American Association of School Personnel Administrators

April 2007

COLLECTIVE BARGAINING - An arbitrator goes too far in tenure decision. Who bears the burden of proof when arbitrators take on unionized faculty members' tenure decisions? A Pennsylvania case points out the need to make the situation clear in collective bargaining agreements.

EMPLOYER RETALIATION - Retaliation claim tossed despite confession. When a former employee sues a school district and then tries to be rehired, be careful how you and others involved in hiring explain your decisions. A middle school coach applicant says he was the victim of unfair retaliation because school officials were biased because he had filed a lawsuit against the school district. In the end, the court says the job wasn't really available although it was technically vacant. But the applicant may have had a claim if his "protected activity" had been the reason for not hiring him.

REDUCTION IN FORCE - Things that go bump in the contract. Reductions in force are complicated and require a careful adherence to collective bargaining agreements. A South Dakota school district's careful evaluation of qualifications as well as seniority means its decision on "bumping" holds up in court.

SEXUAL HARASSMENT - Manager protected by anti-SLAPP statute. A manager at a California university finds protection in a law that tries to ward off a "SLAPP" ― a strategic lawsuit against public participation. The manager's employee claims that the manager did nothing to stop sexual harassment against him, but the court agreed with the manager that her conduct in handling the employee's grievances was protected.

UNEMPLOYMENT COMPENSATION - When has an employee resigned rather than being discharged? A music teacher who resigned after being told his contract wouldn't be recommended for renewal ends up being eligible for unemployment compensation. But the picture still isn't clear on when unemployment is an option.

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An arbitrator goes too far in tenure decision

The Pennsylvania Commonwealth Court recently ruled on the burden of proof an arbitrator must use when reviewing a state university's decision to deny tenure for a unionized faculty member. The decision highlights why it's important for a collective bargaining agreement (CBA) to specifically delineate the burden of proof for challenges to tenure decisions.

Background

Beverly Gocal had been employed at Slippery Rock University as an assistant professor of computer science since 1999. The university is part of the Pennsylvania State System of Higher Education (PASSHE), and Gocal was a member of the Association of Pennsylvania State College and University Faculties (APSCUF). The relationship between PASSHE and union members is governed by a CBA running from July 1, 2003, through July 1, 2007.

Under the CBA, the decision to grant tenure is based on a faculty member's performance in (1) teaching effectiveness, (2) scholarly growth, and (3) service to the university and the community. Initially, three recommendations are made on whether the faculty member should be granted tenure. The university's president evaluates those recommendations and decides whether to grant tenure. If two of the three recommendations are positive but the president denies tenure, the faculty member may grieve and arbitrate the denial.

The university also had a policy with the local APSCUF chapter regarding tenure and probationary faculty evaluation policies and procedures, called the local agreement. It outlined that the tenure candidate must assume the burden of providing substantial evidence that the departmental review categories have been met. For any conflicting terms between the local agreement and the CBA, the CBA's terms govern.

Two of three recommendations regarding Gocal were positive. The computer science department's chair and the departmental committee recommended she receive tenure. The universitywide Tenure and Sabbatical Committee, however, voted 8-1 to deny tenure based on inadequate scholarly growth. The chair of that committee noted that Gocal hadn't adequately followed up on previous comments and suggestions addressing her lack of scholarly growth.

The three reports were forwarded to the president for a final decision. Initially, the university's provost, acting as the president's designee, reviewed Gocal's tenure application and the recommendations. Ultimately, the provost recommended that the president deny tenure. The president concurred and denied Gocal's tenure application in May 2004.

Gocal grieved the decision and was denied at all levels. The matter then moved forward to arbitration. The arbitrator ruled that the president violated the CBA and ordered Gocal reinstated to her position and deemed eligible for reconsideration for tenure.

The university appealed to the commonwealth court, arguing that the arbitrator's award failed to draw its essence from the CBA. In particular, the university argued that the arbitrator applied the incorrect burden of proof and used his own criteria to evaluate Gocal's tenure application rather than the criteria that was bargained for and agreed to by the parties.

Analysis

On the issue of whether the arbitrator had applied the correct burden of proof, the parties agreed that the CBA doesn't expressly state which party bears the burden of proof in a grievance proceeding involving tenure. The arbitrator's decision recognized that absence and analyzed previous arbitration awards involving denial of tenure at PASSHE universities to determine the appropriate burden of proof.

For instance, the arbitrator recognized another arbitrator's November 1998 Bloomsburg University determination that the university wasn't required to establish "just cause" existed to deny tenure. The arbitrator also found that the decision didn't introduce an arbitrary and capricious standard to be applied in future disputes.

