Contract Abandonment

A New Take on an Old Law

Debbie Esterak, Partner, Rogers, Morris and Grover, L.L.P.

Teacher staffing issues are a sobering reality for many, if not most, schools these days. “The Great Resignation” is a national phenomenon and neither Texas, nor the teaching profession is immune. In fact, a 2022 Texas Teacher Poll conducted by the Charles Butt Foundation found that 77% of teachers have seriously considered leaving the profession and up to 19% of those respondents anticipate doing so in the next two years. Considering almost 43,000 Texas teachers retired or resigned in the 2021-2022 school year1, districts should be prepared for continued staff attrition in the future. Given this landscape, teachers, administrators and board members should be aware of the law addressing teacher resignations and familiarize themselves with their district’s legal and local policies, especially since the law regarding the penalty-free resignation date recently changed. Chapter 21 of the Texas Education Code guarantees certified teachers2 the right to an employment contract. These “Chapter 21 contracts” guarantee a number of rights regarding the terms and conditions of public school employment, such as compensation, benefits and due process rights. Not only do the contracts serve to protect the employee and the employer, they also grant districts peace of mind that the particular contract position has been filled. Because a teacher resignation in the middle of—or too close to the start of—the school year creates staffing complications, the law establishes parameters around when a teacher can resign without penalty, and provides for potential penalties if the resignation is untimely. An educator employed under a probationary, term or continuing contract may resign effective at the end of the school year without penalty by filing a written resignation with the district’s board or the board’s designee not later than the 45th day before the first day of instruction of the following school year. 3 This right exists even if the teacher is in the middle of a multi-year or continuing contract. If an end-of-year resignation is filed or mailed by certified or registered mail by the 45th day before instruction begins, the board or its designee is not required to accept or otherwise act upon it—the resignation is automatically effective when filed.4 Conversely, that also means

if a resignation is timely filed, the educator cannot withdraw it without district approval. Fantroy v. Dallas Indep. Sch. Dist., Comm’r Educ. Decision 034-R8-0206 (Mar. 5, 2009). Timing is everything, however. If a teacher, without board consent, submits a resignation intended to be effective mid-year or submits it after the fortyfive day window has closed (usually around July 4th depending on the school start date), the law allows— but does not require—districts to report the teacher to the State Board for Educator Certification (SBEC).5 Interestingly, despite the large number of resignations in recent years, the number of complaints filed is not particularly excessive. According to the Texas Education Agency, in the 2019-20 school year, 345 complaints were filed, 258 the next year, 506 in the 2021-2022 school year, and this year, SBEC has received 254 so far. Once a complaint is filed, SBEC can impose sanctions against the teacher if he or she 1) resigned, 2) failed without good cause to comply with the 45-day or board consent requirement, and 3) failed to perform their contract. 6 This law has been in effect for quite some time, but recent amendments have changed the process by, among other things, allowing SBEC more flexibility regarding imposition of sanctions and ensuring teachers receive notice of any complaint or action on their certificate. 7

In order for SBEC to pursue sanctions against a teacher for contract abandonment, the district’s board of trustees must submit a written complaint within 30 calendar days after the effective date of the educator’s separation from employment.8 The written complaint must include the educator’s resignation letter, if any; any agreement with the educator regarding the effective date of separation from employment, if any; the educator’s contract; and the school board meeting minutes indicating a finding of “no good cause”.9 If the board does not meet within 30 calendar days of the educator’s separation from employment, the minutes may be submitted within 10 calendar days after the next board meeting.10 Unless the school district and the educator have a

21 | November 2022 written agreement to the contrary, the effective date of separation from employment is considered the first day that, without district permission, the educator failed to appear for work under the contract. The written complaint must indicate that the board rendered a finding that good cause did not exist for the untimely resignation. While the board’s finding constitutes prima facie evidence of the educator’s lack of good cause, it may be overturned by SBEC.11 Good cause is defined by SBEC rules.12 Specifically, good cause includes a serious illness or health condition of the teacher or a close family member, relocation of a spouse or partner, and a significant change in family needs that requires relocation or more of the educator’s time.13 Take note of one additional reason added by the recent SBEC amendments: the educator’s reasonable belief that he or she had written permission from the school district administration to resign.14 Accordingly, districts should carefully communicate with administrators about the resignation process, identifying who in the district is authorized to accept a resignation and describing how to avoid taking actions that could be interpreted as encouraging or permitting resignation. When considering a contract abandonment complaint, SBEC must consider “any mitigating factors relevant to the teacher’s conduct” prior to imposing a sanction.15 Mitigating factors include whether the teacher: • Helped find a replacement/worked until the replacement was found; • Assisted in training the replacement/provided lesson plans following resignation; • Showed good faith in communications with the district; • Gave written notice to the school district 30 days or more in advance of the first day of instruction for which the educator will not be present; • Changed careers within the field of education to a position that required a different class of certification or to a position with a higher level of authority within the principal class of certificate

