Writing Effective Teacher Improvement Plans (TIPs), (PIPs) and Appeal Decisions

1. Writing Effective Teacher Improvement Plans (TIPs), (PIPs) and Appeal Decisions Presented by: Kathy A. Ahearn, Esq., Partner, Guercio & Guercio, LLP Erin M. O’Grady-Parent, Esq., Partner, Guercio & Guercio, LLP MASLA 36th ANNUAL SUMMER CONFERENCE July 2013 Guercio & Guercio, LLP 24 Century Hill Drive, Suite 101 Latham, New York 12110 (518) 690-7000 www.guerciolaw.com 165034

2. Focus Today • Development of TIPs/PIPs • Implementation of TIPs/PIPs • Probationary vs. Tenured Teachers • Appeals Guercio & Guercio, LLP

3. Basic Principles • Connect TIPs/PIPs to evaluations • Be specific! • Use measurable goals • Implement and monitor progress • At §3020-a hearing spotlight will be on you! Guercio & Guercio, LLP

4. Education Law §3012-c Requirements • APPRs “shall be a significant factor for employment decisions including but not limited to, promotion, retention, tenure determination, termination and supplemental compensation.” • APPRs “shall also be a significant factor in teacher and principal development, including but not limited to coaching, induction support and differentiated professional development.” (Education Law §3012-c[1]). Guercio & Guercio, LLP

5. Education Law §3012-c Requirements • Education Law §3012-c (4) – “Upon rating a teacher or principal as developing or ineffective through an APPR the school district or BOCES “shall formulate and commence implementation of a teacher or principal improvement plan for such teacher or principal as soon as practicable but in no case later than ten school days after the opening of classes for the school year .” • Such plan to be consistent with the regulations of the Commissioner and “developed locally through negotiations conducted pursuant to Article 14 of the Civil Service Law.” • SED regulations (8 NYCRR §30-2.10) parrot statutory language. Guercio & Guercio, LLP

6. §3012-c Required Elements • TIPs/PIPs must include, but are not limited to: • Identification of needed areas of improvement; • A timeline for achieving improvement; • The manner in which improvement will be assessed; and • Where appropriate, differentiated activities to support a teacher’s or principal’s improvement in those areas. Guercio & Guercio, LLP

7. SED Guidance (Updated 8/13/12) Q. C18 What are some potential elements of improvement plans? • An improvement plan defines specific standards-based goals that a teacher or principal must make progress toward attaining within a specific period of time, such as a 12-month period, and shall include the identification of areas that need improvement, a timeline for achieving improvement, the manner in which improvement will be assessed, and, where appropriate, differentiated activities to support improvement in these areas. • The plan should clearly describe the professional learning activities that the educator must complete. These activities should be connected directly to the areas needing improvement. The artifacts that the teacher or principal must produce that can serve as benchmarks of improvement and as evidence for the final stage of the improvement plan should be described, and could include items such as lesson plans and supporting materials, including student work. • The supervisor should clearly state in the plan the additional support and assistance that the educator will receive. In the final stage of the improvement plan, the teacher or principal should meet with his or her supervisor to review the plan, alongside any artifacts and evidence from evaluations, in order to determine if adequate improvement has been made in the required areas outlined within the plan for the teacher or principal. Guercio & Guercio, LLP

8. Expedited §3020-a • Section 3020-a(3)(c)(i-a)(B) requires that where §3020-a charges of incompetence are brought solely upon a pattern of ineffective teaching or performance (i.e. two consecutive annual ratings of ineffective) the charges: “shall allege that the employing board has developed and substantially implemented a teacher or principal improvement plan in accordance with [§3012-c(4)] for the employee following the first evaluation in which the employee was rated ineffective, and the immediately preceding evaluation if the employee was rated developing.” Guercio & Guercio, LLP

9. SED Online APPR Form (“Review Room”) • SED APPR online form requires districts to check boxes assuring that teachers and principals with developing or ineffective ratings will receive TIPs/PIPs within 10 school days from opening of classes and that the TIP/PIP will include the mandated elements. • Districts required to upload their TIP/PIP forms as part of APPR submission. SED Guidance (Q. C21) indicates that SED will not review each TIP/PIP submitted by districts only the above assurances. Guercio & Guercio, LLP

10. Developing TIPs/PIPs • Identify necessary areas of improvement from observations and evaluation. • Be specific. Language from rubric too general. • Avoid “education speak”. • Don’t “sugar coat” criticisms. Be clear and direct. • Identify problems and solutions. • Use measurable goals. Guercio & Guercio, LLP

11. How Much Negotiation? • Education Law §3012-c requires general format of TIPs/PIPs to be negotiated. • Statute envisions that TIPs/PIPs will be customized to a certain extent and implies consultation is necessary. • Statute does not mandate negotiation over each element in TIP/PIP. • Some APPR Plans and/or MOAs may require more or less in way of consultation, collaboration, negotiation and/or agreement. Guercio & Guercio, LLP

12. Cost Effective Strategies • No statutory obligation for districts to pay for TIP/PIP activities. Some APPR Plans and/or MOAs obligate districts to provide and/or pay for “remediation”. • Can suggest coursework or training but not mandate. • Unless obligated, don’t agree to formalized instruction through third parties. • If employee requests course or program require them to articulate how that will address deficiency. Suggest “no cost” alternatives. Guercio & Guercio, LLP

