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DEFINITIONS

Within this policy:

  1. "Classified employee" means a School employee who holds a classified position.
  2. "Classified position" means a position classified under the state's position classification plan.
  3. "Merit salary increase" means an increase in compensation to a higher rate within the range of the same classified salary group.

PROCEDURES AND REQUIREMENTS

The School shall establish:

  1. a procedure for determining the eligibility of a classified employee to receive a merit salary increase or a one-time merit payment from the School; and
  2. requirements for substantiating the eligibility of a classified employee who receives a merit salary increase or a one-time merit payment from the School.

APPLICATION THROUGH PAY GROUPS

The School shall apply merit salary increases and one-time merit payments throughout the range of classified salary groups used by the School.

ELIGIBILITY REQUIREMENTS FOR MERIT SALARY INCREASE

The School may award a merit salary increase to a classified employee in relation to the employee's performance in the current classified position held by the employee if:

  1. the employee has been employed by the School in that position for at least six continuous months before the effective date of the increase
  2. the effective date of the increase is at least six months after the effective date of the employee's last promotion or merit salary increase for performance in that position.
  3. the employee's job performance and productivity in that position are consistently above that normally expected or required; and
  4. the effective date of the increase is at least six months after the effective date of the School's last:
    1. payment to the employee of an enhanced compensation award authorized by the General Appropriations Act; or
    2. one-time merit payment for performance in that position.

ELIGIBILITY REQUIREMENTS FOR ONE-TIME MERIT PAYMENT

The School may make a one-time merit payment to a classified employee in relation to the employee's performance in the current classified position held by the employee if:

  1. the employee has been employed by the School in that position for at least six continuous months before the effective date of the payment;
  2. the effective date of the payment is at least six months after the effective date of the employee's last promotion or merit salary increase for performance in that position.
  3. the employee's job performance and productivity in that position are consistently above that normally expected or required; and
  4. the effective date of the payment is at least six months after the effective date of the School's last payment to the employee of an enhanced compensation award authorized by the General Appropriations Act or one-time merit payment for performance in that position.

Texas Gov't Code 659.255

PERFORMANCE APPRAISALS REQUIRED

A manager or supervisor whose job responsibilities include the performance appraisal of subordinate staff shall not receive a merit salary increase or one-time merit payment unless performance appraisals for all assigned staff have been completed within the previous 12-month period.

Adopted:          3/11/83
Amended:         5/27/93, 3/25/94, 11/15/96, 11/14/9, 1/28/00, 9/12/03, 1/27/06
Reviewed:        4/5/13

AGE DISCRIMINATION PROHIBITED

The Board shall not require the retirement of any employee on the basis of age.

29 U.S.C. 631

MEMBERSHIP IN RETIREMENT SYSTEM

All employees of TSBVI, including both employees who have and have not retired under the ERS system, shall be members of the Employees Retirement System (ERS) of Texas.

Gov’t. Code 812.003

CONTRIBUTION TO ERS RETIREMENT FUND

A TSBVI employee who has not retired under ERS must make a contribution of 9.5% of the employee’s gross monthly salary to the ERS retirement fund.

Gov’t. Code 815.402

A TSBVI employee who has retired under ERS is not required to make a contribution to the ERS retirement fund.

Gov’t. Code 812.201

EMPLOYING RETIRED STATE EMPLOYEES

Certification of “No Promise of Employment”

At the time of employment, a retiring member of ERS must certify that the member has no commitment from the employee’s present employer to be rehired. 

90 Day Waiting Period

A state employee who retires under the ERS system on or after May 31, 2009, may not return to work as a state employee before the 90th day after the date of the retiree's original retirement.

Gov’t. Code 812.205

STATE AGENCY PAYMENT TO ERS FOR REHIRED RETIREES

A state agency that, on or after September 1, 2009, rehires any person who has retired under ERS is required to pay to ERS an amount equal to the amount of the state contribution that the agency would pay for an employee who had not retired under ERS.

Gov’t. Code 812.206

The School may hire a person who has previously retired from state employment under the Employees Retirement System (ERS) as a regular, temporary or substitute employee.

If a retiree applies, the retiree does not have an “entitlement” to the position.  The retiree will apply and compete for the position against all other applicants.  The applicant pool might include both internal applicants (i.e., current employees seeking a promotion or different position) and external applicants (including the retiree). 

REHIRING PERSONS PREVIOUSLY EMPLOYED UNDER PROFESSIONAL EMPLOYMENT CONTRACT

An employee hired under a professional employment contract who retires after the term of the contract is eligible for rehire.

Authority to Rehire Retired Contract Employees

The prohibition applicable to a state agency against rehiring a former or retired employee of the agency under a professional employment contract before the first anniversary of the last date on which the individual was employed by the agency is not applicable to the School. 

Gov’t. Code 2252.001; Educ. Code 30.024(b) 

Effective October 1, 2009, an employee hired under a professional employment contract who terminates the contract within the contract term is not eligible to be rehired at TSBVI during the contract term. 

Employment as a Regular Employee After Retirement

An employee who retires from the School may apply as an external applicant for any available position and will compete for selection along with, and in the same manner as all other applicants.  A retiree may not apply for positions available only to internal applicants.

