PART 38—EDUCATION PERSONNEL Authority: 25 U.S.C. 2011 and 2015, Secs. 1131 and 1135 of the Act of November 1, 1978, 92 Stat. 2322 and 2327; Secs. 511 and 512, Pub. L. 98-511; Secs. 8 and 9, Pub. L. 99-89; Title V of Pub. L. 100-297; Pub. L. 105-337. Source: 53 FR 37678, Sept. 27, 1988, unless otherwise noted. § 38.1 Scope. (a) Primary scope. (b) Secondary scope. (c) Other. § 38.2 Information collection. (a) The information collection requirements contained in § 38.5 use Standard Form 171 for collection, and have been approved by OMB under 25 U.S.C. 2011 and 2015 and assigned approval number 3206-0012. The sponsoring agency for the Standard Form 171, is the Office of Personnel Management. The information is being collected to determine eligibility for employment. The information will be used to rate the qualifications of applicants for employment. Response is mandatory for employment. (b) The information collection requirement for § 38.14, Voluntary Services has been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. § 38.3 Definitions. As used in this part, the term: Agency Agency school board Agency Superintendent for Education Area Education Programs Administrator Assistant Secretary Bureau Consult, Director Discharge Education function Education position, (a) Are performed on a school term basis principally in a Bureau elementary and secondary school which involve: (1) Classroom or other instruction or the supervision or direction of classroom or other instruction; (2) Any activity (other than teaching) that requires academic credits in educational theory and practice equal to the academic credits in educational theory and practice required for a bachelor's degree in education from an accredited institution of higher education; or (3) Any activity in or related to the field of education notwithstanding that academic credits in educational theory and practice are not a formal requirement for the conduct of such activity; or (4) Support services at or associated with the site of the school; or (b) Are performed at the Agency level of the Bureau and involve the implementation of education-related Bureau programs. The position of Agency Superintendent for Education is excluded. Educator, Employment contract Involuntary change in position Local school board, Probationary period School board School supervisor School term § 38.4 Education positions. (a) The Director shall establish the kinds of positions required to carry out the Bureau's education function. No position will be established or continued for which: (1) Funds are not available; or (2) There is not a clearly demonstrable need and intent for it to carry out an education function. (b) Positions established for regular school operations will be restricted to school term or program duration. Particular care shall be taken to insure that year-long positions are not established unless they are clearly required and involve essential 12-month assignments. § 38.5 Qualifications for educators. (a) Qualifications related to positions. (b) Qualifications related to individuals. (1) School boards may waive formal education and State certification requirements for tribal members who are hired to teach tribal culture and language. (2) Tribal members appointed under this waiver may not have their basic pay rate set higher than the rate paid to qualified educators in teaching positions at that school. (c) Identification of qualified individuals. (d) Special recruitment and training for Indian educators. § 38.6 Basic compensation for educators and education positions. (a) Schedule of basic compensation rates. (b) Range of pay rates for positions within pay levels. (c) Schedule of compensation rates for teachers and counselors. (d) Adjusting employee basic compensation rates. (i) Contract renewal incentive—one pay increment for each renewal, not to exceed four increments, unless the educator is covered by a negotiated labor union agreement. (ii) Performance—employees whose performance is rated “above satisfactory”; one pay increment; employees whose performance is rated “outstanding”; two pay increments. (2) Pay increments based on education may be awarded as outlined in 62 BIAM. (e) Special additions to basic compensation. (1) The Director may authorize payment of a staffing differential not exceeding 25 per centum of the rate of basic compensation based on a formally-documented request by an ASE or AEPA. Such a staffing differential shall only be authorized in writing when the Director determines that: (i) It is warranted by the geographic isolation of the work site or other unusually difficult environmental working or living conditions and/or, (ii) It is necessary as a recruitment or retention incentive. This staffing differential is to be computed on the basic schedule rate before any other additions are computed. (2) Special rates may be established for recruitment and retention applicable only to a specific position or to specific types of positions in specific locations based on a formally documented request by an ASE or AEPA and submitted to the Director for approval. (f) Payment of compensation to educators. (1) Pay periods. (2) Pay for contract educators. (3) Prorating of pay. (i) Each educator may change such election once during the academic school term, provided notice is given two weeks prior to the end of the fifth month after the beginning of the academic school term. (ii) An educator who elects a 12-month basis of prorated pay may further elect to be paid in one lump sum at the end of the academic school term for the then remaining amount of rate of basic pay otherwise due, provided notice is given four weeks prior to the end of the academic school term. (iii) No