2087 - Orderly Termination of Employee

Created 19, June, 2012

Modified 14, July, 2015

Orderly School Termination for Career Employees

(Licensed and Classified)

Definitions—

For purposes of this policy, the following definitions apply:

“Career Employee”

1. An employee—both an employee with an educator license working in position that requires a license and a classified employee--of the District who has obtained a reasonable expectation of continued employment. An employee who works for the District on at least a half-time basis becomes a career employee upon the successful completion of at least three (3) full consecutive academic school years with the District as a provisional employee. The District may extend the three-year provisional status of an employee up to an additional two (2) consecutive years). If the provisional employee starts after the beginning of the school year, that school year does not count toward "career employee" status. Successful completion is determined by performance of all contractual duties within standards acceptable to the District.

Utah Code Ann. § 53A-8a-102 (2012)

Utah Code Ann. § 53A-8a-201 (2012)

“Provisional Employee”

1. Any employee who has not achieved career employee status is a “Provisional Employee.” A provisional employee is an employee, who works for the District on at least a half-time basis, hired on an individual, one-year contract and who is not a temporary employee. Provisional employees have no expectation of continued employment beyond the current one-year contract term. During the employee’s contract term, however, a provisional employee may be discharged only for cause. The District may extend the provisional status of an employee up to an additional two consecutive years by written notification to the provisional employee no later than 30 days before the end of the contract term of that individual. Circumstances under which an employee's provisional status may be extended include: (1) less-than-perfect score on a performance evaluation; or (2) receipt of complaint(s) or expression(s) of concern from a parent, co-worker, or member of the community that creates uncertainty about the employee’s professionalism, performance, or character; (3) declining student enrollment in the district or in a particular program or class; (4) the discontinuance or substantial reduction of a particular service or program; or (5) budgetary concerns.

Utah Code Ann. § 53A-8a-102 (2012)

“Classified Employees”

1. Classified Employees are all non-certified employees of the District.

“Temporary Employee”

1. Temporary employees are all employees employed on a temporary basis. Temporary employees also include those seasonal employees who are employed for less than the full academic year. An appointment of a temporary employee may not be for a period of time greater than one year. Temporary employees are employed at the will of the District and have no expectation of continued employment and their employment may be terminated at any time without cause. Temporary employees are not career employees or provisional employees as defined by Utah Code Annotated § 53A-8a-102 and the policies of this District.

Utah Code Ann. § 53A-8a-102 (2012)

“Contracted Service Providers”

1. Contracted Service Providers are individuals regardless of employment status (full or part-time) who by nature of their profession are not required to hold a professional license issued by the Utah State Board of Education and who are paid by contract to provide identified types of services for the District but who are not employees, are not on the District payroll and do not receive the same benefits enjoyed by regular employees of the District.

“Extra Duty Contracts”

1. An employee who is given extra duty assignments in addition to a primary assignment is a temporary employee in those extra duty assignments and may not acquire rights or career status beyond the primary assignment. There are no rights to a due process hearing if a person is released from an extra duty position. A person may be released from an extra duty position at the discretion of the Board. Extra duty assignments include any assignment for which an employee receives an additional stipend or payment beyond the employee’s primary assignment salary. Extra duty may include serving as activity advisor, coach, or administrator where the employee does not have an administrator license and where the employee’s primary assignment is non-administrative duties.

“Employee”

1. A person, other than the District superintendent, business administrator, or contract service provider, who is employed by the District.

Utah Code Ann. § 53A-8a-102 (2012)

“Contract Term or Term of Employment”

1. The term of employment is the period of time during which an employee is engaged by the District under a contract of employment, contracts of employment shall be in writing.

“Dismissal or Termination”

1. An employee shall be deemed to be discharged upon occurrence of any of the following events:
2. Termination of the status of employment of an employee.
3. Failures to renew the employment contract of a career employee.
4. Reduction in salary of an employee not generally applied to all employees of the same category employed by the District during the employee’s contract term.
5. Change of assignment of an employee with an accompanying reduction in pay unless both parties agree to the assignment change and salary reduction in writing.