If the applicant pool for any position includes a retired employee, the selection process may include consideration of 1) the monthly payment to ERS that TSBVI would be required to pay if the applicant is selected; and 2) the first date that the applicant is able to start in the position.

Adopted:          6/8/79

Amended:        1/11/80, 3/12/82, 9/9/83, 1/23/87, 9/15/88, 11/18/94, 11/17/95, 3/31/98, 3/26/02, 9/25/09, 8/9/18

Reviewed: 

DEFINITIONS

  1. "Career ladder" refers to upward mobility within the same position through a defined series of classifications. Promotion from one level to the next is accomplished noncompetitively when the individual has met specified experience, training, and performance requirements, and has demonstrated possession of the knowledge, skills, and abilities required by the job description of the next highest level.
  2. "Career path" refers to movement, via competitive application, to a different position within the same, or similar, functional area of employment.

PURPOSES OF PROGRAMS

The Superintendent may develop career progression programs for the following purposes:

  1. Enhance employee career development.
  2. Facilitate the retention of qualified and experienced staff.
  3. Support strategic planning.
  4. Forecast salary increases for budget purposes.

ESTABLISHMENT OF PROGRAMS AND PROGRAM PROCEDURES

The Superintendent will establish career progression programs to meet the above-stated purposes as the School's fiscal resources permit. Career progression programs will be documented to define levels, identify career ladder versus career path movement, and describe the requirements for progression. The Superintendent may also develop procedures, as needed, to implement personnel actions resulting from career progression programs.

Performance Appraisals Required

An employee shall not be promoted pursuant to a career ladder program unless the employee has received a satisfactory performance appraisal within the previous 12-month period.

A manager or supervisor whose job responsibilities include the performance appraisal of subordinate staff shall not be promoted pursuant to a career ladder program unless performance appraisals for all assigned staff have been completed within the previous 12-month period.

Adopted:          1/26/99

Amended:        1/27/06

Reviewed:       

WITHHOLDING INFORMATION

An attempt by any TSBVI employee to encourage or coerce a child to withhold information from the child’s parent is grounds for discharge or suspension under Education Code 21.104 [ See DFAA and DFAB for probationary contracts] and 21.211 [ See DFBA and DFBB for term contracts].  Education Code 26.008(b)

DISCHARGE OF CONVICTED EMPLOYEES

TSBVI shall discharge an employee if the School obtains information through a criminal history record information (CHRI) review that the employee has been convicted of:

  1. A felony under Penal Code Title 5; or
  2. An offense requiring registration as a sex offender under Code of Criminal Procedure Chapter 62; or
  3. An offense under the laws of another state or federal law that is equivalent to an offense under paragraphs a or b; and, at the time the offense occurred, the victim of the offense was under 18 years of age or was enrolled in a public school; or
  4. Any other felony that demonstrates that it is more likely than not that the applicant would be a danger to him or herself, an employee, student, or visitor to the campus.

Exception

However, the School is not required to discharge an employee if the person committed any felony under Penal Code Title 5 and:

  1. The date of the offense is more than 30 years before June 15, 2007; and
  2. The employee satisfied all terms of the court order entered on conviction; or

Certification to the Commissioner

Each school year, the Superintendent shall certify to the commissioner that the School has complied with the provisions above.   

Sanctions

The State Board for Educator Certification (SBEC) may impose a sanction on an educator who does not discharge an employee if the educator knew that the employee had been adjudicated for or convicted of having an inappropriate relationship with a minor in accordance with Education Code 21.009(e), or should have known, through a criminal history record information review, that the employee has been convicted of an offense referred to above.

SBEC may impose a sanction on a superintendent who falsely or inaccurately certified to the commissioner that TSBVI had complied with Education Code 22.085.  [See Certification to Commissioner, above]

Optional Termination for Failure to Disclose

TSBVI may discharge an employee if the School obtains information of the employee’s conviction of a felony or of a misdemeanor involving moral turpitude that the employee did not disclose to SBEC or the School.  An employee so discharged is considered to have been discharged for misconduct for purposes of Labor Code 207.044 (unemployment compensation). 

Education Code 22.085; 19 TAC 249.15(b)(12),(13) [See DBAA

EMPLOYEE SELF-REPORTS OF CHARGES AND CONVICTIONS

Each TSBVI employee shall report to the Superintendent within seven days of when the employee becomes aware of any arrest, indictment, conviction, no contest or guilty plea, or other adjudication of the employee for any 1) misdemeanor offense contained in Texas Penal Code Title V or Title VI, classified as a crime “against the person” or a crime “against the family”; 2) any felony offense; and 3) any offense whether a misdemeanor or felony which involves either the use of or possession of, or related to, alcohol or any illegal drug.

Failure to make such a report shall be grounds for termination or nonrenewal.

CERTAIN OFFENSES AGAINST CHILDREN

Mandatory Termination

If the School receives notice that SBEC has revoked the certificate of a person based on conviction for a felony under Penal Code Title 5 or an offense requiring registration as a sex offender under Chapter 62 of the Code of Criminal Procedure, and the victim of the offense was under 18 years of age, the Superintendent shall:

  1. Immediately remove the person whose certificate has been revoked from campus or from an administrative office, as applicable, to prevent the person from having any contact with a student; and
  2. If the person is employed under a probationary or term contract:
  3. Suspend the person without pay;
  4. Provide the person with written notice that the person’s contract is void [see Notice to Employee, below]; and
  5. Terminate the employment of the person as soon as practicable.

