Personnel Series – Nonrenewal of Probationary Teachers and Administrators

This blog post is the second in our series of posts on Spring Personnel Decisions and will address the nonrenewal of both probationary teachers and administrators. Similar to our first blog post in this series, we will address both legal requirements and best practices.

As administrators plan for the next school year and make decisions regarding staff retention, it is important to be familiar with the different processes that apply to different staff. First, this post will cover the process for nonrenewal of probationary teachers. Second, this post will cover the process for nonrenewal of principals, assistant principals, and other administrators. A separate blog post in this series will cover reductions in force.

Probationary Teachers

Unlike tenured teachers, a probationary teacher does not have an indefinite employment contract with a district. If a probationary teacher is not informed on or before April 15th of the decision to not renew his or her contract, however, the contract is automatically renewed.

A district may choose to not renew the contract of a probationary teacher “for any reason or no reason, as long as the non-renewal is not based on some ground impermissible under the Constitution.”[1] Districts should be prepared to discuss with their Boards the reasons for any recommendation of non-renewal and will want to evaluate Board support for non-renewal during early discussions. Also, determine whether the district wants to give the teacher the option to resign prior to the recommendation to the Board for nonrenewal.

If the teacher chooses not to resign, prior to April 15th, take the recommendation of non-renewal to the Board for a vote. This can be done in closed session. Ensure the Board is aware of and considers the specific basis for the recommendation of non-renewal. The Board must then vote regarding whether to employ the teacher. A motion should be made for each teacher not being re-employed. This motion should be made in the positive, e.g. “I move to renew the employment contract of _________ for the 2019-2020 school year.”

If less than a majority of the Board vote to approve the motion, then the probationary teacher will not be offered a contract and will be notified in writing by April 15th of the Board’s decision to non-renew. We recommend districts issue the following notice: “The Board of Education at its meeting of [date] voted not to employ you as a teacher for the 2019-2020 school year.”

It is important to notify the employee promptly because the Sunshine Law requires districts make the information available to the public upon request. Any vote on a final decision with a record of how each Board member voted shall be made available to the public within seventy-two hours of the close of the meeting where the vote occurred, but only after the employee is informed.[2]

If a probationary teacher was non-renewed due to a decrease in student enrollment, school district reorganization, or the financial condition of the district, the initial written notice of nonrenewal must include the reason for nonrenewal. In other non-renewal scenarios, upon a request by the teacher, the district must provide a non-renewed probationary teacher with a concise, written statement of reasons for the nonrenewal. The statement of reasons should coincide with the information provided to and considered by the Board prior to its vote.

Administrators

Like probationary teachers, a district may not renew the contract of an administrator for any legal reason. Certain administrators have more due process rights than probationary teachers, although the process is very similar to probationary teachers.

Up until the point of notification, the process for not renewing an administrator is essentially the same as the process for not renewing a probationary teacher. Once the Board votes on an administrator’s non-renewal and the District informs the administrator, however, an additional process must be followed if the administrator has been reemployed[3] five or more times by the District. If the administrator was not reemployed five or more times by a District, the process ends once the District informs the administrator of the Board’s decision.

The additional process includes the following steps:

  1. The administrator has the right to request a statement of reasons for the nonrenewal within 10 days after receiving the notice. The District has 10 days to respond with a statement of reasons after receiving the request. The statement of reasons should coincide with the information provided to and considered by the Board prior to its vote.
  2. The administrator has the right to request, in writing, a hearing before the Board within 10 days of receiving the statement of reasons. The District has to have the hearing within 10 days of receiving the request. This hearing is closed unless the administrator requests it be open. The administrator may bring legal counsel, testify, offer testimony of other witnesses, other evidence of his defense(s), and may cross-examine the administration’s witness(es).

Additionally, if an administrator previously achieved tenure in the district, or achieved tenure in a previous Missouri school district and has served two consecutive years as an administrator in the district, then the district must offer the administrator a tenured teaching position for which he or she is qualified. It may be necessary to offer a position currently held by a probationary teacher, which may result in the probationary teacher not being offered an employment contract. The administrator must notify the District on or before June 1 whether he or she will accept the offered teaching position.
If you have any questions regarding nonrenewals or any other personnel matter, please don’t hesitate to contact any of our team members as EdCounsel.

[1] Berhorst v. Maries County R-II School District, 805 S.W.2d 696, 698 (Mo. App. 1991).

[2] See § 610.021(3), RSMo.

[3] Note that when this threshold is reached may vary greatly. The first vote for employment does not factor into this total of five, because the statute specifies “reemployment”. Additionally, it is possible that an administrator who has a multi-year contract that is not voted on each year may not have been “reemployed” by the District five times, simply by virtue of having served as an administrator in the District for 6 or more years.