Utah Code Ann. § 53A-8a-102 (2012)

10. "Unsatisfactory performance"

A deficiency in performing work tasks which may be:

1. due to insufficient or undeveloped skills, lack of knowledge or aptitude and
2. remediated through training, study, mentoring, or practice[SG1].
3. a violation of work rules;
4. a violation of local school board policies, State Board of Education rules, or law;
5. a violation of standards of ethical, moral, or professional conduct; or
6. insubordination

Utah Code Ann. § 53A-8a-102 (2012)

Causes for Dismissal or Non-Renewal—

An employee may be disciplined up to and including suspension or discharge during a contract term for any of the following:

1. Immorality;
2. Insubordination or failure to comply with directives from supervisors;
3. Incompetence;
4. Conviction, including entering a plea of guilty or nolo contendere (no contest), of a felony or misdemeanor involving moral turpitude or immoral conduct;
5. Conduct which may be harmful to students or to the District;
6. Improper or unlawful physical contact with students;
7. Violation of District policy;
8. Unprofessional conduct not characteristic of or befitting a District employee;
9. Manufacturing, possessing, using, dispensing distributing, selling and/or engaging in any transaction or action to facilitate the use, dispersal or distribution of any illicit (as opposed to authorized) drugs or alcohol on District premises or as a party of any District activity;
10. Current addiction to or dependency on a narcotic or other controlled substance.
11. Dishonesty or falsification of any information supplied to the District; including data on application forms; employment records or other information given to the District;
12. Engagement in sexual harassment of a student or employee of the District;
13. Neglect of duty, including unexcused absences, excessive tardiness, excessive absences, and abuse of leave policies or failure to maintain certification;
14. Deficiencies pointed out as part of any appraisal or evaluation;
15. Failure to fulfill duties or responsibilities;
16. Inability to maintain discipline in the classroom or at assigned school-related functions;
17. Drunkenness or excessive use of alcoholic beverages or controlled substances;
18. Disability not otherwise protected by law that impairs performance of required job duties;
19. Failure to maintain an effective working relationship, or to maintain good rapport with parents, co-workers, the community or colleges;
20. Failure to maintain requirements for licensure or certification; Unsatisfactory performance after providing the employee with a plan of assistance and time to improve consistent with 53A-8a-503;
21. For any other reason justifying termination of employment for cause.

Progressive Discipline for Misconduct

Misconduct as used here means conduct that is a violation of work rules; a violation of local school board policies, State Board of Education rules, or law; a violation of standards of ethical, moral, or professional conduct; or insubordination.

If a career employee or a provisional employee during his contract term engages in misconduct, the District may take any of the following actions:

1. Verbal warning.
   1. The Direct Supervisor will issue the verbal warning.
   2. The verbal warning will have clear directives of expectations and steps to correct the misconduct.
   3. The supervisor will document the verbal warning
2. Written warning.
   1. The Direct supervisor will issue the written warning
   2. The written warning will include clear measurable goals with expectations and steps of correction.
3. Probation
   1. Direct Supervisor will place employee on probation
4. Probation will include an improvement plan with regular follow up conferences with the direct supervisor. The improvement plan will include written goals of correction and timelines to meet corrections goals with a clear definition of the consequences in not meeting the expectations of corrections.
   1. Suspension
      
      1. A career employee or provisional employee during the employee’s contract term may be suspended for misconduct. An employee will be suspended with pay during any investigative proceedings. An employee will be suspended without pay where the misconduct is sufficiently serious, as determined by the supervisor. Suspensions without pay may not last longer than 15 working days unless accompanied with a notice of intent to terminate and the employee has asked for a hearing. Suspension pending a hearing may be without pay if an authorized representative of the District determines, after providing the employee with an opportunity for an informal conference to discuss the allegations, that it is more likely than not that the allegations against the employee are true.    
5. Termination. A career employee or provisional employee during his contract term may be terminated for cause in accordance with the termination procedures below
6. Disciplinary action for the same or similar conduct will be taken in progressive steps beginning with a verbal warning, except when an employee engages in conduct that warrants more severe disciplinary action, the District may skip a step and issue the disciplinary action appropriate for the conduct.  

Employees are entitled to a grievance process anytime during the disciplinary steps or steps of correction and improvement.

