1. Under Section 168.126, RSMo 1969, a board of education need not give a probationary teacher ninety days notice prior to April 15 of its intention not to rehire the teacher because of incompetency in order to lawfully refuse to renew that probationary teacher’s contract for the next school year; 2. The time periods in Sections 168.116 and 168.126, RSMo 1969, should be computed on the basis of calendar days excluding the first day and including the last in accordance with Section 1.040, RSMo 1969.

SCHOOLS: TEACHERS: 1 . Under Section 168 . 126, RSMo 1969, a board of education need not give a probationary teacher ninety days notice prior to April 15 of its intention not to rehire the teacher because of incompetency in order to lawfully refuse to renew that proba- tionary teacher's contract f or the next school year; 2. The time periods in Sections 168.116 and 168.126, RSMo 1969 , should be computed on the basis of calendar days excluding the first day and including the last in accordance with Section 1.040 , RSMo 1969. OPINION NO. 18 March 28, 1972 Dr. Arthur L. Mallory Commissioner of Education State Department of Education Jefferson State Office Building Jefferson City, Missouri 65101 Dear Dr . Mallory : This official op1n1on i s issued in response to your request for a ruling on the following questions: "1 . Are school boards, except those of metropolitan districts, required to issue contracts for the ensuing year to proba- tionary teachers employed by these boards if written statements setting forth al- leged incompetencies are not furnished teachers ninety days prior to April fif- teenth? "2. If a school board is required to issue a contract f or the ensuing year be - cause a written notice setting forth the alleged incompetency is given the teacher less t han ninety days prior to April fif- teenth , may the Board of Education termi- nate such a contract if improvement satis- factory to t he Board of Educati0n has not been made within the ninety day period? "3 . Sections 168 . 116 and 168.126 , RSMo, refer to the number of days' notice must be given teachers before certain actions can be taken by local school boards. How is this time to be computed? In calen- dar days or in school days? If school days , how should school holidays and days when school is dismissed for teachers meetings be handled?" Dr. Arthur L. Mallory Your first two questions require, initially, an interpre - tation of Section 168.126, RSMo 1969, of the Missouri Teacher Tenure Act. "Probationary teachers, how terminated -- reemployed, how. -- 1. A board of edu- cation at a regular or special meeting may contract with and employ by a majority vote legally qualifed probationary tea- cher for the school district. The con- tract shall be made by order of the board; shall specify the number of months school is to be taught and the wages per month to be paid; shall be signed by the pro- bationary teacher and the president of the board and attested by the secretary of the board. The board shall not employ one of its members as a teacher; nor shall any person be employed as a tea- cher who is related within the fourth de - gree to any board member, either by con- sanguinity or affinity, where the vote of the board member is necessary to the selec- tion Qf the person. "2. If in the opinion of the board of education any probationary teacher has been doing unsatisfactory work, the board of education through its authorized ad- ministrative representative, shall pro- vide the teacher with a written statement definitely setting forth his alleged in- competency and specifying the nature thereof, in order to furnish the teacher an opportunity to correct his fault and overcome his incompetency. If improve- ment satisfactory to the board of educa- tion has not been made within ninety days of the receipt of ·the notification, the board of education may terminate the em- ployment of the probationary teacher im- mediately or at the end of the school year. Any motion to terminate the em- ~loyment of a probationary teacher shall 1nclude only one person and must be ap- proved by a majority of the members o£ t~e board of education. A tie vote t~ere­ on constitutes termination. On or before the fifteenth day of April but not before April first in each school year, the board of education shall notify a proba- - 2 - Dr. Arthur L. Mallory tionary teacher who will not be retained by the school district of the termination of his employment. "3 . Any probationary teacher who is not notified of the termination of his employ- ment shall be deemed to have been appointed for the next school year, under the terms of the contract for the preceeding year. A probationary teacher who is informed of reelection by written notice