13. Timeframes • Be mindful of requirement to have TIPs/PIPs in place no later than 10 school days into school year. • Interaction between TIP/PIP development and implementation and Appeals Process. • Consider different duration for probationary vs. tenured teachers and principals. Time periods for improvement may be shorter for probationers. Guercio & Guercio, LLP

14. Other “TIPS” for TIPs/PIPs • Don’t set yourself up for failure – only agree to what you can deliver. • Ensure everyone is on the same page, including superintendent, so if, and when, the time comes to deny tenure or terminate there is no disagreement. • Monitor! Monitor! Monitor! – Multiple observations. Document specifics in observations not just conclusions. Guercio & Guercio, LLP

15. §3020-a • Don’t forget role of TIPs/PIPs in “regular” 3020-a process. • APPR composite score is not conclusive evidence of incompetence. Even in expedited 3020-a “pattern of ineffective teaching or performance” only “very significant evidence” of incompetence. • To be successful in a 3020-a incompetency case must be in a position to show the district did its job. • Hearing officers will look to the district’s efforts to remediate teacher/principal before recommending penalty of termination. Guercio & Guercio, LLP

16. Appeals • Education Law §3012-c(5) only permits challenge to: • Substance of the APPR; • District’s adherence to required standards and methodologies; • District’s adherence to the Commissioner’s regulations and any locally negotiated procedures; and • District’s issuance and/or implementation of the terms of TIP/PIP. Guercio & Guercio, LLP

17. When Does the Right to Appeal Commence? • Upon receipt of composite score and rating (Education Law §3012-c[5][c]). • Majority of appeals processes specify that all grounds for an appeal must be raised in one appeal or are waived. • Special considerations regarding appeals of TIPs/PIPs. Guercio & Guercio, LLP

18. Appeals Process • Education Law §3012-c requires process to be: • Locally developed through negotiations; and • Timely and expeditious. • Range of procedures negotiated by districts: • Superintendent is the sole and final decision-maker; • Interim panel/committee makes recommendation to Superintendent; • Panel/committee makes final decision; • Outside “expert” makes final decision. • Many APPR Plans limit right to appeal to: • Ineffective or Ineffective and Developing ratings; and/or • Tenured employees. Guercio & Guercio, LLP

19. Actions Pending Appeals Decision • Law permits district to grant or deny tenure or to terminate probationary teachers and principals during pendency of appeal “for statutorily and constitutionally permissible reasons other than the teacher’s/principal’s performance that is the subject of the appeal.” (Education Law §3012-c[5][b] and 8 NYCRR §30-2.11) • If the performance measured by APPR is the sole basis for determination pendency of appeal stays action. • An evaluation which is the subject of an appeal cannot be evidence in a 3020-a until the appeal process concludes (Education Law §3012-c[5][a]). • If determination is occasioned by other reasons than those related to classroom performance district retains traditional right to terminate pursuant to Education Law §3031. Guercio & Guercio, LLP

20. Possible Appeal “Remedies” • Statute and regulations silent regarding appeal remedies. • Appeals processes in SED “model plans” authorize decision-maker to: • “Issue an appropriate remedy”; • “Order an adjustment to composite score”; • “Set aside a rating and require a new evaluation to be conducted in whole or in part”; • “Sustain the appeal and grant the remedy sought, or to sustain the appeal and modify the remedy.” Guercio & Guercio, LLP

21. What does SED Guidance Say? • Guidance does not specifically discuss appeal remedies and/or the effect of a sustained appeal. • SED Model Appeals Procedures (SED Guidance Section L): “If the appeal is sustained, the reviewer may set aside a rating if it has been affected by substantial error or defect, modify a rating if it is affected by substantial error or defect or order a new evaluation if procedures have been violated.” • Query – How do you order a new evaluation after school year has ended? Guercio & Guercio, LLP

22. What’s our Advice? • Review local appeals procedures to see if range of remedies are listed. • Not every deficiency requires decision-maker to sustain appeal. • Deminimus “errors” should not negate APPR • Only the most egregious deficiencies should invalidate a rating or composite score. • Be careful adding points to evaluation scores to make up for deficiencies. It is not yet known how this may be viewed by SED. • Open question – What happens if end up with no rating or composite score? Guercio & Guercio, LLP

23. Writing Appeal Decisions • Law does not prescribe length or format of decision. Appeals procedures developed locally. • Verify whether appeals procedures in APPR Plan address format and/or content of decisions. Follow any requirements in APPR Plan. • SED Models Appeals Procedures state “The decision shall set forth the reasons and factual basis for each determination on each of the specific issues raised in the teacher’s or principal’s appeal.” Guercio & Guercio, LLP

24. TIPS for Writing Decisions • State what was considered. • Clearly articulate basis for decision including relevant facts and conclusions. • Acknowledge flaws but avoid unnecessary criticisms of evaluators. • Stick to issues raised in appeal. • Be succinct where possible. Guercio & Guercio, LLP

25. Procedural Defects • Many appeals procedures provide for procedural complaints to be pursued through the grievance machinery of the collective bargaining agreement. • Query – What is the authority of an arbitrator in such case? • Open questions about the relationship between substantive vs. procedural issues. Guercio & Guercio, LLP

26. THANK YOU FOR LISTENING! Kathy A. Ahearn, Esq. Erin M. O’Grady-Parent, Esq. GUERCIO & GUERCIO, LLP 24 Century Hill Drive Suite 101 Latham, New York 12110 (518) 690-7000 www.guerciolaw.com Guercio & Guercio, LLP