Solving the Puzzle of Reduction in Force

Reduction In Force Karen Haase Harding & Shultz Lincoln, NE (402) 434-3000 khaase@hslegalfirm.com H & S School Law

Solving the Puzzle of Reduction in Force

The Statutes < Every board must have a reduction in force policy Â&#x2019; The policy is not bargainable Â&#x2019; Timing of amendments to RIF policy

The Statutes < Probationary teachers must be reduced before tenured teachers < Board, by policy, may determine criteria for retention < If evaluation is a criterion, the policy must specify: frequency of evaluation evaluation forms, and number & length of observations

The Statutory Mantra Before a reduction in force can occur--

< Present evidence showing: A change of circumstances Necessitating a reduction in force Specifically related to riffed teacher

Required Findings < Board must find: Â&#x2019; There are no vacancies on staff for which the employee is qualified Â&#x2019; RIF affects classroom as a last resort

RIF’d Teacher’s Rights A Teacher Who is Terminated by RIF

< Considered dismissed with honor On request gets a letter to that effect < Recall rights for 24 months < Recalled on length of service < Must be qualified by endorsement or college preparation to be recalled

Waiver of Recall Rights â&#x20AC;&#x153;. . .an employee under contract to another educational institution may waive recall but such waiver shall not deprive the employee of his or her right to subsequent recall.â&#x20AC;?

The Statutes Reorganization of School Districts and Reduction in Force

< Statutes apply to all mergers and unifications < Notice by March 15 or 30 days before merger Â&#x2019; Staff Development Assistance Â&#x2019; Retirement Incentive Program

Notice of RIF < Must notify of possible amendment or termination by April 15 Â&#x2019; Comply with any earlier dates in policy or handbook < Teacher has 7 days to request hearing

Hearing Notice < Hearing must be held within 30 days < At least 5 days prior to the hearing, the teacher is given: Specific reasons for RIF Exhibit list Witness list Summary of witnesses’ testimony Copies of documents

Board Decision < Board must make final decision on or before May 15 < There is no vacancy < RIF affects classroom as last resort

Dykeman v. Board Dykeman v. Board of Education (1982)

< Board Policy considered: Certification and endorsements Program to be offered Contribution to activity program Length of uninterrupted service Special qualifications Part-time employees get lowest priority

Dykeman v. Board < < < <

Two business administration teachers Board reduces from 2 teachers to 1 Dykeman had more seniority Other teacher contributed more to extra-curricular activities < Nebraska Supreme Court: boards may differentiate on basis of contribution to extracurricular activity program

Dykeman v. Board The Nebraska Supreme Court held: In the absence of statutory or contractual restrictions, the decision of a school board in such a matter [RIF] is generally subject to but a limited review.

Dykeman v. Board The Nebraska Supreme Court held: â&#x20AC;&#x153;School boards should have broad discretion in such matters free from judicial interference in the absence of a finding that their actions were arbitrary and capricious.â&#x20AC;?

Cross v. Board < < < <

Board eliminated machine shop program Ross only shop instructor Board RIFâ&#x20AC;&#x2122;d Ross Supreme Court -- affirmed board -responsible for curriculum and employment

Reduction In Force Karen Haase Harding & Shultz Lincoln, NE (402) 434-3000 khaase@hslegalfirm.com H & S School Law