Catch a Falling iStars

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Representative Tom Trail has done some digging and has come up with an opinion from the Attorney General’s office that should render a body blow to Tom Luna’s ISTARS- the ill advised plan to give teachers merit pay in exchange for them giving up their continuing contract rights. Teachers who participated in the program would be placed under a Category 4 contract and would in essence become at-will employees.

As Trail tells the story,

Mr.. Luna’s plan was initially estimated to cost $65 million. He then scaled it back to $46 million. However, with increasing concern about the bleak economicoutlook for the county and Idaho, we’ve heard that he has five different lower cost options. One of the issues that I raised with Mr.. Luna concerned what would happen if a teacheragreed to become a Category 4 contract teacher and then at a future date the Legislature cut off funding for the program. Would that teacher be able to regain his/her continuingcontract rights?

Mr. Luna told me in private and also in a meeting of over 125 people in public testimony that a teacher in this case would be able to switch back to the continuing contract status if such an event as outlined above occurred. He said the protection was in his ISTARS proposal and also covered under current Idaho Code. I asked Mr.. Luna to provide me the specific references. I did not hear back from him so spent considerable time in reviewing the statutes and his ISTARS legislation. I then asked the Idaho Attorney General’s Office to research my question and issue an opionion.

The Attorney General’s opinion makes two important points. First, Luna was wrong. ISTARS makes no provisions for a teacher being able to switch back to a continuing contract. Secondly, if the legislature cuts off funding for the program, the school district is obligated to fulfill the provisions of the contract.

The implications of this opinion are staggering. There is not a district in the state that could meet the obligations of the merit pay contracts if the state were to drop the program. teachers who opt for the Category 4 contract could find themselves “riffed” because the district could not afford to pay them and their only recourse would be to sue the district. And, according to the AG, these suits would be decided on a case-by-case basis, eventually ending up in the Supreme Court.

The citizens of Idaho should thank Trail for pursuing this issue and asking for an opinion from the Attorney General. We should also ask Luna to explain his response to Representative Trail’s inquiry. Was he lying or just ignorant of the details of his own program?

Below is the complete and unedited letter the Attorney General sent to Representative Trail.

ATTORNEY GENERAL’S OPINION 08-21617–Representative Trail–You have asked for guidance regarding the proposed ISTARS legislation. As I understand your request, you want to know what will happen if a teacher agrees to become a Category 4 contract teacher and the Legislature cuts off funding for the ISTARS program. Your request specifically seeks guidance as to whether the Category 4 contract teacher will regain continuing contract status or somewhere else under Idaho Code.

As currently configured, the ISTARS legislation does not address the situation involving a lack of state funding for the Category 4 contract teacher. Nor is there any other provision in the Idaho Code that would provide for a Category 4 contract teacher returning to continuing contract status.

The ISTARS program makes very clear that a certificated employee who choose to sign a Category 4 contract “is irrevocably terminating any rights to a category 3 contract or to a renewable contract….”See Section 2 of Senate Bill 1310 (proposed Idaho Code 33-514B (1) The ISTARS program specifically proposes to amend Idaho Code 33-515 (issuance of Renewable Contracts) to exclude Category 4 contracts. The admonition regarding the permanent loss of continuing contract rights as a result of signing a Category 4 contract is reiterated in Section 6 of S1310 (proposed Idaho Code 33-1004 (4)(b) and 33-1004 (4)

Moreover, the ISTARS program appears to deny school districts the ability to amend or alter Category 4 contracts or the awards to be paid pursuant to them. See Section 6 of S1310. Thus, the ISTARS program not only makes very clear that a teacher who signs a Category 4 contract gives up any right to continuing contract status at the time of signing or in the future but also appears to severely limit a school district’s ability to alter the contract status with a Category 4 contract teacher.

The ability of a school district to alter or amend its contractual relationship with a certificated employee is further limited by case law in Idaho that establishes that a teacher’s contract includes relevant statutory provisions from the Idaho Code. See, Rhoades v. Idaho Falls School District No. 91, 131 Iaho 827, 965 P.2d 187 (1998), and Brown v. Caldwell High School District No. 132, 127 Idaho 112, 898 P.2d 43 (1995). Therefore, the ISTARS “awards” to Category 4 contract employees would become part of the employee’s contract with the school district or charter school. Contract rights are protected by constitutional due process considerations, as would be any reduction of compensation under a Category 4 contract during the contract period.

Shouldl the Legislature not fund ISTARS, the remedy of a Category 4 certicated employee would be against the school district or charter school. The school may be liable for payment to the employee pursuant to the Category 4 contract award provisions. As part of the relief by a teacher, a court could order that a teacher be returned to continuing contract status or have access to such status. However, such a result would likely be on a case by case basis until the issue was ultimately resolved by the Idaho Supreme Court.


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