Author: Mike Ivancie, Esq.

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

Mike Ivancie, Esq.

 

***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.

Hopefully you found this guide helpful. At this time we are not taking on any new clients. All information provided above is for reference purposes and should not be construed as legal advice. You should consult with a licensed attorney before taking any action in your case.

 

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Fast Legal Answers: Failure to maintain a condition of employment

Mike Ivancie, Esq.

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.

A 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.

Hopefully you found this guide helpful. At this time we are not taking on any new clients. All information provided above is for reference purposes and should not be construed as legal advice. You should consult with a licensed attorney before taking any action in your case.

 

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Fast Legal Answers: How do I prepare for my deposition?

Mike Ivancie, Esq.

For my third post in the Fast Legal Answers series I will change gears and go from purely legal advice to the more practical. Today, I will be talking about how to prepare for a deposition. I’ll go into the basics about what to expect when your deposition is being taken, common questions, and how to properly respond to especially tricky questions.

Essential things to know before getting your deposition taken

 

What is a deposition?

A deposition is just another way to get testimony from an individual. Typically depositions are taken during the discovery phase of a case.

When you give a deposition you are under oath. This means your deposition testimony has the same weight as if you were testifying in court. So, you should take it as seriously as if you were going to testify in front of a judge and jury even though you are just going into a conference room with a few attorneys and a reporter.

How long does a deposition last?

Typically a deposition will only last one full day. The length of any deposition depends on the complexity of the case itself and other factors, such as the start time and the number of breaks taken.

The rules related to to the maximum length of a deposition will depend on the court or administrative body hearing your case and if the attorney’s have made any special requests for a longer deposition. For example, the federal rules of civil procedure limit a deposition to one day and 7 hours total. FRCP 30(d)(1)

How do I prepare?

Your attorney should work with you the week before your deposition. The attorney should give you advice similar to the advice in this article related to how you should answer questions and when you should ask for clarification.

Obviously, the attorney will need to go over your case in great detail. Focusing on the key issues and explaining the likely questions you are going to get related to those issues. How you approach these questions could be critical to the outcome of your case. There is an old quote lawyers have about their client’s deposition:

You almost never win your case because of your client’s deposition, but you certainly can lose it if things go south.

Answering Questions – Tips and Advice

So the deposition is really all about answering questions the other side’s attorney will ask you. It is important that you make sure you understand the question that is being asked of you. You should also only answer the question being asked. This means you do not volunteer information.

Do not speculate

Questions like, “Why do you think Tom called you after the accident?” call for speculation. Sure, you can probably guess why Tom called you, but you certainly do not know what Tom was thinking and you shouldn’t speculate when you answer questions. A proper response to a question like this would be: “I’m not sure why Tom called me, he is the one who can answer that question.”

If you do not understand a question, ask for clarification

Attorneys sometimes ask terrible-compound-rambling-unclear questions. When they do, which will likely happen a few times in your deposition, simply ask them to rephrase. That way you are clear on the question being asked which allows you to respond appropriately.

Moreover, don’t guess, speculate, or feel forced to answer a question. If you honestly don’t remember, just say so. But do not make up an answer because you feel pressure to give one. If a question is unclear to you it is always appropriate to ask for clarification. Indeed, you should never answer a question you don’t understand.

Answer only the question asked

If a yes or no answer is appropriate then answer with a yes or no only. Volunteering information generally is not a good idea.

Don’t unnecessarily elaborate or volunteer information:

  1. Incorrect approach:
    1. Q: Have you seen the wizard of OZ?
    2. A: Yes, I really was terrified of those flying monkeys. I’ve had nightmares about them the last 30 years.
  2. Correct approach:
    1. Q: Have you seen the wizard of OZ?
    2. A: Yes.

Questions that might seem strange

When you first start your deposition the other attorney may ask you a few questions that sound strange. They may ask you if you have been convicted of a felony, are impaired or under the influence of drugs, or otherwise are have some limitation that would prevent you from answering truthfully and fully. These are foundational questions that are necessary to make sure you are in the right frame of mind. This  prevents you or your attorney from making the argument that the bad answers you gave in your deposition were the result of some medication or other impairment you were suffering from during questioning. Do not take these questions personally, and do not get thrown off by them.

Court reporter tips

Because the court reporter will be creating a transcript of the deposition it is important that only one party talk at a time. So, make sure the attorney finishes his or her question before you start your answer.

Also, clients commonly provide a yes or no answer by shaking their head or mumbling something like “uh-huh.” This leads to an ugly and unclear transcript. So, make sure you give an audible “yes” or “no” to all questions.

Three Golden Rules for depositions:

  1. Tell the truth.

  2. Don’t speculate. It is totally acceptable to say “I don’t know” or “I don’t remember” if that is the truth. But if you know the answer you would be committing perjury if you say “I don’t know” 

  3. Answer only the question asked. DO NOT VOLUNTEER INFORMATION. 

 

Closing

Giving a deposition can be very intimidating, especially if you have never experienced the process before. A good attorney will prepare you ahead of time and get you familiar with the process. They will also inform you of any “landmines” to avoid and issues that are critical to the case. The key is to remain composed and make sure you understand the questions that are asked of you. Go slow, take your time, and do not feel pressured to “make the other attorney happy” with you answers. Finally, if you follow my three golden rules above, you will avoid the majority of the issues that could lead to a bad deposition.

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How to file an MSPB appeal (video guide)

Mike Ivancie, Esq.

Below is a step-by-step video guide to filing an MSPB appeal. It provides basic information like where you can download the appeal, how you complete the form, filing deadlines, and filing directions.

Click here to view the MSPB appeal form.

 

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Huge change in federal policy related to asset seizure

Mike Ivancie, Esq.

Employment law is my main focus, but I have quite a bit of experience related to federal forfeiture law, specifically, C.A.F.R.A.  I like to keep up on the topic. Asset forfeiture is an interesting niche that has been the subject of abuse and is not well understand by many practitioners.

Today marks a fairly large shift in policy, and a tacit recognition that the federal forfeiture process was previously being misused.

Attorney General Eric Holder announced that Federal Agencies will no longer adopt assets seized by local law enforcement. This closes the door on what was a fairly common practice of local law enforcement agencies seizing assets then turning them over to their federal counterparts for forfeiture under laws that were much friendlier than the state laws that law enforcement would otherwise have been forced to comply with.

Click to read the press release from AG Holder.

I saved a copy of the formal order issued by the AG, you can download a copy here.

The policy does not prevent all adoptive forfeitures, and still allows for forfeitures of “public safety concerns, including firearms, ammunition, explosives and property associated with child pornography.”

Nonetheless, this ends the practice of local law enforcement seizing currency and vehicles under questionable circumstances, transferring the property to the feds, and then reaping the rewards of forfeiture under generous asset sharing arrangements.

Now, state and local officials will be accountable to their own state laws related to asset seizure and forfeiture. Many of which, are much more rigorous and demanding than their federal counterparts.

This could lead to a increase in the amount of forfeiture cases litigated on the state level, or it could lead to a decrease in the amount of seizures done by law enforcement, if they decide it just isn’t worth the effort anymore. Only time will tell…

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