Published by MARE, February 2012
As the superintendent for your school district you have many responsibilities. One such responsibility, and perhaps the most important, is to ensure that you employ competent professionals to help run the day to day operations at the district’s school buildings. Those competent professionals, a.k.a. principals and assistant principals, are then tasked with the responsibility of hiring competent teachers. Those competent teachers are then tasked with the ultimate responsibility of facilitating learning and developing the minds of the district’s students. Thus, with circular logic, it can be said that without solid leadership, students suffer. As superintendent, you do your best in hiring competent principals and assistant principals so that the district’s schools will operate and function at a high level. However, sometimes you get it wrong. Sometimes you hire an individual that is not up to the task. In a situation such as this, what are you and your board of education to do? The simple answer is to non-renew the principal’s or assistant principal’s administrative contract.[1] However, in making the determination to non-renew, don’t forget about the “forgotten hearing”….
It is common knowledge that school administrators are ineligible for tenure in their administrative position and, thus, are not entitled to the same sorts of protections tenured teachers are provided under the Teacher Tenure Act. However, there is one statute in particular that does provide administrators, and more specifically, principals and assistant principals, with some level of protection if they are ultimately non-renewed in their position as an administrator.
Specifically, RSMo. § 168.101.6 provides as follows:
If such certificated employee has been reemployed five times within the district, the school board, if requested in writing by such certificated employee within ten days after receipt of notice of demotion or lack of reemployment on the same terms and in the same staff position, shall make available in writing a statement of reasons for demotion or lack of reemployment within ten days after receipt of the request. The board shall grant such certificated employee a hearing if requested in writing by him within ten days after the receipt of statement of reasons, the hearing to be held within ten days after the request therefore, and to be open at the request of the certificated employee. The certificated employee may have counsel at the hearing, may testify and offer testimony of witnesses as well as other evidence sustaining his defense and may cross-examine adverse witnesses.
(emphasis added).
By the plain language of the statute, a principal or assistant principal, if having been reemployed five times within the same district in the same position, is non-renewed as an administrator; they are entitled to a hearing before the board of education. Thus, it follows that if a board of education is contemplating non-renewing a principal or assistant principal that has not been reemployed five times in that same position, then this statutory provision does not apply and a district may non-renew the administrator without fear of providing a hearing.[2]
Many superintendents and boards of education misconstrue the “reemployed five times” provision. The term “reemployed” carries with it an implied requirement that one must first be “employed.” To state that one must be reemployed five times means that the administrator must be in his or her sixth contract in that same administrative position. Also, to be clear, the five year reemployment provision applies to principals or assistant principals who have been reemployed five times in that same position, not as a teacher and then as an administrator. See Beal v. Board of Educ., Laclede County Sch. Dist. R-I, 637 S.W.2d 309 (Mo. Ct. App. 1982) (“reemployed five times” meant reemployed as a principal, and thus high school principal, who had combined employment in district as teacher and as principal for 27 years but who had not been reemployed five times within the district as principal, was not entitled to statutory procedures relative to appeal of school board actions). Thus, as a practical matter, before a board of education decides to renew or non-renew an administrator, the board needs to determine how many times the administrator has been reemployed in that same administrative position. If the administrator is struggling and the board feels that said administrator will not make significant improvement before he or she has been reemployed five times, the board may want to move to non-renew sooner than they had intended to avoid the possibility of a hearing.
Section 168.101.6 further provides that upon request and within 10 days of having been non-renewed in their position as an administrator, the district must provide the principal or assistant principal with a statement of reasons for their demotion or lack of reemployment in that same position. As such, a statement of reasons is not required unless the principal or assistant principal asks for the reasons of their non-renewal. Moreover, if said employee asks for a statement of reasons on the eleventh day instead of within the 10 day parameter as provided in the statute, the district need not, and should not, provide a statement of reasons. Further, if the administrator has not asked for a statement of reasons within the 10 day parameter, the administrator is not entitled to a hearing before the board of education.
Conversely, if a statement of reasons is requested within the 10 day parameter, said statement must be given within 10 days of having been requested. After said statement has been given to the administrator, he or she may request a hearing before the board of education within 10 days of having received said statement.[3] If a hearing is requested, a hearing must be held within 10 days of the request.[4] It is vitally important that the reasons provided to the administrator for his or her non-renewal be well organized, complete and concise. Take the time necessary to craft a comprehensive statement of reasons as these reasons will potentially be scrutinized by the administrator, the administrator’s attorney, the board of education and a judge or judges if the matter is appealed to the circuit court and beyond.[5] While it would be ideal for the district to have already contacted its attorney prior to this point in the process, it is necessary to involve the district’s attorney at this time. By involving the district’s attorney early in the process, it will allow the attorney to determine whether the district has a strong case or whether the district needs to reconsider its determination to non-renew. It will also allow the district’s attorney to aid in drafting the statement of reasons to which the attorney will be bound if the matter proceeds to a hearing and potentially to the circuit court. Further, because the hearing must be held within 10 days of the administrator’s request, it is important for the district to have its documentation organized and ready to present to the board of education.
Superintendents, in their desire to hire the best and brightest principals and assistant principals, are sometimes unsuccessful. When it has been determined that a mistake in hiring has been made, a decision to non-renew must be made.
In these tough economic times, it is vitally important that school districts do not lose sight of the “forgotten hearing” as school districts must be mindful of unnecessary pitfalls that can potentially cost them thousands of dollars. Hearings before the board of education are costly and with the ability to appeal those board decisions, the costs can quickly spiral out of control. By simply being mindful of the amount of times an administrator has been renewed in that same position and that an administrator has the right to a hearing after he or she has been reemployed five times in the same position, a district could potentially save itself from unnecessary expense.
[1] An administrator must be informed by April 15th that they will be non-renewed in their administrative position.
[2] All references herein are in regard to the non-renewal of an administrator at the end of the academic year, not a mid-contract termination.
[3] Obviously, a hearing should come after the board of education has already voted to non-renew the administrator. To provide a hearing before the board of education has voted to non-renew would grant the administrator more protection than he or she is entitled.
[4] The parties may agree to postpone the hearing to a mutually agreeable date; however, if the administrator does not agree to a postponement, the hearing must go forward within the 10 day period.
[5] A hearing before the board of education in this instance is a contested case hearing. As noted in the statute, the administrator is entitled to be represented by counsel, present evidence and cross-examine witnesses. There must also be a transcript of the hearing which, in most instances, requires the assistance of a court reporter. As the hearing is a contested case, the administrator has the ability to appeal the decision of the board of education to the circuit court. If the administrator is not pleased with the outcome at the circuit court level, he or she may appeal to the Missouri Court of Appeals and eventually to the Missouri Supreme Court.
© 2012 Mickes Goldman O’Toole, LLC