Education Code 21.058(a), (c)

Discretionary Termination

If TSBVI becomes aware that a person employed by the School under a probationary or term contract has been convicted of or received deferred adjudication for a felony offense, and the person is not subject to the mandatory termination provision above, the School may:

  1. Suspend the person without pay;
  2. Provide the person with written notice that the person’s contract is void [see Notice to Employee, below]; and
  3. Terminate the employment of the person as soon as practicable.

                       

Education Code 21.058(c-1)

Notice to Employee

A person’s probationary or term contract is void if the Superintendent provides written notice to the person, under the mandatory or discretionary termination provisions above, that the person’s contract is void.  Education Code 21.058(c-2)

Appeals

A decision regarding discharge of an employee or refusal to hire an applicant convicted of a felony under Penal Code Title 5, convicted under an offense requiring registration as a sex offender under Code of Criminal Procedure Chapter 62, or convicted of an equivalent offense under the laws of another state or federal law if the victim of the offense was younger than 18 years of age or enrolled in a public school, cannot be appealed under Education Code 21.058, but the employee may file a grievance if the person believes that the School is using incorrect information about such conviction.

A decision regarding discharge of an employee convicted of a felony other than those listed above may be appealed to the Superintendent.  The Superintendent’s decision regarding discharge of a convicted employee may be appealed to the Board.  The decision of the Superintendent regarding refusal to hire a convicted applicant is final and may not be appealed to the Board.

INVALID OR EXPIRED CERTIFICATION

A School employee’s probationary or term contract is void if the employee:

  1. Does not hold a valid certificate or permit issued by SBEC;
  2. Fails to fulfill the requirements necessary to renew or extend the employee’s temporary, probationary, or emergency certificate or any other certificate or permit issued under Education Code Chapter 21, Subchapter B; or
  3. Fails to comply with any requirement under Education Code Chapter 22, Subchapter C [criminal history review, see DBAA], if the failure results in suspension or revocation of the employee’s certificate.

Education Code 21.0031(a)

A certificate or permit is not considered to have expired if:

  1. The employee has completed the requirements for renewal of the certificate or permit;
  2. The employee submitted the request for renewal before the expiration date; and
  3. The date the certificate or permit would have expired is before the date SBEC takes action to approve the renewal of the certificate or permit.

Education Code 21.0031(f)

School’s Options

If TSBVI has knowledge that the employee’s contract is void under Education Code 21.0031(a), the Superintendent may:

  1. Terminate the employee;
  2. Suspend the employee with or without pay; or
  3. Retain the employee for the remainder of the school year on an at-will employment basis in a position that does not require a contract under Education Code 21.002, at the employee’s existing rate of pay or at a reduced rate.

The employee is not entitled to the minimum salary prescribed by Education Code 21.402.

Education Code 21.0031(b)

Exception

The School may not terminate or suspend an employee under 21.0031(b) because of the employee’s lack of a valid certificate or permit, or failure to renew or extend a certificate or permit, if:

  1. The employee requests an extension from SBEC to renew, extend, or otherwise validate the employee’s certificate or permit; and
  2. Not later than the tenth day after the date the contract is void, the employee takes necessary measures to renew, extend, or otherwise validate the employee’s certificate or permit, as determined by SBEC.

Education Code 21.0031(b-1)

No Appeal Or Chapter 21 Hearing

The School’s decision under Education Code 21.0031(b) is not subject to appeal under Education Code Chapter 21, and the notice and hearing requirements of this chapter do not apply to the decision.  Education Code 21.0031

Applicability

These void contract provisions do not affect the rights and remedies of a party in an at-will employment relationship and do not apply to a certified teacher assigned to teach a subject for which the teacher is not certified.

Education Code 21.0031; Nunez v. Simms, 341 F.3d 385 (5th Cir. 2003)

REPORT TO SBEC OF EDUCATOR MISCONDUCT

In addition to the reporting requirement under Family Code 261.101[see FFG], the Superintendent must file a written report with SBEC not later than the seventh day after the Superintendent first obtains or has knowledge of information indicating that a certificate holder’s employment at the School was terminated under Education Code 21.006.  [See DH and DHB]

Education Code 21.006; 19 TAC 249.14(d); 19 TAC 249.3(1); Family Code 261.001; 19 TAC 249.3(51)

Report to Superintendent

A Principal shall report the educator’s termination to the Superintendent if the conditions set forth at Education Code 21.006 exist.  [See DP]

falsification of military record

A district may discharge an employee, regardless of whether the employee is employed under an employment contract, if the district determines, based on a reasonable factual basis, that the employee, in obtaining the employee’s employment or any benefit relating to the employee’s employment, falsified or otherwise misrepresented any information regarding the employee’s military record in a manner that would constitute an offense under Penal Code 32.54.

An employment contract entered into by a district with an employee discharged by the employer under Labor Code Chapter 105 is void and unenforceable as against public policy.  [See DF series]

Labor Code Ch. 105

Immunity

If the Superintendent or Principal in good faith and while acting in an official capacity files a report with SBEC, or communicates with another superintendent or principal concerning an educator’s criminal record or alleged misconduct the Superintendent/Principal is immune from civil or criminal liability that might otherwise be incurred or imposed.