Next, the arbitrator pointed to a March 1997 West Chester University arbitration. In that case, the arbitrator rejected an arbitrary and capricious standard. Additionally, the decision applied a framework requiring West Chester University in the first instance to establish a sound, reasonable basis for the president's decision denying tenure. The arbitrator in this case applied the sound, reasonable basis standard in determining that Slippery Rock University's president improperly denied Gocal tenure.

The commonwealth court, however, held that the arbitrator's analysis wasn't rationally derived from the CBA. The court didn't fault the arbitrator's analysis of the previous arbitration decisions but found the arbitrator failed to recognize that the local agreement enunciated the burden of proof to be applied. The local agreement provided that the tenure candidate must assume the burden of providing substantial evidence that the departmental performance review categories have been met.

With the CBA being silent regarding the burden of proof, that language was controlling according to the court. Thus, the court held that the arbitrator had wrongly placed the burden of proof on the university to establish that it had a reasonable and sound basis for denying tenure. As a result, the court threw out the award and sent the case back to the arbitrator for further proceedings.

Bottom line

This commonwealth court decision presents a number of lessons. For instance, it highlights that the current CBA between PASSHE and APSCUF doesn't address the burden of proof for arbitrators to apply in reviewing tenure decisions. Therefore, the correct burden of proof remains an open issue. One would expect this issue to be addressed during upcoming PASSHE/APSCUF negotiations with the current CBA, which is set to expire on July 1, 2007.

PASSHE universities also should review any current local agreements that are in place to evaluate if they address the burden-of-proof issue. If not, PASSHE universities should monitor the issue in the upcoming negotiations and, if it remains unresolved, consider addressing it through a local agreement.

Private unionized colleges and universities also should review their CBAs to ensure that the burden-of-proof issue is addressed. A university's decision is less likely to be overturned if the review is governed by an arbitrary and capricious standard or at least, as applied in this case, requires the applicant to prove by substantial evidence that she was entitled to tenure.

This case applies to Pennsylvania, but even in other states, university and school employers need to be clear on burden-of-proof issues regarding tenure and other issues.

Excerpted from Pennsylvania Employment Law Letter, written by attorneys at the law firm Saul Ewing LLP.

This article does not attempt to offer solutions to individual problems but rather to provide information about current developments in employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. Pennsylvania does not certify specialists in labor and employment law, and we do not claim certification in this area.

Retaliation claim tossed despite confession

You'd think an ex-employee suing a school district wouldn't be interested in getting a new job in the same district he claimed discriminated against him. But a case in West Texas shows how that can happen. Complicating things further, a school athletic director may have uttered words that sounded like an invitation for a retaliation lawsuit. In the end, the court found that there was no claim, but the case sounds a warning.

It's a school day

Mike Adams and his wife, Allison, worked for the Groesbeck Independent School District. Mike sued the district in 1999, alleging sex discrimination. The school district didn't renew his contract for the 2000-01 school year after complaints regarding his coaching abilities.

The case was settled, and it was agreed that Mike was eligible to reapply for a position. He later did apply for a coaching job at a middle school, but he wasn't hired. His wife, Allison, testified that the school's athletic director, Richie Coutrer, told her that no qualified applicants had applied for the job, but that in any event he couldn't hire Mike because of his prior lawsuit. Coutrer disputed that testimony and said he told Allison that there were no job openings. The case went to trial, and the jury disagreed and found for Mike.

Saved by the bell

No problem, though. There's a difference between a "vacant" position and an "available" position. In this case, there was a "vacant" position for a coach, but the evidence showed that it wasn't an "available" one — that is, the school board wasn't trying to fill it, for reasons having nothing to do with Mike.

The school district's actions were consistent with that decision: It didn't post a job announcement, nor did its employees review resumes or interview any candidates to fill it. Finally, Coutrer wasn't responsible within the district for deciding whether there was an available position at the middle school, and thus, his supposed confession that he wouldn't hire Mike because of the lawsuit was a nullity. Adams v. Groesbeck ISD, ___ F.3d ___ (5th Cir., January 9, 2007).

After-school homework

A tricky issue is what to do when an employee who you fired later (1) sues or files a discrimination charge and then (2) reapplies for a job or seeks to work as a vendor or independent contractor. What's a smart employer to do?

Here's a lesson to take to heart: The law doesn't always comport with common sense. It may be altogether reasonable for you to want to reject an ex-employee threatening litigation. But disagreeing with the law doesn't change it: The law is the law is the law. You can't reject someone because he engaged in protected activity.

Whatever you do, even if you're thinking it, don't tell anyone that you don't want to hire or enter into a business relationship with an employee who has a pending claim. (Sometimes those who are terminated turn around and want to be consultants or vendors to their former employer even when they're filing a lawsuit against it or threatening one.)

