This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1346

 

Annette Kleinschrodt,

Relator,

 

vs.

 

Independent School District No. 2886,

Glenville-Emmons, Minnesota,

Respondent.

 

Filed July 18, 2006

Affirmed

Kalitowski, Judge

Concurring specially, Hudson, Judge

 

Independent School District #2886

 

Anne F. Krisnik, Education Minnesota, 41 Sherburne Avenue, St. Paul, MN 55103-2196 (for relator)

 

Steven T. Rizzi, Jr., Adams, Rizzi & Sween, P.A., 300 First Street Northwest, Austin, MN 55912 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Relator Annette Kleinschrodt challenges the decision by respondent Independent School District No. 2886 to not renew her probationary contract.  We affirm.

D E C I S I O N

 

            Appellate courts generally review a school board’s action to determine if the action “is fraudulent, arbitrary, unreasonable, unsupported by substantial evidence, not within its jurisdiction, or based on an error of law.”  Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 675 (Minn. 1990).  But “[a] school board has total discretion when deciding not to renew the contract of a probationary teacher.”  Allen v. Bd. of Educ. of Indep. Sch. Dist. No. 582, 435 N.W.2d 124, 126 (Minn. App. 1989), review denied (Minn. Apr. 19, 1989); see also id. at 127 (recognizing “no authority preventing a school district from refusing to renew an annual contract of a probationary teacher for arbitrary reasons”).  “[A]s long as a school district substantially complies with the provisions of Minn. Stat. § 122A.40, subd. 5 [], the court will not interfere with the district’s decision not to renew a probationary teacher’s contract.”  Savre v. Indep. Sch. Dist. No. 283, 642 N.W.2d 467, 471 (Minn. App. 2002).

             Under Minn. Stat. § 122A.40, subd. 5(a) (2004), “[t]he first three consecutive years of a teacher’s first teaching experience . . . is deemed to be a probationary period of employment.”  During this probationary period, “any annual contract with any teacher may or may not be renewed as the school board shall see fit.  However, the board must give any such teacher whose contract it declines to renew for the following school year written notice to that effect before July 1.”  Minn. Stat. § 122A.40, subd. 5(a) (emphasis added).

            Minn. Stat. § 122A.40, subd. 5(a), also provides for evaluations during a teacher’s probationary period.  The statute states that

[t]he school board must adopt a plan for written evaluation of teachers during the probationary period.  Evaluation must occur at least three times each year for a teacher performing services on 120 or more school days, at least two times each year for a teacher performing services on 60 to 119 school days, and at least one time each year for a teacher performing services on fewer than 60 school days.

 

Id. But this court has held that a school board may substantially comply with Minn. Stat. § 122A.40, subd. 5 (2004), even if it does not strictly follow the evaluation provision.  See, e.g., Savre, 642 N.W.2d at 472-73 (determining that “[t]he school district’s failure to comply with the evaluation provision . . . did not affect its complete discretion not to renew relator’s teaching contract for budgetary reasons because the district otherwise substantially complied with applicable statutory provisions”); Allen, 435 N.W.2d at 127 (concluding that the district substantially complied with the evaluation provision by providing one evaluation, rather than three, during the probationary superintendent’s second year).

            Here, respondent Independent School District No. 2886 hired relator Annette Kleinschrodt in February 2003 as a part-time school social worker.  During relator’s employment, relator worked two days per week in a probationary capacity.  On May 16, 2005, respondent’s school board (the board) adopted a resolution to terminate relator’s contract at the end of the school year and to not renew relator’s contract for the 2005-2006 school year.  The same day, the board sent relator a letter, giving her notice of her nonrenewal and stating that “[t]his action is taken because your performance did not meet the school [board’s] expectations.”

            Relator argues that because respondent did not provide her with any formal written evaluations during her probationary employment, this court must reverse respondent’s decision to not renew her contract.  Respondent disagrees, contending that it evaluated relator by e-mail in February 2004 and October 2004 and by a memorandum dated January 2005.  We agree with relator that the three communications are not formal written evaluations and that they do not substantially comply with the evaluation provision of Minn. Stat. § 122A.40, subd. 5(a).  Nevertheless, based on a totality of the circumstances, we conclude that the school district acted within its discretion when it did not renew relator’s contract.

            In Savre, this court construed the evaluation provision of Minn. Stat. § 122A.40, subd. 5, as directory because the statute does not declare consequences for a district’s failure to comply with that provision.  642 N.W.2d at 472.  “Failure to comply with a directory statute does not necessarily invalidate action taken with respect to that statute.”  Id.  Furthermore, the Savre court recognized that the district had almost unlimited discretion to not renew the probationary teacher’s contract:  “[I]f the district had evaluated her as the statute requires, the result of the evaluations, whether positive or negative, would not have affected the district’s discretion not to renew her [] contract.”  Id.  Thus, absent a clear directive from the legislature, we are reluctant to overrule a school district’s discretion to not renew a probationary teacher.

