Reductions in Force: An Administrator’s Rights

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As a general rule, administrators do not have a legally protected right to continued employment in their administrative position beyond the term of their current employment contract, unless their contract or board policy provides otherwise. This means that an administrator’s employment contract may be non-renewed for any reason, other than an unlawful one. However, if the administrator holds a current Colorado teaching license and has worked for the district for more than three years, he or she may be entitled to continuous employment in a teaching position in the district or the benefit of the RIF protections available to “teachers” under the Teacher Employment, Compensation and Dismissal Act (TECDA).

TECDA provides substantial employment protections for “teachers” who have earned “nonprobationary” or permanent status. A “teacher” is defined as any person who (i) holds a Colorado teaching license; and (ii) is employed to instruct, direct, or supervise the instructional program. Persons holding authorizations and superintendents are not “teachers” under TECDA. Colo. Rev. Stat §22-63-103(11). Under this broad definition, principals, assistant principals and other administrators who hold valid Colorado teaching licenses should be deemed teachers under TECDA.

A teacher who has worked in their district full-time for more than three continuous years obtains “nonprobationary” status and the right to continued employment. An administrator who has worked in the same district for more than three continuous years should be deemed a nonprobationary teacher if he/she holds a valid Colorado teaching license. Therefore, when a district eliminates the position of an administrator holding a valid teaching license pursuant to a RIF, it should offer the administrator a teaching position in the district. If no such position is available, the administrator should have the benefit of the RIF protections available under TECDA and, possibly, district policy.

TECDA strictly limits the district’s ability to terminate a nonprobationary teacher’s contract on performance or disciplinary grounds. However, TECDA affords districts considerable flexibility when implementing RIFs by allowing for the cancellation of a teacher’s employment contract when there is “a justifiable decrease in the number of teaching positions in the district.” A justifiable decrease occurs when the board determines that a “fiscal exigency” exists or a “program change” is necessary. These terms are not defined in TECDA but are broadly defined by district policy or employee collective bargaining agreements. See CASB Sample Policy GCQA. The board’s determination with regard to a fiscal exigency or program change will be upheld if it is supported by competent evidence.

The decision as to what positions will be cancelled is determined by the process and criteria laid out in district policy and/or employee collective bargaining agreements. The only requirement imposed by TECDA is that the contracts of first-year probationary teachers within a particular endorsement area slated for reduction must be cancelled first. If not varied by policy or agreement, TECDA permits consideration of second-year and third-year probationary teachers and non-probationary teachers within a particular endorsement area as a group.

Attempting to use a RIF as a pretext to terminate an employee because of performance or disciplinary concerns violates the employee’s due process rights. Even when a district isn’t using a RIF as a pretext, its right to reduce its teaching staff is limited by TECDA, district policy and/or employee collective bargaining agreements. The Courts have determined that a nonprobationary teacher subject to a RIF has a right to a hearing to establish that the purported reasons for the layoff were not the actual ones or that the layoff was effected in an arbitrary or capricious or unreasonable manner. Howell v. Woodlin School Dist., 198 Colo. 40 (1979).

The timeframes and scope of an employee’s due process rights should be laid out in district policy or employee bargaining agreements. CASB’s Sample Regulation GCQA-R limits the hearing to the following issues: Was there a rational basis to determine that the RIF was necessary?; Was the cancellation procedure arbitraty or capricious; and Was the decision to cancel the employment of the teacher arbitrary or capricious?

It is important to understand that neither TECDA, nor most district RIF polices or procedures prohibit a district from non-renewing administrators who do not have a right to continued employment by policy or contract. Administrators are not likely to be entitled to due process simply because their district has implemented a RIF. However, policies vary from district to district and administrators who have been non-renewed pursuant to a RIF should review their districts’ RIF policies to determine the extent of their protection. Finally, it is worth noting that, in certain limited circumstances, administrators without valid teaching licenses may be entitled to TECDA’s RIF protections.

Please note: this article is intended for informational purposes only and does not constitute legal advice. If you have been nonrenewed pursuant to a RIF you may wish to contact an attorney for legal advice concerning your specific situation..