Termination for Unsatisfactory Performance—

Notice to Career Employee of Unsatisfactory Performance—Procedural Due Process—Plans of assistance

If the District intends not to renew the contract of a career employee or to terminate the contract during the contract term for reasons of unsatisfactory performance, it shall:

1. Provide and discuss with the career employee written documentation clearly identifying the deficiencies in performance;
2. Provide written notice that the career employee's contract is subject to nonrenewal or termination if, upon a reevaluation of the career employee's performance, the career employee's performance is determined to be unsatisfactory;
3. Develop and implement a plan of assistance, to allow the career employee an opportunity to improve performance, which includes:
   1. specific, measurable, and actionable deficiencies;
   2. the available resources provided for improvement; and
   3. a course of action to improve employee performance.
   4. Plans of assistance will be appropriately detailed demanding of resources consistent with the career employee’s position and deficiencies.
4. Reevaluate the career employee's performance in no less than 30 and no more than 120 days, which may be extended when:
   1. 1. a career employee is on leave from work during the time period the plan of assistance is scheduled to be implemented; and the leave was approved and scheduled before the written notice intent not to renew was provided; or
      2. the leave is specifically approved by the Board.
5. The time period to correct the deficiencies may continue into the next school year;
6. The time period to implement the plan of assistance and correct the deficiencies shall begin when the career employee receives the written notice provided under Subsection (1) and end when the determination is made that the career employee has successfully remediated the deficiency or notice of intent to not renew or terminate the career employee's contract is given in accordance with this policy.
7. If upon a reevaluation of the career employee's performance, the district determines the career employee's performance is satisfactory, and within a three-year period after the initial documentation of unsatisfactory performance for the same deficiency pursuant to Subsection (2), the career employee's performance is determined to be unsatisfactory, the district may elect to not renew or terminate the career employee's contract.
8. If the career employee's performance remains unsatisfactory after reevaluation, the Superintendent or designee shall give notice of intent not to renew or terminate the career employee's contract, which shall include written documentation of the career employee's deficiencies in performance.
9. Nothing in this Policy shall be construed to require compliance with or completion of evaluations prior to non-renewal of a career employee’s contract.
10. An employee whose performance is unsatisfactory may not be transferred to another school unless the Board specifically approves the transfer of the employee.

Performance and Conduct Issues

1. If a career employee exhibits both unsatisfactory performance as described herein and misconduct described herein the District may
   1. Attempt to remediate the conduct according to the procedures set forth above; or
   2. Terminate the career employee for cause if the conduct merits dismissal, and is not required to develop and implement a plan of assistance for the career employee, as provided in Section 53A-8a-503.
2. If the conduct of a career employee described is satisfactorily remediated, and unsatisfactory performance issues remain, an employer shall develop and implement a plan of assistance for the career employee, as described above.
3. If the conduct of a career employee is not satisfactorily remediated, the District may dismiss the career employee for cause in accordance with procedures established herein and is not required to develop and implement a plan of assistance for the career employee, as provided in Section 53A-8a-503.

Utah Code Ann. § 53A-8a-503 (2012)

Utah Code Ann. § 53A-8a-506 (2012)

Notice of Intent to Terminate Employment During Term of Contract or not to Renew Contract for Career Employee—

If the District intends to terminate an employee’s contract during the contract term, the District shall:

1. Give written notice of that intent to the employee;
2. Serve the notice by personal delivery or by certified mail addressed to the individual’s last known address.
3. Serve the notice at least 30 days prior to the proposed date of termination;
4. State the date of termination and detailed reasons for termination.
5. Give notice of the individual’s rights:

1. To an informal conference before the Superintendent or the Superintendent’s designee if such a request is made in writing within 10 days of the date of this notice;
2. To appeal the decision to terminate employment if such request is made consistent with this policy;
3. To a hearing and the right to legal counsel,
4. To present evidence, cross-examine witnesses and present arguments at the hearing.
5. Notify the employee that failure to request a hearing within 15 days after the notice of termination was either personally delivered or mailed to the employee’s most recent address shown on the district’s personnel records shall constitute a waiver of the right to contest the decision to terminate.

Utah Code Ann. § 53A-8a-502 (2012)

Notice of Intent Not to Offer a Contract to a Provisional Employee—

If the District intends not to offer a contract of employment for the succeeding school year to a provisional employee, it shall give notice at least 60 days or by Mid March before the end of the provisional employee’s contract term that the employee will not be offered a contract for a following term of employment. Because provisional employees do not have an expectation of continued employment, they do not have a right to grieve the decision not to renew employment and do not have a right to a hearing.

Utah Code Ann. § 53A-8a-502 (2012)

Notice of Intent to Terminate or Not Offer a Contract to a Temporary Employee—

A temporary employee will be given notice of a minimum of 10 working days before the termination of the employment. Because a temporary employee does not have an expectation of continued employment, the employee does not have a right to grieve the decision to terminate or not to extend employment and does not have a right to a hearing.