Education Code 21.006(e)

Adopted:         3/7/80

Amended:       1/26/90, 9/27/91, 5/26/94, 11/17/95, 5/31/01, 4/1/05, 6/4/08, 4/5/13, 4/4/14, 1/25/19

Reviewed:       1/26/99

DISCHARGE

Any probationary contract employee may be discharged at any time for good cause as determined by the Board.  "Good cause" is the failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts inTexas.  Education Code 21.104(a)

NOTICE TO SBEC

(See policy  DF regarding circumstances in which a certified employee’s dismissal must be reported to the State Board of Educator Certification.) Note: See DF regarding circumstances in which a certified employee's dismissal must be reported to the State Board for Educator Certification (SBEC).

SUSPENSION

The Board delegates to the Superintendent, authority to suspend for good causes defined above, a probationary contract employee without pay in lieu of discharge or pending discharge.  The period of suspension may not exceed beyond the end of the current school year.  Education Code 21.104(b)

NOTICE

Before any probationary contract employee is dismissed or suspended without pay for good cause, the employee shall be given reasonable notice in writing of the charges against him or her and an explanation of the School’s evidence, set out in sufficient detail to fairly enable the employee to show any error that may exist.  Cleveland Bd. of Educ. v. Loudermill, 105 S.Ct. 1487 (1985)

HEARING

If the employee is protesting proposed action to suspend or terminate a probationary contract for good cause, under Education Code 21.104, the employee is entitled to a hearing before an independent hearing examiner under Education Code Chapter 21, Subchapter F [see DFD].

If a probationary contract employee who has received notice of proposed termination desires a hearing before an independent hearing examiner, the employee must file a written request with the commissioner of education not later than the 15th day after the date the employee receives notice of the proposed termination.  The employee must provide the School with a copy of the request and must provide the commissioner with a copy of the notice.

EXCEPTION

If the employee is protesting proposed action to terminate a probationary contract before the end of the contract period on the basis of a financial exigency declared under Education Code 44.011 [see CEA], the employee is entitled to a hearing in the manner provided under Education Code 21.207 for nonrenewal of a term contract [see DFBB] or a hearing under Education Code Chapter 21, Subchapter F, as determined by the Board.  Education Code 21.1041

Adopted:          11/17/95

Amended:        11/30/01, 1/24/02, 4/1/05, 4/5/13, 1/31/20

Reviewed:        1/26/99

GROUNDS FOR TERMINATION

A probationary contract employee may be terminated at the end of the contract period if the Board determines that such termination will serve the best interests of the School.

NOTICE

The Board shall give the employee notice of its decision to terminate the employment not later than the 10th day before the last day of instruction required under the contract.

The notice must be delivered personally by hand delivery on the campus at which the employee is employed.  If the employee is not present on the campus on the date that hand delivery is attempted, the notice must be mailed by prepaid certified mail or delivered by express delivery service to the employee’s address of record with the School.  Notice that is postmarked on or before the tenth day before the last day of instruction is considered timely for these purposes.
Education Code 21.103(a)

NO APPEAL

The Board's decision to terminate a probationary employee at the end of a contract period is final and may not be appealed. Education Code 21.103(a)

FAILURE TO NOTIFY

Failure to give a probationary employee notice of termination within the time period described above obligates the Board to employ the probationary employee for the following school year.  The contract will be for a position in the same capacity under:

  1. A probationary contract, if the person has been employed under a probationary contract for less than three consecutive school years; or
  2. A continuing or term contract according to TSBVI policy, if the person has been employed under a probationary contract for three consecutive school years. Education Code 21.103(b)

 
Adopted:         11/17/95
Amended:        1/24/02, 4/5/13
Reviewed:       1/26/99                                   

UPON REASSIGNMENT

An employee may be employed under a probationary contract if the employee voluntarily accepts an assignment in a new professional capacity that requires a different class of certificate under Education Code Chapter 21, Subchapter B than the class of certificate held by the employee in the professional capacity in which the employee was previously employed.

This provision does not apply to an employee who is returned by the School to a professional capacity in which the employee was employed by the School before the School employed the employee in the new professional capacity. 

The employee is entitled to be employed in the original professional capacity under the same contractual status as the status held by the employee during the previous employment by the School in that capacity.

Education Code 21.102(a-1) [See 19 TAC 230.33 for list of certificate classes]

IN LIEU OF DISCHARGE, TERMINATION, OR NONRENEWAL

In lieu of terminating a term contract employee, or not renewing a term contract, the School may, with written consent of the employee, return the employee to probationary contract status.  Education Code 21.106(a)

AFTER BOARD PROPOSAL

Except as provided below, an employee may agree to be returned to probationary status only after receiving written notice that the Board has proposed discharge, termination, or nonrenewal. [See DF series]

AFTER NOTICE FROM SUPERINTENDENT

An employee may agree to be returned to probationary contract status after receiving written notice of the superintendent's intent to recommend discharge, termination, or nonrenewal.

