“nonprobationary status,” our only concern is the rights afforded to the employee. The timing of when an employee receives certain rights as a tenured or nonprobationary status employee is now clearly defined in Students First. The old tenure act previously granted continuing service status upon a teacher once the teacher had been employed by the board for three consecutive school years and re-employed for a fourth. What exactly did that mean? According to the Alabama appellate courts, any employment during a school year counted toward gaining continuing service status. (Springfield v. Talladega City Board of Education, 628 So. 2d 704 [Ala. Civ. App. 1993].) Therefore, even teachers who started well after the beginning of the school year were given credit for having served the entire school year. Under Students First, a teacher will have to be employed prior to Oct. 1 of the school year and complete the school year for that year to count toward attaining tenure status. Classified employees gain nonprobationary status in the same manner as teachers under Students First. The new legislation also prohibits certified tenured service from counting toward classified nonprobationary status service and vice versa. The tenure and fair dismissal acts were silent on this issue, but the Alabama Supreme Court has at least on one occasion allowed a tenured, certified employee to apply his tenure toward a classified position. (Ex parte Oden, 495 So. 2d 664 [Ala. 1986].) The court justified this decision based upon the premise that the old tenure act should be liberally construed in favor of the teacher. Now, the issue is no longer ambiguous and courts have clear language to cite in future cases.
Dismissal Termination or dismissal under Students First provides a meaningful role for the board. The tenure and fair dismissal acts provided the employee with an optional conference before the board and a full evidentiary hearing before an arbitrator. Now, there is a full evidentiary hearing before the board. The board will have the charge of weighing the evidence, considering all of the facts and rendering a decision. The compensation to a terminated employee ends after the board’s hearing for specified grounds but others receive 75 days of severance pay. The appeal of a termination no longer requires the appointment of a hearing officer (arbitrator) from the Federal Mediation and Conciliation Services and instead allows parties to choose a hearing officer from a panel of neutrals (retired Alabama judges) supplied by the Alabama Bar Association. More importantly, the hearing officer must give deference to the board’s decision. As a school board attorney, the termination process provided by the Students First Act gives great possibility for school boards to successfully terminate employees who have committed egregious acts with a lessened fear that the decision will be overturned by an out-of-state arbitrator who is not accountable to the public. Nonetheless, the change places a great responsibility on the board of education.
The board is given great authority and deference in terminating an employee under the Students First Act, so the board is required to be present and involved in a hearing that allows the employee to present witnesses, cross-examine the administration’s witnesses and present their best case in favor of maintaining employment. The faster elimination of compensation and elimination of the criminal stay after the board hearing are other great changes under Students First. My first Fair Dismissal Act case involved an employee who admitted to the administration that she had stolen money from a school’s child nutrition program. She even pled guilty to theft charges related to the same incident. An easy win for the school board, right? Well, not exactly. Even though she pled guilty to criminal charges, the employee contested her termination and then requested a stay from the circuit court on the termination proceedings until she was sentenced for her crime. The court granted the stay because there was a possibility that testimony given in the personnel hearing could affect her criminal sentencing. A year and a half later, the employee was sentenced to probation and restitution and then retired from the school system. She remained on payroll the entire time. This was a classic case of an employee contesting simply to take advantage of the continued compensation.
Updating Policies The Alabama Teacher Tenure Act and Alabama Fair Dismissal Act are repealed by the Students First Act. Any time a statute is repealed, updating board policies is a must. School boards should use this change in the law to create policies that model the advice that has been consistently given to us by the Alabama Association of School Boards, which is to create simple policies that can stand the test of time. There is no need for us to recite the Students First Act verbatim in our policy manuals. Many of our boards have references to the tenure and fair dismissal laws in their manuals. These references should be eliminated to prevent any argument that the school board intended to confer any additional rights that are not granted under the Students First Act. n Ramadanah Salaam Jones is staff attorney for the Montgomery County Board of Education.
Free Students First Conference Calls Join AASB from 1:30 to 3 p.m. on June 23
and June 29 for free conference calls on the new Students First Act of 2011. The calls will feature AASB Executive Director Sally Howell and veteran school board attorneys Carl Johnson and Jayne Williams Harrell. To register, contact your board secretary.
Alabama School Boards • Summer 2011 33