Education Law Publications

The firm publishes a monthly "Issue of the Month" on current issues or matters of interest in the education law area.

If you want more information about our education law practice or a copy of any of our articles, contact David Duff at dduff@ddtwb.com

SCHOOL LAW
“ISSUE OF THE MONTH”
April 2007

Classified Employees and the Employment Relationship

Unlike the situation with certified employees, specific procedures for the employment and dismissal of classified/noncertified employees are not detailed in state law. As a result, school districts across the State have varying policies and practices in place. Because this is the time of year when classified employment decisions may be made, now is an appropriate time to review the various ways to handle classified employment matters and to determine whether any revisions should be made to applicable district policies.

Who has the authority to hire classified employees?

Some confusion exists in state law as to whether only a district board of trustees may hire a classified employee or whether that authority may be delegated to the district superintendent. S.C. Code Ann. § 59-19-80 provides that “[n]o teacher or other employee shall be employed … except in a duly called meeting of the board… unless such action or the memoranda of the terms of any such contract of employment … shall be duly recorded in the minutes of such meeting and approved by the board.” In most districts, the general practice is for the board to delegate the authority to hire classified employees to the superintendent, through board policy, and then to subsequently affirm those hiring decisions at a board meeting.

What type of documentation of the employment relationship is necessary?

Classified employees do not have a statutory right to an employment contract, or any statutory due process rights. However, under the S.C. Payment of Wages Act, an employee must be given written notice of the terms and conditions of his or her employment. Those terms and conditions may be communicated to classified employees in a number of ways. One option is to issue a one-time letter to the classified employee at the time of hire, specifying that the employment period is ongoing, unless the employee is terminated in accordance with district policy. Another option is to issue the classified employee a letter at the time of hire specifying the employment period, such as nine months and, thereafter, on an annual basis, to issue a “letter of agreement” which specifies the employment period for the subsequent year. A third option is to issue the classified employee a letter at the time of hire specifying the employment period and, thereafter, on an annual basis, to issue a “letter of intent” indicating that the district intends to continue the employment for the subsequent year.

The first option is used most often with twelve-month employees and allows the district to avoid re-issuing letters on an annual basis. With this option, however, the employee’s expectation of indefinite employment is greater and the district may bear the burden of establishing specific grounds to discontinue the employment relationship. The “letter of agreement” option simplifies the process of discontinuing the employment at the end of each employment period when any reason to do so exists, including budget cuts and program changes. As to the “letter of intent” option, the employee is clearly on notice that there is no expectation of continued employment for the subsequent year, allowing the district to discontinue the employment at any time, even prior to the beginning of the new employment period, if any reason to do so arises. Whatever option is used, the letter to the employee should specify that the letter is not a contract and does not create any contractual rights or entitlements.

Who has the authority to discontinue employment and what procedures are required?

State law does not specify who has the authority to discontinue the employment of a classified employee. In most districts, that authority is delegated to the superintendent pursuant to board policy. As a result, the notice to the employee regarding dismissal should come from the superintendent. As a practical matter, the superintendent may wish to have the board subsequently affirm any termination, or may simply inform the board of the dismissal decision.

Although state law does not grant classified employees any specific due process rights, classified employees do have a constitutional right to some type of “pre-termination hearing.” This simply means an opportunity to be informed of and to respond to the reasons for the dismissal, before the decision is finalized. The pre-termination hearing may be conducted by the superintendent or may be delegated to another administrator, especially in larger districts where employee dismissals may be more numerous. The administrator who conducts the pre-termination hearing then makes a recommendation to the superintendent regarding the dismissal. Board policy should specify whether an administrator other than the superintendent is authorized to conduct pre-termination hearings.

A classified employee’s right to appeal a dismissal decision also should be addressed in board policy, normally in the board’s general grievance policy. In most grievance policies, the process involves an opportunity to request a review of the termination decision by the board of trustees. However, the grievance policy may provide that the board has the discretion to uphold the superintendent’s decision based solely on a review of the record, without giving the employee an opportunity to appearbefore the board. Alternatively, the board may choose to grant the employee an opportunity to appear before the board. In such cases, the board would not be obligated to allow the employee to present witnesses or offer evidence not presented at the pre-termination hearing. Rather, the board could allow the employee to address the board, after the board has reviewed the documentation relied upon by the superintendent. The board also could have the opportunity to ask follow-up questions of the employee.

Whatever procedures are followed with regard to the hiring and dismissal of classified employees, it is important to ensure that current board policies reflect the procedures actually being followed. If you have any questions about the procedures that would best suit your district’s needs, or whether policy revisions are needed, please do not hesitate to contact us for assistance.

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