KBS Reference Desk: Board Authority to Terminate

Q:        Last month, my Board voted to terminate an employee’s probationary contract against my strong objection. Even after I recommended her contract for renewal, the Board acted to terminate. Can they do that?

A:        Yes. While the Superintendent has the authority to make recommendations regarding personnel, the Board is free to accept or reject these recommendations and can initiate nonrenewal or termination proceedings against the Superintendent’s recommendation.

Texas Education Code §11.201 lists one of the duties of the Superintendent as “initiating the termination or suspension of an employee or the nonrenewal of an employee’s term contract.” However, the Commissioner has determined that this duty is not an exclusive one. In Berry v. Kemp ISD, the Board of Trustees voted to terminate an employee’s probationary contract even though the Superintendent had recommended the employee’s renewal. The Commissioner explained that the authority of a Superintendent to initiate termination is not exclusive, and that “[a] board of trustees may initiate the termination of a contract even if the superintendent believes that this should not be done. Just as a school board may reject a superintendent’s recommendation to hire, it may also reject a superintendent’s recommendation to retain an employee.” Berry v. Kemp ISD, Dkt. No. 103-R10-600 (Comm’r of Educ. 2001).

In a 2004 case, Martin v. Dallas ISD, the Commissioner again followed this reasoning and offered some legislative history. Dkt. No 059-R2-304 (Comm’r of Educ. 2004). The Commissioner stated that the original text of Texas Education §11.163 read that a school board must adopt a policy that reserves to the superintendent the sole authority to make recommendations regarding the selection of personnel, and “the sole authority to initiate the termination … of an employee.” Id. The latter text was then omitted from the final version of the legislation, providing further support for the contention that the authority to initiate termination procedures is not held solely by the superintendent, but rather held jointly with the Board.

 

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