Q: Our district had several new teachers obtain probationary certification this past summer pursuant to TEA’s waiver of certain certification requirements. The employees’ probationary certification is set to expire in August, and they have not yet passed their content exams. Can we renew their employment?
A: Yes, you can renew the employees’ probationary contracts; however, the probationary contracts should be issued with a certification addendum due to the one-year limit on the Commissioner’s certification waiver.
On March 13, 2020, Governor Abbott issued a disaster declaration for the State of Texas due to the COVID-19 pandemic that suspended various laws and regulations in the state, including a waiver to allow individuals who had not yet met testing requirements to obtain probationary certification. The probationary certificate is valid for one year only, and candidates must complete all testing requirements to receive standard certification before the probationary period expires. As such, the employees continue to have valid certification; however, if they do not pass their content exam before expiration of their certification, the employees will not be eligible for a standard certificate.
Chapter 21 of the Texas Education Code requires that every person employed as a teacher hold an “appropriate certificate or permit.” TEC 21.003. Thus, when renewing employment based upon the hypothetical above, it is critical that the individual’s employment be conditioned upon obtaining full certification prior to expiration of the employee’s probationary certification. A certification addendum included with the contract will confirm this contingency and clarify contract terms. TASB’s HR Resources offers a model certification addendum under the “Contracts and Assignments” section.
The addendum should be attached to the Chapter 21 contract that you offer to the teacher and once signed, becomes a legally enforceable document to the same extent as the contract. The addendum contains options, from which the district selects, identifying the certification deficiency applicable to the particular employee and the attendant consequence. In this instance, the district would select the option stating that the teacher’s certificate will expire during the term of the contract. The addendum also specifically states that employment is “subject to . . . becoming and remaining certified.” Importantly, the district is to indicate a date by which the teacher must pass his or her certification exam or obtain full/standard certification from SBEC. Identifying a date that allows additional time to recruit and retain a replacement prior to the start of the school year puts the district in the best position to enforce the contract addendum requiring certification. Note, importantly, that failure to meet the deadline in the addendum will not divest the employee of the rights attendant to a Chapter 21 contract unless or until the employee’s certification actually expires. That said, the contract does become voidable, meaning that the Board can declare the contract itself as invalid, when the teacher fails to hold or renew adequate certification as defined in the addendum. See TEC 21.0031. Termination or suspension with or without pay are options, as is retaining the employee in a position that does not require certification, but the employee cannot remain as teacher of record in a classroom that requires a certified educator. For specific questions or additional information regarding contracts, please consult with your local school law attorney.