsibility seems fraught with the same number of legal issues and the same potential for exposure to litigation. In considering whether to terminate an employee, the superintendent and board must consider a number of questions? Is the employee an “at will” employee or one under contract for a definite term? If the employee is under contract and will not be rehired, does the employee have “tenure” rights? Is the employee likely to claim a violation of some federally protected right? Are there board policies in place which affect how termination decisions are made? Before any of these questions can be answered, of course, a thorough understanding of Georgia’s Fair Dismissal Act is necessary. This Chapter attempts to provide a guide to the procedural and substantive requirements of the Act. In so doing, it will discuss at some length how teachers in Georgia acquire what has become known as tenure.

No term in school law seems to be more misunderstood or is more controversial than “tenure.” In fact, for over 20 years, the General Assembly studiously avoided the use of the word tenure when proscribing under what circumstances professional educators have the right to challenge a decision not to re-employ them for another school year. Tenure as it exists in Georgia is a statutory right of certain teachers and administrators who have served under contract with the same board of education for a specified number of years to expect that their employment with a school district will continue from year to year unless the school district has specific legal grounds not to rehire them for the following school year and provides them a process to challenge the existence of those grounds. Tenure is not, by any means, a right to a job; it is a right to a process if the school system proposes not to rehire a teacher with tenure rights. Unlike post-secondary education, tenure is not awarded by vote of a committee or by the decision of some administrator. Tenure status is acquired when a teacher has been offered and has accepted the requisite number of consecutive contracts with the same school district.

In 1995, the General Assembly determined that new administrators would not be permitted to acquire tenure in leadership positions, although those who had acquired tenure would be able to retain its protection under certain conditions. The A+ Education Reform Act of 2000 included a provision prohibiting individuals who first become teachers after July 1, 2000 from acquiring tenure rights, but those rights were restored by the General Assembly three years later. The commonly held opinion that tenure is a bar to terminating incompetent employees is simply not true. Competent documentation of ineffective performance coupled with a commitment from the board and administrative staff to rid the system of employees who cannot or will not be effective is all that is required legally to support such a decision in Georgia.

Questions
7. 1 What procedures must a board follow in order to terminate an employee?
7. 2 What are the procedures to terminate the employment of a teacher or other employee with a contract for a school year or some other definite term?
7. 3 What information must be provided in the notice?
7. 4 What is the role of the board of education at a Fair Dismissal Act hearing?
7. 5 What if the parties, the board or the chair of the board wish to have a lawyer act as hearing officer or advise the board on legal issues during the hearing?
7. 6 For what reasons may the board terminate the contract of an employee covered by the Fair Dismissal Act?
7. 7 What does “incompetency” as used in the Fair Dismissal Act mean?
7. 8 How have decisions of the State Board and the courts defined “insubordination?
7. 9 What definition has been provided for “willful neglect of duties"?
7. 10 What does “immorality” mean for purposes of the Fair Dismissal Act?
7. 11 What does “inciting, encouraging or counseling students to violate any valid state law, municipal ordinance or policy or rule of the local board of education” mean?
7. 12 When may a board terminate an employee under contract based on a reduction in staff due to loss of students or cancellation of programs?
7. 13 What does “failing to secure and maintain necessary educational training” mean as used in the Act?
7. 14 What does “other good and sufficient cause” mean?
7. 15 How much evidence is necessary to prove that sufficient cause exists to terminate an employee under the Fair Dismissal Act?
7. 15.a In proving cause to terminate an employee under the Fair Dismissal Act, may evidence be presented from previous years even though the employee’s contract was renewed in those years?
7. 16 What action may the board take at the conclusion of a Fair Dismissal Act hearing?
7. 17 What are the steps to appeal a decision of the local board of education to the State Board of Education?
7. 18 What must a superintendent do upon receipt of a notice of appeal to the State Board of Education?
7. 19 What does the State Board of Education do in reviewing an appeal and what steps are available after the State Board of Education rules?
7. 20 Is there a process if a superintendent does not want to terminate a contract but wants to suspend an employee without pay?
7. 21 May a board of education transfer an employee as a result of a termination hearing?
7. 22 Does the superintendent have the power to suspend an employee with a contract temporarily and, if so, under what conditions?
7. 23 What process must a school system follow if it intends not to renew a contract of employment with a certificated employee?
7. 24 What rights do professional employees have in the event they are notified that their contracts are not to be renewed?
7. 26 Do some or all administrators have tenure protection?
7. 27 Are there circumstances where new administrators can obtain tenure or some other right to extended employment?
7. 28 What are the definitions of “teacher” and “administrator” for tenure purposes?
7. 29 How does a teacher acquire tenure rights?
7. 30 How is a teacher offered a contract and how does a teacher accept a contract for the purposes of the Fair Dismissal Act?
7. 30.a Does state law contain any requirements regarding the form or content of written contracts offered to teachers?
7. 31 Once a teacher has acquired tenure with a school district, may that teacher acquire tenure with a second school district?
7. 32 If a teacher acquires tenure with a school system and chooses not to teach for one or more years, but subsequently returns to the same school system, when will that teacher re-acquire tenure?
7. 33 If a teacher is required to have a full school year contract in order for the year to count toward tenure, must the teacher actually work all of the contracted days in order for that year to count toward tenure?
7. 34 Are the procedures which must be followed to non-renew a tenured employee’s contract different from those which must be followed when terminating an employee with a contract for a definite term?
7. 35 What options does a board have at the conclusion of a nonrenewal hearing if it believes that cause has been established?
7. 36 Does tenure prevent a teacher or an administrator from being demoted?
7. 37 Does tenure protect employees, such as coaches or band directors, from losing extra duty assignments?
7. 38 Does tenure protect employees from losing local supplements, extended day or extended year contracts?
7. 39 Must an explanation for the non-renewal be given to an employee who has not acquired “tenured” status?
7. 40 Are there any circumstances where either an at-will employee who has been terminated or a non-tenured employee whose contract is not renewed may be entitled to a hearing?
7. 41 Under what circumstances can a superintendent issue a letter of reprimand?
7. 42 Are there circumstances when a school system is required to report misconduct of an employee to other agencies in addition to taking whatever employment action may be warranted?