The important issues of liability for superintendents and other district administrators for retaliation against school district employees and the tenure status of teachers with emergency permits were recently decided by State and federal courts of appeal.
I. SUPERINTENDENT AND ASSISTANT SUPERINTENDENT LIABLE FOR ACTS OF RETALIATION AGAINST TEACHER
A Clark County teacher was reinstated to her position and awarded $135,000 after being terminated for writing a letter to Nevada state senators criticizing a new program being implemented in her district. A year later the teacher filed another lawsuit in federal court alleging that the district retaliated against her for filing her original lawsuit. The Court of Appeal held that the superintendent and assistant superintendent were personally liable for retaliating against the teacher because they were "final policymakers".
Under federal law, which would be applicable in California as well as Nevada, an individual who has final policymaking authority in the school setting is one who has authority in a particular area or on a particular issue. In this district, board policy stated that the board did not have authority to discipline employees. Discipline was a right reserved to the superintendent and other district administrators.
A jury found that there had been acts of retaliation against the teacher because of her initial lawsuit. In a memo, the assistant superintendent directed that all disciplinary actions relating to the teacher, including all documents she was given, were to be submitted to his office prior to any action being taken against the teacher. Because of this memo, the jury found that the assistant superintendent had ratified the acts of retaliation. The trial court and the Court of Appeal found that board policy expressly stated that the board had no authority to review decisions regarding discipline. Therefore, the superintendent and the assistant superintendent were the final policymakers in this matter and were personally liable for the acts of retaliation against the teacher.
PRACTICE POINTER: High level supervisors must make sure that lower level employees are not engaging in retaliatory behavior and that disciplinary action can be shown to be justified on grounds other than retaliation. A review of board policy may be in order to establish where the final policymaking authority lies with respect to the discipline of employees in your district.
II. COURT CONFIRMS THAT SERVICE UNDER ANEMERGENCY PERMIT DOES NOT COUNT TOWARD TENURE
A teacher who had served his first year in the district under an emergency permit and his second year under a preliminary credential unsuccessfully argued that because he had served for two complete consecutive school years in a position requiring certification qualifications, he was entitled to a notice of nonreelection before March 15 of the second year in order for him to be nonreelected at the end of his second year of service.
The trial court and the Court of Appeal disagreed, reaffirming the language found in Education Code section 44911 which states: “Service by a person under a provisional credential [emergency permit] shall not be included in computing service required as a prerequisite to attainment of, or eligibility to, classification as a permanent employee of a school district.”
By this decision, the court further limited the Golden Valley decision, which held that, for the purposes of mid-year dismissal a teacher who held an emergency permit could qualify as a probationary employee, stating that the Golden Valley decision did not address the nonreelection of probationary employees.
HOW THIS AFFECTS SCHOOL DISTRICTS
This decision buttresses the rule that service under an emergency permit does not advance an employee toward tenure regardless of his/her subsequent employment status. The significance of this decision is the court’s reluctance to extend the Golden Valley decision beyond its application to mid-year dismissals of probationary teachers. The decision supports the argument that, for layoff purposes, a teacher who has more seniority by virtue of serving under an emergency permit should not be permitted to bump a less senior probationary teacher who served at all times under a regular credential.