Teacher Transfers: Practical advice for Trustees and Superintendents

1. Teacher Transfers: Practical advice for Trustees and Superintendents Jeremy D. Schick and Deborah McGuire ASBA Legal Services Fall FGM, November 22, 2011

2. Purpose of presentation: Allow Trustees and Administration to examine the processes of: • Administration selecting a teacher for transfer, • Trustees evaluating the transfer in an appeal from the other perspective

3. Why transfer a teacher? • At the request of the teacher, • As a solution to a problem: • Student needs, • Programming, • Financial resources, • Declining enrolment, • Conflict, • School closure.

4. How does a teacher get transferred? Section 104 of the School Act provides that: 1) A superintendent may, at any time during a school year, transfer a teacher from one school operated by the board to another of its schools.

5. Section 104 of the School Act (cont) (2) Subject to this section, if a teacher is transferred, that transfer becomes effective not less than 7 days from the day on which the notice of transfer and reasons for the transfer are received by the teacher.

6. Common situation – teacher transfers resulting from staff reduction

7. Consider: • That you are the SUPERINTENDENT and you have to determine who you are going to transfer – no easy task.

8. Notice of Transfer and Reasons • Most Boards have policy on teacher transfers to guide the process. • Even if you have had many conversations with the teacher, it is a good practice to summarize the reasons in writing. • The reasons for the transfer must align with the policy on Teacher Transfers.

9. Consider: • That you are the TEACHER that has just received the notice of transfer, and you do not want to be transferred. • You are wondering “why me?” • You look to the reasons given and feel that it is not fair.

10. How does a teacher appeal a transfer? • The transfer is appealed to the Board of Trustees (s.104(3) of the School Act) • Board policy outlines the procedure for the appeal. • The teacher’s transfer is “on hold” until after the hearing (s. 104(5) of the School Act)

11. What are the possible outcomes of a teacher transfer appeal? • Not upheld – teacher remains in current position • Upheld – teacher moves to new assignment • If the teacher does not wish to transfer, the teacher may resign upon giving 30 days’ written notice (s.104(6) of the School Act.)

12. The consequences are high… • The Superintendent made a difficult decision. • The Teacher is facing a move or no job. • The Board has a difficult decision to make.

13. Upon appeal: • The ATA representative assisting a teacher will attack the transfer by reviewing: • Whether the notice complied with the Act • Whether the reasons align with Board policy • Whether the Board policy is subjective, allowing for certain teachers to be targeted while others maintain their position. • Other factors, i.e. is the teacher the union rep? Have they recently been transferred?

14. Upon appeal: • The SUPERINTENDENT will need to defend his/her transfer decision. • Does it comply with the: • School Act, • collective agreement, • Board policy? • Was the notice and reasons sufficient? • Was the teacher targeted? Why? Defensible?

15. Making sure your process helps and not hurts: • Envision how your policy will be used in practice to evaluate all staff. If necessary: • Clarify your priorities • Streamline for easy application • Remove “subjective” personality factors • Address seniority

16. Scenario 1: You are the Superintendent. • Review the Scenario • Utilize a “MATRIX” to slot the teachers in. • Remember to use: • Collective agreement • Policy * no, not that Matrix

17. Scenario 1: • Which teacher would you transfer? • Why?

19. Scenario 2: • What if the Transfer policy said that only the program needs of the “surplus” school was to be considered – that is, not consider the program needs of the “receiving” school? Would this change your decision? • See how important policy wording is …

20. What problems are evident? • Personality factors are hard to remove from the Superintendent’s decision making. • And “subjective” personality factors are hard to express and, therefore, defend • The importance of a process

21. Appeal Hearing • Superintendents are given broad power to transfer … on what basis is there decision to be reviewed by the Board? • A statutory power establishes the Board as the ultimate decision-maker on transfer. • But, is an “appeal” – implies some deference to the decision-maker

22. Reasonableness • Section 2 of the School Act states: “The exercise of any right or the receipt of any benefit under this Act is subject to those limitations that are reasonable in each circumstance under which the right is being exercised or the benefit is being received.”

