Fast Legal Answers: California Education Code § 44929.21 – non-reelection of probationary teachers

 

***NOTE TO POTENTIAL CLIENTS: THE IVANCIE LAW PRACTICE IS NO LONGER HANDLING NON-REELECTION OR CALIFORNIA EDUCATOR CASES. THE BELOW INFORMATION IS FOR REFERENCE ONLY***

 

Today in my Fast Legal Answers series I am going to discuss a California Education Code § 44929.21(b). Probably one of the harder-to-read statutes I’ve looked at in a while, it covers the process school districts follow when they decide not to reelect a probationary teacher in California. The relevant part of the statute provides:

(b) Every employee of a school district of any type or class
having an average daily attendance of 250 or more who, after having
been employed by the district for two complete consecutive school
years in a position or positions requiring certification
qualifications, is reelected for the next succeeding school year to a
position requiring certification qualifications shall, at the
commencement of the succeeding school year be classified as and
become a permanent employee of the district.
   The governing board shall notify the employee, on or before March
15 of the employee's second complete consecutive school year of
employment by the district in a position or positions requiring
certification qualifications, of the decision to reelect or not
reelect the employee for the next succeeding school year to the
position. In the event that the governing board does not give notice
pursuant to this section on or before March 15, the employee shall be
deemed reelected for the next succeeding school year.
   This subdivision shall apply only to probationary employees whose
probationary period commenced during the 1983-84 fiscal year or any
fiscal year thereafter.

(emphasis mine)

Can you explain that law in plain English?

The law provides that if a probationary teacher is employed by the district for two consecutive years they will become a permanent (tenured) teacher at the start of their third school year. The district can decide not to reelect a probationary teacher in the first two years of the probationary period.  However, they must do so by March 15th of the last probationary school year. If the district does nothing (doesn’t notify the teacher of non-reelection prior to March 15th) the teacher is deemed reelected for the following year.

What are the core principles of that statue in visual form?

Visual guide to California Education Code § 44929.21

So what reasons does the district have to give for not reelecting me?

Actually, none. If you are a probationary teacher the district can decide not to reelect you for any or no reason at all. All they have to do is get you the notice of non-reelection before March 15 of your second complete school year as a certified probationary teacher. California courts have recognized the great discretion districts have in this regard: The public school district has “the absolute right to decide not to reelect probationary teachers without providing cause or other procedural protections.” Sunnyvale Unified School District v. Jacobs, 171 Cal. App. 4th 168 (Ct. App. 2009).

Well that doesn’t seem fair…

Contrasted with the great amount of protections for permanent teachers it certainly does not seem fair. But this provisions allows districts to weed out underperforming or apparently troubled teachers before they become tenured, and it is much more difficult to fire them. The California Court of Appeals has openly acknowledged this balance “[t]his seemingly draconian provision [talking about § 44929.21(b)]  represents the Legislature’s balance between the rights of the teacher and the overall purpose of the system of public education, which is to educate the young.” Sunnyvale Unified School District v. Jacobs, 171 Cal. App. 4th 168 (Ct. App. 2009).

What are my options?

Well your options are somewhat limited. Since the district has the absolute right not to reelect you while you are a probationary employee, it is very difficult to challenge a non-reelection. Collateral challenges to non-reelections through a claim of protected whistleblowing activity are not always viewed favorably by the courts. See, e.g., Conn v. Western Placer Unified School Dist., 186 Cal. App. 4th 1163, 113 Cal. Rptr. 3d 116 (Ct. App. 2010) (“to exalt these ‘disclosures with whistle[-]blower status would create all sorts of mischief. Most damagingly, it would thrust the judiciary into micromanaging employment practices and create a legion of undeserving protected `whistle[-]blowers’ arising from the routine workings and communications of the job site.”). For courts to accept whistleblowing claims the disclosures need to be of significant magnitude including violations of state or federal law. Claiming that your non-reelection is based on discrimination, say for your sexual orientation, can sometimes be grounds for getting a decision reevaluated or getting concessions from a district. However, discrimination cases are extremely fact dependant.

