March 1, 2012

Nonrenewals, Reductions in Force and Mutual Consent

Attached you will find CASB’s annual nonrenewal memo, which provides an overview of the nonrenewal process and a discussion of related procedural issues. Nonrenewal is the statutory process by which a board of education elects not to renew the annual contracts of probationary teachers. If the board does not take formal action and provide written notice of nonrenewal prior to June 1, a probationary contract will automatically renew for the following school year.

The nonrenewal of a probationary teacher’s contract is separate and distinct from the reduction in force (RIF) procedures required when the board cancels a teacher’s employment contract. C.R.S. 22-63-202(3). RIFs occur any time a district cuts nonprobationary teachers pursuant to a justifiable decrease in teaching positions because nonprobationary contracts do not expire at the end of the school year. A RIF would only be required to eliminate probationary teachers if/when a district needs to eliminate a probationary position during the school year, while the annual contract is in effect. Districts should not use RIFs to circumvent the due process protections available to teachers recommended for dismissal during the term of their contract for reasons related to performance or disciplinary issues. CASB’s March 16, 2011 Special Policy Update discusses changes to the RIF process following the passage of Senate Bill 10-191 and includes revised sample policies.

Districts considering RIFs should contact their local counsel to determine whether the RIF process will be affected by the concept of “mutual consent,” brought to us by SB 191. Mutual consent affects districts’ ability to transfer nonprobationary teachers who are “displaced” as a result of board of action taken pursuant to a drop in enrollment, turnaround, phase-out, reduction in program or reduction in building. C.R.S. 22-63-202(2)(c.5). While the mutual consent requirement does not eliminate districts’ ability to RIF nonprobationary teachers, it may affect the transfer of teachers whose positions are cut pursuant to the RIF.

Mutual consent and displacement are complex statutory concepts and CASB is working to unpack the policy implications. School board’s are required by law to adopt a mutual consent/displacement policy, and we will issue a special policy update on this issue early this spring.

Attached you will find CASB’s sample Teacher Contract, GCA-E revised to (i) incorporate the mutual consent language required by SB 191, and (ii) expressly preserve the board’s ultimate authority with regard to employee transfers. Also attached is CASB’s sample Alternative Teacher Contract GCA-E-1, that we revised to remove the language regarding mutual consent transfers.

Both of the sample contracts were revised in 2010 immediately after the passage of SB 191. The current revisions more accurately reflect the requirements of the law and expressly preserve the board’s ultimate authority with regard to employee transfers.

Please note: these resources are provided for informational purposes only and are not intended to serve as direct legal advice. Districts should consult their legal counsel before engaging in any personnel actions.

We hope this information is helpful. Please contact CASB’s Member Legal Resources if you have additional questions or concerns.

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Annual nonrenewal memo (PDF)
Special Policy Update, March 16, 2011 (webpage)
CASB Sample Policy GCA-E, Teacher Contract (PDF)
CASB Sample Policy GCA-E-1, Alternative Teacher Contract (PDF)