of tender of contract on or befor e the fifteenth day of April but not before April first shall within fifteen days thereafter present to the employing board of education a written acceptance or rejection of the employment tendered, and failure of such teachers to present the acceptance within such time constitutes a rejection of the boar d's offer . A contract between a probationary teacher and a board of education may be terminated or modified at any time by the mutual consent of the parties thereto . " We understand your first question to be whether the board of education of a school district other than a metropolitan district must advise a probationary teacher at least ninety days prior to April 15 of its intention not to offer the probationary tea- cher a contract for the ensuing school year. We understand and will assume , for the purposes of writing this opinion, that your request has nothing to do with the probationary teacher's contract for the current year, but that it relates only to whether that teacher will receive a contract for the next school year . Under the Missouri Teacher Tenure Act there are two classi- fications of teachers -- permanent teachers and probationary tea- chers. See Section 168.104(4) (5). As the name would indicate, the Teacher Tenure Act grants to permanent teachers significant rights not granted to probationary teachers . The contractual ar- rangement between a permanent teacher and the employing school district is described as an indefinite contract. Section 168.104 (3) and Section 168.106 . This contract continues i n effect for an indefinite period subject only to those terminating events set forth in Section 168.106 . The board of education of a school district can terminate the contract for cause onl y after a notice and hearing as provided in Section 168 . 114, Section 168.116 and Section 168.120. Unless one of the events described in Section 168 . 106 occurs, every permanent teacher has a contract whi ch con- tinues in effect from year to year without the necessity of spe- cific action on the part of the board of education or on the part of the teacher. This protection afforded a permanent teacher is - 3 - Dr. Arthur L. Mallory referred to as tenure and is obtained only after a teacher has been employed in the same school district for six successive years. See Section 168.104(4); Opinion No. 269 to Honorable Eric F. Fink, dated May 13, 1971, and Opinion No. 371 to Ilonorable James P. Mulvaney, dated October 2, 1970, copies of which are enclosed . On the other hand, as the name would denote, probationary teachers do not have indefinite contracts and, under the Missouri Teacher Tenure Act , are subject to less contractual protection than is a permanent teacher. The probationary period gives the administration of the school district an opportunity to determine whether a teacher is qualified for permanent status in that dis- trict. In Orr v. Trinter, 444 F.2d 128 (6th Cir., 1971), the Court stated that, "the very reason for the probationary period is to give the board a chance to evaluate the teacher without making a commitment to rehire him . " Although this decision was based on the Ohio Teacher Tenure Act , we believe that a complete reading of the Missouri Teacher Tenure Act indicates that the Missouri Legislature also intended that a probationary teacher be , as the name would denote, on probation for five successive years of teaching in a school district . Turning, now, to Section 168 . 126, subsection 2 of this sec- tion pertains to two distinct situations: (a) termination of a probationary teacher's current contract because of unsatisfactory work and (b) renewal of a probationary teach's contract for the next school year. As this office has previously pointed out in Opinion No . 178, dated July 19, 1971 (a copy of which is enclosed herewith) , a probationary teacher's current contract may be terminated for unsatisfactory work only after a written state- ment is delivered to the teacher setting forth each and every area of incompetency in which the board desires improvement in sufficient detail to permit the teacher an opportunity to correct the alleged faults within ninety days. This notice requirement gives the teacher who is under contract, yet on probation, the opportunity to avoid being peremptorily dismissed for in- competency . Peremptory termination for incompetency during the contract period could have serious repercussions on a teacher's future career . Also, finding a new job during a school year could be most difficult. When the question is not termination of a current contract, but whether. a teacher will receive a contract for the next school year, the legislature provided probationary teachers with a