educator shall suffer a loss of pay or benefits because of elections made under this section. (4) Stipends for extracurricular activities. (i) The Director is authorized to establish a schedule of stipends for each Bureau Area, taking into consideration types of activities to be compensated and payments provided by public school districts in or near the Area. (ii) The stipend shall be a supplement to the employee's base pay and is not a part of salary for retirement computation purposes. (iii) The employee shall be paid the stipend in equal payments over the period of the extracurricular activity. [53 FR 37678, Sept. 27, 1988, as amended at 54 FR 46374, Nov. 3, 1989] § 38.7 Appointment of educators. (a) Local school employees. (b) School supervisors. (c) Agency office education program employees. (d) Employment contracts. (e) Absence of local school boards. (f) Provisional contracts. (1) The contract will be made only: (i) After it is determined that an individual already meeting certification or experience requirements is not available; or (ii) For conversion of a status quo employee who does not yet meet all established position requirements. (2) Consultation with the appropriate school board is required prior to the contract. (3) The contract may be of 12-month or school-term duration. (4) The employee will be required to make satisfactory progress toward meeting full qualification requirements. (5) If the employee fails to meet the requirements established under § 38.7(f)(4), the contract will be terminated. Such termination cannot be grieved or appealed. (g) Conditional appointment. (h) Short-term contracts. (i) The length of the contract will not exceed 60 days, or the next regularly scheduled school board meeting, whichever comes first. (ii) If the board meets and does not take action on the individual in question, the short-term contract may be extended for the duration of the school year. (iii) It shall be the responsibility of the school supervisor to fully inform the local school board of all such short-term contracts. Failure to do so may be cited as reason to discharge the school supervisor if so requested by the board. (2) The local school board may authorize the school supervisor to make an emergency short-term contract to classroom, dormitory and other positions directly related to the health and safety of students. When this situation exists, short-term contracts may be made in accordance with the following: (i) If local and agency lists of qualified applicants are exhausted, short-term contracts may be made without regard to qualifications for the position; (ii) The pay level will be based on the qualifications of the individual employed rather than the requirements of the position, if the qualifications of the individual are lower than required; (iii) The short-term contract may not exceed the school term and may not be renewed or extended; (iv) Every 60 days the school supervisor will determine if qualified individuals have been placed on the local or agency lists. If a qualified individual on the list accepts employment, the school supervisor must terminate the emergency appointment at the time the qualified individual is appointed. (i) Temporary contracts. (j) Waiver of Indian preference. (k) Prohibited reappointment. (l) Contract renewals. (1) If the school board disagrees with the school supervisor's or ASE's or AEPA's recommendations, the board will submit a formal, written certification of its determinations to the school supervisor or ASE or AEPA within 25 days. If the board's determinations are not received within the 25 days, the school supervisor or ASE or AEPA shall issue the 60 day notification of renewal or nonrenawal to the individual as required under § 38.8. (2) When the school board submits its determination within the 25 days and determines that a contract will be renewed, or nonrenewed, the appropriate official shall issue the required renewal notice, or nonrenawal, or appeal the determination of the school board to the appropriate official who will make a determination in accordance with the appeal procedure is § 38.7(a) of this part. After the probationary period, if the determination is that the contract will not be renewed, the procedures specified in § 38.8 shall apply. § 38.8 Nonrenewal of contract. Where the determination is made that an employee's contract shall not be renewed for the following year, the following procedure will apply to those employees who have completed three full continuous school terms of service under consecutive contract appointments and satisfactory performance in the same or comparable education positions. (a) The employee will be given a written notice of the action and the reasons thereof not less than 60 days before the end of the school term. (b) The employee will be given 10 calendar days to request an informal hearing before the appropriate official or body. Upon request, the employee may be given official time, not to exceed eight hours, to prepare a written response to the reason(s). (c) If so requested, an informal hearing shall be held within 30 calendar days of receipt of the request. (d) The appropriate official or body will render a written determination within seven calendar days after the informal hearing. (e) The employee has a right to request an administrative review by the ASE or AEPA of the determination within 10 calendar days of that determination. The ASE or AEPA then has 20 calendar days to render a final decision. Where the employee is the supervisor of the school or an agency education employee, any appeal of the ASE or AEPA would be addressed to the Director for a decision. If the Director or ASE's or AEPA's decision overturns