And when you think about it, you don't have to go that far. If someone is terminated for poor performance, then that's more than a sufficient reason not to rehire or enter into a business relationship with him.

Why don't most employers leave it at that? There's a tendency in litigation to "pile on." You see it all the time in football games. The quarterback gets sacked, he's on the ground, and a couple more hulking linebackers fling themselves on the pile. When that happens, a flag is thrown. The same goes here. So even though it may feel good, do not decide to throw in every reason imaginable for a termination decision.

There are cases in which an employer will say that it doesn't want to rehire the person because he isn't qualified for the job and, in addition, has claims pending against it, and it doesn't trust someone who's been terminated and has a potential lawsuit against it. That's a reason too far.

If you get an application, treat it like any other. But here are a few thoughts: The law in this area isn't well-developed, but the cases that have come out say that a former employee in the throes of litigation must do more than make an open-ended request for employment, submitting a general cover letter and resume expressing interest in any position available. That scenario won't lead to a retaliation claim if the ex-employee is rejected.

No, in the case of retaliatory failure to hire, an applicant must have applied for a specific job. Rejection of the ex-employee in the first scenario doesn't a claim make, and rejection of the second may, but not if you have a legitimate reason.

Excerpted from Texas Employment Law Letter, written by attorneys at the law firm Ford & Harrison LLP

The contents of this article do not attempt to offer solutions to individual problems but rather to provide information about current developments in Texas employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.

Things that go bump in the contract

A careful reading and adherence to a negotiated agreement saved this South Dakota school district from what could have been an even messier situation.

Gotta have the bump

Faced with declining dollars and the voters' rejection of its opt-out proposal, the Vermillion School District voted to eliminate several staff positions for the 2004-05 school year. The district applied its reduction in force (RIF) policy, which was part of its negotiated agreement with the teachers' bargaining group, the Vermillion Education Association.

Among the jobs to be eliminated was a high-school computer education position. The RIF policy in the bargaining agreement provided that seniority would have priority in making staff reduction decisions when the teacher had the necessary certification and had taught that course in the last seven years, had taught in one or more grades, and had been certified for that respective level of education during the last seven years in the school district.

Cheryl Lessmann, who had taught four sections of high-school computer classes, had been with the school district for more than 30 years. The district determined that she could invoke her seniority to bump into a job with less seniority. Although certified in other areas, she had taught only computer science classes during the preceding seven years. Under the bargaining agreement, she was restricted to bumping into a computer science position.

The district looked at the three other people who taught computer classes: Sharon Hanson, a 17-year elementary and middle-school teacher; Marlyss Larson, who had 10 years' experience teaching high-school business and elementary and middle-school computer classes part-time; and Eric VanLaecken, a first-year teacher with part-time elementary computer, middle-school science and technology, and cross-country coaching duties. He also performed website work for the middle school.

Lessmann wasn't able to bump into Larson's position because of the high-school business-oriented courses Larson taught. Although she had the certification, Lessmann hadn't taught business at the high-school level during the previous seven years. She also couldn't satisfy the requirements of VanLaecken's job because she didn't have certification or teaching experience in math or science, nor did she have coaching experience. That left Hanson's position.

Lessmann could satisfy the RIF policy seniority requirements for Hanson's schedule and certification. She had taught courses under the computer science certification within the grade span taught by Hanson during the last seven years. After Lessmann notified the district that she would bump into the job, the district gave Hanson notice on March 23, 2004, that her contract wouldn't be renewed.

But I'm a 17-year veteran

The education association filed a grievance over Hanson's nonrenewal on April 12, arguing that she should have been allowed to bump into a different position. The school district rejected the grievance on the grounds that the majority of VanLaecken's responsibilities lay in teaching technology, which Hanson wasn't qualified to teach, nor was she certified to take over his coaching duties. Although she was certified to take over Larson's computer and business courses, she hadn't taught business courses within the last seven years.

Hanson appealed the district's decision to the South Dakota Department of Labor (DOL), arguing that first-year teacher VanLaecken should have been RIF'd. She sought an alternative partial bump into both his and Larson's jobs. She believed that if she couldn't teach Larson's business courses and was unqualified to teach VanLaecken's technology course or coach, she could take over only the computer courses.

The district responded that there was no partial bumping and it wasn't going to sever some responsibilities from a teaching position. In addition, the RIF was designed to save money by reducing staff. If partial bumping was allowed, no savings would be achieved.

Lower court modifies contract

The DOL ruled against Hanson, finding that partial bumping wasn't allowed and teaching contracts couldn't be severed but instead were part of an entire bargaining agreement. Hanson then appealed to the circuit court, which reversed the administrative law judge's decision and ordered the school district to reinstate her contract.