different kind of protection. Notice must be given prior to April 15 of the board's intention not to rehire or else the teacher is automatically rehired. We find no la~gu~ge in subsec- tion 2 of Section 168 .1 26 tying the last sentence in with the first two sentences of that subsection. We believe the first two sentences clearly relate to termination of a current contract during or at the end of a school year . For instance, the third sentence states: - 4 - Dr. Arthur L. Mallory '' . If improvement satisfactory to the board of education has not been made with- in ninety days of the receipt of the noti- fication, the board of education may ter - minate the employment of the probationary teacher immediately or at the end of the school year. . " No reasonable interpretation of this sentence makes it appli- cable to whether a teacher will be rehired for the next school year. The only argument which can be made that the ninety day notice provision appljes to contract renewal as well as termina- tion during the term of the contract is that the last sentence of subsection 2, pertaining to rehiring , is included in the same subsection dealing with termination during the term of the con- tract . We agree that the cause of clarity would have been greatly served by placing the last sentence of subsection 2 in subsection 3 of this section . However, the complete absence of any reference to rehiring in the first sentences of subsection 2 pertaining to the ninety day notice convinces us that the legislature did not intend to restrict the board of education in its hiring plans for the next year by requiring that ninety days notice be given prior to April 15 if a teacher is not going to be rehired due to in- competency.! Any other interpretation of the ninety day notice prov~s1on would raise practical problems. Assuming ar~uendo that the ninety day notice provision applied to rehir1ng as well as ter- mination, suppose the probationary teacher's incompetency first exhibited itself in late February . If the ninety day notice were given immediately, it would be less than ninety days until April 15. The board would have to offer the teacher a contract for the next year even though he was under a ninety day notice . Suppose, further, the teacher failed to correct the fault and was termi- nated the end of May . This situation would then exist -- proba- tionary teacher's current contract terminated but by operation Footnote 1. It should be noted that the ninety day notice provision applies ohly to termination due to incompetency. Therefore, even if t e ninety day provision did apply to rehiring, it would apply only to probationary teachers not rehired due to incompetency. However, no statute requires a school board to give a teacher an explanation of why he is not being re- hired. If the ninety day notice provision were applicable to rehiring, a teacher who was not rehired and did not receive a ninety day notice might contend that incompetency was the real reason. In this way, the ninety day notice provision could lead to an increase in teacher-board s trife and litigation. - 5 - Dr. Arthur L. Mallory of law the teacher would have a contract for the next school year. We do not believe the legislature intended for such an absurd result to be a possibility. That fewer safeguards are provided probationary teachers when the question is whether they will be rehired, than are pro- vided when the question is termination of current contract rights represents a reasonable legislative policy. Certainly, the de- cision by a school board not to rehire a teacher casts less grave or no reflection on a teacher than the decision to termi- nate a contract during its term. A provision giving a probationary teacher less rights when the question is whether the teacher will be rehired than when the question is whether the current con- tract will be terminated, is found in teacher tenure acts in other states. See Lunderville v . Emery Unified School District, 68 Cal.Rptr. 768 (1968 Ct.Apps.). Therefore, we conclude that under Section 168.126, the board of education of a Missouri school district (other than a metro- politan school district) need not give a probationary teacher ninety days notice of its intention not to rehire due to incom- petency but must, in accordance with subsection 2 of Section 168.126, advise the probationary teacher between April 1 and April 15 of its intention not to rehire. If the probationary teacher is not so notified, he shall be deemed to have been ap- pointed for the next school year under the terms of the contract for the preceding year. See subsection 3 of Section 168.126. Even though we have concluded that the Missouri Legislature does not require that notice be given prior