ETHICAL EDUCATOR

Poaching Prevention

School Administrator, August 2015
 Ethical Educator August
               Illustration by David Clark

 

Scenario: To combat the ongoing loss of its best teachers to neighboring school systems with higher salary schedules, a metropolitan district puts in place a policy developed by the human resources department. When teachers receive contracts in March, they must sign a stipulation to pay a liquidated damages fee of $750 in recruiting costs should they break the contract by June 1. Those resigning after June 1 are assessed the fee and reported to the state for abandonment of contract. Several teachers complain to the school board when asked to pay the penalty, saying they should be released from their contracts since they are paying a penalty. What advice does the superintendent give the board?


 

Kelly Henson:

Neither teachers nor the school system can have it both ways. The school system must understand that employees today are very mobile within job markets. In the past, it was not unusual for an employee to spend his or her entire career with one or two employers. This is no longer the case. And circumstances regarding an employee or spouse sometimes require a move on relatively short notice.

Teachers must understand that the contract gives them job security and results in the school system not recruiting candidates for their position. When a teacher leaves after June 1, it puts the school system in a challenging position to recruit and employ an outstanding teacher.

To accommodate the necessary balance that must be achieved, the school system can continue to stipulate and enforce a liquidated damages fee of $750 as a reasonable deterrent. Additionally, the system should have a well-defined policy that stipulates reasons in which a teacher may be released from his or her contract without penalty (documented medical, documented spousal transfer, etc.).

Regarding abandonment of contract, I would suggest the district limit reporting to the state for abandonment of contract except in cases where the teacher leaves within four weeks prior to the beginning of school or leaves abruptly during the school year and leaves for reasons not stipulated in the system’s policy.

 

Mario Ventura:

Each year, school districts fill teacher vacancies by seeking to employ the most highly qualified teachers and to ensure students have the best learning experience possible. Historically, economically disadvantaged urban school districts have experienced teacher turnover rates that are higher than suburban and rural school districts. There are costs associated with the recruitment, hiring and training of newly hired teachers.

In most cases, a teacher resigning or asking to be released from their contract in late spring is a manageable situation for a human resources department. By June, the teacher pool of available candidates has been depleted and many of the most qualified teachers have been placed under contract which in turn creates a hardship for the school district. In this scenario, the school district decided that creating a policy to applying liquidating damages for breaking a contract and to report teacher unprofessional conduct, such as job abandonment, is an effective way to discourage teachers from breaking their contract.

Teachers have the professional responsibility to follow state statutes, education codes and school district policy. Breaking a contract is viewed as unprofessional conduct and the school district has the right to report the teacher to the state for job abandonment. The state could impose disciplinary action against the teacher. The policy needs to clearly state that assessing liquidating damages for a breach of contract is meant to cover loss incurred by the school district and it should not be defined as a penalty.

The superintendent should advise the governing board to seek legal counsel to assist in the evaluation and possible revision of the existing policy and the teacher contract. The policy should be clear in its intent -- to recuperate monetary losses incurred by the school district due to the breach of contract. If the policy indicates or implies the fee is a penalty for breaking the contract, then it could be deemed unenforceable. Legal counsel can assist to ensure the language in the new policy is clear and aligned to other existing policies and procedures for reporting job abandonment. The teacher contract should contain all of the terms of the agreement between the teacher and the school district. Adding the liquidation damages terms to the contract is better practice than having a stipulation.

A change that affects teacher working conditions, such as the signing a stipulation to pay liquidating damages, should be communicated and explained prior to releasing contracts. This would allow ample time for teachers to consider their options for employment and the repercussions associated with breaking a contract.

 

Sarah MacKenzie:

I would think the superintendent would say to the board that the liquidation fee does release the teacher from the contract. I am not familiar with the “abandonment of contract” notification to the state, so I don’t know what kind of restrictions or penalties it implies, but it also seems the payment of the fee and the release from the contract means this notification does not apply in this circumstance.

