December 11, 2007
TEACHER CERTIFICATION AND TEACHERS' RETIREMENT
By: Judith Lohman, Chief Analyst
You asked several questions about teacher certification and teacher's retirement. We list the questions and answers individually below.
1. What are the fines and penalties for a local board of education that knowingly hires an employee not certified for the position he or she is occupying? What occurs if that individual never receives the proper certification?
State law prohibits local boards of education from employing any teacher, supervisor, administrator, special service staff member, or school superintendent in any of their schools unless the person has the appropriate certificate issued by the State Board of Education (SBE). No such employee can receive a salary unless he can produce the appropriate certificate dated as of or prior to the date of employment.
If the SBE finds a local school board has violated the certification requirement, it can require the local board to forfeit between $1,000 and $10,000 of its state aid. The SBE sets the amount within these parameters. The forfeited amount must be withheld from the district's education grants for the fiscal year following the year SBE determined the board failed to comply with certification requirements. SBE can waive the penalty if it determines that the violation resulted from circumstances beyond the board's control (CGS § 10-145).
2. What are the fines and penalties for knowingly hiring an employee whose certification has expired?
3. What are the fines and penalties for boards of education for providing incorrect information, possibly knowingly, to the Teachers' Retirement Board that is based on the employee's three highest years of income for a position that an employee was never certified to occupy?
Only “teachers” can participate in, and receive benefits from, the Teachers' Retirement System (TRS). By law, a teacher must be employed by the public schools in a professional capacity “while possessing a certificate or permit issued by the State Board of Education, provided on and after July 1, 1975, such certificate shall be for the position in which the person is then employed” (CGS § 10-183b (26)). Thus, a teacher who is not certified for the position he occupies cannot receive credit in the TRS for that service.
The law provides that, if the Teachers' Retirement Board (TRB) finds that a person has been erroneously included in the TRS membership, it must refund contributions and credited interest and void records of related service. If through an error, a member or beneficiary receives more than he is entitled to, the TRB must notify the member or beneficiary and adjust his benefits to make up the overpaid amount. The TRB can waive repayment if it finds the overpayment occurred through no fault of the member's and the member could not reasonably have been expected to detect the error. (CGS § 10-183ff).
According to Darlene Perez, administrator of the TRB, the teachers' retirement statutes impose no penalty on the school board in such a case. The penalty for the school district is in the teacher certification chapter as previously described (see question #1).
4. What are the penalties and fines for a superintendent who signed a contract for employment for a school year knowing that the employee's certification would expire two weeks into the school year and the employee's certificate is not renewed?
The State Department of Education (SDE) requires school superintendents to certify as part of each school district's annual financial and data filing (Form ED 001) that their district is complying with all relevant laws. This certification is an administrative rather than
a statutory requirement, and there is no statutory penalty against the superintendent, as a person, for failing to follow the law. The penalty is imposed on the school districts (see question #1).
According to Katherine Nicoletti, SDE's legislative liaison, the department makes allowances for short gaps in certification based on technical or administrative issues. But it would be a violation of § 10-145 for a board to continue to employ a teacher whose certification was never renewed. SDE notifies school districts when teachers they employ are not properly certified or have certificates expiring.
5. Are there any court cases involving incidents such as those described above and what were the results?
Computer searches of the Westlaw and Lexis databases yielded three cases that address situations similar to those described, although all three deal with procedures for terminating a teacher under CGS § 10-151, which is the teacher tenure law, rather than with membership in the TRS. The first two are Connecticut Supreme Court decisions. The last is a recent Superior Court decision.
Ames v. Board of Education, Regional School District 7 (167 Conn. 444, January 7, 1975). This case concerned a teacher who failed to qualify for a standard certificate when his provisional certificate expired. The teacher taught under a provisional certificate for 10 years, from 1958 to 1968. Despite four requests from the district superintendent, the teacher did not obtain a standard certificate until July 1, 1971. Between July 1, 1968 and June 30, 1971, although he was not certified to teach, the district renewed his contract from year-to-year. When the district later terminated him for reasons unconnected with his certification, the teacher contended that he was entitled to a hearing prior to termination, because he had attained tenure under state statute (CGS § 10-151(b)).