While the court agreed that partial bumping wasn't allowed, it interpreted the seniority provision as allowing Hanson to bump VanLaecken. The court held that the necessary certification applied to the position that was ended rather than the job the teacher would move into.

The circuit court also ruled that the certification language was written only to require teachers to have taught within one or more of the certifications during the previous seven years. According to the court, RIFs had been applied in the past to eliminate the position of a teacher with the lowest seniority. In this case, being certified to teach computer science was the essential criterion since that was the job that was going to be RIF'd.

The court dismissed the district's argument that middle-school technology and math and science technology are quite different from high-school computer science. It also dismissed VanLaecken's coaching duties as irrelevant. In the court's view, the district's policy gave priority to academic areas over extracurricular activities. The bottom line was the circuit court believed that Hanson could use her seniority to bump into VanLaecken's position.

Supreme court addresses contract language

The school district appealed to the South Dakota Supreme Court, arguing that the circuit court's interpretation of the RIF policy resulted in a situation that neither it nor the teachers' association intended. The district maintained that both it and the association meant for a more senior qualified teacher to replace a less senior qualified teacher during a RIF. Allowing the circuit court's decision to stand would cause the untenable result of preferring seniority over qualification.

Hanson argued that her seniority became meaningless under the school district's and the DOL's interpretation of the RIF policy. The supreme court agreed that under the particular facts of this case, seniority was meaningless but only because Hanson didn't have the certification or the more recent experience of a teacher with less seniority. The seniority provision wasn't meaningless to Lessmann, who had 30 years of experience.

The supreme court couldn't accept the circuit court's ruling that certification applied to the RIF'd position rather than the job that would be available. Under that interpretation, the qualifications of a teacher looking to fill a vacant position would be more important than those of the teacher trying to bump into a job.

No bumping downhill

The supreme court also disagreed with the circuit court's finding that certification for computer science was the same as certification for technology. In addition, Hanson lacked the required training to receive coaching authorization. The court refused to find that extracurricular work was insignificant; instead, it deemed that type of work an integral part of a teaching contract. Finally, the court noted that Hanson wasn't qualified to take over VanLaecken's website work or technology coordinator duties because she lacked adequate training in both technology and website development.

The supreme court noted that the circuit court shouldn't substitute its judgment for that of the school board. As long as a school board exercises its administrative powers legitimately and legally, the courts may not interfere with or usurp the board's decisionmaking process. The supreme court found that the school district in this case followed the RIF policy, and its decision not to renew Hanson's contract was based on her lack of qualifications. Hanson v. Vermillion School District, 2007 SD 9 (1/17/07).

Bottom line

A school board's decision will be given great deference as long as it isn't arbitrary or capricious. And anytime there's a collective bargaining agreement, it must be followed precisely. The Vermillion School District did a good job of carefully evaluating all of the qualifications for the jobs that remained. Even though Hanson had a significant amount of seniority, she didn't have the requisite skill set or recent experience to displace the other employee from his position even though he was less experienced and newer to the district.

Excerpted from South Dakota Employment Law Letter, written by attorneys at the law firm Lynn, Jackson, Shultz & Lebrun, P.C.

This article is not intended to provide legal advice or opinions, but rather to provide information about current developments in employment law. Questions about individual problems should be addressed to legal counsel.

Manager protected by anti-SLAPP statute

The California Court of Appeal in Yolo County decided that a manager at a public university was protected from suit by the anti-SLAPP ("strategic lawsuit against public participation") statute. The lawsuit was filed by an employee who claimed the manager had failed to adequately address his grievances that he was being sexually harassed.

Trouble at school

Randy Vergos, an employee at the University of California at Davis (UCD), filed a civil rights lawsuit against his manager, Julie McNeal, director of the UCD Facilities Services Department. He alleged that Allen Tollefson sexually harassed him at work and that McNeal denied his administrative grievances.

Vergos filed his original lawsuit against McNeal, Tollefson, and the regents of the University of California on September 19, 2002. His lawsuit alleged (1) sexual harassment against McNeal, Tollefson, and the regents, (2) negligent hiring, supervision, and training against the regents, and (3) violation of civil rights against McNeal, Tollefson, and the regents.

Political appointee must manage

As the director of operations and maintenance for UCD, McNeal, a political appointee, is responsible for managing an estimated $50 million annually in construction and maintenance projects at the school and the overall supervision of an estimated 500 employees. Before coming to work for UCD in 1991, she had no managerial or supervisory experience and no training or experience as a fair and impartial hearing officer for employee grievances.

