End of Year Options-Program Change Reduction in Force

By Cheryl T.
Mehl, Shareholder

Eichelbaum
Wardell Hansen Powell & Mehl, P.C.

Notwithstanding the current legislative
“promises” of more money for public education in the coming biennium, school districts
may still be considering program changes or other avenues to whittle away some
of their personnel costs.  Certainly,
“program change” at the end of a school year is always the preferable mechanism
to tackle that problem. While the
district may be feeling a pinch in its finances, it really is not advisable to
use “financial exigency” for end-of-year decisions because of the limitations
implicit in using that reason, which is now subject to definitions established
by the commissioner under the authority of Texas Education Code section 44.011.

Sometimes a call for a reduction in force
(RIF) is unnecessary to reduce personnel costs. At-will employees, employees on
employment agreements, probationary contract employees, and anyone who is not
on a “Chapter 21 term contract” can be released without calling for a RIF.
At-will employees can be released for any reason at any time so long as it is
not for an illegal reason; saving money is not an illegal reason. A district
will, however, want to make sure it has a reasonable, non-discriminatory
process to identify at-will employees who are released in this scenario. If a district has little confidence in the
rigor of its at-will employee evaluation processes, it may opt for a totally
random identification method (drawing straws, names in a bowl, flipping coin,
drawing cards).

Employees on employment agreements
most-likely have the terms for terminating the agreement within the four
corners of the employment agreement itself. Probationary contract employees can
be terminated from employment effective at the end of the school year by
providing notice of the board’s action at least 10 days before the last day of
instruction, if the board deems it “in the best interest of the district.”

Presuming a district has released all of the
above mentioned personnel that it can and still needs to cut personnel costs by
reducing staff, the district will be guided by the process set out in DFFB
(LOCAL). The first step is the board’s
vote to declare a program change that will result in staff reductions; second,
the board must identify the affected employment area(s) based on the
administration’s recommendation; then the administration must use the criteria
in DFFB (LOCAL) to determine the appropriate personnel to be brought forward
for nonrenewal because of the program change resulting in a reduction in force (see
reason 10 in most all districts’ DFBB (LOCAL)). Of course, if the affected employment area is narrowly defined,
resulting in an affected pool of ONE, then there are no criteria to be applied,
and the one person will either resign or be proposed for contract nonrenewal.

If a district is making program changes to
release term contract employees as a saving measure, it must also take into
account other vacancies. DFFB (LOCAL)
states the commissioner’s “rule” (via individual decisions over the years) that
“Up until the date of a hearing requested in accordance with this policy, an
employee who applies for an open position must be offered the position if the
employee meets the District’s objective criteria for that position and is the
most qualified internal applicant for the position.” This direction arises from the fact that a RIF
is not supposed to be a means of eliminating poorly performing employees: RIFs are about the position, not the person.

Though
the policy is straightforward, we suggest working closely with the district’s
legal counsel to ensure a smooth RIF process.

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