5 TEC, §§21.105(c), 21.160(c), or 21.210(c) 6 Id. 7 See, generally, Acts 2021, 87th Leg., ch. 1030 (H.B. 2519), effective Sept. 1, 2021 8 19 TAC § 249.14(j) 9 Id. 10 Id. 11 Id. 12 19 TAC § 249.17(d)(1) 13 Id. 14 Id. 15 TEC, §§ 21.105(e), 21.160(e), or 21.210(e)

• Had a reduction in base pay, excluding stipends, as compared to the educator’s base pay for the prior year at the same school district; • Resigned due to working conditions that reasonably posed an immediate threat of significant physical harm to the educator; or • Any other relevant circumstances or facts.16

Prior to the 2021 change in law and the 2022 revision of SBEC rules, SBEC required a mandatory minimum sanction of a one year suspension for any educator who resigned within 45 days of the start of school without good cause or mitigating factors. SBEC could—but was not required to—consider mitigating factors. Now, consideration of those factors is mandatory and could lead to a suspended sanction, or to no sanction or disciplinary action at all.17

Another amendment that lessens the severity of this law prohibits SBEC from suspending or revoking a certificate if the written resignation is submitted not later than the 30th day before the first day of instruction.18 If there are no mitigating factors in such a case, the mandatory sanction is an inscribed reprimand and therefore does not prevent the educator from working in a school district. On the other hand, if the educator resigns with less than 30 days before the first day of instruction, the mandatory minimum sanction is a one year suspension.19 The timing of when the suspension starts depends on the circumstances. If the educator has not worked as an educator during that year and the case is resolved within that one year through an agreed final order, the suspension is timed from the first day the educator failed to appear for work.20 Alternatively, the suspension can run for one year from either the effective date of an agreed final order resolving the case or an agreed future date at the beginning of the following school year, if the educator has worked as an educator after abandoning the contract.21 This is especially helpful for districts that have unwittingly hired a teacher who is the subject of a pending abandonment complaint. Note, however, that the teacher must agree to settle in order for a future date to apply. For teachers who do not settle with SBEC, the suspension generally runs for one year from the date that SBEC adopts an order that becomes final following a default or a contested case hearing at the State Office of Administrative Hearings.22

Depending upon whether mitigating factors apply or an educator’s actions were egregious enough to warrant more than a minimum mandatory sanction, SBEC has a number of options for sanctioning an educator who resigns outside of the penalty-free resignation date.23 They include: • Inscribed or non-inscribed reprimand; • Suspension of certificate; • Restrictions on the issuance, renewal or holding of a certificate for a set term or indefinitely; • Revocation/cancellation of a certificate; • Other conditions/restrictions deemed necessary to “facilitate rehabilitation or professional development” (continuing education, etc.) SBEC enjoys a great deal of flexibility when addressing contract abandonment, since the recent statutory amendment allows SBEC to consider alternatives to sanctions altogether, such as requiring additional continuing education or training.24 Given the changes in law, administrators should familiarize themselves with policy revisions and ensure that all district procedures, including employee handbooks and links that allow teachers to submit resignations online, are in harmony with the changes. In order to avoid losing a teacher mid-year due to a suspended certification, individuals making hiring decisions should be sure not only to ask applicants whether they are currently involved in a contract abandonment case with SBEC, but also whether they have abandoned a contract in case the educator has not been notified yet of a complaint having been filed. Finally, any certified teacher considering resigning should be aware that in the eyes of the law, there’s a right time and a wrong time to do so.

16 19 TAC § 249.17(d)(2)) 17 19 TAC § 249.17(d)(3)(C) 18 TEC, §§ 21.105(f), 21.160(f), or 21.210(f); 19 TAC § 249.17(d)(3)(A) 19 19 TAC § 249.17(d)(3) 20 Id. 21 Id. 22 Id. 23 19 TAC § 249.15(a) 24 TEC, §§ 21.105(e), 21.160(e), or 21.210(e)

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