Vol. 20-001, January 8, 2020

(OAH Case No. 2018051034 (2018).)

The Gist
A principal’s knowledge of and failure to correct an employee’s repeated misconduct will be deemed tacit approval of the conduct by the district. Districts must identify and document whether an employee has complied with given directives. If an employee is not provided with notice of non-compliance, the CPC will infer compliance. 

The Details
In this case, a high school teacher accepted paid employment as a softball coach for a private school, which required him to leave his district teaching position before the conclusion of the workday on several occasions.

The school district maintained a policy regarding non-school employment, which prohibited employees from engaging outside employment activities that were inconsistent, incompatible, and in conflict with, or inimical to their district duties.

Although the principal did not expressly approve of the teacher’s practice of leaving his assignment before the end of the workday, the principal was aware of the teacher’s conduct.

When a second school administrator later learned of the teacher’s conduct, the teacher was directed to resign from his coaching position. The district maintained the teacher’s employment for a complete school year after issuing this directive. No administrator issued any subsequent notices or directives to the teacher regarding his private coaching job or his practice of leaving work early. The teacher ultimately resigned from his private coaching job on his own accord, and thereafter he refrained from leaving work early.

In addition to the district’s concerns regarding the teacher’s outside employment, the teacher’s performance was substandard. Consequently, the principal issued the teacher a 30-Day Improvement Plan containing several directives to correct his deficiencies.

Shortly thereafter, the teacher was temporarily relieved of his full-time duties due to the expiration of his teaching credential and placed in a substitute position. While serving as a substitute teacher, the district did not expect the employee to comply with directives included in his improvement plan.

In the following school year, the teacher was reemployed by the district on a full-time basis as a regular teacher. However, the principal did not enforce the directives outlined in the 30-Day Improvement Plan or conduct classroom observations to determine whether the teacher’s performance improved.

The school district moved for the teacher’s dismissal based on immoral conduct, dishonesty, evident unfitness for service, and persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed for the government of the public schools by the State.

The CPC overturned the dismissal.

With respect to the teacher’s private employment, the CPC found that although the employment was inconsistent, incompatible and in conflict with his instructional duties at the district, it did not warrant dismissal. The CPC reasoned that because the principal was aware of the teacher’s outside employment and did nothing to prevent or modify the teacher’s practice of leaving his assigned position before the end of the workday, the district tacitly approved of the teacher’s conduct. Further, the CPC reasoned that because the teacher remediated his conduct, and the district continued his employment, the teacher was not unfit to teach.

With respect to the performance issues, the CPC found that although the district established that the teacher “struggled to establish and communicate learning goals for all students,” the district did not demonstrate whether the 30-Day Improvement Plan was implemented, or whether after receipt of support and guidance, the teacher continued to exhibit difficulties in the classroom. In the absence of such evidence, the CPC assumed the teacher’s performance improved.

Practical Pointers 
School site administrators should be reminded that their actions constitute district action. Therefore, school site administrators must follow through on progressive discipline and consistently admonish employees who violate school or district rules/regulations and fall short of expectations.

Additionally, administrators must monitor employee performance and document continued deficiencies. This is especially true after an administrator issues directives to improve. Failure to identify, document, and address on-going performance concerns may lead a CPC to wrongfully believe that an employee’s performance improved.

​Dismissal Overturned.

Please note, nothing contained in the CPC Blog is intended to be legal advice.  Please feel free to contact any of our offices for additional information and/or consult legal counsel regarding any particular matters.