The Board and Superintendent Roles in Certificated Hiring: A Statutorily Symbiotic Approach

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Part 2 of the series Back to Basics

John Sedor, Sedor, Wendlandt, Evans & Filippi, LLC

This school year, the SWEF team is going retro! Meaning Back to Basics! We are going to cover essential laws and processes that should be familiar and understood by all Boards and members. Last month, Clint Campion reviewed the Open Meetings Act – the cornerstone of how board members come together to act as a Board. This month, join me in a journey into the world of certificated hiring!

A school district’s staff can be divided into two large categories: Certificated Employees* and Classified Employees. Take a look at your policy manual – the 4000 series is generally divided into these two large groups. A certificated employee is a person hired into a position that requires an Alaska teaching certificate. Note that I did not say that any person with an Alaska teaching certificate is a certificated employee; this is because a person with an Alaska teaching certificate who is hired for a position that does not require a teaching certificate … is not a certificated employee. Having a teaching certificate is, therefore, necessary but not sufficient to being a certificated employee.

Now that we have our terms set, what is the role of the Board with regard to certificated hires? First of all, all certificated contracts have a term of one year only … with one important exception; the Superintendent contract can be for a term up to three years. AS 14.20.130.

Contracts can be issued to certificated employees after January 1st for the following school year. AS 14.20.130. The way a contract is issued to a certificated employee is a great example of the symbiotic relationship between the Board and its Superintendent and the importance of working together. Neither the Board nor the Superintendent can employ a certificated employee without the approval of the other. Here is how it works: the Superintendent cannot hire a certificated employee without the approval of the Board. AS 14.14.130. The Board cannot hire a certificated employee without the recommendation of the Superintendent. AS 14.14.130. And a certificated contract is not valid without it being signed by at least two Board members. 4 AAC 18.010(a)(11).

The above process is relatively straight forward for new certificated hires. For certificated employees that are currently working for the District, it can be a bit more complicated. For instance, as noted above, all certificated employees (except for the Superintendent) have one-year contracts – but they are one-year contracts with a twist! What happens if the Superintendent never recommends the issuance of a contract to an existing certificated employee and the Board never approves a contract for the existing certificated employee? The answer is that inaction leads to … continuing employment. In other words, if no action at all is taken, the certificated employee – regardless of tenured status is entitled to continuing employment (for the next school year) even if he/she is not issued and does not accept a contract. AS 14.20.145.

The one-year contracts issued to certificated employees are only one year in duration IF the District (Superintendent or Board) take an action to enforce (and thus end) the contract. This action that the District is required to take to end the contract at the end of the one year term is called “non-retention” or “non-renewal.” To properly non-retain a certificated employee, the District must provide timely written notice. The timing of the notice is important and depends on whether the certificated employee is tenured or non-tenured. AS 14.20.145.**

The basis or reasons that a District needs to demonstrate to support the notice of non-retention also differ based on tenured status. The decision to non-retain a non-tenured teacher can be made for “any cause” that the District determines to be adequate so long as it is not an illegal cause (e.g. for an unlawful discriminatory reason). AS 14.20.175(a). The decision to non-retain a tenured certificated employee can only be done for reasons similar to those for dismissal. AS 14.20.175(b).

It goes without saying that the employment of certificated employees is critical to a successful public school district. Under Alaska law, this critical function requires coordination, cooperation, and understanding between the Board and Superintendent. In other words, the often-touted phrases that “the Board’s ‘only’ employee is the Superintendent” and “selecting the Superintendent is the most important made by the Board” are actually embedded in Alaska law with regard to the employment of certificated employees.

*A synonym for “certificated” employee is “certified” employee.

** Tenure will be discussed in an upcoming part of this Back-to-Basics series.of the Open Meetings Act could lead to delay in important school district business as well as potentially significant litigation costs. 

Practice Pointers

  • Review with your Superintendent the process for issuing contracts including timing considerations and whether contracts will be issued to certificated employees prior to or after Board review and approval (either way can be used under Alaska law and there are strategic reasons for each approach).
  • Take a moment to review the District’s certificated employee contract template. It is not uncommon (when they are sent to us) to find errors (big and small) that occur over several years of using a standard template.
  • Review the 4000 series of your policy manual which addresses employment of certificated and classified employees.
  • And … Stay Tuned for next month’s Back to Basic installment from Sedor, Wendlandt, Evans & Filippi!

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