Ultimately, each case is different. Non re-elections are difficult to challenge; it is an uphill battle. However, if you think your non-reelection was a result of protected whistleblowing activity or discrimination you should contact an attorney. Contact us for a free consultation.

Conclusion

Probationary teachers have drastically limited rights when it comes to non-reelections. If you are a teacher that has been notified of your non-reelection you may want to pursue a resignation in lieu of non-reelection. Districts have broad discretion when it comes to reelection. So, in some cases, rather than trying to fight a reelection it may be better just to move on and find employment elsewhere. If you do want to challenge a non-reelection you need to consider whether your non-reelection was based on your membership in a protected class or a protected disclosure you made.

Fast Legal Answers: Failure to maintain a condition of employment

For my fourth post in the Fast Legal Answers series, I will discuss a common federal disciplinary charge: failure to maintain a condition of employment. This charge is unique in that it typically results in removal of the federal employee. Indeed, this means removal can stem from something fairly benign such as losing computer or building access. Accordingly, some agencies may try to use the failure to maintain a condition of employment charge to remove a trouble employee that has not engaged in other, more substantive, misconduct.

What are conditions of employment?

Conditions of employment include professional certifications, such as bar membership for attorneys, a commercial driver’s license for positions where driving is a requirement, medical credentials for medical professionals, or the ability to carry a firearm for law enforcement officers. Essentially, a condition of employment is any license, qualification, training, or certification that is necessary to perform a specific job.

security clearance (S, TS, TS-SCI, etc.) for national security positions is special condition of employment. As discussed further below, firings related to loss of a security clearances are harder to challenge and have limited appeal rights.

Other, less commonly cited conditions of employment include access to computer systems and government buildings.

What is an example of a failure to maintain a condition of employment?

Attorney’s that work for federal agencies are required to maintain active bar membership in at least one state. Let us assume our example attorney, John Smith, fails to pay his bar membership fees and fails to complete his required continuing legal education courses. As a result, the state bar rescinds his membership. Shortly thereafter, Mr. Smith’s agency finds out that he is no longer licensed by a state bar to practice law. The employing agency then initiates removal proceedings for failure to maintain a condition of employment. Absent procedural errors or other substantive misconduct, Mr. Smith’s removal for failure to maintain a condition of employment would likely be sustained by the MSPB.

What can I do if I am removed for failure to maintain a condition of employment?

If you a removed for failing to maintain a condition of employment, in some cases you can challenge your removal before the MSPB. You can read more about the process an MSPB case takes in our MSPB legal guide. This entails filing an appeal of the adverse action and potentially attending a hearing where the agency presents the evidence against you and a judge makes a determination as to whether the agency has met its burden of proof. See Adams v. Department of the Army, 105 M.S.P.R. 50, ¶ 10 (2007).  Note that the filing deadlines for an MSPB case are very short (30 days) and you should consult with an attorney as soon as you receive a notice of adverse action.

What rights do you have if you a fired because you lost a security clearance?

If you are removed from the federal service because you lost a security clearance, typically your rights are much more limited. That is because there are essentially two-tracks for reviewing adverse actions against government employees. Actions that are “for cause” are entitled to review, actions that are based on “national security concerns” such as the revocation of security clearance are not. The Supreme Court addressed this issue in Department Of Navy V. Egan, 484 U.S. 518 (1988), where it concluded the MSPB does not have authority to review the substance of an underlying security-clearance determination in the course of reviewing an adverse action.

Two track system illustrated:

Two track system, for cause firings vs. national security concerns federal adverse actions

 

Note that some agencies have special regulations related to removal of clearances and those administrative processes may control in your case. In all likelihood, however, you will not have the right to MSPB review of your removal. Instead, you will have to rely on whatever internal review has been established by your agency.

Conclusion

This is a complicated topic because there are many different ‘conditions of employment’ that can result in an adverse action if they are not maintained. Further, certain conditions of employment are treated differently than others with varying appeal rights. The most common example being security clearance determinations. It is important for employees to understand what, if any, conditions of employment exists related to their position and to be apprised of their rights and obligations related to those conditions. Finally, it is critical that if you are removed for failing to maintain a condition of employment that you contact and consult with an experienced federal employment law practitioner to get expert advice on this very unique area of law.