Vergos, who was employed by UCD as an inspector, planner, and estimator, claimed to have been sexually harassed on several occasions during the past year by his supervisor, Tollefson. On February 11 and March 4, 2002, Vergos filed grievances, and the regents assigned an investigator, who allegedly verified from other employees that Tollefson referred to Vergos as "my boy."

In July 2002, McNeal, who was Tollefson's supervisor, acted as the hearing officer and managing agent for the regents in Vergos' grievances. She denied the grievances and wrote to Vergos that it was "more likely" that the allegations of excessive controlling behavior, verbal threats, and sexual harassment didn't occur. She refused to recognize the substance of Vergos' grievances, take effective action to prevent a recurrence of Tollefson's conduct, or protect Vergos from future unwelcome contact with the supervisor.

Manager relies on anti-SLAPP

On August 5, 2005, McNeal filed a special anti-SLAPP request to strike Vergos' civil rights charge. She argued that the charge accused her of conduct (hearing, processing, and deciding Vergos' workplace grievances) that arose from alleged activities "in the furtherance of her right of petition or free speech." She also argued that Vergos couldn't show a likelihood of success with his lawsuit.

McNeal submitted sworn testimony to the court that in handling Vergos' grievances, she followed the procedures set forth in the statewide Regents' Personnel Policies for Staff Members and the local implementing procedures. She further testified that Vergos filed charges on February 11 and March 4, 2002, accusing Tollefson of sexual harassment. The grievances were assigned to her as department head, and she had Dan Grey investigate the matters and prepare a report for her review.

Grey reported that Vergos' claims were unsubstantiated by the evidence. McNeal had no reason to believe Grey harbored any unlawful prejudice against Vergos, and she herself didn't harbor any unlawful prejudice against him. McNeal reviewed Grey's report, found it adequate, and agreed with its conclusions.

Hair and body . . .

In challenging the anti-SLAPP request at the trial court level, Vergos submitted various testimonies. One testimony was from the UCD senior superintendent, Leslie Nopp, who asserted that McNeal took it upon herself to be the person to review Vergos' grievance.

Vergos also submitted his own testimony that Tollefson followed him around, sometimes came up behind him, stared at his hair and body, made comments about the genitals of other men, said one man had pretty lips, tugged at his own crotch, and got angry when Vergos refused to move into his office. Based on those facts and other legal reasoning, the trial court issued an order denying McNeal's anti-SLAPP request. She then appealed the decision.

. . . was hearsay

McNeal argued that her statements and communicative conduct in handling Vergos' grievances were protected by the anti-SLAPP statute because they (1) were connected with an issue under review by an official proceeding authorized by law and (2) furthered the right of Vergos and similarly situated employees to voice their discontent.

The anti-SLAPP section pertinent to this case protects "an act in furtherance of a person's right of petition of free speech under the United States or California Constitution in connection with a public issue." It also includes any "written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law."

Vergos argued that the anti-SLAPP statute didn't apply. He said that his charge against McNeal didn't "arise from" her conduct or writings and that he didn't target her as a quasi-judicial officer for her written decision on his grievances but rather as a defendant for her participation in aiding and abetting Tollefson's harassment. The court found that argument unpersuasive, pointing out that Vergos himself wrote in his charge that he complained of McNeal's "hearing, processing, and deciding his grievances."

Vergos also pointed to the testimony of Nopp, who stated that McNeal wasn't known to have reviewed any other grievances but took it upon herself to review Vergos' grievances. He claimed that she thereby furthered Tollefson's conduct, which created a hostile work environment for him. The court, however, ruled that Nopp's statement was hearsay and not admissible in court.

Hearing officers count

Vergos also argued that the application of the anti-SLAPP statute should be limited only to persons, such as lawyers, who support another person's petition rights and shouldn't extend to hearing officers. The court of appeal disagreed and found that hearing officers in an official proceeding deserve the protection of the anti-SLAPP statute.

Vergos further argued that McNeal wasn't acting in furtherance of the right to petition because her conduct, by her own description, appears to have been nothing more than a ministerial act in reviewing and accepting the investigator's report. The court of appeal again disagreed, noting that McNeal exercised discretion in determining Vergos' grievances. She argued, and the court agreed, that he failed to show a probability of prevailing on the civil rights charge and thus couldn't avoid having the charge stricken under the anti-SLAPP statute. The court noted that even if Tollefson's alleged misconduct rose to a level high enough to take legal action, Vergos failed to show a probability of prevailing in his civil rights charge against McNeal.

Attorneys get paid

The court of appeal found that Vergos failed to submit any admissible evidence that McNeal did anything wrong and that she was entitled to have the civil rights claim stricken under the anti-SLAPP statute. Furthermore, the court noted that anyone who prevails on an anti-SLAPP request is entitled to an award of attorneys' fees, including attorneys' fees for the appeal. Accordingly, Vergos had to pay McNeal's attorneys. Vergos v. McNeal, filed January 23, 2007.

