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The Legal Issues Associated With a Teacher Work Stoppage

By Julie L. Miller, Rooney Virgin and Kim Bishop

In March 2018, Oklahoma was made aware of the possibility of a teacher work stoppage. Oklahoma’s public school teachers, fed up with politics and business as usual, commenced discussions via social media of the possibility of going on strike. One social media group garnered more than 75,000 members in a short period of time.

Very quickly those of us involved in providing legal information to Oklahoma’s public school districts realized there would be several issues to address in each school district as the proposed teacher work stoppage date approached. At issue initially was whether or not a teacher walkout violated state law.

Oklahoma law contains one statute that addresses the issue of a strike. Specifically:

The procedure provided for herein for resolving impasses shall be the exclusive recourse of the organization. It shall be illegal for the organization to strike or threaten to strike as a means of resolving differences with the board of education. Any member of an organization engaging in a strike shall be denied the full amount of his wages during the period of such violation. If the organization or its members engage in a strike, then the organization shall cease to be recognized as representative of the unit and the school district shall be relieved of the duty to negotiate with such organization or its representatives.1

The referenced statute does not mandate that teachers who strike are automatically fired. The statute above addresses a strike against a school board related to negotiations.

The next question becomes what do we do if our teachers walk out? If a strike or walkout is not supported by a local board of education, the administration or board of education may decide to take adverse actions against employees who refuse or fail to report to work. This is an issue of local control. In order to terminate the employment of a teacher, Oklahoma’s Teacher Due Process Act of 19902 must be followed. Due process procedures vary for teachers depending upon their status. By law, a teacher is either probationary or career.

“Probationary teacher” means a teacher who:

a. is employed by a school district prior to the 2017-2018 school year and has completed fewer than three (3) consecutive complete school years as a teacher in one school district under a written teaching
contract, or

b. is employed for the first time by a school district under a written teaching contract during the 2017-2018 school year and thereafter and has not met the requirements for career teacher as provided in paragraph 4 of this section.3

“Career teacher” means a teacher who:

a. is employed by a school district prior to the 2017-2018 school year and has completed three (3) or more consecutive complete school years as a teacher in one school district under a written continuing or temporary teaching contract, or

b. is employed for the first time by a school district under a written continuing or temporary teaching contract during the 2017-2018 school year and thereafter:

(1) has completed three (3) consecutive complete school years as a teacher in one school district under a written continuing or temporary teaching contract and has achieved a district evaluation rating of “superior” as measured pursuant to the TLE as set forth in Section 6-101.16 of this title for at least two (2) of the three (3) school years,

(2) has completed four (4) consecutive complete school years as a teacher in one school district under a written continuing or temporary teaching contract, has averaged a district evaluation rating of at least “effective” as measured pursuant to the TLE for the four-year period, and has received district evaluation ratings of at least “effective” for the last two (2) years of the four-year period, or

(3) has completed four (4) or more consecutive complete school years in one school district under a written continuing or temporary teaching contract and has not met the requirements of subparagraph a or b of this paragraph, only if the principal of the school at which the teacher is employed submits a petition to the superintendent of the school district requesting that the teacher be granted career status, the superintendent agrees with the petition, and the school district board of education approves the petition. The principal shall specify in the petition the underlying facts supporting the granting of career status to the teacher.4

TERMINATION OR NONRENEWAL OF A TEACHER
In order for a school superintendent to present a legal recommendation for termination or nonrenewal of a teacher, the superintendent must first present a recommendation to the board of education. In order to dismiss a probationary teacher, cause must exist. In order to dismiss a career teacher, statutory grounds must be utilized.5 There is never an “automatic” termination of employment in Oklahoma.

School superintendents could have presented recommendations to school board members to terminate employment of probationary teachers for failing to report to work as the cause for the recommended action. However, this process would require statutory notice be provided to the teacher and a due process hearing would need to be set as required by statute. The hearing could not be held sooner than 20 days, nor later than 60 days from the date the teacher was notified of the hearing.

For career teachers, a recommendation to terminate employment could not be brought until such time as the teacher had been placed on a plan of improvement and given time to improve. Even though Oklahoma does include “abandonment of contract” as a statutory ground for dismissal of career teachers, the term is defined as:

As used in this section, “abandonment of contract” means the failure of a teacher to report at the beginning of the contract term or otherwise perform the duties of a contract of employment when the teacher has accepted other employment or is performing work for another employer that prevents the teacher from fulfilling the obligations of the contract of employment.