The court found that the teacher did not have tenure and could not appeal his termination because he was not a certified teacher between July 1, 1968 and June 30, 1971. Although the defendant board continued to employ him during that period, the court ruled that the employment was contrary to law and the teacher could not thereby acquire tenure. “[H]aving failed to qualify for a standard certificate, the plaintiff had no legal status during the period from July 1, 1968 to June 30, 1971, and should have been terminated on June 30, 1968,” the court ruled (p. 450).
Loftus v. Board of Education of Town of Fairfield (200 Conn. 21, May 27, 1986). This case involved a teacher who was properly certified to teach physics and general science, but was nevertheless assigned by local school officials to teach electronics, which was outside the scope of his certification. The board of education employed the teacher in this assignment from 1972 through 1980, a period that would ordinarily satisfy the continuous service requirement for tenure. Both the teacher and school officials were fully aware that the teacher was certified only in general science and physics but assumed that these credentials were adequate for teaching electronics. When informed otherwise, the board terminated the teacher. The teacher appealed on the basis that he had tenure. The board argued that the time the teacher worked outside the scope of his certification did not count towards tenure.
The court ruled that this teacher was tenured. It distinguished the case from Ames on the basis that (1) this teacher, unlike Ames, was certified and thus his employment as a teacher was not illegal and (2) the teacher made no attempt to mislead school officials about his qualifications. “We do not believe that the prohibition of § 10-145 against employment of a teacher without an appropriate teaching certificate should apply for the purpose of denying tenured status to a teacher who possesses a valid certificate for certain subjects but is nevertheless assigned to teach different subjects by authorized school officials duly aware of the extent of his qualifications,” the court ruled (p. 26).
But the court also found that, once it was discovered that the teacher lacked certification to teach electronics, his removal from that position was mandatory. Unless there was some other teaching position available in the school system for which the teacher was properly certified, his lack of proper certification “must be deemed to constitute 'other due and sufficient cause' for dismissal [of a tenured teacher] under § 10-151.” (p. 30)
Ubaldi v. Waterbury Board of Education (Waterbury Superior Court, No. CV0540006598S, October 9, 2007). This case concerned a plaintiff hired as a social studies teacher for the 2004-05 school year. His employment contract was subject to state law and completion of certification requirements. When the plaintiff had not obtained certification by February 28, 2005, his status was changed to a long-term substitute and his pay was reduced. The plaintiff was never certified at any time during the 2004-05 school year. On March 22, he was notified that his contract would not be renewed for the following year. The plaintiff contended that he was entitled to the pre-termination
hearing under § 10-51, which requires a hearing for a non-tenured teacher whose contract is not renewed, if the teacher requests such a hearing.
Citing Ames, the court ruled that the plaintiff was not a “teacher” under the state law because he did not obtain the proper certification despite school officials' repeated requests to do so. Thus, he was not entitled to a pre-termination hearing. The court also ruled that a board of education cannot “waive” certification because certification is required by state law.
6. Does any state agency review or check data supplied to TRB by local school districts?
SDE, which administers the teacher certification law, notifies TRB and employing local boards of education when a teacher is not properly certified. When TRB receives such a letter, it voids TRS credit for the teacher's service accumulated while not properly certified and refunds the contributions to the member (see question 3).
In addition, according to Perez, if TRB personnel observe salary data that appears to be outside the “pattern” for a particular district (such as an unusually large increase in the teacher's final years used to set retirement benefits), the board can and does ask to see the teacher's contract to verify the appropriateness of the reported salary and determine whether all the salary received is creditable in the TRS.
7. If there is a violation of any of the laws described above, would there be a case for fraud against the individuals involved?
The Office of Legislative Research is not authorized to give legal opinions and the following should not be considered one.
Six basic elements must be proved in any action for fraud or deceit:
1. there must be a false representation,
2. the representation must be of an existing fact,
3. the representation must be fraudulently made,
4. it must be made in circumstances that entitle the plaintiff to rely on the representation,
5. the plaintiff must be induced to rely on the representation, and
6. the plaintiff must be damaged by his reliance on the representation (Wright, Fitzgerald and Ankerman, Connecticut Law of Torts, 3rd edition., p. 391).