Bottom line

The anti-SLAPP statute is in place to prevent lawsuits derived from an injury that was the result of petitioning or free-speech activities protected by the First Amendment to the U.S. Constitution. Managers who are forced to hear grievances may be able to rely on the anti-SLAPP statute when someone they reprimand files suit.

Excerpted from California Employment Law Letter, written by attorneys at the law firm Perkins Coie LLP.

The contents of this article are intended for general information and should not be construed as legal advice or opinion. Readers in need of legal advice should retain the services of competent counsel. The State Bar of California does not designate attorneys as board certified in labor law.

When has an employee resigned rather than being discharged?

A recent decision by the Wisconsin Labor and Industry Review Commission (LIRC) has further muddied the waters that cloud the determination of whether an employee who resigns in anticipation of being terminated is eligible for unemployment benefits. Eligibility for unemployment is particularly unclear when a teacher's contract nonrenewal must be approved by the school board.

Facts

Charles Stallman was employed by the Whitnall School District as a middle school music teacher for nearly 16 years. The superintendent informed him that she was going to recommend to the school board that his teaching contract not be renewed. In Wisconsin, school boards have the ultimate authority to discharge employees.

Stallman had previously received a preliminary notice of the intended nonrenewal of his teaching contract. During her conversation with him, the superintendent informed him that he could either resign or be terminated. Consequently, on March 17, 2006, he submitted a written letter of resignation effective at the end of the school year. Between March 17 and the end of the school year (June 15, 2006), he was on paid leave. Following the expiration of his leave, he applied for unemployment benefits.

Stallman's resignation was part and parcel of a settlement agreement with the school district in which he agreed to resign, withdraw his pending grievances, and waive any other claims against the district. In return for his signing the settlement agreement, the school district agreed to drop the nonrenewal proceeding, allow him to use accumulated paid sick leave through the end of the school year, reduce a previous disciplinary suspension from five days to one day, and provide a favorable letter of reference.

The issue before LIRC was whether Stallman had quit or been discharged. If he had quit, the general rule in Wisconsin is that he wouldn't be eligible for unemployment benefits. Stallman essentially argued that his contract nonrenewal was a sure thing; therefore, his resignation in the face of being fired should still be considered a discharge because he effectively had no alternative. In support of that argument, his union representative testified that in the superintendent's five years at the school district, the school board had always followed her recommendation for nonrenewal.

LIRC's analysis

LIRC noted that both it and the Wisconsin courts have held that resigning in lieu of what the employee considers his impending termination doesn't constitute a discharge; rather, it's a voluntary termination of the employment relationship.

The commission went on to explain that the determination of whether the employee quit or was discharged depends on whether the evidence establishes that the employer wouldn't have allowed him to continue working if he hadn't resigned. According to LIRC, "The focus is on whether the evidence established that the employee's discharge was a certainty."

The commission cited a previous Wisconsin case that enunciated the standard for determining whether a hearing before a school board could be bypassed. LIRC noted that to show a hearing was bypassed, the employee must prove that the meeting would have been simply "pro forma," or a formality, and that the employer was acting in bad faith.

Stallman argued that the superintendent's statement that he could resign or be terminated along with the facts that the superintendent had failed to successfully complete a performance review and that the board had always followed the superintendent's recommendation on nonrenewal demonstrated that the school district was going to discharge him and that a conference with the board would have been pro forma.

The commission agreed, finding the evidence established that if Stallman hadn't resigned, the board would have followed the superintendent's recommendation and discharged him. As a result, it decided that his employment with the school district had been terminated involuntarily and he was eligible for unemployment benefits. Charles A. Stallman and Whitnall School District, Labor & Indus. Rev. Com'n (Jan. 11, 2007).

Bottom line

In the private sector, where a supervisor's employment decisions aren't typically subject to approval by a higher authority, an employee's decision to resign rather than be fired typically has been considered an involuntary termination of employment. Under this decision, even employers in the public sector with a higher authority that must ultimately rule on termination decisions may have to pay unemployment benefits when an employee resigns in the face of a threatened discharge.

The determination will depend on the higher authority's track record in following the supervisor's recommendations. Consequently, both employees and employers should be aware of the likely impact on unemployment benefits of either giving or accepting a resignation in the face of a discharge.

Excerpted from Wisconsin Employment Law Letter, written by attorneys at the law firm Axley Brynelson, LLP.

This article provides information about current employment law issues. It is designed to alert you to legal issues and does not constitute legal advice. Questions about your problems and issues should be presented to the employment law attorney of your choice.

