DOCUMENT RESUME EA 025 999 ED 372 504 Issue Reduction in Force. School Management Advisor, TITLE 24. instruction. North Carolina State Dept. of Public INSTITUTION Raleigh. 93 PUB DATE 997-EA 026 7p.; For related publications, see EA 025 NOTE 003. Collected Works Non-Classroom Use (055) Guides PUB TYPE Serials (022) MF01/PC01 Plus Postage. EDRS PRICE Due Compliance (Legal); *Dismissal (Personnel); DESCRIPTORS Employment Process; Elementary Secondary Education; Policy; Practices; *Grievance Procedures; *Personnel *Reduction in Force; State Legislation; *Teacher Rights *North Carolina IDENTIFIERS ABSTRACT for the This document examines the legal requirements Department of Public reduction in force (RIF) of North Carolina certified (instructional) Instruction employees, with a focus on discusses areas of concern to staff. A question-and-answer section North Carolina administrators about the reduction-in-force process. is highlighted, specifically: State law relating to the RIF process school teachers, grounds for the system of employment for public Because dismissal, the hearing procedure. and the appeals process. to every each situation is unique, there can be no one answer (LMI) system's problems. *************************************************************** that can be made Reproductions supplied by EDRS are the best * from the original document. A Series of Discussions on Legal Issues in Elementary and Secondary Education SCHOOL MANAGEMENT ADVISOR By Harry E. Wilson, Agency Legal Specialist 0.1r 27601-2825 919/715-1000 EDUCATION BUILDING, RALEIGH, NC NORM CAROLINA DEPARTMENT OF PUBLIC INS1RUCTION BOB ETHERIDGE, SUPERINTENDENT OF PUBLIC INSTRUCTION Issue 24: 1993 Reduction in Force U S DEPARTMENT OF EDUCATION Office ol tdocat,00al Research ana Improvement E DUCA TICNAL RESOURCES INFORMATION CENTE R tERICI 10e(o.s documem has been reproduced as ,ecenied Iron, the person or organization Ong.nating r Minor changes ha,./e been made to irnaria,,e reproduction ooality Points 01 oew or Opinions Statecl in Nos docu rnent 110 not necessarily represent &boat OE RI pos.00n pOlicy 4 "PERMISSION TO REPRODUCE THIS MATERIAL AS BEEN GRANTED BY ct. TO THE EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC)." 2 AVAILABLE BEST COPY A Series of Discussions on Legal Issues in Elementary and Secondary Education MOMS SCHOOL MANAGEMENT ADVISOR By Harry E. Wilson, Agency Legal Specialist 111=1111111MINNIr OMIT EDUCATION BUILDING, RALEIGH, NC 27601-2825 919/715-1000 NORTH CAROLINA DEPARTMENT OF PUBLIC INSTRUCTION BOB ETHERIDGE, SUPERINTENDENT OF PUBLIC INSTRUCTION Issue 24: 1993 Reduction in Force (certified) staff. are not limited to instructional LEGAL REQUIREMENTS School boards also have two other types of G.S. 115C-325 addresses reduction in force contract and at will. Contract employees froml:wo perspectives. First, G.S. 115C-325(e)(1)l. employees are those who are in positions that are enables school boards to demote or dismiss a not eligible for career status, including assistant teacher if a justifiable decrease in the number of and associate superintendents and any others teaching positions resulted from district who are hired for a specific time period. Effective reorganization, decreased enrollment, or July 1, 1995, anyone who becomes a principal, decreased funding. Second, G.S. 115C-325(e)(2) director or supervisor will also be a contract gives the process the superintendent must follow employee. At-will employees include all other to accomplish a reduction in force and states that local school employees who are in neither a a teacher dismissed due to a reduction in force certified nor a contract position. This issue has priority consideration for vacant pcsitions for emphasizes reduction in force of certified which the teacher is qualified. This priority extends employees because most questions and challenges for three consecutive years after the dismissal, have occurred in this area. except that if the teacher refuses any such position, Because each situation is unique there can be the teacher's name is to be removed from the problems. no one answer to every system's priority list. Relevant portions of G.S. 115C-325 Dismissal for cause has the potential to involve are reproduced in the Appendix. and complex more procedural requirements issues than reduction ir. force, and this certainly INTERPRETIVE ANALYSIS and must be considered. The following questions principals and central answers may help guide School systems have had to face reductions in office personnel in arriving at the proper course force for a number of years as enrollments declined information to fol!ow, as well as provide useful and federal funds decreased. But the 1990s have (RIF) process. on the reduction-in-force brought this issue into sharper focus as the State faces its most severe financial situation since the Q: When funds to one specific program are cut, Depression. Many costs of operating government must the RIF policy be applied to all personnel have been handed from the federal system to the confined to the across the board, or may it be states, which have in turn passed much of the affected program? costs on to local governments. 