Expectation of Continued Employment in Absence of Notice—

In the absence of a notice, a career or employee is considered employed for the next contract term with a salary based upon the salary schedule applicable to the class of employees into which the employee falls.

This provision does not preclude the dismissal of a career or provisional employee during the contract term for cause.

Utah Code Ann. § 53A-8a-502 (2012)

Right to an Informal Conference—

A notice of intent not to renew the contract of a career employee or of an intent to terminate the contract of a career or provisional employee during the employee’s term must advise the employee that they may request an informal conference before the Superintendent or Superintendent's designee. The request for an informal conference must be made in writing and delivered to the Superintendent within 10 working days of the date on the notice of intention not to renew or notice of termination during the contract term. The informal conference will be held as soon as is practicable. Suspension pending a hearing may be without pay if the Superintendent or designee determines after the informal conference, or after the employee had an opportunity to have an informal conference, that it is more likely reasons that a suspension will result in termination.

Employee’s Right to Hearing—

A notice of intent not to renew the contract of a career employee or of an intent to terminate the contract of a career or provisional employee during its term must also advise the individual that if after the informal conference the employee wishes a hearing on the matter, the employee must submit written notice to that effect to the Superintendent’s office within five (5) working days of the informal conference. If the employee wishes not to have an informal conference, but does wish to have a hearing, the employee must submit written notice to that effect within 15 working days of the date on the notice of intent not to renew or notice of termination during the contract term. Upon timely receipt of the notice, the Superintendent will notify the Board the Board will then either appoint a hearing examiner or hearing board or determine to hear the matter itself. In either case, the Board will then send notice of the date, time and place of hearing to the Superintendent and to the employee. If the employee does not request a hearing within 15 working days, then the employee shall have waived any right to a hearing and any right to contest the decision.

Appointing a Hearing Examiner—

If the Board of Education determines that the hearing shall be conducted by a hearing examiner or board, it shall so advise the Superintendent to appoint a board of three District administrators who have no substantial knowledge of the facts of the case or select an independent hearing examiner.

In so appointing a hearing examiner or hearing board, the Board of Education may delegate its authority to the hearing officer or hearing board to make findings and decisions relating to the employment of the employee that are binding upon both the employee and the Board of Education. In the absence of an express delegation, the Board retains the right to make its own decision based on the factual findings of the hearing officer.

Utah Code Ann. § 53A-8a-504 (2012)

Rights of Employee at a Hearing—

At the hearing, the employee and administration each have right to counsel, to produce witnesses, to hear testimony, to cross-examine witnesses, and to examine documentary evidence.

Utah Code Ann. § 53A-8a-504 (2012)

Decision—

Within 15 working days after the hearing, the person or entity that conducted the hearing, whether the hearing examiner, hearing board, or Board of Education, shall issue written findings and conclusions deciding the matter. These shall be provided to the employee by mail or personal delivery.

In the event the decision of the Board or hearing officer is not to terminate the employment of the employee, then the employee shall be reinstated and back pay shall be paid if the employee was suspended without pay pending a hearing.

Utah Code Ann. § 53A-8a-502 (2012)

Suspension During Investigation—

The active service of an employee may be suspended by the Superintendent or designee pending a hearing if it appears that the continued employment of the individual may be harmful to students or to the District. The employee shall be provided written notice of the suspension, which may be included with written notice of termination of employment during the contract term or notice of non-renewal of contract.

Utah Code Ann. § 53A-8a-502 (2012)

Necessary Staff Reduction not Precluded—

Nothing in this policy prevents staff reduction if necessary because of the following:

1. Declining student enrollments in the district;
2. The discontinuance or substantial reduction of a particular service or program;
3. The shortage of anticipated revenue after the budget has been adopted; or
4. School consolidation.

Utah Code Ann. § 53A-8a-505 (2012)

No Verbal Agreements—

It is the policy of the District that all agreements with employees must be written; there are no verbal agreements because all agreements must be approved by the Board of Education. Only the Board of Education has authority to hire and fire unless such authority has been expressly delegated in writing.

Notification to Utah Professional Practices Advisory Commission—

1.The Superintendent shall notify the Utah Professional Practices Advisory Commission if an educator is determined, pursuant to an administrative action, to have had disciplinary action taken for:

Immoral behavior, or unprofessional conduct, which results in suspension for more than one week or termination.

Utah Admin. Code R277-514-5(B) (2011)

Modified 11, April, 2014x