Charter School Rights-1

Rights of a Charter School Employee Legal Requirements for Adverse Personnel Actions to be Taken Against a Charter School Employee

Introduction It is critical that charter school employees understand the legal restrictions that limit administration officials’ ability to take an Adverse Personnel Action (“APA”) against an employee. These limitations arise from certain legal rights that public employees, such as charter school employees, enjoy in their jobs. This paper specifically addresses the legal status of charter school employees who may be terminated: (A) solely for the good of the service, including implied contract and public policy exceptions, (B) for no reason, or (B) only for cause. Further, a charter school employee has a right to protection of his/her reputation in relationship to future employment. A. Terminable-At-Will Employment The vast majority of charter school employees hold their employment at the pleasure or will of the governing body, school superintendent or school administrator. This employment status is known as “terminable-at-will” or “at-will employment”. It simply means that an employment relationship exists between the charter school and its employee for an indefinite duration, which may be terminated for any legal reason whatsoever by either party without either party incurring liability for their actions. As a general rule, this is because these charter school employees are subject to corporate bylaws which are normally silent as to any employee rights and the charter school statute provides that teachers at a charter school are “at-will” employees. Nevertheless, public policy exceptions discussed herein would still apply to adverse personnel actions against all charter employees, teachers and support staff alike. The importance of the employment-at-will status is twofold: (1) the charter school employer is not required to support an adverse personnel action for any particular reason 6 ; and, (2) no due process hearing is required in conjunction with the adverse personnel action against the employee 7 (this issue is discussed in more detail in Part B Property Interest). Most charter school employers, as a rule, simply inform the employee that he or she is being terminated “solely for the good of the school” and leave it at that. If the administrator does go into detail or does justify a termination, and if the reason is made public, this may result in defamation of the employee and a violation of his legal right to protection of his or her good name or reputation (this issue discussed in more detail in Part C Liberty Interest).

One misconception for an “at-will” employee is created when their employer places them on some type of probationary period upon hiring and after a certain period of time they may become permanent employees. As a legal matter, terminable-at-will employees are probationary during their entire employment. When their employment is changed to permanent status after a probationary period, it usually means the employee is now entitled to a right to begin accruing and receiving certain employee benefits, e.g., health insurance, vacation or sick leave; however, the “probationary versus permanent” label of a charter school employee does not limit the right of the employer to terminate the employment for any legal reason whatsoever. Breach of Implied Contract The Oklahoma Court of Appeals has held that in certain circumstances a terminated at-will employee may bring an action for breach of implied contract of employment8 . Although the court recognized that the employee could not challenge the reason for the employer’s action, the decision permitted a challenge to the termination process where the procedures specified in the personnel policies were not followed by the employer. The significance of this ruling is that if a charter school sets forth procedures in its personnel rules, manuals or teacher handbooks that are to be afforded an employee in conjunction with termination from employment, the failure to allow those procedures may state a cause of action for breach of an implied contract. Public Policy Exceptions Although a terminable-at-will employee may be discharged from his/her job at the pleasure of the employer, the basis of the termination must not violate what is known as a “public policy exception”, as recognized and defined by state statute or case law. Termination of an employee based upon any of the following reasons will subject the municipal employer to a claim of wrongful discharge 9 .Examples of Oklahoma statutory exceptions are: 25 O.S. §§1302, 1505©) - discriminatory practice for an employer to discharge an employee because of race, color, religion, sex, national origin, age or handicap 38 O.S. §§34,35 - employer who discharges an employee because of employee’s absence from employment due to serving on a grand jury is civilly liable for both actual and exemplary damages 44 O.S. §208 - employer subject to fine for discharge of employee because of serving in military forces 40 O.S. §199 – penalty for employer to discharge employee because employee filed a

complaint with Commissioner of Labor with regard to hour or safety violation 85 O.S. §§5, 6 – employee who has filed a workers’ compensation claim may not be discharged for exercising statutory right and is entitled to recover damages from the employer In addition, the Oklahoma courts have recognized the following public policy exceptions to the terminable-at-will doctrine: (1) (2) (3) (4) (5 )

Refusing to participate in an illegal activity; Performing an important public obligation; Exercising a legal right or interest; Exposing some wrongdoing by the employer, or Performing an act that public policy would encourage or, refusing to do something that public policy would condemn, when the discharge is coupled with showing of malice, bad faith or retaliation.

