Q: We have a middle school math teacher that is not meeting expectations for instruction and classroom management. We are interested in renewing her employment for next year; however, we think she would be better suited in a non-core elementary environment as a P.E. teacher. This reassignment will not affect her salary. Do we have to give her notice of this change before offering her the 2017-18 contract?
A: No. As long as the new assignment is within the “same professional capacity” and there is no reduction in overall compensation between contract years, the notice of the new assignment can be issued at any time prior to the initiation of the 2017-2018 school year.
If you intend to reassign a professional employee, Texas Education Code §21.206 requires that the new assignment be within the “same professional capacity.” This means that an employee who is currently employed as a “teacher” must remain in a teaching position. Modifications to campus or grade-level assignments or changes to the subject taught has been held to be in the “same professional capacity.” See Gustafson v. Canutillo ISD, Dkt. No. 113-R10-0812 (Comm’r Educ. 2014). However, reassignments that accompany significant differences in duties or responsibilities have been held to be not within the same professional capacity and a breach of the employment contract. For example, the Commissioner has held that reassignment from Superintendent to Assistant Elementary Principal, while both administrative, was not within the same professional capacity because of “major distinctions in authority, duties, and salary.” Barich v. San Felipe-Del Rio CISD, Dkt. No. 117-R1a-484 (Comm’r Educ. 1985).
In contrast, the Commissioner upheld a reassignment from Principal to Assistant Principal noting that while there are differences between the two roles, principals and assistant principals “are both administrators” and “share the same certification.” McCoy v. Kermit ISD, Dkt. No. 004-R3-0908 (Comm’r Educ. 2012). In reviewing the “authority, duties, and salary” of each position, the Commissioner found that the two roles were within the “same professional capacity.” Id. The Commissioner reiterated this finding in the 2014 Gustafson case (above) noting that the certification, training, and qualifications required of both principals and assistant principals support a finding of the “same professional capacity” for both roles. Another Commissioner decision upheld a reassignment from Attendance Coordinator to Middle School Assistant Principal, noting that while the positions are not “identical,” they are in the same professional capacity as certified administrator. Eliz v. Donna ISD, Dkt. No. 011-R3-999 (Comm’r Educ. 2000). The Commissioner held that both positions require the employee to “function as an administrator and require comparable professional skills and responsibilities.” Id.
Note that notice of any reduction in overall compensation between contract years, whether the result of a reassignment, removal of a stipend or reduction in number of days worked, must be issued to the employee in writing at least 45 days prior to the first day of instruction. This rule follows the 45 day “penalty-free” resignation date under Tex. Educ. Code §21.210, by requiring a school district to give notice of salary reductions while the educator still has time to resign and find another position.