Whenever a certified employee is terminated or resigns in the face of misconduct allegations, districts should understand their responsibilities to report the employee’s separation to the South Carolina Board of Education (“BOE”). Also, where a teacher breaches his/her contract by resigning in the middle of the school year, state law provides the procedure for a district to report the matter to the BOE.
a. Reporting Misconduct
Under BOE Regulation 43-58.1, the superintendent, on behalf of the board of trustees, must report to the Chair of the BOE and the State Superintendent the name and certificate number of any certified employee who is dismissed, resigns, or otherwise separates from employment based on allegations of misconduct. Misconduct includes, but is not limited to, actions involving drugs, sexual misconduct, the commission of a crime, immorality, and dishonesty, where the misconduct is reasonably believed by the superintendent to constitute grounds for revocation or suspension of the teacher’s certificate.
A teacher does not have to be convicted of a crime before the reporting obligation is triggered. If a teacher is arrested for any crime indicating misconduct as specified in Regulation 43-58.1, the superintendent must make the report.
The duty to report is mandatory, and the intentional failure of a school board or superintendent to report can lead to serious consequences, such as accreditation and certification deficiencies. Further, the intentional failure of a superintendent to report the termination of a certified employee as required by the regulation may be sufficient cause to revoke the superintendent’s certificate. Given the consequences for failing to make a report, districts should err on the side of reporting, even if there are reservations about whether the misconduct is serious enough to warrant possible action by the BOE.
Often, districts will provide a teacher with the option to resign in lieu of termination. However, if the teacher’s resignation relates to alleged misconduct, the superintendent must still make a report.
Reports to the BOE are made by the superintendent rather than the board of trustees. A superintendent may report by sending an email to SeparationNotice@ed.sc.gov or by sending a letter to the Office of General Counsel at the State Department of Education (“SCDOE”). The notice should include the teacher’s name, certificate number, and a summary of the reasons for the teacher’s separation from the district. SCDOE will investigate the allegations and likely request additional information from the district. State law provides that, until the BOE issues a final order, reports are confidential.
b. Reporting a Breach of Contract
Districts are often faced with teachers submitting resignations in the middle of the school year or during the summer before school starts. When a teacher resigns from a district without being released from his/her contract, the resignation is considered unprofessional conduct, leading to a possible revocation or suspension by the BOE of the teacher’s certificate for up to one calendar year. See S.C. Code Ann. § 59-25-530.
Districts should ensure that their policy provisions regarding contract releases are included in teaching contracts and staff handbooks. We recommend policies state that a resignation should be in writing instead of requiring that it must be in writing. This gives districts more flexibility when dealing with teachers who verbally resign and later seek to rescind the resignation. This option allows the superintendent to promptly accept the verbal resignation on behalf of the district in writing, without having to be concerned that the teacher will change his/her mind and seek to withdraw the oral resignation.
When a teacher seeks to resign, the superintendent or his/her designee should promptly respond in writing, notifying the teacher of the district’s receipt of the resignation and the superintendent’s decision whether to accept the resignation. If the superintendent decides not to release the teacher, the letter should reference the policy on contract releases; state that the teacher is expected to report to work until being formally released; and note that, if the teacher fails to report as directed, it will be considered a breach of contract and reported to SCDOE. This communication should be provided as soon as practicable to avoid complications if the teacher later seeks to withdraw the resignation. Additionally, superintendents should decide whether to accept or reject a resignation in a non-arbitrary manner. As many districts have policies that allow contract releases when certain criteria are met, the district should ensure those criteria are consistently applied to all teachers who seek to resign.
If a teacher is not released from his/her contract and fails to report to work, the board of trustees may vote to report the breach of contract to the BOE. Please note that, unlike a report of misconduct, a breach of contract report requires formal action by the board. After the board votes to report the breach of contract, the superintendent or his/her designee should submit a written complaint to SCDOE. The complaint should include the teacher’s name, certificate number, and state whether the district wishes to pursue suspension and/or revocation of the teacher’s certificate. It is good practice to include a copy of the teacher’s contract, the board of trustees’ meeting minutes noting its vote to report the breach, the teacher’s resignation letter, and any other correspondence exchanged between the district and the teacher regarding the resignation.
Please keep in mind that, if the district accepts a teacher’s resignation, SCDOE will not pursue the teacher for breach of contract. Consequently, if a teacher submits a resignation that does not comply with the district’s policy on contract releases, the district should send a letter notifying the teacher that the resignation is not being accepted and directing the teacher to continue to report to work. If the district decides to accept the teacher’s resignation because the resignation is being submitted in lieu of termination for misconduct, that should be reported under the provisions of Regulation 43-58.1, rather than as a breach.
c. Special Considerations
When an employee resigns under circumstances indicating a suit against the district is likely, the district should consider accepting the resignation and entering into a settlement agreement with the employee in which the employee releases the district from any liability relating to or arising from his/her employment. In some cases, the district may want to consider allowing the employee to remain on paid administrative leave for some period of time in exchange for the employee’s resignation. This is particularly true in cases where, if the employee decides not to resign and instead to legally challenge his/her termination, the associated costs will be significantly more than the cost of a period of paid leave.
Districts should be aware that the BOE may suspend a certified employee’s certificate while she/he is still employed. For example, SCDOE may learn that a teacher has been arrested for criminal domestic violence and summarily suspend the teacher’s certificate before the district takes employment action. South Carolina Code Section 59-25-190 addresses this and provides that, when the BOE revokes or suspends a teacher’s certificate, the teacher’s employment is terminated until a final decision is made. That statute continues to provide, however, that the teacher shall continue to be paid until the BOE makes its final decision. Based on this statute, teachers and their legal counsel will argue that the district must continue to pay the teacher even if though the teacher has been “terminated.” To avoid such a result, districts faced with this situation should carefully consider whether there are sufficient grounds to move forward with terminating the teacher based not solely on the fact of the arrest, but on the underlying facts and circumstances.