23. Reasonableness (cont.): • This provision is an over-arching requirement that the Board in all actions, including all appeals, must act in a reasonable fashion.

24. Reasonableness has: 1. A procedural element • Did the Superintendent follow a fair process? • Is the Board following a fair process? 2. A substantive element - Is the decision in compliance with law/agreements/policy & justifiable?

25. Rights of the parties: • The parties at a teacher appeal hearing include the teacher and the Superintendent • Each party is entitled to: • Notice of the hearing • Know the representations of the other, and to be given an opportunity to respond to them, and any other information that will be considered by the Board in its decision • Hear the submission of the other party • Legal counsel (discretionary)

26. Board appeal procedure: • Apply your hearing process to a hypothetical situation. Make sure it works. • Allow the Board to have some discretion with respect to process. For example, some policies state that the parties must provide the names of counsel and witnesses, and any documents they intend to rely on, 4 days in advance. This can be problematic.

27. Rules of Natural Justice • A board will lose jurisdiction if it breaches the principles of natural justice and procedural fairness or where the board makes an error of law. • A board decision which violates the above rules can be reviewed and overturned.

28. Rule Against Bias • No man shall be a judge in his own cause. • Each case must be heard by an unbiased panel. • There cannot be a reasonable apprehension of bias.

29. Duty to Avoid or Confess Bias • Board decisions must be made impartially. • Three categories of bias: • an opinion so strong as to produce fixed and unalterable conclusions; • any pecuniary bias; • personal bias, whether by association with a party or personal hostility to a party where the test is a real likelihood of bias and the appearance that justice is done.

30. Some General Rules • Never state that your mind is made up prior to rendering a final decision. • Your decision must be based upon evidence presented at the hearing. • Individual board member cannot be involved if in a conflict-of-interest situation. • Must be fair to both sides: cannot demonstrate a preferred position. • Each board member must be impartial and unbiased.

31. Behave in a Judicial Manner • Remember that your demeanour is being watched before, during and after the hearing. • Do not make sarcastic remarks. • Never react in anger or lose your temper. • Keep the proceedings on topic. • Do not tolerate disrespectful behaviour from anyone.

32. Audi Alteram Partem • Both sides must be heard. • Right to notice of hearing. • Right to know the case to be met. • Right to have all evidence or submissions before the decision maker. • Right to an adjournment. • Often right to counsel.

33. No Improper Delegation • All findings of fact must be made by the board members who heard the evidence. • Findings of fact must be supported by the evidence. • Board members can discuss policy implications of a certain decision with other board members or seek legal interpretations from board counsel. • Final decision must be the decision of the board.

34. Evidence • Evidence is the presentation of relevant facts: • to the board, • by the person or appellant with the greatest first-hand knowledge.

35. Argument • Argument follows submission of evidence.

36. Deliberation • still in camera • parties not present during deliberation • board entitled to retain own lawyer to assist in procedural issues

37. Reasons for substantive appeal • Did the Superintendent follow the policy? • Is the transfer in compliance with the collective agreement? • Is the transfer in compliance with the policy? • Is it compliant with legislation?

38. Constructive Dismissal • A Board of Reference can only hear an appeal of the Trustees’ transfer decision if the transfer amounts to a “dismissal” • “Constructive Dismissal” = a substantive change in conditions of employment beyond what would have been in reasonable contemplation of the parties, and, therefore, a “dismissal” w/o cause

39. What constitutes “Constructive Dismissal”? • No specific listing possible • Undue consideration of community pressures • Placed into a position unsuited by training or experience, just to find a position • Significant demotions of prestige • Distance to travel

40. Back to Scenario -- #3 • The first teacher you transferred successfully appealed – who would you transfer next? • Why?

41. Consider the effect • I raise Scenario #3 to consider the position of Superintendent where Board says, notwithstanding you followed the policy, we impose only decision based solely on vague notion of “fairness” • Consideration of individual’s circumstances, but with awareness of broader consequence

42. Questions?