Another frequently recognized public policy exception is the constitutional right of an employee to exercise his freedom of speech including to openly criticize his charter school employer under certain circumstances 10 . Various federal statutes also provide protection for charter school municipal employee in many areas which affect the administration of the charter school 11 . B. Property Interest Those employees who are not terminable-at-will possess a “property interest” in their jobs. The courts have defined a property interest as an employee’s “expectation of continued employment” which can only be terminated “for cause” by the employer12 . The “for cause” status in an employment relationship means that the school employer has agreed to limit its right to terminate an employee to certain specific reason. The “for cause” limitation is generally found in department manuals, personnel rules, ordinances, city charters, or state statutes. Specific reasons to terminate a charter school employee may differ from employer to employer, but often include absenteeism, dereliction of duty, alcoholism, insubordination, failure to follow orders or incompetence. Please note that teachers and support employees in “non-charter” schools are subject to only “for cause” terminations by statute. The legal effect of “for cause” requirements in adverse personnel actions is the imposition of a duty on the school employer to follow certain procedures of due process prior to taking adverse personnel action against a municipal employee. This applies whether the action is for disciplinary reason or budgetary constraints 13 .

The term “due process” has its roots in the Fourteenth Amendment of the United States Constitution: “…nor shall any state deprive any person of life, liberty, or property without due process of law…” As discussed in Part A, due process requirements do not apply to employees who are terminable-at-will or probationary. However, if an employee is entitled to due process because of his/her employment status, minimum due process of law requires a public employer to give the employee a meaningful hearing before any adverse personnel action is taken 14 .This requirement is satisfied only when the employee is given adequate notice of the hearing and an opportunity to respond to the reason(s) supporting the possible adverse personnel action 15 . Just what type of hearing is required under the law is a continuing source of confusion, yet the requirement is relatively simple. A brief informal hearing is all that is necessary prior to an adverse personnel action against an employee holding a property interest in his employment.16 The sole purpose of this pre-action hearing is to make certain that a mistake is not made about the facts of the situation leading to the adverse action being taken against the employee 17 .However, if the employer is considering termination of the employee, it should be noted that the federal Court of Appeals has held that unless the employee is advised that he/she is in jeopardy of termination, the pre-termination hearing may be inadequate 18 . After the adverse personnel action is taken, the employee is then entitled to a more thorough hearing, which includes his right to introduce testimony on his behalf or to rebut testimony against him. This is sometimes referred to as a post-action hearing. The employee is legally entitled to have an attorney at either hearing or to confront or cross-examine witnesses against him 19 . The exception to “no right to cross-examine witnesses” arises when the government claims that the employee was dishonest. A charge of moral turpitude or dishonesty implicates the liberty interest of the employee (as discussed in Part C), and has been held to entitle cross-examination of the accuser20 .Any rights that may be extended to the employee through collective bargaining agreements, ordinances or personnel procedures must also be afforded to ensure he receives all the process which is due. One of the requirements to ensure that a meaningful hearing is held is that the person who makes the final decision should be impartial as to the facts supporting the decision against the employee 21 .In other words, this person should be able to hear the facts and reasons for the personnel action as if he were a judge, impartial tribunal or hearing officer. The legal

requirements of due process are not satisfied if the hearing officer is both the “judge” and the person bringing the charges against the employee. The point to all this is simple: due process requires that an employee holding a property interest in his employment is entitled to the opportunity for a meaningful hearing prior to any action taken to reduce or end compensation or employment. Property Interest for Employees may be Established by a Collective Bargaining Agreement The United States Court of Appeals, which has jurisdiction over the federal courts of Oklahoma, has held that a property interest in continued employment is created under state law in the form of a collective bargaining agreement that is contracted pursuant to state legislation 22 .Thus, all employees who are members of a bargaining unit that has a collective bargaining agreement with a public employer have a constitutionally protected property interest in their employment. Accordingly, they are entitled to procedural due process, as discussed above, prior to the deprivation of that property interest. The Oklahoma Supreme Court has cited the 10th Circuit’s decision with approval and followed its holding 23 . C. Liberty Interest All charter school employees, whether terminable-at-will or terminable only for cause, possess a liberty interest under the Constitution of the United States. The concept of a liberty interest is: (1) (2)

