May 3, 2024
CESA 10 Superintendent Meeting Legal Update, Part 4:

Nonrenewal Teacher and Administrator Contracts

CESA 10 Wisconsin Superintendent Meeting Legal Update

Kirk Strang presented a legal update at the 2023 CESA 10 Superintendent Meeting with a focus on six topics …

  1. Pupil Discipline & Expulsion
  2. Expulsion — the Unwritten Rules, Politics, & Stray Thoughts
  3. Disciplinary Alternatives to Expulsion
  4. Nonrenewal Teacher & Administrator Contracts
  5. Gender Identity
  6. Student Speech & Expression

In this 6-part series, we tackle these topics individually in an effort to share the details of each talking point with more superintendents, teachers and administrators throughout the state of Wisconsin.

Part 4 of the series is all about nonrenewal of teacher and administrator contracts, with an emphasis on topics that include:

  • Nonrenewal Teacher Contracts
    • Timeline
    • Preliminary Notice
    • Private Conference
    • Evaluations
  • Nonrenewal Administrator Contracts
    • Contract Terms
    • Timeline
    • Preliminary Notice
    • Contract Extension

Nonrenewal Teacher Contracts

TIMELINE

  1. Have a timeline with your administrative team for:
    1. Identifying possible nonrenewal and schedule for preparing necessary materials (evaluations, POI, etc.); 
    2. a period for the superintendent and counsel to review and advise; 
    3. a period for finalizing the recommendation;
    4. time for superintendent review; and 
    5. identifying board meeting for recommendation.
  2. Final notice of renewal/nonrenewal must be given by May 15.

  3. Preliminary notice must be given 15 days before final notice (there is no specific date established for preliminary notice). 

    NOTE: Both the final and preliminary notice must be in writing.

  4. Private Conference.
    1. The preliminary notice must inform the teacher that he/she may request a private conference with the board before the board issues the final notice. 
    2. The teacher must file his/her request within 5 days of receiving the preliminary notice.
    3. Hold the private conference such that final notice can be given by May 15. Never put the private conference too close to the date that preliminary notice was given. If you must have the two events in less than 15 days, have a waiver in writing.
  5. Make sure that the preliminary notice has been approved by the full board and that a board representative (president or clerk) has signed it.
  6. According to the letter of the statute, the board “shall inform the teacher by preliminary notice in writing.” There has never been a case decided in Wisconsin that examined the meaning and application of what it means to “inform,” so there’s no sure answer on whether it means mailing, emailing, personal service, or something else. Therefore, make sure preliminary notices are in teachers’ hands by the deadline.
  7. Evaluations. 
    1. Boards must evaluate, in writing, the performance of all certified school personnel at the end of their first year and at least every 3rd year thereafter.
    2. Principals and others that evaluate teachers should be advised that all evaluations must be completed by “X” (I prefer the end of February or mid-March). A superintendent’s ability to go forward with nonrenewal is limited if annual evaluations have not been completed or — where they have been completed — do not support the recommendation.

Nonrenewal Administrator Contracts

CONTRACT TERMS

  1. Administrator contracts are limited to a term of two years (Wis. Stat. 118.24(1)). The two-year limit cannot be overcome by, e.g., entering into multiple contracts at the same time to create a longer period of contractual obligation. 

    Having multiple, but consecutive two-year contracts executed at the same time to create a longer aggregate contract period is not permitted.

  2. A one-year contract is permitted. One-year contracts are increasingly a means of internal corrective action, as it is increasingly difficult for school boards to persuade administrators to move for a one-year contract, especially at the superintendent level.

TIMELINE

  • 5 months prior to expiration: Board gives preliminary notice of nonrenewal by registered mail.
  • 4 months prior to expiration: Board gives final notice of renewal or nonrenewal.
  • 3 months prior to expiration: Administrator accepts or rejects any offered contract.

NOTE: Preliminary notice is in writing and by registered mail. 

The board must “give” preliminary and final notices of nonrenewal. There is no specific authority interpreting the term “given.” Consequently, the best practice is to ensure that notice is received — rather than sent — no later than the statutory deadlines.

PRELIMINARY NOTICE

  1. The preliminary notice should make clear that the board is considering nonrenewal and avoid using language that states or implies that the school board has made a final decision to nonrenew. 

    NOTE: A preliminary decision to nonrenew is okay and does not violate an administrator’s right to due process. 

  2. The preliminary notice must state that “the board is considering nonrenewal of the contract, and that if such person files a written request with the board within 7 days after receiving such notice, the person has the right to a hearing before the board prior to being given written notice of refusal to renew the contract.” Wis. Stat. 118.24(7).

  3. The administrator has a right to request a hearing.

    1. The request must be a “written request.”
    2. The written request must be filed with the board.
    3. The written request must be filed within 7 days after the preliminary notice is received.

    “The written request for a hearing shall include a statement requesting either a private hearing or a public hearing before the board …”

CONTRACT EXTENSION

  1. Contract extensions, if any, should take place in the first year of a 2-year contract. Contract nonrenewal should take place in the second year of a 2-year contract.

    NOTE: Contract extensions and contract renewal are not the same. Nothing in your policies, handbooks, or individual contracts should confuse this point.

    1. “Contract Extension” refers to a contractual process. When an extension is granted, an existing contract is extended through some means agreed on by the parties.
    2. “Contract Renewal” refers to a statutory process.

  2. Types of contract extensions.

    1. Extension by operation of contract: The contract itself has language that governs the extension process and which, if followed, extends the term of an existing contract.

      There are generally two types of these clauses:

      1. Notice of extension is required to extend (where a contract requires notice of any extension to be given for an extension to actually occur).

      2. Negative option (where, e.g., a Board of Education’s failure to act will result in a one-year extension based on the prior contractual agreement of the parties).

        NOTE: Procedural language used in this area is generally poor; most contracts do not state deadlines with precision, how notice is provided, what constitutes timely notice, etc.

    2. Extension by mutual agreement: 

      The statute provides that an administrator contract can be extended (or, more exactly, renewed) if the employing board gives notice of renewal no less than 4 months prior to expiration and the contract is accepted on or before a date 3 months prior to expiration. 

      An administrator contract can also be extended by another type of agreement of the parties, within the term limits that appear in the statute.

    NOTE: Contract extensions, if any, should take place in the first year of a 2-year contract.

This brings us to the end of Part 4 of our series regarding Kirk’s legal update from the CESA 10 Superintendent Meeting. In Part 5 of the series, we’ll cover gender identity with a focus on Title IX protections, and preferred names and pronouns.

© 2022, Strang Law LLC