to a decision not to renew a probationary teacher's contract because of incompetency, consideration should be given to whether the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that a probationary teacher receive notice and an oppor- tunity to be heard before a school board decides not to renew the teacher's contract for the next year. Under certain circum- stances, courts in other jurisdictions have held that a proba- tionary teacher must receive a notice stating why his contract is not being renewed and an opportunity to appear before the board before his contract can lawfully not be renewed. See, for in- stance, Shirck v. Thomas, 447 F.2d 1025 (7th Cir., 1971). However, the Eighth Circuit Court of Appeals has taken a dif- ferent position. In Freeman v. Gould S ecial School District of Lincoln County, Arkansas, 5 F.2 1153 8t C1r., 1 , s1x tea- chers sought to have the Court compel the defendant school district to renew their annual teaching contracts. In May, 1967, plainti~fs received notice that their contracts would not be renewed for the next year. The notificat i on was in accordance with an Arkansas statute which provided for automatic renewal of teacher's contracts unless notice to the contrary was given within a prescribed time. - 6 - Dr. Arthur L. Mallory Plaintiffs argued that the Due Process Clause was violated unless the board could show good cause for not renewing their contracts . The Court rejected this substantive due process argument as fol- lows: "Almost all of the cases cited in sup- port of plaintiffs' position are concerned with either racial discrimination or an in- vasion of a constitutionally protected right or privilege by way of a statute or regula- tion . We agree that the teachers are pro- tected under the Equal Protection Clause from discrimination on account of race or religi on or in their assertion of constitu- tional l y protected rights, but no case cited by plaintiffs has gone so far as to say that all actions of any governmental board or agency in employment cases must accord the individual due process under the Fourteenth Amendment so as to provide tenure and a right to retain the position, except for cause. And ' for cause' presupposes a right to hearing, notice, and appeal. Many go- vernment employees are under civil service and some under tenure. Absent these security rov1s1ons a ublic em lo ee has no ri ht to u l1c em * * * '' .. On the basis of this holding, plain- tiffs then project that the Board must ac- cord due process, both substantive and pro- cedural , in all of its operative procedures. If this were so , we would have little need of tenure or merit laws as there could only be , as argued by the plaintiffs, a discharge for cause, with the school board carrying tht burden of showing that the discharge was for a permissible reason. We do not believe this to be the law, as there are many public employees ''~ho are separated from their em- ployment by a purely arbitrary decision, upon a change of administration or even a change of factual control where the appoint- - 7 - Dr. Arthur L. Mallory ments are not protected by civil service or some type of tenure, statutory or contrac- tual." Id . at 1160. Plaintiffs in the Freeman case, although granted a hearing by the board, argued that they had been denied procedural due process because they were not permitted an opportunity to cross- examine their primary accuser. The Court rejected this argument, also: "When a particular statutory procedure is set up for the dismissal of a teacher it must be followed, but absent statutory pro- cedures the Board may adopt its own method . " Id. at 1160 . * * * " .Absent statutory or contractual re- quirements , persons discharged for ineffi - ciency, incompetency , or insubordination have no constitutional right to a hearing with rights of cross-examination and con- frontation of witnesses." Id . at 1161. For further authority that a school board in Missouri, even when terminating a teacher's current contract, is not required to provide any of the safeguards of procedural due process except those provided in the applicable statutes , see Brooks v . School District of the City of Moberly, 267 F.2d 733 (8th Cir . , 1959); Wilson v. Pleasant Hill School District , No . 18501-4 (Western Distr1ct of Missour1, March I, 1971), and Judge Wangelin' s Order of November 30, 1971, in Beauregard v. Board of Education of the Hazelwood School District, No . 