The protection of the employee’s good name, reputation, honor and integrity, and The employee’s freedom to take advantage of other employment opportunities 26 .

Charter school employers are liable for damages to the employee if his/her liberty interest is violated without providing due process 27 . To prove damages, an employee must successfully show that at the time of, or following, the termination, the school employer published or caused to be published, information to people outside the school administration (e.g., a prospective employer, parents, newspapers, persons in the community) which impugned the employee’s good name or prevented him from future employment28 . The employee must prove that the publication of information was (1) false and (2) stigmatizing 29 .The legal term “publish” refers to either oral or written communication to the public. When the information concerning the adverse employment action is only communicated within the organization, it has not been

published. However, statements made in a school board meeting or school committee meeting are considered to be “published” if there are members of the public present at the meeting. Therefore, any publication of the school administration’s statements, as described above, could infringe upon an employee’s liberty interest. The courts have held that published statements about a terminated school teacher employee relating to incompetence, neglect of duties or insubordination do not deprive the person of his liberty interest30 . However, charges of dishonesty or moral turpitude, if false and published, do implicate the employee’s liberty interest31 . And finally, if the employer only communicates privately to the employee the reasons for the termination, even if the reasons are false, there is no liberty interest right violated as there has been no publication. D. Due Process Procedures As discussed previously, before an employee can be deprived of his property interest in employment, or his liberty interest, the employee has procedural due process rights which must be followed. As a reminder, these rights are required only if the school employee can be discharged only for cause or if the employer has published false damaging statement about the employee. No due process procedures are required to be followed by the school for the termination of probationary or terminable-at-will employees32 . If the employee is entitled to due process, the Courts have provided guidelines with some basic principles an employer should follow: 1.

Basic due process of law required that an employee be given notice and an opportunity to be heard before his compensation or benefits are reduced or terminated by the employer. The due process procedure is divided into two parts: (1) a pre-action hearing and (2) a post-action hearing (although it is permissible to combine them into on thorough pre-action hearing).

2.

It is important that the employee understand the facts or reasons given by the employer which are the basis for the proposed action. For example, “insubordination” or “conduct unbecoming a police officer” are more likely to be deemed conclusions rather than reasons. It is recommended that the acts of the employee which support the adverse personnel action be specifically stated, e.g., “insubordination by failure to follow a direct order from a supervisor, Sgt. D. Jones, on June 10, 2003.”

Specific Procedures That Must Be Afforded A “For Cause” Employee 1. Pre-action Requirements. a.

b. c. d.

Employee is provided written or oral notice of the potential adverse personnel action by the employer, specifically citing termination if that is being considered. Employee is provided the specific reasons or facts which are the basis for the pending action by the employer. Employee is provided an opportunity to respond, to prevent an adverse action by the employer based upon mistaken or erroneous reasons or facts. Employer makes decision.

The pre-action hearing need not be elaborate. It need not definitively resolve the propriety of the discharge. Its purpose is to serve as an initial check against a hasty decision by the employer based upon erroneous facts. There is no specific time requirement involved in the setting of a pre-action hearing. In other words, the employer is not required to give the employee any specific time in which to respond to the questions or allegations. The whole matter can be conducted in one conversation or meeting with the employee if that is the way the employer chooses. However, in most instances the employee should be allowed as much time as can be reasonably justified under the circumstances. 2 Post-action Procedures. a.

b. c.

d.