            In addition, similar to the school district in Savre, although respondent did not provide relator with formal evaluations, it otherwise substantially complied with the remaining provisions of Minn. Stat. § 122A.40, subd. 5.  The board supplied relator with written notice before July 1 that it would not renew her contract.  And the board provided relator with its reason for not renewing her contract even though “during the probationary period any annual contract . . . may or may not be renewed as the school board shall see fit.”  Minn. Stat. § 122A.40, subd. 5.

            The record also indicates that respondent, through the above-referenced written communications, made some efforts at evaluating relator’s performance.  The evaluation provision encourages school districts to provide teachers with constructive feedback to help them improve their performance.  Here, respondent offered relator feedback through February 2004 and January 2005 communications to relator, wherein relator’s supervisor ascertained deficiencies in relator’s performance and instructed relator on how she could improve.  In addition, the October 2004 communication provided relator with suggestions for overcoming her challenges at work.  Relator suggests that a proper evaluation should address “the content of the lesson, the use of various delivery methods, [and the] classroom management of the teacher.”  Although we agree that respondent’s evaluation was inadequate, we note that relator was a part-time social worker, and therefore could not expect to receive the same type of evaluation that a full-time classroom teacher would receive. 

            We conclude that, on these facts, respondent’s failure to formally evaluate relator did not affect its complete discretion to not renew relator’s contract because the evaluation provision in Minn. Stat. § 122A.40, subd. 5(a), is directory, respondent made some minimal efforts to evaluate relator’s performance, and respondent substantially complied with the remaining provisions of Minn. Stat. § 122A.40, subd. 5.

            Affirmed.

HUDSON, Judge (concurring specially)

 

            I concur in the result reached by the majority because it comports with Allen v. Bd. of Educ. of Indep. Sch. Dist. No. 582, 435 N.W.2d 124, 126–27 (Minn. App. 1989), review denied (Minn. Apr. 19, 1989) and Savre v. Indep. Sch. Dist. No. 283, 642 N.W.2d 467, 471–72 (Minn. App. 2002).  I write separately to note my concerns with the efficacy of a statute that requires school districts to evaluate teachers during their probationary period, but then provides no remedy to those teachers when the school district fails to do so.  Apart from the harm to affected teachers, school districts are also ill-served by ignoring a statutory framework that is presumably designed to assist school districts in making informed hiring decisions.  By enacting Minn. Stat. § 122A.40, subd 5(a) (2004), the legislature presumably believed that probationary teacher evaluations were an important tool in the quest to attract, develop, and maintain competent teachers.  But the state of the law as reflected in the majority opinion today, suggests that the evaluation provision of the statute is superfluous and will always be trumped by the school district’s virtually unfettered discretion to not renew the contracts of probationary teachers.   

            During a teacher’s probationary period, “any annual contract with any teacher may or may not be renewed as the school board sees fit.”  Minn. Stat. § 122A.40, subd. 5(a) (emphasis added).  But this same statute also provides for evaluations during a teacher’s probationary period.  Indeed, the statute provides that “[t]he school board must adopt a plan for written evaluation of teachers during the probationary period.”  Id. (emphasis added).  The majority acknowledges that the three communications that relator received were not formal evaluations and did not substantially comply with the evaluation provision of Minn. Stat. § 122A.40, subd. 5(a).  Indeed, the three “communications” relator received were e-mails; none of which directly assessed relator’s performance.  One of the e-mails was not even initiated by the school district; it was in response to an e-mail from relator requesting guidance regarding her workload.  The school district offered some suggestions; it did not evaluate or assess relator’s performance.  The final e-mail merely reminded relator to submit the appropriate sick-leave requests in order to be paid—it did not address her performance.  All three e-mails were typical communications between an employee and a supervisor; they plainly were not evaluations.  Despite the school district’s complete failure to comply with the evaluation requirement, we are compelled to defer to the unfettered discretion of the school district to not renew relator’s contract simply because the school district offered relator “feedback” and otherwise complied with the notice provisions of the statute; and because the evaluation provision is directory, not mandatory.   

Performance evaluations are beneficial to both school districts and teachers.  They benefit school districts by providing a formal mechanism––as opposed to subjective, haphazard observations––for measuring and assessing teacher competency, thus ensuring that qualified teachers are in our classrooms.  Performance evaluations likewise benefit probationary teachers in that they provide a guidepost for measuring a teacher’s progress and determining areas for improvement, thereby increasing the quality of instruction to students.  But the current state of the law trivializes the evaluation requirement and, indeed, effectively writes it out of the statute.

            I do not believe this is what the legislature intended when it adopted the evaluation requirement in Minn. Stat. § 122A.40, subd. 5(a).