Merit Systems Protection Board MSPB Attorney California

The Ivancie Law Practice specializes in representing federal employees before the Merit Systems Protection Board (MSPB). We represent federal employees across the country, from California to Washington DC.

If you are a federal employee and have been served with a disciplinary action, or already have a case before the Merit Systems Protection Board MSPB you need to hire an experienced attorney to handle your case. The MSPB is a unique administrative body with different rules than other forums.

Practicing before the MSPB is different than practicing in state court. You cannot just hire any employment lawyer. If you do, you risk having a representative that isn’t familiar with all the special rules that govern cases at the MSPB. Moreover, the deadlines are short and missing them can spell disaster for your case. I’ve seen multiple clients that have received bad advice from state attorneys that were not familiar with the unique rules of the MSPB and public-sector employment law, make sure you choose a knowledgeable advocate for your MSPB case.

Hire an experienced MSPB attorney. Choose San Diego Attorney, Mike Ivancie to handle your Merit Systems Protection Board appeal.

What type of MSPB cases do you take?

  • All Adverse Actions
  • Suspensions in excess of 14 days
  • Removals
  • Reductions in pay or grade
  • Whistleblower appeals – Individual Right of Action IRA appeals
  • Suitability determinations
  • Performance-based removals
  • Probationary Employee Terminations (limited jurisdiction)
  • Mixed-case appeals including allegations of discrimination
  • If you don’t see your case type listed above, it doesn’t mean we don’t handle that type of case. Call us and we can discuss whether we can assist you with your case.

Your representative should have experience handling public sector employment law cases

Our law practice focuses on employment law, and specifically, public sector employment law. This means we have expertise related to special administrative bodies like the MPSB. We are familiar with the procedural rules that govern, and we know how to use those rules to the benefit of our clients. While the MSPB allows you to pick any representative you like, including non-attorneys, it is strongly recommended that you hire someone that is familiar with the rules and procedures of the MSPB. Read our founder’s biography.

Your Attorney should be knowledgeable about MSPB cases and regulations

We have experience representing both agencies and employees at the MSPB. We have real world experience from both sides of the bench. We have dealt with MSPB Administrative Judges and understand their dockets and their inclinations, and can leverage this knowledge to your advantage.

We demonstrate our knowledge of the MSPB and its rules with our extensive writing on the topic:

The Federal Employee’s Attorney

We care about our clients and we want to get them the best outcomes possible. The competitive advantage of The Ivancie Law Practice is that our founder, J. Mike Ivancie, Esq. formerly worked for a federal agency where he handled MSPB cases on behalf of the federal government. He knows how federal agencies approach these cases. He knows where they make common mistakes. He also knows the settlement value of cases and he will work to get you the best deal should settlement present itself.

If you are facing discipline, including a lengthy suspension or removal from the federal service you need to pick your advocate carefully. Having previously worked to sustain disciplinary actions against employees I know the process and I know how stressful it can be for employees. I will work with you to resolve your case quickly and favorably.

A Lawyer that can pay for himself

The Ivancie Law Practice can work with you to find a fee arrangement that fits your needs. In some cases, we even offer contingent fee agreements where we don’t get paid unless we win your case. Further, the MSPB allows for the award of attorney’s fees in the event that you prevail against the agency. If the Ivancie Law Practice helps you win your case and there is an attorney’s fee award, we will agree to refund you any up-front fee you paid us. Representation at no cost to you. We provide experience and value.

Call today for a free consultation with experienced Merit Systems Protection Board, MSPB Lawyer, J. Mike Ivancie, Esq.

CONTACT INFORMATION:

Contact Page

Email: Consults@IvancieLaw.com

 

Helpful Merit Systems Protection Board Case Resources and Links

This list contains helpful resources for individuals who have cases before the Merit Systems Protection Board (MSPB) or for practitioners and representatives who are appear before the board. Explanations are included below the link when necessary.

I regularly add new links and resources to this guide. If you have suggestions feel free to email suggestions.

**Last Updated 1/7/2015**