Notice

The notice must inform the employee of the School’s offer to return the employee to probationary contract status, the period during which the employee may consider the offer, and the employee's right to seek counsel. The School must provide the employee at least three business days after the employee
receives the notice to agree to be returned to probationary contract status. This provision does not require a superintendent to provide notice of intent to recommend discharge, termination, or nonrenewal.
Education code 21.106(d)

NEW PROBATIONARY PERIOD

An employee returned to probationary status must serve a new probationary period as if the employee were employed by the School for the first time.  Education Code 21.106(c)

Adopted:          1/26/96
Amended:         9/26/97, 4/1/05, 4/5/13
Reviewed:        1/24/02

SUSPENSION WITHOUT PAY  

The Board may, for good cause as determined by the Board, suspend a contract employee without pay:

  1. pending discharge, or
  2. in lieu of termination.

The suspension may not extend beyond the end of the school year. 

Education Code 21.211(b)

Back-Pay

If no discharge occurs subsequent to a suspension without pay, the employee is entitled to back pay for the period of suspension.  Education Code 21.211(c)

GROUNDS FOR DISMISSAL

The Board may terminate a term contract and discharge an employee at any time for:

  1. Good cause as determined by the Board; or
  2. A financial exigency that requires a reduction in personnel.

Education Code 21.211(a)

Notice

Before any term contract employee is dismissed for good cause, the employee shall be given reasonable notice, in writing, of the charges against him or her and an explanation of the School's evidence set out in sufficient detail to fairly enable the employee to show any error that may exist.  Cleveland Bd. of Educ. v. Loudermill,  470 U.S. 532 (1985)

HEARING

If a term contract employee desires a hearing before an independent hearing examiner, the employee must file a written request with the commissioner of education not later than the 15th day after the date the employee receives notice of the proposed termination or suspension without pay.  The term contract employee must provide the School's Director of Human Resources with a copy of the request and must provide the commissioner with a copy of the notice.  Policy DFD contains the process for a contract employee to request a hearing before an independent hearing examiner.

The parties may agree in writing to extend by not more than ten days the deadline for requesting a hearing.

Education Code 21.251(a),.253 [See DFD]

FINANCIAL EXIGENCY

An employee who is protesting proposed action to terminate a term contract at any time on the basis of a financial exigency declared under Education Code 44.011 [see CEA] that requires a reduction in personnel must notify the Board in writing not later than the tenth day after the date the employee receives notice of the proposed action.  The employee is entitled to a hearing in the manner provided under Education Code 21.207 for nonrenewal of a term contract [see DFBB] or a hearing under Education Code Chapter 21, Subchapter F, as determined by the Board.  Education Code 21.159

DEFINITION OF "DAY"

The definition of "day" means calendar day unless otherwise defined in law or Board policy.

In computing any period of time prescribed or allowed by this policy, the day of the aggrieved act, event, or default after which the designated period of time begins to run is not to be included.  The last day of the period is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.  Saturdays, Sundays and legal holidays shall not be counted for any purpose in any time period of five days or less in this policy (or applicable law).  The day on which a grievance is filed is not to be counted in calculating the designated period of time.  If a complaint is received by mail, the date of the filing is the date of the postmark. 

Texas Rules of Court, Part I, Rule 4. 

SUSPENSION WITH PAY

The employee may be suspended with pay pending the outcome of an investigation or the dismissal process. 

report by principal

The Principal must notify the Superintendent not later than the seventh business day after the date of an educator’s termination of employment or resignation following an alleged incident of misconduct described by Education Code 21.006(b) [see DP].  Education Code 21.006(b-2); 19 TAC 249.14(e)

NOTICE TO SBEC

The circumstances in which a certified employee's dismissal will be reported to the State Board of Educator Certification are contained in Board Policy DF.

Adopted:         7/13/79

Amended:       3/7/80, 9/9/83, 6/29/84, 11/9/84, 9/15/88, 1/26/90, 5/26/94, 11/17/95, 1/26/99, 1/24/02, 4/1/05, 4/5/13, 10/3/14, 11/21/14, 1/25/19

Reviewed:       5/24/96

DEFINITION OF "TEACHER"

As used in this policy, the term "teacher" means a principal, supervisor, classroom teacher, counselor, or other full-time professional employee who is required to hold a certificate issued under Subchapter B, Chapter 21, except the term does not include a superintendent, a professional licensed to provide direct services to students, or any employee who does not provide direct and regular services to students at the school.

DEFINITION OF "DAY"

The definition of "day" means calendar day unless otherwise defined in law or Board policy.

In computing any period of time prescribed or allowed by this policy, the day of the aggrieved act, event, or default after which the designated period of time begins to run is not to be included.  The last day of the period is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.  Saturdays, Sundays and legal holidays shall not be counted for any purpose in any time period of five days or less in this policy (or applicable law).  The day on which a grievance is filed is not to be counted in calculating the designated period of time.  If a complaint is received by mail, the date of the filing is the date of the postmark. 

Texas Rules of Court, Part I, Rule 4. 

GROUNDS FOR NONRENEWAL

The Board may terminate a term contract for a financial exigency that requires a reduction in personnel.  Education Code 21.211(a) [See CEA]

EVALUATIONS

Before making a decision not to renew a term contract, the Board shall consider the most recent evaluations if the evaluations are relevant to the reason for the Board's action.  Education Code 21.203(a)

In the case of a classroom teachers, the School shall use the teacher's consecutive appraisals from more than one year, if available, in making employment decisions.  Education Code 21.352(e)

(See DNA and DNB)

REASONS FOR NONRENEWAL OF TEACHER CONTRACT

The recommendation to the Board and its decision not to renew a contract under this policy shall not be based on a teacher's exercise of Constitutional rights, or based unlawfully on an employee's race, color, religion, sex, national origin, disability, or age.