The idea of poaching during the school year from another school system is considered bad form by many superintendents. And teachers who decide to leave just before the school year begins leave unhappy principals and superintendents. June 1 seems very early to hold people to a contract. The summer, in fact, is when people are expected to make transitions to other systems if they wish. Nevertheless, this school system developed a plan to recover some of the cost of recruiting new employees, and they should honor that plan. Paying the penalty should release individuals from the contract.

If this approach is indicative of how the school board thinks, I can see why teachers might be inclined to leave. It seems the board members are thinking of themselves as victims in this situation rather than as leaders of the community who should take a proactive stance. I would like to think that the school board could focus on ways to increase the likelihood of people remaining in the system as opposed to developing penalties for leaving. Salaries and benefits, of course, are major drivers, but a more positive approach to maintaining and nurturing the professional staff might yield good results.


Shelley Berman:

Policies such as this one arise from districts’ frustration over losing high-performing teachers at a time when it is very challenging to secure replacements. Such provisions may deter teachers from breaking their contracts, but are not the best way to retain people in a competitive environment. Clearly, it is unprofessional to sign a contract for continued employment and then resign to take a more lucrative job elsewhere. Such shopping for positions does not speak well of the individual. However, it may be preferable that disaffected employees leave rather than stay in the district and potentially spread their dissatisfaction to others.  

Some state teacher licensing agencies provide that it is a breach of professional standards for a teacher to depart from employment without providing adequate notice.  Where state law permits, a district may report such teachers to the licensing agency for abandonment of contract and/or breach of professional conduct.  However, in the end, districts really have no way to legally compel teachers to remain in their employ indefinitely, nor would it foster positive employee-employer relationships to do so. 

With regard to the liquidated damages policy, I would advise the district to do its homework, consult with its lawyer and proceed cautiously.  Whether the $750 liquidated damages clause is enforceable would depend on state law and the circumstances of the case.  Generally, a liquidated damages clause provides that because it would be difficult to determine the actual damages of a breach of contract, the parties agree that “X” dollar amount is a reasonable estimate of damages if a breach were to happen in the future. 

Before entering into such an agreement, the district would want to ensure it has proof that the damages that would result from the teacher’s breach of contract would be difficult to calculate, and that $750 is a reasonable estimate of the loss.  Further, some states have specific laws prohibiting contracts that require teachers to repay any portion of their compensation.  There are also collective bargaining issues to consider.  In most unionized states, the policy being implemented in this scenario affects the compensation of teachers, and would require bargaining with the teachers’ union.  Finally, one has to consider the negative impact on employee relations in the district.

The district would be better served by offering positive incentives for continued employment rather than setting a punitive tone or taking punitive actions. Metropolitan or urban districts should be seeking individuals who are deeply committed to making a difference with urban youth. Individuals leaving for more lucrative positions may not have that commitment.

If a district can’t offer a salary that compares well with neighboring districts, it should highlight advantages that others might not make available, such as greater opportunity for growth and advancement; access to special resources; participation in strong induction, mentoring and professional development programs; and/or access to the metropolitan area’s social and cultural resources.  The district needs to promote its advantages to teachers rather than try to contain employees through punitive measures.

Providing a positive and enthusiastic start to each year in a district is critical, even if it means losing some people to other districts that are paying more or have a less challenging classroom environment. I would advise the board to have administration review the policy and recommend changes that will address the teacher retention issue in positive ways. The superintendent should then work with the human resources staff to formulate an alternative to the existing policy.

 

Each month, School Administrator draws on actual circumstances to raise an ethical decision-making dilemma in K-12 education. Our distinguished panelists provide their own resolutions to each dilemma. Do you have a suggestion for a dilemma to be considered? Send it to: magazine@aasa.org

The Ethical Educator panel consists of Shelley Berman, interim superintendent, Andover, Mass.; Kelly Henson, executive director, Georgia Professional Standards Commission; Sarah MacKenzie, associate professor of educational leadership, University of Maine at Orono; and Mario Ventura, superintendent, Isaac School District, Phoenix, Ariz., and member of Model Code of Educator Ethics Task Force. Expanded answers are published in School Administrator magazine’s online edition.