the appropriate official or bodies determination, the appropriate official or body will be notified of the reasons in writing. Failure by the Director or ASE or AEPA to act within the 20 days will sustain the determination. This completes the administrative appeal process. (f) Failure of any of the parties to meet the requirements of the above procedures will serve to negate the particular action sought by the negligent party. (g) Those employees with less than three full continuous school terms of consecutive contract appointments are serving a probationary period. Nonrenewal of his/her contract will be considered a continuation of the examining process. This action cannot be appealed or grieved. (h) Independent of the procedures outlined in this section, the school supervisor or ASE or AEPA, for applicable positions, shall be required to submit to the ASE or AEPA or appropriate higher authority all nonrenewal actions. Within 60 days, the ASE or AEPA shall review the nonrenewal actions and may overturn the determination of nonrenewal. In the event that the ASE or AEPA makes a decision to overturn the school board determination, the ASE or AEPA shall notify the school board in writing of his/her reasons for doing so. (i) No more than the substantial standard of evidence shall be required to sustain the nonrenewal. (j) A procedural error shall not be grounds for overturning a determination of nonrenewal unless the employee shows harmful error in the application of the Agency's procedures in arriving at such a decision. For purposes of this section, “harmful error” means error by the Agency in the application of its procedures which, in the absence or cure of the error, might have caused the Agency to reach a conclusion different than the one reached. The burden is upon the appellant to show that based upon the record as a whole, the error was harmful. i.e., caused substantial harm or prejudice to his/her rights. (k) Nonrenewal of a contract is not discharge and will not follow the discharge procedures. § 38.9 Discharge of educators. (a) Discharge for cause. (b) Discharge for inadequate performance. (c) Other discharge. (d) Procedures for discharge for cause. (1) The educator to be discharged shall receive a written notice of the proposal, specifying the causes or complaints upon which the proposal is based, not less than 30 calendar days before the discharge. However, this shall not prohibit the exclusion of the individual from the education facility in cases where exclusion is required for the safety of the students or the orderly operation of the facility. (2) A reasonable time, but not less than 10 calendar days, will be allotted for the individual to make written and/or oral responses to the charge. (3) An opportunity will be afforded the individual to review the material relied upon to support the charge. (4) Official time, not to exceed eight hours, will be provided to the individual to prepare a response to the charge. (5) The educator may elect to have a representative and shall furnish the identity of any representative to the ASE or AEPA. The ASE or AEPA may disallow, as an employee representative, any individual whose activities as a representative would cause a conflict of interest or position, or an employee whose release from his or her official position would give rise to unreasonable costs to the Government, or when priority work assignment precludes his or her release from official duties. The terms of any applicable collective bargaining agreement and 5 U.S.C. 7114(a)(5) shall govern representation of employees in an exclusive bargaining unit. (6) The individual has a right to a final decision made by the appropriate level of supervision. (7) The individual has a right to appeal the final decision and have the merits of the case reviewed by a Departmental official not previously involved in the case. This right includes entitlement to a hearing upon request under procedures in accordance with the requirements of due process under section 1131(e)(1)(B) of Pub. L. 95-561. (e) School board action. (2) The appropriate school board, under any uniform procedure as it may adopt, may issue a formal written certification to the school supervisor, ASE, or AEPA either approving or disapproving the discharge before the expiration of the notice period and before actual discharge. Failure to respond before the expiration of the notice period will have the effect of approving the discharge. (3) The school supervisor initiating a discharge action may appeal the board's determination to the ASE or AEPA within 10 calendar days of receipt of the board's notice. The ASE or AEPA initiating a discharge may appeal the board's determination to the Director within 10 calendar days of receipt of the board's notice. Within 20 calendar days following the receipt of an appeal, the reviewing official may, for good cause, reverse the school board's determination by a notice in writing to the board. Failure to act within 20 calendar days shall have the effect of approving the board's determination. (f) School board recommendations for discharge. § 38.10 Conditions of employment of educators. (a) Supervision not delegated to school boards. (b) Employee handbook. (1) The working and hiring conditions for various tribal jurisdictions and Bureau locations; (2) The need for all education personnel to adapt to local situations; and (3) The requirement of all education personnel to comply with and support duly adopted school board policies, including those relating to tribal culture or language. (c) Contract renewal notification. (d) Dual compensation. (e) Discrimination complaints. (f) Grievance procedures. (g) Performance evaluation. § 