0` A: The RIF may be confined to the affected pro- Caught short of adequate resources in the 0". gram. midst of the school reform movement, school I) boards must decide how to supply instructional Q: Are teachers in federal programs, such as services they are directed by law to provide. special education, required to be funded at Should they implement a broad-based reduction- the expense of those in other programs to pre- in-force policy, initiate dismissal proceedings vent the loss of staff in that program? against teachers who may warrant dismissal, or A: No. Our Supreme Court has ruled that career use a combination of the two? status teachers in one program area have no The decisions required by a reduction in force is published periodically. Each issue deals a series of comments, questions and answers, and interpretive analyses, The School Management Advisor, with a single topic that is of current concern to school personnel. The contents do not purport to be official legal opinions. greater protection against dismissal than A: Yes. While teacher dismissals under the Ten- teachers in other areas. ure Act are normally based on performance (for-cause dismissal), the elimination of a posi- May a board's RIF policy extend to other bud- Q: tion due to RIF is based on inadequate funding. get areas than the one in which the reduction The decision to eliminate a position should be in funds occurred? based on an examination of the overall school A: Yes. Our courts recognize that school boards program and a setting of educational priorities. possess considerable latitude in responding Even so, the decision of which position to eliminate among employees in similar posi- to financial difficulties. This may include elim- inating positions in other budget areas. tions may involve reviewing job performance. So it is critical that the board requires regular When a school system's funds have decreased, evaluations of all personnel according 'to ob- must it automatically apply its RIF policy or jective criteria. may it look for other ways to absorb the lost revenue? After two school systems merge, may the re- Q: A: The policy need not automatically apply. In sulting system Aiminate positions throil.gh a fact, the board may not rely solely on the de- RIF? In particular, may teaching positions crease in funds; it must demonstrate that the that are filled by career status teachers and decrease justifies the elimination of positions. positions filled bv contract employees be elim- School boards should consider other alterna- inated? A: Yes, but particular care must be taken with tives and keep a record of those considerations and its decisions concerning them. Among contract employees to assure that the action is those alternatives is seeking funds from other not contrary to provisions of the contract. The sources and spreading the loss throughout law is clear that in cases of "district reorganiza - budget areas. If a teacher challenges the RIF, tion," which may include merger, there may the court might require the board to show that be a justifiable decease in teaching positions. of all educational options available, RIF was Even here, the board must clearly establish the best choice, or that reducing positions that the decrease in positions is justified by from full time to part time would not be better the merger. than eliminating that teacher's position. Isn't the RIF process a convenient way to get Q: What appeal rights do teachers have whose rid of career status teachers who might other- Q: positions have been eliminated in a RIF? wise be difficult to dismiss? A: A teacher may appeal only to the school A: Possibly, but it isnot a good method for doing board; there is no Professional Review Panel this. A teacher who has been dismissed under hearing. one or more of the other thirteen grounds of 115C-325(e)(1) has no right to reemployment, Q: What are the grounds fora teacher to challenge but one whose position has been eliminated a RIF? through a RIF has reemployment rights for A: In order to win a challenge, the teacher must three years. show that the board acted to eliminate that position from personal, political, discrimina- May a career status teacher be RIF'd and a Q: tory or irrational reasons, or that its action probationary status teacher in the same area was a maneuver to circumvent the dismissal be retained? What if the probationary teacher process. consistently performs better than the career status teacher? Is job performance a proper consideration in A: No, unless the law clearly allows this to be Q: determining positions to be eliminated in a done. G.S. 115C-325 does not make this specific RIF? provision, the career status teacher must be retained. Otherwise, the protections of the expired, vocational certificate issued by Tenure Act would be meaningless. This is the Department of Public Instruction; true even though the probationary teacher whose major responsibility is to teach or may perform better than the career status directly supervise teaching or who is teacher. classified by theState Board of Education or is paid as a classroom teacher; and APPENDIX who is employed to fill a full-time, per- State Law Relating to manent position. (e) Grounds for Dismissal or Demotion of a Reduction in Force Career Teacher. § 115C-325. System of employment for public (1) No career teacher shall be dismissed or school teachers. demoted or employed on a part-time As used in this (a) Definition of Terms. basis except for one or more of the fol- section unless the context requires otherwise: lowing: (1) "Career teacher" means a teacher who I. A justifiable decrease in the number has obtained career status as provided of positions due to district reorganiza- in G.S. 115C-325(c). tion, decreased enrollment, or de- (2) "Committee" means the Professional Re- creased funding, provided that there view Committee created under G.S. is compliance with subdivision (2). 