Due to the fact that career teachers had engaged in a walkout, the above referenced statutory language would not be applicable.

A bigger issue for Oklahoma’s public school districts was who would replace the fired teachers? Oklahoma has over 1,900 emergency certified teachers currently serving in public schools across the state. If large numbers of teachers were fired, where would replacements come from? This left many schools with no choice but to close school during the teacher walkout as school districts could not provide a safe environment for students without teachers to supervise them.

OUTCOME OF THE TEACHER WALKOUT
The teacher walkout ended after nine days of lost instruction for many schools. The local school boards and superintendents worked to modify school calendars to meet statutory requirements for student attendance and to adhere to time requirements set forth in teacher contracts.

On March 28, 2018, the Oklahoma Legislature voted to pass House Bill 1010xx during the second special session of the 56th Legislature of the state of Oklahoma. HB 1010xx included tax increases for gross production, motor vehicle fuel, tobacco and hotel/motel taxes. This legislation was historic in that it was the first piece of legislation passed by the Legislature by a supermajority as is required by the Oklahoma Constitution for revenue raising measures. The revenue generated by HB 1010xx was intended to pay for a teacher pay raise that was contained in HB 1023xx, also passed by the Legislature on March 28, 2018. Since the two measures were tied together, the Legislature included language in HB 1023xx that made operation of the teacher pay raise contingent upon the enactment of HB 1010xx.

After the second special legislative session was adjourned on April 19, 2018, a group called Oklahoma Taxpayers Unite began the process of filing for a veto referendum petition6 against HB 1010xx. The veto referendum is essentially a voter veto – it allows voters to decide whether to veto legislation that has been signed by the governor if enough signatures are gathered on a referendum petition within 90 days after adjournment of the legislative session. The veto referendum process is a constitutional right in Oklahoma. However, the process includes specific constitutional and statutory requirements which petitioners must comply with. Part of the process includes a 10-day period during which any taxpayer can file a protest as to the sufficiency of the referendum petition.

Two protests were filed and on June 11, 2018, the Oklahoma Supreme Court heard oral arguments. The protests outlined several deficiencies in the petition filing. Generally, the description of the bill on the signature sheets omits mention of two of the tax increases authorized in HB 1010xx, the description was misleading and the petition did not include an exact copy of the bill. The protests also raised questions about the effect of a referendum petition against HB 1010xx on the effectiveness of HB 1023xx.

On June 22, 2018, the Oklahoma Supreme Court ruled in Oklahoma’s Children, Our Future, Inc. v. Coburn7 that the petition filed by Oklahoma Taxpayers Unite was invalid and ordered it stricken from the ballot. The court concluded that the petition was misleading and failure to include an exact copy of the bill violated the statutory mandate. However, the 90-day window for filing referendum petitions against HB 1010xx and obtaining the signatures had not yet expired. The group could file a new petition and restart the process of referendum, however, the group would have to obtain new signatures as any obtained prior to June 22 could not be applied to the new referendum petition.

The court also ruled that HB 1023xx was made contingent upon enactments of HB 1010xx and that a bill is enacted when it is passed by the Legislature and all the formalities required to make it law have been performed. Because HB 1010xx was enacted, the contingency requirements in HB 1023xx have been met, and it will become effective Aug. 1, 2018.

ABOUT THE AUTHORS
Julie L. Miller is deputy executive director and general counsel for the Oklahoma State School Boards Association. She is a member and past president of the Oklahoma School Board Attorneys Association. She is a graduate of the OCU School of Law, Denver Paralegal Institute and the University of Wisconsin-LaCrosse.

Rooney Virgin is the director of Government Affairs for the Oklahoma State School Boards Association. She is a member of the Oklahoma School Board Attorneys Association. She is a graduate of the OU College of Law and Auburn University.

Kim Bishop is a staff attorney for the Oklahoma State School Boards Association. She is a member of the Oklahoma School Board Attorneys Association. She is a graduate of the OCU School of Law. Previously, she was senior staff attorney with the Oklahoma House of Representatives.

1. 70 O.S. Section 509.8.
2. 70 O.S. Section 6-101.20, et seq.
3. 70 O.S Section 6-101.3.
4. 70 O.S. Section 6-101.3.
5. 70 O.S. Section 6-101.22.
6. Referendum Petition No. 25, State Question 799.
7. 2018 OK 55.

Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 24 (August 2018)