Certificated Evaluations

1. Certificated Evaluations Presented by: Jeanne Nava Assistant Superintendent, Human Resources Tulare County Office of Education

2. Progressive Discipline • Oral Warning • Written Warning • Letter of Reprimand • Suspension without Pay • Dismissal

3. Progressive Discipline • Steps may be repeated where the cause for disciplinary action requires persistent violation of a rule or where the evaluator wants to establish a pattern of deficient performance. • Steps may be skipped based on the severity of the employee’s conduct subject to any limitations in the collective bargaining agreement.

4. Evaluation Purpose • Powerful management tool to assist teachers to perform at their highest level; • Provide a struggling teacher active feedback; • When evaluation does not improve performance, documents generated will be used in subsequent disciplinary proceedings; and

5. Evaluation Purpose • Documents generated will also be available to use as a shield against potential wrongful termination or related claims.

6. CAUTION ! • Progressive discipline policies must be carefully drafted to avoid creating unexpected contractual obligations. • Consult legal counsel before any such policy is implemented.

7. Peer Assistance and Review • If a teacher receives an overall unsatisfactory evaluation, he/she must participate in the Peer Assistance and Review process. • The site administrator should evaluate the teacher based upon his/her performance. • If, in the site administrator’s opinion, performance is not improving with the combination of assistance, a 90-day letter of unsatisfactory performance should be issued approximately 100 days prior to the end of the second year of the cycle.

8. Evaluation Procedure Checklist • Every certificated employee must be evaluated regularly at least once a year for probationary employees and at least every other year for permanent employees per your certificated bargaining agreement. • Spend time drafting specific comments for the “areas of strength”, “areas of improvement” and “other comments” section of the evaluation. Do not feel constrained by space on the evaluation. Attach additional sheets, if necessary.

9. Evaluation Procedure Checklist • Draft your comments using the first three letters of FRISK (i.e., Facts, Rule, Impact). • All evaluations (especially for probationary employees, or if the teacher is in need of improvement) should be reviewed by a District Administrator.

10. Evaluation Procedure Checklist • Provide a copy of each completed evaluation to the employee and hold a conference to discuss the evaluation with the employee (Education Code 44664(b)). • If the evaluation has an improvement plan, discuss the plan and your expectations for the next evaluation period. At this conference, have the employee sign the document to indicate receipt, but not necessarily agreement as to the contents. If the employee refuses to sign, simply write “Refused to Sign” and date and initial it.

11. Evaluation Procedure Checklist • The evaluation goes in the employee’s personnel file after the employee has been given the right to respond. (See your bargaining agreement for the exact number of days). • Employees are not entitled to union representation at evaluation meetings, except in highly unusual situations where some form of discipline might be imminent. (Weingarten Rights)

12. Evaluation Procedure Checklist • Take time to do a thoughtful evaluation; don’t just check boxes. Box checking evaluations are useless for the purpose of progressive discipline. • If the employee was “written up” during the year, make reference to the FRISK documents and attach them to the evaluation as evidence. • If an employee receives a less than satisfactory evaluation, it should NOT BE A SURPRISE!

13. Probationary Employees • Non-reelection under Education Code 44949.21 is not a “for cause” dismissal. • A first year probationary employee may be noticed at any time prior to the end of the school year, preferably before the end of May. • A second year probationary employee MUST be notified on or before March 15th.

14. Probationary Employee • While non-reelection is not a “for cause” dismissal, you cannot dismiss for prohibited reasons (i.e., discrimination, retaliation, etc.). • It is inappropriate to non-reelect a probationary employee to avoid a layoff situation, because doing so deprives the teacher of the 39-month reemployment right entitlement.

15. Probationary Employees • Teachers of Districts with 250 ADA or less generally do not earn tenure. Education Code Sections 44929.43 and 44948.2 are the sections of code which deal with the mid-year dismissal of a K-12 probationary teacher for these small districts.

