Misbehaving Teachers: Do We Really Have to Pay Them?
While we hope it never happens, sooner or later you may be faced with a situation in which a teacher, or other Chapter 21 contract employee, engages in behavior that warrants the employee being placed on administrative leave. Most school districts have adopted Board Policy DFBA (Local), which allows a term contract employee to be suspended with pay and placed on administrative leave by the Superintendent during an investigation of alleged misconduct by the employee or at any time the Superintendent determines that the district’s best interest will be served by the suspension. Often, however, it is hard for administrators, employees, or others to understand why the school must continue to pay a misbehaving employee. Under § 21.211 of the Texas Education Code, an employee who is under a Chapter 21 contract must be paid while on administrative leave unless the Board of Trustees has determined good cause exists to suspend the employee without pay pending discharge or in lieu of termination. This provision has been interpreted by the Commissioner to require districts to follow the termination procedures prior to suspending without pay. What this means in practical terms is that most school districts do not seek to suspend without pay due to this procedural burden and instead move forward with either the termination or nonrenewal process if it is determined that the employee has engaged in the misconduct. This often results in the district having to pay the employee for a lengthy amount of time while the legal processes are pursued. Recently, this process has been challenged and districts have attempted to place a Chapter 21 employee on leave without pay prior to the completion of a hearing. So far, districts have been unsuccessful in their attempts.
In Sheldon ISD v. Romero, a Sheldon ISD teacher and coach was found to have inappropriately texted female students after school hours while intoxicated, including sending sexually suggestive messages and inviting the students to his house to drink alcohol. The district placed the teacher on administrative paid leave in October and a few months later in February the teacher submitted his resignation to be effective at the end of the school year. In March, the Board of Trustees voted to suspend the teacher without pay but did not provide the teacher an opportunity for a hearing prior to the vote. The teacher then requested a hearing with an independent hearing examiner (IHE) who held that while the board had good cause to suspend the teacher, the board could not do so until after the IHE conducted a hearing and the board voted on the IHE’s recommendations; therefore, the teacher was entitled to backpay between the time of March and completion of hearing process. The board rejected the IHE’s conclusion that the district’s suspension without pay was not effective on March 6. The teacher appealed the decision to the commissioner. The commissioner found the district was required to provide the teacher notice of the proposed action and an opportunity to request and obtain a hearing before the action to suspend without pay takes place. Accordingly, the commissioner awarded the teacher backpay. The district appealed the decision to the district court, which ruled in favor of the teacher, and most recently appealed to the appellate court, which also ruled in the teacher’s favor. The appellate court found no reason to overturn the commissioner’s interpretation of the law, noting that, although no court had ruled on this issue, the commissioner had issued multiple decisions finding that the Texas Education Code did not authorize a suspension without pay before the hearing process. See Sheldon Indep. Sch. Dist. v. Romero, NO. 01-21-00023-CV, 2022 WL 2720462 (Tex. App.—Houston [1st Dist.] July 14, 2022, no pet. h.) (mem. op.).
Just last month, the commissioner reinforced this longstanding position in Kennedy v. Lamar Consolidated ISD, No. 054-R2-08-2022. In Kennedy, a junior high teacher had made inflammatory remarks about her students and job which were captured on video and circulated by social media and traditional media. The teacher was on a probationary Chapter 21 contract. The LCISD board voted to put the teacher on unpaid leave without first providing a hearing and then stopped paying the teacher. The teacher was subsequently given a hearing before an IHE who recommended she be terminated. On appeal, the teacher argued she was wrongly put on unpaid leave prior to the hearing. The commissioner agreed reaffirming the position take in the Sheldon and finding that the requirement applies regardless of whether the teacher has a probationary contract.
Sheldon ISD has appealed to the Texas Supreme Court and awaits a decision as to whether it will agree to hear it. In the meantime, the law remains that a district is required to provide a teacher, or other Chapter 21 contract employee, notice of the proposed action and an opportunity to request and obtain a hearing with an independent hearing examiner before the action to suspend without pay takes place.
Suspending or terminating employees can be difficult and complex. The Thompson & Horton Employment Law Team stands ready to help you navigate the process.