38.11 Length of the regular school term. The length of the regular school term shall be at least 180 student instructional days, unless a waiver has been granted under the provisions of 25 CFR 36.61. § 38.12 Leave system for education personnel. (a) Full-time school-term employees. (1) Personal leave. (i) The school-term employee will request the use of this leave in advance when it is for personal use or personal business (e.g., going to the bank, etc.). When this leave is requested for emergency purposes (e.g., death in immediate family), it will be requested immediately after the emergency is known, if possible, by the employee and before leave is taken or as soon as the supervisor reports to work on the official work day. (ii) Final approval rests with the supervisor. This leave shall be taken only during the school term. No compensation for or carryover of unused leave is authorized. (2) Sick leave. (i) Sick leave shall accrue at the rate of four hours each biweekly pay period in pay status during the term of the contract; and no precredit or advance of sick leave is authorized. (ii) Accumulated sick leave at the time of separation will be recredited to an educator who is reemployed within three years of separation. (3) School vacation. (b) Leave for full-time, year-long employees. (1) Vacation leave. (2) Sick leave. (c) Leave for part-time year-long employees. (1) Vacation leave. (2) Sick leave. (d) Leave for school term employees on a part-time work schedule in excess of 20 hours per week. (2) The part-time employee will request the use of this leave in writing in advance when it is for personal use or personal business (e.g., going to the bank, etc.). When this leave is requested for emergency purposes (e.g., death in immediate family), it will be requested immediately after the emergency is known, if possible, by the employee and before leave is taken or as soon as the supervisor reports to work on the official work day. (3) Final approval rests with the supervisor. This leave shall be taken only during the school year. No compensation for or carryover of unused leave is authorized. (4) Sick leave. (i) Sick leave shall accrue at the rate of three hours each biweekly pay period in pay status for the first 21 pay periods of their contract; no precredit or advance for sick leave is authorized. (ii) Accumulated sick leave at the time of separation will be recredited to an educator who is reemployed within three years of separation. (5) School vacation time. (i) All school vacation time for part-time employees will be approved at the convenience of the program and not as a right of the employee. (ii) Vacation time cannot be paid for or carried over for a part-time employee if the employee is required to work during the school vacation time or if the program will not permit part-time employees to take such vacation time. (e) Accountable absences for all contract employees. (1) Approved absence. (2) Absence without leave. (3) Court and military leave. (4) Administrative leave. (f) Educators serving with contracts with work weeks of 20 hours a week or less are not eligible for any type of paid leave. (g) For school term educators, no paid leave is earned nor may accumulated leave be used during any period of employment with the Bureau between school terms. (h) Employees issued contracts for intermittent work are not eligible for any type of paid leave. (i) Leave transferred in. § 38.13 Status quo employees in education positions. (a) Status quo employees. (b) If the tribe or school board waives the Indian preference law, the employee loses the early-out retirement eligibility under Pub. L. 96-135, “early-out for non-Indians,” if they are entitled to the early-out retirement. A memorandum for the record on BIA letterhead shall be signed by the employee and placed on the permanent side of his/her Official Personnel Folder, along with the tribal resolution, if the tribe/school board has waived the Indian preference law to employ the non-Indian.” (c) Conversion of status quo employees to contract positions. (1) Written determination by the school board should be received within a reasonable period, but not to exceed 30 days from receipt of the request. Failure of the school board to act within this period shall have the effect of disapproving the proposed conversion. (2) With school board approval, an involuntary change in position shall not affect the current status of status quo education employees. § 38.14 Voluntary services. (a) Scope. (b) Volunteer service agreement. (c) Eligibility. (d) Status. (1) Title 5 U.S.C. chapter 81, dealing with compensation for injuries sustained during the performance of work assignments. (2) Federal tort claims provisions published in 28 U.S.C. chapter 171. (3) Department of the Interior Regulations Governing Responsibilities and Conduct. (e) Travel and other expenses. (f) Annual report. § 38.15 Southwestern Indian Polytechnic Institute. (a) The Southwestern Indian Polytechnic Institute has an independent personnel system established under Public Law 105-337, the Administrative Systems Act of 1998, 112 Stat. 3171. The details of this system are in the Indian Affairs Manual (IAM) at Part 20. This manual system may be found in Bureau of Indian Affairs Regional and Agency Offices, Education Line Offices, and the Central Office in Washington, DC. (b) The personnel system is in the excepted service and addresses the areas of classification, staffing, pay, performance, discipline, and separation. Other areas of personnel such as leave, retirement, life insurance, health benefits, thrift savings, etc., remain under the jurisdiction of the Office of Personnel Management. [65 FR 58183, Sept. 27, 2000]