Reduction in Force

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Karen Haase Kelley Baker Harding & Shultz Lincoln, NE (402) 434-3000 khaase@hslegalfirm.com kbaker@hslegalfirm.com H & S School Law

< Every board must have a reduction in force policy ’ The policy is not bargainable ’ Timing of amendments to RIF policy

< 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

Before a reduction in force can occur--

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

< Board must find: ’ There are no vacancies on staff for which the employee is qualified ’ RIF affects classroom as a last resort

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

“. . .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.�

Reorganization of School Districts and Reduction in Force

< Statutes apply to all mergers and unifications < Notice by March 15 or 30 days before merger ’ Staff Development Assistance ’ Retirement Incentive Program

< Must notify of possible amendment or termination by April 15 ’ Comply with any earlier dates in policy or handbook < Teacher has 7 days to request hearing

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

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

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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

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.

The Nebraska Supreme Court held: “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.�

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Board eliminated machine shop program Ross only shop instructor Board RIF’d Ross Supreme Court -- affirmed board -responsible for curriculum and employment

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

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