Nation – President Bush is facing new foes to the No Child Left Behind law now that more than 50 Republican members of the House and Senate are pushing legislation that could undercut the law by allowing states to opt out of its testing mandates. Critics of the law say the Republican backlash has been prompted by a feeling that schools in affluent districts have been adversely affected by the law. Other key lawmakers, however, remain in favor of its reauthorization. For example, Democrats, including Representative George Miller of California and Senator Edward M. Kennedy of Massachusetts, are supporters, but they call for more funding and teacher training.

Source: http://www.washingtonpost.com/wp-dyn/content/article/2007/03/14/AR2007031402741.html

Arizona – A bill that would have punished teachers and college professors for voicing political views in the classroom failed a vote in a state Senate committee. Senate Majority Leader Thayer Verschoor wrote the bill, which he said would protect students who may be hesitant to disagree with a teacher. The bill drew much criticism and support. Activist David Horowitz, president of Students for Academic Freedom, said teachers and professors should not use their positions to impress opinions onto students. But John Wright, president of the Arizona Education Association, said a teacher who assigns a class to write a persuasive essay on why the United States should or should not be in Iraq could be seen as promoting one view or another because the bill was so broad.

Sources: http://www.rockymountainnews.com/drmn/local/article/0,1299,DRMN_15_5332289,00.html and http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/48leg/1R/comm_min/Senate/021407+EDUCATION+K%2D12%2EDOC.htm

California – Two bills signed last fall that went into effect January 1 are meant to relieve a shortage of highly qualified teachers and soften the blow the state faces with the expected retirement of approximately 100,000 teachers over the next decade. Among other things, the bills remove barriers for out-of-state teachers by eliminating duplicative requirements and accepting certain out-of-state training, simplifying credentials testing, and establishing mentoring programs and providing $6,000 annual stipends to experienced teachers who mentor new teachers in low-performing schools.

Source: http://gov.ca.gov/index.php?/press-release/4137/

Iowa – Governor Chet Culver has signed the School Anti-Bullying and Anti-Harassment Act saying "Bullying, threats, and intimidation have no place in our public education system." The new law, Senate File 61, requires all schools in the state to enact policies by September 1 that prevent and punish bullying or harassment of any student. Currently, 77 of Iowa's 365 public school districts have anti-bullying policies that include sexual orientation. With Monday's bill signing, Iowa becomes one of 10 states in the nation to enact a comprehensive, statewide anti-bullying policy, Culver said.

Source: http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=2007703060407

Rhode Island – An effort to stem the dropout rate in Rhode Island has taken the form of House Bill 5351, the Rhode Island High School Dropout Prevention Act of 2007. Representative Joseph McNamara, an administrator in the Pawtucket school system, is the prime sponsor of the bill, which would raise the dropout age from 16 to 17, require "targeted interventions" in schools with dropout rates higher than 15 percent, and allow dropouts to attend Community College of Rhode Island to finish high school work while also completing college classes. The bill is scheduled for a hearing and/or consideration on April 3.

Sources: http://www.zwire.com/site/news.cfm?newsid=17914205&BRD

Utah – Governor Jon Huntsman Jr. has signed a bill that requires parental consent to join school clubs and allows school administrators to reject groups if they find them objectionable. "There were prior versions of this bill I would have vetoed," Huntsman said after signing the bill in March. "However, this legislation simply codifies items already in the state Board of Education rules." The original goal of the bill was to ban gay-straight alliances in the state's high schools, but federal rules and court rulings were seen as an impediment.

Source: http://www.sltrib.com/news/ci_5405281

California – The state's schools are underfunded to the tune of $1 trillion, according to a new study believed to be the most comprehensive evaluation ever of the state's education system. The study is a result of 23 separate studies financed by four different foundations and requested by Democratic legislative leaders, state Superintendent of Public Instruction Jack O'Connell, and Governor Arnold Schwarzenegger. Ted Mitchell, chairman of the governor's Committee on Education Excellence, said the studies don't make policy recommendations. That job is to fall to the committee, which expects to take time analyzing the data and then making recommendations to the governor.

Source: http://www.capitolweekly.net/news/article.html?article_id=1320

California – Business leaders have ranked K-12 public education as their top public policy concern, according to a survey released in March. And most business leaders would agree to higher taxes for education if the added money was tied to "major reform" of the public school system with 63 percent of the respondents saying they strongly supported more spending on education. An additional 30 percent said they somewhat support more spending. "It was very clear from the discussions we had with business leaders as well as from the poll that businesses are not getting an adequately prepared workforce," said Loren Kaye, president of the California Foundation for Commerce & Education, a think tank affiliated with the California Chamber of Commerce, which conducted the study.