115C-325(g). (2) Before recommending to a board the (3) "Day" means calendar day. In compu- dismissal or demotion of the career ting any period of time, Rule 6 of the teacher pursuant to G.S. 115C-325(0(1)1., North Carolina Rules of Civil Procedure the superintendent shall give written shall apply. notice to the career teacher by certified (4) "Demote" means to reduce the compen- mail of his intention to make such recom- sation of a person who is classified or mendation and shall set forth as part of paid by the State Boar: of Education as his recommendation the grounds upon a classi oom teacher, or to transfer him to which he believes such dismissal is jus- a new position carrying a lower salary, tified. The notice shall include a state- or to suspend him without pay to a max- ment to the effect that if the teacher with- imum of 60 days; provided, however, in 15 days after receipt of the notice re- that a suspension without pay pursuant quests a review, he shall be entitled to to the provisions of G.S. 115C-325(f) shall have the proposed recommendations of not be considered a demotion. The word the superintendent reviewed by the "demote" does not include a reduction board. Within the 15-day period after in compensation that results from the receipt of the notice, the career teacher elimination of a special duty, such as the may file with the superintendent a writ- duty of an athletic coach, assistant prin- ten request fora hearing before the board cipal, or a choral director. within 10 days. If the teacher requests a (5) "Probationary teacher" means a certified hearing before the board, the hearing person, other than a superintendent, procedures provided in G.S. 115C-325(j) associate superintendent, or assistant shall be followed. If no request is made superintendent, who has not obtained within the 15-day period, the superinten- career-teacher status and whose major dent may file his recommendation with responsibility is to teach or to supervise the board. lf, a fter considering the recom- teaching. mendation of the superintendent and (6) "Teacher" means a person who holds at the evidence adduced at the hearing if least a current, not expired, Class A cer- there is one, the board concludes that the tificate or a regular, not provisional or grounds for the recommendation are true and substantiated by a preponder- act and boards and panels of the Pro- ance of the evidence, the board, if it sees fessional Review Committee may give fit, may by resolutk n order such dismis- probative effect to evidence that is of a sal. Provisions of this section which per- kind commonly relied on by reason- mit appointment of, and investigation ably prudent persons in the conduct of serious affairs. and review by, a panel of the Professional Review Committee shall not apply to a (5) At least five days before the hearing, dismissal or demotion recommended the superintendent shall provide to pursuant to GS. 115C-325(e)(1)1. the teacher a list of witnesses the super- intendent intends to present, a brief When a teacher is dismissed pursuant statement of the nature of the testi- to G.S. 115C-325(e)(1)l. above, his name shall be placed on a list of available mony of each witness and a copy of teachers to be maintained by the board. any documentary evidence he intends to present. At least three days before Career teachers whose names are placed the hearing, the teacher shall provide on such a list shall have a priority on all positions for which they are qualified to the superintendent a list of witnesses which become available in that system the teacher intends to present, a brief statement of the nature of the testi- for the three consecutive years succeed- mony of each witness and a copy of ing their dismissal. However, if the local any documentary evidence he intends school administrativeunit offers the dis- to present. Additional witnesses or missed teacher a position for which he is documentary evidence may not be certified and he refuses it, his name shall be removed from the priority list. presented except upon consent of both Hearing Procedure. The following parties or upon a majority vote of the (j) provisions shall be applicable to any hearing board or panel. Any teacher who has been conducted pursuant to G.S. 115C-325(k) or (1) or (n) Appeal. dismissed or demoted pursuant to G.S. 115C- to any hearing conducted by a board pursuant to G.S. 115C-325(h)(3). 325(e)(2), or pursuant to subsections (h), (k) or (1) (1) The hearing shall be private. of this section, or who has been suspended without pay pursuant to G.S. 115C-325(a)(4), shall have (2) The hearing shall be conducted in ac- cordance with such reasonable rules the right to appeal from the decision of the board and regulations as the board may to the superior court for the superior court district or set of districts as defined in G.S. 7A-41.1 in adopt consistent with G.S. 115C-325, or if no rules have been adopted, in which the teacher is employed. This appeal shall accordance with reasonable rules and be filed within a period of 30 days after notification of the decision of the board. The cost of preparing regulations adopted by the Sta te Board the transcript shall be borne by the board. A of Education to govern such hearings. (3) At the hearing the teacher and the teacher who has been demoted or dismissed and who has not requested a hearing before the board superintendent shall have the right to of education pursuant to this section shall not be be present and to be heard, to be repre- sented by counsel and to present entitled to judicial review of the board's action. through witnesses any competent tes- FOR FURTHER READING: timony relevant to the issue of whether grounds for dismissal or demotion Joyce, "Reductions in Force in the Public Schools: exist or whether the procedures set Questions and Answers," School Law Bulletin, forth in G.S. 115C-325 have been fol- Winter 1992. lowed. (4) Rules of evidence shall not apply to a Phay, "Reduction in Force," [series of 4 articles], hearing conducted pursuant to this Apr. 1980-Jan. 1981. School Management Advisor, Issue 22, Employ- ment Basics. School Management Advisor, Issue 23, Employ- ment at Will. School Management Advisor, Issue 25, Nonre- newal of Probationary Teachers. School Management Advisor, Issue 26, Dismissal of Career Status Employees. School Management Advisor, Issue 27, Negligent Hiring and Retention. School Management Advisor, Issue 28, Certificate Suspension and Revocation. 7