On April 13, 2020, the Commissioner of Education issued “guidance pertaining to the flexibilities for local or regional boards of education related to non-renewal notifications and tenure impacted as a result of COVID-19.” This is an analysis of that guidance.
Connecticut General Statutes Section 10-151 defines the specific circumstances under which a teacher may be terminated or non-renewed. As a point of reference, here is a link to an article published in 2014[1] that describes the non-renewal timelines and non-tenure teacher categories (only 40 month, and 20 month remain today) set forth in Connecticut General Statutes Section 10-151.
The stated authority for the Commissioner’s guidance is Executive Order 7C, issued on March 15, 2020. Section 4 of that Order is entitled “Flexibility for Educator Certification Timelines, Educator Evaluations, and School In-Services.” Although neither the words “non-renewal” nor “tenure” are mentioned in the Executive Order, Connecticut General Statutes Section 10-151 is one of the six statutes listed that “are modified to authorize the Commissioner of Education to temporarily waive any requirements contained therein as he deems necessary to address the impact the school class cancellations and COVID-19 risks when classes resume and students return. The Commissioner may issue any order that he deems necessary to implement this order.”
What is required?
A school district that employs a teacher who is in the final year of non-tenure status, i.e., someone who will attain tenure this school year, after completion of 40 months, or 20 months of continuous employment (depending upon the category) must act prior to May 1, 2020 to either: (1) give written notice of non-renewal in accordance with the law prior to the Commissioner’s guidance; or (2) issue a written “extension notification” to any such non-tenured teacher. Such extension may be for up to one school year. If such a teacher does not receive either a written notification of non-renewal or a written notification of an extension, that teacher will attain tenure after completion of the 40th or 20th month. So, even though these days most administrators are working remotely, districts must nevertheless continue to pay attention to this important deadline or else a teacher could inadvertently attain tenure status.
The guidance now also permits the written notice of non-renewal or the written extension notification to be deemed received by the teacher if it is sent by e-mail to the teacher’s district e-mail address and the teacher’s bargaining unit representative’s email address. Note that this introduces the modern option of using e-mail, but it also introduces a new requirement that the district must send a second e-mail notice to the teacher’s bargaining unit representative. Connecticut General Statutes Section 10-151 does not require “written” notice to be sent to anyone other than the teacher being non-renewed. The use of e-mail is also made available to the teacher when requesting a hearing and when requesting a statement of the reason(s) for non-renewal.
What is encouraged?
The guidance stops short of mandating that the following occur but, “encourages” the superintendent: “to be sensitive to staff well-being given the circumstances and to engage in virtual meetings to provide feedback regarding the non-renewal.”
In the case of non-tenured teachers who are receiving an extension notification, the guidance also “encourages” districts “to come to an agreement with teachers and their bargaining unit representatives related to the length of a contractual extension, to provide teachers ample time to demonstrate progress and performance but also allow districts the flexibility to non-renew mid-year if progress has not been made (December 1, 2020) or by the end of the school year if further time is needed to assess the teacher’s ability to perform (before May 1, 2021).”
The guidance was issued on April 13, 2020, and the deadline for giving a teacher a written notice of an extension is prior to Friday, May 1, 2020. It is not clear how a “district” is to reach an agreement with each individual teacher subject to non-renewal, who is being given an extension, and that teacher’s bargaining unit representative during the 17 days between April 13 and April 30, 2020.
If the district does not reach such an agreement with the teacher being extended and that teacher’s bargaining unit representative, the district should then “consider” (another word like “encouraged” – not a mandate) “continuing the probationary period through the 2020-21 school year.” The guidance concerning the mid-year non-renewal includes the date of “December 1, 2020” but does not modify that date by using the word “before” as it does later in that sentence when it refers to “before May 1, 2021.” Since the May 1, 2021 deadline continues to be statutory, and since the length of a contractual extension is to be determined jointly, or by the district, the absence of the word “before” modifying the December date suggests it is an example, rather than a firm deadline required by the guidance. Since all non-tenured teachers typically continue working through the end of the school year in the year they are non-renewed, the length of any extension time period begins with the first day of school in the 2020-21 school year and ends on whatever date the district either designates unilaterally, or designates through an agreement but, in any event, it must be before May 1, 2021.
The portion of the guidance permitting written notifications by e-mail includes the following sentence: “In no instance shall a teacher be considered to attain tenure when they have been notified of a non-renewal or extension in [sic] May 1, 2020, and the notification e-mail shall include specific language to this effect.” Since any such notification clearly must be provided prior to May 1, 2020, as indicated in the top line of the second page of the guidance from the Commissioner, it must be presumed that the author intended to state, “extension prior to May 1, 2020.” Whether the notification concerns a non-renewal decision or an extension decision, any notification by e-mail must include a specific statement informing the teacher that “In no instance shall you be considered to have attained tenure if you have received this notification of non-renewal or extension prior to May 1, 2020.”
Finally, the guidance indicates that if a non-renewed teacher asks for a hearing, the teacher may do so via email “to both the Superintendent and the Board chairperson.” When scheduling the hearing, instead of a 10-151(c) permitted extension “not to exceed 15 calendar days” the entity conducting the hearing may permit an extension of up to 90 days, pursuant to Executive Order 7M. Other than the modifications contained in the Commissioner’s guidance, all other statutory requirements and timelines in C.G.S. Sec. 10-151 remain in place.
In the end, if a district has already definitively decided to non-renew a teacher, the new guidance provides no reason for that district to wait. If, however, the district is still on the fence, the guidance provides school districts with the option to grant additional time to make a final decision. However, it cannot be over emphasized that districts must still pay attention to the looming May 1 deadline and do one or the other.
[1] Since 2014 when the article was written, Connecticut General Statutes Section 10-151 has been amended twice: in 2015 to address situations when a teacher is employed by a board of education or as part of a 10-158 cooperative arrangement and such board or cooperative arrangement joins a regional school district. In 2019, the amendment repealed the provision that permitted the attainment of tenure after 10 months for teachers employed by a priority school district. Since July 2019, there are now only two categories of non-tenured teachers – those who attain tenure upon the completion of 40 school months of fulltime continuous employment for the same board of education and those who attain tenure after completion of 20 school months of continuous employment. As indicated in the 2014 article, the previous “30 school months” category ended in 2014.
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