Reasons for proposed nonrenewal of a professional certified employee's contract, other than contracts issued in accordance with Education Code 30.024(b), shall be:

  1. Deficiencies pointed out in observation reports, appraisals or evaluations, supplemental memoranda, or other communications of which the professional has notice, whether the communication was directed to such person.
  2. Failure to fulfill duties or responsibilities.
  3. Incompetency or inefficiency in the performance of duties.
  4. Inability to maintain discipline in any situation in which the employee is responsible for the oversight and supervision of students.
  5. Insubordination or failure to comply with official directives.
  6. Failure to comply with Board policies or administrative regulations.
  7. Excessive absences.
  8. Conducting personal business during school hours when it results in neglect of duties.
  9. Reduction in force because of decline in TSBVI enrollment, financial exigency, or a change in programs.
  10. Drunkenness or excessive use of alcoholic beverages; or possession, use, or being under the influence of alcohol or alcoholic beverages while on school property, while working in the scope of the employee’s duties, or while attending any school activity.
  11. The illegal possession, use, manufacture, or distribution of a controlled substance, a drug, a dangerous drug, hallucinogens, or other substances regulated by state statutes.
  12. Conviction of a felony, or any crime involving moral turpitude.
  13. Failure to report within seven days any arrest, indictment, conviction, no contest or guilty plea, or other adjudication for any misdemeanor offense contained in Texas Penal Code Title V or Title VI, classified as a crime “against the person” or a crime “against the family”, any felony offense, or any offense whether a misdemeanor or felony which involves either the use of or possession of, or related to, alcohol or any illegal drug.   [See Policy DBAA]
  14. Use of a computer, school mail, or any other means of communication in a manner that is harassing, offensive, or disruptive to school operations.
  15. Failure to meet the School's standards of professional conduct.
  16. Misappropriation of public funds.
  17. Theft of School property.
  18. Failure to comply with reasonable School requirements regarding advanced course work or professional improvement and growth.
  19. Disability, not otherwise protected by law, that prevents the employee from performing the essential functions of the job.
  20. Any activity, school-connected or otherwise, that because of the publicity given it or knowledge of it among students, faculty, and community, impairs or diminishes the employee's effectiveness in the School.
  21. Any breach by the employee of an employment contract or any reason specified in the  employee’s employment contract.
  22. Failure to maintain an effective working relationship or maintain good rapport with parents, the community, or colleagues.
  23. A significant lack of student progress attributable to the educator.
  24. Behavior that presents a danger of physical harm to a student or to other individuals.
  25. Assault on a person on school property or at a school-related function, or on an employee, student, or student’s parent regardless of time or place.
  26. Use of profanity in the course of performing any duties of employment, whether on or off school premises, in the presence of students, staff, or members of the public, if reasonably characterized as unprofessional.
  27. Falsification of records or other documents related to the School's activities.
  28. Falsification or omission of required information on an employment application.
  29. Misrepresentation of facts to a supervisor or other TSBVI official in the conduct of TSBVI business.
  30. Failure to fulfill the requirements for certification, including passing certification examinations required by state law for the employee’s assignment and the requirement to obtain visually handicapped endorsement within the required timeline.
  31. Failure to achieve or maintain “highly qualified” status as required for the employee’s assignment.
  32. Failure to fulfill the requirements of a deficiency plan under an Emergency Permit, a Special Assignment Permit, or a Temporary Classroom Assignment Permit.
  33. Abandonment of contract with the School.
  34. Any attempt to encourage or coerce a child to withhold information from the child's parent or from other School personnel.
  35. The solicitation, encouragement, insinuation, or consummation of an inappropriate written, verbal, or physical relationship with a student.
  36. Violation of the privacy rights of students under the federal Family Education Rights and Privacy Act (FERPA) and the Individual with Disabilities Act (IDEA).
  37. Any reason that makes the employment relationship void or voidable, such as a violation of federal, state, or local law.
  38. Reasons constituting good cause for dismissing the employee during the contract term.

NOTICE TO TEACHERS

Not later than the tenth day before the last day of instruction in a school year, the Board shall notify in writing each employee whose contract is about to expire whether the Board proposes to renew or not renew the contract.

The notice must be delivered personally by hand delivery to the employee on the campus.  If the employee is not present on the campus on the date that hand delivery is attempted, the notice must be mailed by prepaid certified mail or delivered by express delivery service to the employee’s address of record with the School.  Notice that is postmarked on or before the tenth day before the last day of instruction is considered timely for these purposes.

Failure to Provide Timely Notice

The Board's failure to give notice of a proposed renewal or nonrenewal constitutes an election to employ the teacher in the same professional capacity for the following school year.

Education Code 21.206

REQUEST FOR HEARING

If the teacher desires a hearing after receiving notice of the proposed nonrenewal, the employee shall notify the Board in writing not later than the 15th day after:

  1. The date the teacher receives hand delivery of the notice of proposed nonrenewals;
  2. or The date the notice is delivered to the teacher’s address of record with the School, if the notice is mailed by prepaid certified mail or delivered by express delivery service.