This is a follow-up to the pre-action hearing. It should never include new reasons unless the employee had been previously informed of them and has had adequate time to respond. The employee is provided adequate time to prepare his defense or response to the employer’s actions. The employee is provided an opportunity to explain why no adverse employment action should be taken. The law gives him the right to have legal representation or to cross examine witnesses against him. This hearing should be conducted by an impartial person or board authorized to act in this capacity. The purpose of the hearing is to allow both the employer and the employee to present reasons for or against the adverse personnel action. It is presumed that this process will result in a just decision supported by reason.

This impartial review is to make certain the facts are sufficient to support a decision to take some adverse personnel action against the employee. The reviewer should not be

involved in trying to prove the charges against the employee; otherwise the reviewer’s objectivity may be subject to challenge.

Conclusion Charter school employees must be knowledgeable concerning the rights that they possess in their jobs. Remember, just because they do not have the same statutory rights as public school teachers and employees, violation of the above described rights by charter schools does provide the employee with rights that may result in damages against both the charter school or the charter school officials personally. Even though most charter school employees are considered “at-will” employees, meaning they may be terminated at any time for any legal reason, charter school employees may not, however, be terminated for reasons which violate public policy. If the charter school employees negotiate a contract with the charter school, then such school employees can negotiate terms in the contract which state they may only be terminated for cause. Under the law, these employees protected by such a collective contract are entitled to certain procedural due process prior to an adverse personnel action. Due process requires notice and a meaningful hearing before the employment relationship is adversely changes for the employee. All charter school employees have a liberty interest, which includes the right to seek future employment and due process protection of a good name and reputation. A hearing with the school administration, to allow the employee the opportunity to clear his good name, is mandatory before a charter school employer may deprive the employee of his liberty interest. The courts recognize that the policies and procedures adopted by an employer which create a duty on its part to do certain things before an employee is discharged may create a contractual right for an employee. When the employer fails to perform its duty, it may create a clam of breach of contract. Endnotes: (1-5 redacted). 6. Hall v. O’Keefe, 617 P.2d 196 (Okla. 1980). 7. Brown v. Reardon, 770 R.2d 896 (10th Cir. 1985). 8. Breshears v. Moore, 1990 OK CIV APP 8, 792 P.2d 91. 9. Hinson v. Cameron, 1987 OK 49, 742 P.2d 549; Burk v. K-Mart, 1989 OK 22, 770 P.2d 24.

10. Conaway v. Smith, 853 F.2d 789 (10th Cir. 1988) 11. Occupational Safety and Health Act of 1970, 29, U.S.C. §660©); Federal Water Pollution Control act, 33 U.S.C. §1367; Fair Labor Standards Act, 29 U.S.C. §215(a); Toxic Substances Control Act, 15 U.S.C. §262 2(a); Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. §9610; and Solid Waste Disposal Act, 42 U.S.C. §6971(a). 12. Board of Regents v. Roth, 408 U.S. 564(1972). 13. Goudeau v. Indep. School Dist. No. 37 of Okla. County, 823 F.2d 1429(10th Cir. 1987). 14. Matthews v. Eldridge, 424 U.S. 319(1976). 15. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532(1985). 16. Powell v. Mikulecky, 891 F.2d 1454(10th Cir. 1989). 17. Loudermill, supra. 18. Calhoun v. Gaines, 982 F.2d 1470, 1476(10th Cir. 1992). 19. Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 517-18(10th Cir. 1998). 20. Walker v. United States, 744 F.2d 67, 70(10th Cir. 1984). 21. Miller v. City of Mission, Kansas, 705 F.2d 368(10th Cir. 1983) 22. Hennigh v. City of Shawnee, 155 F.3d 1249, 1253(10th Cir. 1998). 23. Barnthouse v. City of Edmond, 2003 OK 42. 26. Roth, supra. 27. Owen v. City of Independence, Missouri, 445 U.S. 622(1980). 28. Walker, supra. 29. Sipes v. United States, 744 F.2d 1418(10th Cir. 1984). 30. Livengood v. Thedford, 681 F. Supp. 695(W.D. Okla. 1988). 31. Lentsch v. Marshall, 741 F.2d 301(10th Cir. 1984) 32. Walker, supra.