April 2017, Vol. 1

The top-10 most common questions on educator contracts

by Amy Campbell

HR Services consultant and Legal Services attorneys regularly field calls from district staff about educator contracts, and while many are questions with very particular and specific sets of circumstances, there are general topics and themes that emerge as common among districts. Following is a list of the top-10 most common general contract questions, in no particular order, along with answers and links to additional resources.

Q: Who is entitled to a Texas Education Code Chapter 21 contract?

A: Employees in positions requiring SBEC certification are entitled to Chapter 21 contracts. This includes:
  • Classroom teachers
  • Principals
  • Library media specialists
  • Counselors
  • Nurses
  • Educational diagnosticians
Districts also must provide Chapter 21 contracts to any other full-time professional employees required to hold SBEC certification and employees in positions specified in local policy (typically, DCB(LOCAL) for term contracts or DCC(LOCAL) for continuing contracts), regardless whether the positions require SBEC certification. Employees on local district teaching permits and employees in part-time positions (averaging fewer than four hours per day) are not eligible for Chapter 21 contracts.

Q: Do we have to provide a contract to someone who started after the school year began?

A: Texas Education Code requires that educator contracts must be for a minimum of 10 months of service. While a 10-month contract may be appropriate for someone who starts shortly after the school year begins, placing someone hired mid-year or later on a 10-month contract would provide more contract rights to the new hire than they’re entitled to by law.

TASB Legal Services believes that placing mid-year hires on an at-will employment agreement that runs for the remainder of the school year may be a legally defensible practice. Please contact your local counsel for advice on when an employment agreement is appropriate in your district’s specific employment situation.

Q: Do we have to count all teaching experience to determine how many years a new hire can be employed on a probationary contract?

A: No. Only public teaching experience must be considered when counting the number of teaching years in the eight years preceding employment by the district. If the employee has five years of teaching experience in public education in the eight years immediately preceding employment by the district, the employee may only be on a probationary contract for one full year. If the employee has fewer than five years experience at the time of employment, the employee may be on a probationary contract for three years. Experience teaching in a private school or in higher education would not apply. However, years spent teaching in a public school out of state should be counted. In this context, “teacher” means a principal, supervisor, classroom teacher, counselor, or other full-time professional employee required to hold SBEC certification or a nurse (TEC § 21.102 (a)).

Q: If we hired a teacher in January and she served this school year on a probationary contract but taught for the past seven of eight years in public schools, do we have to grant a term contract for the following school year?

A: An employee must, in most cases, serve one probationary period—at least one full year of service under a probationary contract—before becoming eligible for a term contract. The commissioner of education has held that a district may require an employee who was hired in January to serve a full school year on a probationary contract. 

Q: Can we remove a teacher’s coaching duties and discontinue his stipend during the school year?

A: It depends on whether the employee has a “single assignment” or “dual assignment” contract. If the contract is single assignment, the teacher or the district may end the assignment on an at-will basis.The employee would be entitled only to employment as a teacher and not as a coach. At any time the district could end his coaching assignment and stipend or the coach could quit his coaching assignment.

If the employee has a dual assignment contract that specifies he’s a “classroom teacher/coach” or similar, the employee is entitled to be employed—or at least compensated—as a teacher and a coach for the remainder of his contract. While the district feasibly could discontinue his coaching duties, the district would still be obligated to compensate him for the coaching duties during his contract period.

Q: If we promote a teacher to an administrator position (e.g., Assistant Principal), can we put him or her back on a probationary contract?

A: Yes. If an employee voluntarily accepts an assignment in a new professional capacity that requires a different class of certificate, the person can be employed on a probationary contract for the new assignment. The classes of certificates specified in SBEC rules include:
  • Principal
  • Classroom teacher
  • Instructional educator other than classroom teacher (including reading specialist)
  • Master teacher
  • Library media specialist
  • School counselor
  • Educational diagnostician
However, if the district returns the employee to his or her previous professional capacity, the employee is entitled to return to the same contractual status he or she had before the promotion occurred.

Q: What happens if we give an employee a Chapter 21 contract when the position does not require one?

A: If a position does not require a Chapter 21 contract (see the first Q&A above for more details on who is entitled to one), the district is not required to grant a Chapter 21 contract to employees in that position. Chapter 21 contracts incorporate statutory procedures that make termination of employment expensive and time-consuming. TASB Legal Services recommends that the district revise its policy so that employees working in positions for which no certification is required receive an alternative, non-Chapter 21 term contract that does not incorporate these statutory protections. TASB Legal Services has developed a sample non-Chapter 21 contract for this purpose, available in the HR Library.

Please note that if such a policy change is made, the district may have questions about how to transition employees issued Chapter 21 contracts under a previous policy to a different employment arrangement. The district should contact its school attorney for guidance on this process.

Q: How do we end a Chapter 21 contract?

A: There are three types of Chapter 21 contracts—probationary, term, and continuing—and there are two primary ways to end a Chapter 21 contract—nonrenewal or termination. Nonrenewal is a decision by the board not to rehire an employee at the end of his or her current contract. The board can only nonrenew term contracts, and then only at the end of a contract term and only for reasons set forth in local policy. If the board does not give timely notice of proposed nonrenewal, the contract renews for the subsequent school year. Termination can occur in the following instances:
  • At the end of a contract period for probationary contracts if, in the board’s judgment, the best interests of the district will be served by terminating the employment
  • At the end of a contract period for any contract type if the board declares a financial exigency that requires a reduction in personnel (though special hearing procedures are required); a reduction in force also may be grounds for mid-contract terminations for term contracts
  • At any time for any contract type for good cause
Q: How do we calculate the notice deadline days for nonrenewal purposes? Is it calendar or instructional or work days?

A: Written notice of proposed nonrenewal must be provided to the employee 10 calendar days before the last day of instruction through hand-delivery, or, if the employee is not present on the day delivery is attempted, the notice may be mailed by certified mail or express delivery service. The last instructional day is the last day students are in school and receiving instruction, which should be reflected on the district’s calendar.

Q: Can we immediately terminate a contract for an employee whose certification lapses during the year?

A: Termination of a contract during the school year due to the employee’s failure to obtain or renew certification does not require Chapter 21 due process and cannot be appealed to the Commissioner. However, the board must take formal action to void the contract. While a Chapter 21 hearing isn’t required, the employee does have a right to notice, an opportunity to present his or her argument to the board, and to a decision by the board on one of following actions they can take:
  • Terminate the employee
  • Suspend the employee with or without pay
  • Retain the employee for the remainder of the school year on an at-will basis in a position that does not require a Chapter 21 contract
The law provides a 10-day grace period for an employee to renew, extend, or otherwise validate his or her certificate or permit before a district terminates or suspends the employee for failure to renew or obtain certification.

Additional contracts guidance can be found in TASB Legal Services’ Guide to Educator Contracts and School Law eSource, and the HR Library.