By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an
answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
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Dear Legal Mailbag:

I have been fortunate to be the principal in a school district that provides building substitutes and I have often been able simply to assign one of my two building subs to cover for an absent teacher without having to resort to the sub list. For example, early this year, one of my veteran teachers took seriously ill and, last October, I assigned a building sub to that class to cover for the teacher. Happily, the teacher is regaining his health, and he will return to work next fall. Given these circumstances, the building sub will continue covering the class until the end of the year.

My question has to do with the building sub. Fortunately, he has his teaching certification, and he has done a great job covering the class this year. Unfortunately, the powers that be have told me that the district can’t afford building subs next year and so the sub is out of a job. We do have a vacancy for next year because another teacher has resigned for retirement purposes effective at the end of the year; and, the sub has asked me for a recommendation as part of his application for the position. I think he is great, but I don’t want to exercise favoritism in the hiring process. Rather, in this competitive environment, I want the district to find the best candidate for the vacancy.

Do you think that I can gracefully decline this request?

Thank you,
Principally Polite

Dear Polite:

Not really. You are free to write a recommendation, and, since the sub has done a good job, I really don’t understand your reluctance. The problem is that Legal Mailbag recommends that your school district non-renew the sub’s employment before May 1 because, by operation of statute, he became a “teacher” when you weren’t looking.

Whether or not one is a “teacher” with rights under the Teacher Tenure Act is governed by that statute. The Tenure Act defines a “teacher” as follows: “(2) “Teacher” includes each certified professional employee below the rank of superintendent employed by a board of education for at least ninety calendar days in a position requiring a certificate issued by the State Board of Education.” Conn. Gen. Stat. § 10-151(a)(2). Given the facts as described, the building sub morphed into a “teacher” over the course of the year. As you mentioned, he has his certification. Under the certification regulations, one must be properly certified if one is in the same assignment for more than forty school days, and thus the vacancy left by the absent teacher became a position requiring certification as soon as the sub was in the position for that period. Finally, given that this assignment started in October, the sub has been in the position for well over ninety calendar days.

As a “teacher,” the sub now has rights that you may have overlooked. The Tenure Act provides that the contract of a “teacher” is renewed from year to year by operation of law unless (1) the teacher receives written notification of non-renewal before May 1 of any year that his or her contract will not be renewed for the following year, or (2) the teacher’s contract is terminated in accordance with the statutory procedures. The sub therefore will have the right to be assigned to a vacant position for which he is qualified, possibly even the vacancy in your building, unless the district notifies him of non-renewal before May 1 of this year.

As you (and “the powers that be”) consider this matter, please remember that the school district is authorized to non-renew the contract of a non-tenured teacher for any legitimate reason. Wanting to have an open application process for a vacancy is such a legitimate reason and, thus, the district is free to non-renew the contract of the sub, who is now a “teacher.” There is no nice way to do that other than by explaining the circumstances that impel his non-renewal when the district sends the non-renewal notification and encouraging him to apply for the vacancy. However, now that you know the full story, you should feel free to write that recommendation, and the sub may thus rise to the top of the selection pool and get the position.