Prorating incentive pay due to COVID….kosher?

Mission ISD approved a teacher attendance incentive program in August 2019. It called for a bonus of $500 to any teacher who had zero absences in a semester. Teachers with one or two absences would also receive a bonus, at a lower amount. Presumably this worked just fine in the fall semester of 2019. But you know what happened in the spring of 2020.

With school shutting down for a while, and then pivoting to an online experience, the district decided that the incentive payments should be prorated for the spring semester. The decision was that the incentive program would be based on attendance and absences up to the date of closure, which was in March. Since this was not a complete semester, the amounts awarded were prorated. Thus a teacher with a perfect attendance record received only $271, rather than the $500. This was so even if the teacher continued to work every day without absence for the rest of that unusual semester.

The Mission Classroom Teachers Association, along with six of its individual members, filed a grievance, which was denied by the board. Then they took the case to T.E.A. The teachers made three good legal arguments, each one resulting in a swing and a miss. There was one more argument, and it was dismissed with a footnote.

STRIKE ONE: DELEGATION OF AUTHORITY. The biggest issue was the fact that the decision to freeze the program and prorate the bonus amounts was not made by the school board. It was made by the superintendent pursuant to a broadly worded resolution. Many school boards were delegating power to their superintendents in response to the pandemic. Given the uncertainty of when and how boards would be able to come together for a meeting, this made a lot of sense. This particular resolution “delegated authority to the superintendent to, inter alia, alter district leave policies, make payment decisions during emergency closures, and make other related decisions about district policies, such as payment decisions for employees quarantined after a positive COVID-19 test, budgeted purchase decisions, and decisions to petition state and local authorities for waivers of laws and regulations during the pandemic.”

This decision includes a good discussion of the law pertaining to the ability of the school board to delegate authority to the superintendent. The Commissioner ultimately decided that the board did nothing wrong when it gave unusual authority to the superintendent:

Petitioners point to no language in Section 11.151(b) that limits board authority to delegate decisions to a superintendent regarding a school program, particularly during an exigency, when needed to meet district needs. Rather, the Commissioner in Limbrick-Sanders recognized board delegation of policy changes to superintendents.

That’s a reference to Limbrick-Sanders v. Houston ISD, a case from 2012, Docket No. 046-R1-1211.

STRIKE TWO: WAS IT PART OF THE TEACHERS’ CONTRACTS? The teachers’ next argument was that the incentive program was a part of district policy which was incorporated into their contracts. Therefore, the district breached the contract by unilaterally changing the incentive amounts. Nope. The problem was that the contracts were signed in the spring of 2019, and the incentive program was not adopted until August. It’s true that a contract between the district and a teacher incorporates district policies….but only those policies that were in place at the time the contract was executed.

STRIKE THREE: WHAT ABOUT THE PENALTY FREE RESIGNATION DATE? The third argument was that the board had effectively reduced teacher salaries long after the penalty free resignation date. Isn’t that illegal? It is. But, the teacher contracts were never made a part of the record of this case. The Commissioner noted that “Petitioners point to no provision of their written employment contracts that addressed the attendance incentive program or fixed it as part of their salaries; they cannot do so because their contracts are not part of the local record.”

There was one more argument, but it was not so much based on law as on a basic sense of fairness.

BUT IT’S JUST DOWNRIGHT UNFAIR! This final argument was “equitable estoppel” which is legalese for “this just isn’t fair.” The teachers did what was expected of them. Some of them had perfect attendance, despite having to deal with their own difficulties caused by the pandemic. This is dealt with in a footnote:

Petitioners, through counsel, argue that teachers worked hard during the pandemic. For this, teachers should be lauded. However, the local record does not contain any records of teacher’s individual performances during the pandemic, and Petitioners do not assert—nor would be entitled to—a quantum meruit theory of recovery in this case.

The case is Mission CISD Teachers Association v. Mission CISD, Docket No. 019-R10-12-2020. Commissioner Morath decided this one on August 26, 2021.


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Tomorrow: let’s go off task for a day….