The Board shall provide for a hearing to be held not later than the 15th day after receiving written notice from the teacher requesting a hearing, unless the parties agree in writing to a different date.   The hearing shall be closed unless the employee requests an open hearing and shall be conducted in accordance with rules adopted by the School.

Education Code 21.207(a)

BOARD HEARING

At the hearing before the Board the teacher may: 

  1. Be represented by a representative of the teacher’s choice;
  2. Hear the evidence supporting the reason for nonrenewal;Cross-examine adverse witnesses; and
  3. Present evidence.

Education Code 21.207(c)

BOARD DECISION

To evaluate the evidence put before it, the Board shall use the preponderance of the evidence standard of review.  Whitaker v. Marshall Indep. Sch. Dist., Tex. Comm’r. of Educ. Decision No. 112-R1-598 (1998)

Following the hearing, the Board shall take the appropriate action and notify the employee in writing of that action within 15 days following the conclusion of the hearing.  Education Code 21.208

HEARING EXAMINER

The Board may use the process described at DFD.   Education Code 21.207(b)

NO HEARING

If the teacher fails to request a hearing, the Board shall take the appropriate action and notify the teacher in writing of that action not later than the 30th calendar day after the date the notice of proposed nonrenewal was sent.  Education Code 21.208

APPEALS

A teacher aggrieved by a decision of the Board to nonrenew a term contract may appeal to the commissioner for a review of the Board's decision.  Education Code 21.209

CONTRACTS NOT COVERED BY EDUCATION CODE CHAPTER 21

When the Board enters into a contract under Education Code 30.024(b) with any employee except for a teacher, as that term is defined in that subsection, that contract shall not be subject to the provisions of Education Code Chapter 21 or this policy.

Adopted:          1/13/81

Amended:        11/11/83, 6/29/84, 11/9/84, 7/12/85, 1/23/87, 5/29/87, 1/14/88, 6/1/89, 1/26/90, 11/30/90, 5/30/91, 9/27/91, 5/26/94, 11/17/95, 5/24/96, 3/21/97, 1/28/00, 7/26/02, 4/1/05, 4/5/13, 4/4/14, 10/3/14, 11/21/14

Reviewed:        

APPLICABILITY

This hearing process applies only if a teacher or other professional staff member serving under a probationary or term contract (see Policy DFBB) requests a hearing after receiving notice of a proposed decision to:

  1. Terminate a probationary or term contract before the end of the contract period, except as provided below; or
  2. Suspend without pay.

Exception

This hearing process before a hearing examiner does not apply to a decision to:

  1. Terminate a probationary contract at the end of the contract term.
  2. Not renew a term contract, unless a board has adopted this process for nonrenewals; or
  3. Terminate a probationary or term contract before the end of the contract period based on a financial exigency declared under Education Code 44.011 [see CEA] that requires a reduction in personnel, unless the board has decided to use this hearing process.
  4. The Board may use the hearing process before a hearing examiner as described in the following section and in Education Code 21.207(b) for nonrenewal of a term contract or termination of a probationary or term contract based on financial exigency.

Education Code 21.251

DEFINITION OF "DAY"

In computing any period of time prescribed or allowed by this policy, the day of the aggrieved act, event, or default after which the designated period of time begins to run is not to be included.  The last day of the period is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.  Saturdays, Sundays and legal holidays shall not be counted for any purpose in any time period of five days or less in this policy (or applicable law).  Texas Rules of Court, Part I, Rule 4.  As used in this policy, the term "day", unless otherwise specified, means business days Monday-Friday unless one or more of those days is a legal holiday or is considered a school closure as defined annually by the Superintendent.

REQUEST FOR HEARING BEFORE A HEARING EXAMINER

Not later than the 15th day after the date the employee receives notice of one of the proposed contract actions listed above, the employee must file a written request with the Commissioner of Education for a hearing before a hearing examiner. The employee must provide the School with a copy of the request and must provide the Commissioner with a copy of the notice.  The Board designates the School's Director of Human Resources to receive the employee's copy of the request for a hearing.  The parties may agree in writing to extend by not more than ten days the deadline for requesting a hearing.

Education Code 21.253

ASSIGNMENT OF HEARING EXAMINER BY AGREEMENT

The parties may agree to select a hearing examiner from the list maintained by the Commissioner or a person who is not certified to serve as a hearing examiner, provided that person is licensed to practice law in Texas. If the parties agree on a hearing examiner, the parties shall, before the date the Commissioner is permitted to assign a hearing examiner, notify the Commissioner in writing of the agreement, including the name of the hearing examiner selected.

BY APPOINTMENT

If the parties do not select a hearing examiner by agreement, the Commissioner shall assign the hearing examiner not earlier than the sixth business day and not later than the tenth business day after the date on which the Commissioner receives the request for a hearing. When a hearing examiner has been assigned, the Commissioner shall notify the parties immediately.

Rejection

The parties may agree to reject a hearing examiner for any reason and either party is entitled to reject an assigned hearing examiner for cause. A rejection must be in writing and filed with the Commissioner not later than the third day after the date of notification of the hearing examiner's assignment. If the parties agree to reject the hearing examiner or if the Commissioner determines that one party has good cause for the rejection, the Commissioner shall assign another hearing examiner.