71 C 337(4) (Eastern District of Missouri) . Based on the foregoing decisions, we believe that the interpretation of federal law governing Missouri, at this time, is in accord with the decision of the Sixth Circuit Court of Appeals in Orr v. Trinter, 444 F.2d 128 (6th Cir., 1971) .2 Plaintiff, a Footnote 2. Several cases are currently pending before the United States Supreme Court which raise issues pertaining to the rights of probationary teachers . See Perry v . Sindermann, No. 70-36; State College Board of Regents v . Roth , No. 71-162, argued on January 18, 1972; and Thomas v. Shirck, No. 71-819. Should The Supreme Court adopt a rule contrary to the position of the Eighth Circuit Court of Appeals, the conclusion of this opinion would undoubtedly need to be altered. - 8 - Dr. Arthur L. Mallory probationary teacher without tenure, had received notice that his contract \vould not be renewed for the next year. Plai ntiff argued that the failure to give reasons for non-renewal of his cont r ~ct and a hearing at which he coul d challenge the reasons violated his rights under the Due Process Clause . the Court rejected this a!gu- ment stating as follows: "First, the Fourteenth Amendment only pro- tects against the State depriving one of life, liberty, or property without due pro- cess of law. 'It has been held repeatedly and consistently that Government employ is not "property." * * *We are unable to per - ceive how it could be held to be "liberty." Certainly it is not "life."' Bailey v. Richardson, 182 F.2d 46 (D.C.Cir.), aff'd by an equally divided Court, 341 U. S. 918 , 71 S.Ct. 669, 95 L.Ed. 1352. "Second, in the unique situation of a pro- bationary school teacher, the failure to give reasons for the refusal to rehire is not arbitrary and capricious action on the part of the Board since the very reason for the probationary period is to give the Board a chance to evaluate the teacher with- out making a commitment to rehire him. A non-tenured teacher's interest in knowing the reasons for the non-renewal of his con- tract and in confronting the Board on those reasons is not sufficient to outweigh the interest of the Board in free and indepen- dent action with respect to the employment of probationary teachers. The Board is not a legal tribunal . It is an employer, and when it decides to hire or not to hire a particular teacher, it is acting 'as proprietor, to manage the internal opera- tion' of the public schools. Cafeteria and Restaurant Workers, Local N9. 473 v. McElroy, supra, 367 U. S. at 896, 81 S.Ct . at 1749. " * * * "On the other hand, if the reason, either as stated by the Board or as suspected by the teacher, for the refusal to rehire the teacher is constituti onall y impermissible the teacher can state a claim for which re- lief can be granted under 42 U.S.C. Sec- - 9 - Dr. Arthur L. Mallory tion 1983. We cannot agree that the refu- sal to rehire plaintiff without giving rea- sons is itself a violation of either sub- stantive or procedural due process. We hold that the failure to give a reason for the refusal to rehire, or to grant a hear- ing in connecti on therewith, standing alone , is not constitutionally impermissible conduct on the part of the Board of Education . " * * that an essen- In view of our conclusion with regard to your first question, that it is not necessary to give notice to a probationary teacher prior to the notice of refusal to renew the teacher ' s contract for the next school year, it is not necessary to answer your second question. Your third question inquires about whether the time periods set forth ~n Sections 168.116 and 168.126 are to be computed on the basis of calendar days or school days. We find no provision in the Missouri Teacher Tenure Act set- ting forth the method by which the time shall be measured. There- fore, we believe that tne general Missouri statute governing the computation of time would apply. Section 1.040, RSMo 1969, states as follows : "Computation of time. -- The time with- in which an act is to be done shall be com- - 10 - Dr . Arthur L. Mallory puted by excluding the first day and in- cluding the last. If the last day is Sun - day it shall be excluded." CONCLUSION Therefore , it is the conclusion of this office that: 1. Under Section 168.126, RSMo 1969, a board of education need not give a probationary teacher ninety days notice prior to April 15 of its intention not to rehire the teacher because of incompetency in order to lawfully refuse to renew that probation- ary teacher's contract for t he next school year; 2. The time periods in Sections 168.116 and 168 . 126, RSMo 1969 , should be computed on the basis of calendar days excluding the first day and including the last in accordance with Section 1.040, RSMo 1969 . . The foregoing op1n1on, which I hereby approve , was prepared by my Assistant, D. Brook Bartlett . Enclosure: Very truly :oJ~~ JOHN C. DANFORTH Attorney General Opinion No. 269 , Fink, 5- 13-71 Opinion No. 371, Mulvaney, 10-2-70 Opinion No . 178, Vaughan, 7-19-71 - 11 -