Source: http://www.insidebayarea.com/sanmateocountytimes/ci_5424587

Illinois – More Illinois schools met goals imposed by the federal No Child Left Behind law because of changes in how schools are judged and changes that made state achievement tests easier for students to pass, according to an analysis of state data by the Chicago Tribune. Almost 82 percent of the state's public schools met the goals on the 2006 state math and reading tests, compared with 74 percent the year before. But 450 of the nearly 3,100 elementary and high schools that met the goals did so because state officials changed the way students' test scores were counted.

Source: http://www.chicagotribune.com/business/content/education/chi-0703130177mar13,0,7282569.story?coll=chi-education-hed

Massachusetts – The state's first Chinese immersion charter school has been approved, and the school is expected to open next fall. The school's curriculum calls for 75 percent of the day to be taught in Chinese. Why the push for a Chinese-language school? "It's about jobs and a world economy," said Richard Alcorn, who spearheaded the school with his wife, Kathleen Wang. "There are unbelievable opportunities to do business in China, so there's a need for Americans to learn the language so we're not left out."

Source: http://www.boston.com/news/education/k_12/articles/2007/03/11/as_chinas_power_grows_so_do_chinese_programs_in_public_schools/

Michigan – There's a glut of elementary teachers in Michigan, leading some to think that the money taxpayers spend to support each elementary education student at a public university isn't well-spent. "Education schools ― are farming out education grads at a rate much higher than Michigan can employ," said John Bebow, executive director of the Center for Michigan, a public policy think tank. "In effect, we are exporting teachers at the taxpayers' expense." Mike Flanagan, state superintendent of public instruction, said that colleges keep producing elementary teachers when Michigan schools need teachers of special education, secondary math and science, and language arts.

Source: http://www.detnews.com/apps/pbcs.dll/article?AID=/20070312/SCHOOLS/703120328

New Hampshire – A teacher in the Nashua School District alleged that the school district discriminated against her based on her age and that the actions were so abusive that her employment ended with her "constructive discharge." Patricia Murdy's claim was based on the school district's refusal to assign her to the accounting and business courses that she wanted to continue teaching. She claimed the district decided to keep the courses available to "younger teachers and yet to be named new hires." The district contended by "younger" it meant "less experienced." Murdy was more than 55 years old, and she claimed she suffered a material adverse employment action, but the district argued that the mere failure to obtain a desired course schedule didn't constitute such an action. The district court refused to throw out Murdy's claims because it had insufficient facts to determine whether her contentions actually constituted an adverse employment action. But the court ruled against her in connection with her constructive discharge claim. Stating that constructive or wrongful discharge claims were unavailable in situations where a statutory cause of action was available, the court dismissed Murdy's claim stating that there was adequate protection available to her under the Age Discrimination in Employment Act.

Source: Murdy v. Nashua School District (U.S. District Court D. New Hampshire 12/19/06)

AASPA Summit 2007: HR Leadership Today and Tomorrow

April 26-27, 2007
El Tropicano Riverwalk
San Antonio, TX

Join AASPA for this two-day summit allowing you to explore the many facets of leadership through the knowledge of your colleagues. Keynote presentations will examine best practices in both your own leadership skills and fostering those skills in others. Breakout sessions will allow participants to discuss what works and what doesn't when it comes to leadership in our schools and preparing tomorrow's leaders of the world. While you're there, join the Annual Fiesta Week on the Riverwalk!

Register and find more information at www.aaspa.org/pdev.htm.

Personnel Administrator Boot Camp

June 18-19, 2007
Sheraton Nashville Downtown Hotel
Nashville, TN

AASPA is now accepting recruits for Boot Camp to learn basic and advanced maneuvers of survival on the school personnel battlefield. Training will be offered in various areas, including: recruitment, HR legislation, hiring, employee evaluation, mentoring, and much more!

Register and find more information at www.aaspa.org/pdev.htm.

Support Personnel Seminar: Put Your Personal Touch in Personnel

June 20, 2007
Sheraton Nashville Downtown Hotel
Nashville, TN

Attention support personnel professionals: join us for a one-day seminar designed just for you. This seminar will allow you to learn more about yourself, hone your skills, and network with other personnel professionals. Topics include: communication skills, technology, managing stress, legislative updates and much more!

Register and find more information at www.aaspa.org/pdev.htm.

AASPA's 69th Annual Conference: "Kansas City Here I Come!"

October 17-20, 2007
Hyatt Regency Crown Center
Kansas City, MO

Mark your calendars now for AASPA's premier professional development event of the year! The call for presenters is now online and more information will be added soon at www.aaspa.org.

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