FINALITY OF DECISION

After the employee receives notice of the proposed contract action, the parties may agree in writing that the hearing examiner's decision be final and nonappealable on all, or some, issues.
Education Code 21.254

POWERS OF HEARING EXAMINER

The hearing examiner may issue subpoenas, administer oaths, rule on motions and the admissibility of evidence, maintain decorum, schedule and recess the proceedings, allow the parties to take depositions, or use other means of discovery, and make any other orders as provided by Commissioner rule.

CONDUCT OF HEARING

The hearing and any depositions must be held within the geographical boundaries of the regional education service center that serves the School.
Education Code 21.255

Schedule Restriction

A hearing before a hearing examiner may not be held on a Saturday, Sunday, or a state or federal holiday, unless all parties agree.

Education Code 21.257(c)

Private

A hearing before a hearing examiner shall be private unless the employee makes a written request for a public hearing.

Exception

If necessary to maintain decorum, the hearing examiner may close a hearing that an employee has requested be public.

Protection of witnesses

To protect the privacy of a witness who is a child, the hearing examiner may close the hearing to receive the testimony or order that the testimony be presented by procedures in Article 38.071, Code of Criminal Procedure.

Employee Rights

At the hearing, the employee has the right to:

  1. Be represented by a representative of the employee's choice;
  2. Hear the evidence on which the charges are based;
  3. Cross-examine each adverse witness; and
  4. Present evidence.

The hearing is not subject to the Administrative Procedure Act.

The hearing shall be conducted in the same manner as a trial without a jury in state district court. A certified shorthand reporter shall record the hearing.

Evidence

The Texas Rules of Civil Evidence shall apply at the hearing. An evaluation, or appraisal, of the teacher is presumed to be admissible at the hearing. The hearing examiner's findings of fact and conclusions of law shall be presumed to be based only on admissible evidence.

Burden of Proof

The School has the burden of proof by a preponderance of the evidence at the hearing.  Education Code 21.256

Costs

The School shall bear the cost of the services of the hearing examiner and certified shorthand reporter and the production of any original hearing transcript. Each party shall bear its costs of discovery, if any, and its attorney's fees.  Education Code 21.255(e)

RECOMMENDATION

Not later than the 60th calendar day after the date on which the Commissioner receives a request for a hearing before a hearing examiner, the hearing examiner shall complete the hearing and make a written recommendation. The recommendation must include findings of fact and conclusions of law.

The recommendation may include a proposal for granting relief, including reinstatement, back pay, or employment benefits. The proposal for relief may not include attorney's fees or other costs associated with the hearing or appeals from the hearing. The hearing examiner shall send a copy of the recommendation to each party, the Board President, and the Commissioner.

Waiver of Deadline

The parties may agree in writing to extend by not more than 45 calendar days the right to a recommendation by the date specified above.

Education Code 21.257

CONSIDERATION

The Board, or a designated subcommittee, shall consider the hearing examiner's record and recommendation at the first Board meeting for which notice can be posted in compliance with the open meetings laws.

ORAL ARGUMENT AND RECORDING

At the meeting, the Board or subcommittee shall allow each party to present an oral argument to the Board, or subcommittee. The Board by this written policy limits the amount of time for oral argument, provided equal time is allotted each party. A certified shorthand reporter shall record any such oral argument.

Legal Advice

The Board, or subcommittee, may obtain advice from an attorney who has not been involved in the proceedings.

Education Code 21.258, 21.260

DECISION

Not later than the 10th day after the date on which the meeting to consider the hearing examiner's recommendation is held, the Board, or subcommittee, shall announce its decision, which must include findings of fact and conclusions of law, and may include a grant of relief.

The Board or subcommittee may adopt, reject, or change the hearing examiner's conclusions of law, or proposal for granting relief.  A determination by the hearing examiner regarding good cause for the suspension of an employee without pay or the termination of a probationary or term contract is a conclusion of law and may be adopted, rejected, or changed by the Board or board subcommittee.

The Board may reject or change a finding of fact made by the hearing examiner:

  1. Only after reviewing the record of the proceedings; and
  2. Only if the finding of fact is not supported by substantial evidence.

The Board or subcommittee shall state in writing the reason for and legal basis for a change or rejection.

Education Code 21.257; .259

Recording

A certified shorthand reporter shall record the announcement of the decision. The School shall bear the cost of the reporter's services.  Education Code 21.260

RECORD OF PROCEEDINGS

The Commissioner shall consider the appeal solely on the basis of the local record and may not consider any additional evidence or issue. Education Code 21.301(c)

The record of the proceedings before the independent hearing examiner shall include:

  1. The transcripts of proceedings at the local level;
  2. All evidence admitted;
  3. All offers of proof;
  4. All written pleadings, motions, and intermediate rulings;
  5. A description of matters officially noticed;
  6. If applicable, the recommendation of the independent hearing examiner;
  7. The transcript of the oral argument before the board or board subcommittee;
  8. The decision of the board or board subcommittee; and
  9. If applicable, the board or board subcommittee's written reasons for changing the recommendation of the independent hearing examiner.

19 TAC 157.1072(e)

Adopted:          1/17/95
Amended:        4/1/05, 5/23/07, 4/5/13, 10/3/14
Reviewed:        1/26/99