This blog post is the seventh in our series of posts on Spring Personnel Decisions. This post will address the procedural, legal, and practical considerations when posting job vacancies. During this time of year, Districts are considering how to best utilize existing FTE, fill vacant positions for the 2019-2020 school year and may even be considering restructuring certain departments and positions. Many Districts have adopted policies that govern their recruitment and hiring processes, so it is always important to consult Board Policy when determining whether to post a vacancy and if required, for how long. The answers to these questions will depend on many factors.
First, check Board Policy to determine if it requires the posting of a new or vacant position, and if it does, for how long. Most Districts have adopted policies requiring new or vacant positions be posted internally and externally for a minimum of 5-10 days. So, as a general rule, a District should expect to be required to post job vacancies for new or vacant positions. If a District finds itself in an emergency situation and needs to fill a position temporarily before the posting has expired, some Districts’ policy permit this.
One exception to the general rule is found in some policies, permitting the Superintendent or designee to draw from recently received applications when a District is filling the same or similar position as one that was recently posted. As mentioned above, most Board Policies allow the Superintendent or designee to take some action in an emergency situation with some policies permitting the waiver of the requirement to post a job vacancy in emergency situations. A District utilizing an emergency exception should be sure to document the emergency that led to the deviation.
Additionally, it’s possible when restructuring, that a District may make changes to existing positions without creating a new position. For example, if a District wants to merge two part-time positions into one full-time position, the District may not be creating a new position if the only thing being modified is the FTE. On the other hand, if a District was merging two positions together (e.g. Middle School and High School Principal) into one entirely new position with expanded duties to oversee both buildings, the District may be creating a new position and thus, be required to post the job under its Board Policy. A District may want to look at past practice in situations like this to determine whether or not a position is considered “new.”
One question that Districts often ask is whether or not they must post a job vacancy if the District desires to transfer or assign an existing employee to the position. Again, Board Policies differ on this point. Some Districts’ Policies permit this without requiring a posting, but some do not. Under some Board Policies, a position is not even considered vacant if the Superintendent or designee transfers or assigns (subject to Board approval) an existing employee to the position. From a practical perspective, a District in this situation may want to consider whether or not an internal assignment or transfer will negatively affect morale in the District, especially if the position is highly sought after. If a District fails to comply with its Board Policies when posting job vacancies, someone may file a complaint with the Missouri Ethics Commission.
Another consideration is the timing of the posting. A District will want to consider whether or not their Board of Education still must take some action before a job is considered vacant. For example, if a terminated teacher requested a hearing, it is best practice to wait until after the Board has heard from the teacher and rendered a decision on the appeal in order to avoid the appearance of impartiality. Additionally, if a Separation Agreement has been made or a resignation offered, a District may want to wait until after the Board takes the issue up to avoid having to reverse course if the Board doesn’t approve the agreement or resignation. Additionally, in cases where it may be necessary for a District to make a public statement regarding the departure of an employee, it may be best to wait to post a vacancy until after that statement has gone out.
Although most of the above considerations are drawn from Board Policy or practical experience, there are some important legal issues that we want to briefly mention as well. Job postings must be drafted with care in order to avoid discrimination or disparate treatment claims. Of course, School Districts already know this, but a well-crafted job description will list all essential duties of the position without showing preference for or against a particular gender, race, age, etc.
One final note regarding the hiring of the spouse of a Board member or a retiree due to a critical shortage of teachers—in both cases, a District must post the vacancy and advertise the position pursuant to Board Policy. In particular, if a District has determined that it has a critical shortage of teachers and wants to fill a vacancy with a retiree, the District may only do so after having posted the vacancy for at least one month.
If you have any questions regarding posting job vacancies or any other personnel matter, please feel free to contact any of our team members at EdCounsel.