16. Probationary Employees • While generally districts wait until March 15th to do non-reelection, there is a provision in Education Code 44948.3 for mid-year dismissals in cases of more egregious wrong-doing. • This process requires a statement of charges and a hearing before an administrative law judge (ALJ) from the Office of Administrative Hearings. The process is more like classified employee dismissals, the ALJ presides at the evidentiary hearing and then makes the findings and recommendations to the governing board, which may or may not follow those recommendations.

17. The Two Most Common Problems with Summative Evaluations • Issuing good evaluations for less than satisfactory performance. • Giving bad evaluations with conclusory statements and no documentation.

18. Proving Unsatisfactory Performance • Common Evidentiary Factors: • Did clear identifiable performance standards exist and cover the conduct alleged to have been engaged in by the employee? • Were these performance standards reasonable and applied consistently to other employees? • Did the district provide credible evidence by reference to specific acts of omission or commission that the employee failed to meet these performance standards?

19. Proving Unsatisfactory Performance • Common Evidentiary Factors: • Did the district attempt to help the employee correct the deficient performance through suggestions for improvement, offers of assistance, and clear directions on the proper conduct or level of performance the employee is expected to follow in the future? • Did the district expressly inform the employee of the consequences for failing to improve his/her teaching performance? • Did the employee have sufficient time to raise his or her performance to acceptable levels?

20. Districts Should… • Review existing contract evaluation language to avoid technical impediments. For example: • Avoid limiting formal evaluation to establish goals and objectives. • Avoid requiring that goals and objectives be established solely by mutual agreement. • Avoid including the judgment of the evaluator under the contract grievance procedure. • Avoid making written warnings and letters of reprimand subject to the grievance process. • Include an overall evaluation rating, such as “satisfactory” and “unsatisfactory.”

21. Districts Should… • Initiate training and in-service of evaluators to review evaluation procedures, performance standards and documentation techniques (FRISK) to maximize uniformity. • Standardize the evaluation process to cover substance, format and approach. • Establish and define unsatisfactory performance and related performance standards in plain, detailed, and complete language to avoid misinterpretation.

22. Districts Should… • Document • Document • Document unsatisfactory performance

23. Grounds for Dismissal • Education Code 44932 contains 12 grounds under which a permanent certificated employee can be dismissed. • Several of the grounds are antiquated or otherwise relied upon infrequently.

24. Grounds for Dismissal • The most commonly used grounds are: • Immoral or unprofessional conduct (a)(1); • Dishonesty (a)(3); • Unsatisfactory performance (a)(4); • Evident unfitness for service (a)(5); • Physical or mental condition unfitting him or her to instruct or associate with children (a)(6); • Persistent violation of or refusal to obey school laws of the state or reasonable regulations prescribed for the government of the public schools by the State Board of Education or by the governing board of the school district employing him or her (a)(7); and • Conviction of a felony or any crime involving moral turpitude (a)(8).

25. What the Law Requires • Evidence proving unsatisfactory performance • Unfitness to teach (Morrison Standards) • Fairness

26. Timelines • For dismissals based on unprofessional conduct or unsatisfactory performance, written notice with an opportunity to correct is required under EC 44938. • Correction Period: • For unprofessional conduct – at least 45 calendar days • For unsatisfactory performance – at least 90 calendar days

27. Definitions • Immoral Conduct • Not defined by Education Code. The Supreme Court in Board of Education v. Jack M. (1977) 139 Cal. Rptr. 700, held that the proper criteria to apply in a case of immoral conduct is whether the employee is “fit to teach.” • Applying this standard, courts have found “immoral conduct” to exist where there has been willful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community. Board of Education of San Francisco Unified SD v. Weiland (1960) 4 Cal Rptr. 286.

28. Definitions • Immoral Conduct may include: • Falsification of documents • Sexual Harassment

29. Definitions • Evident Unfitness for Service • No definition of Evident Unfitness in the Education Code. • In Morrison v State Board of Education (1969) 82 Cal. Rptr. 175, the California Supreme Court held that “unfitness for service” may be found where it can be shown that a teacher’s “retention in the profession poses a significant danger or harm to either students, school employees, or others who might be affected by his actions as a teacher.”

30. Definitions • Evident Unfitness for Service • In order to make the determination whether the conduct rises to the level of Evident Unfitness, the courts have set forth a number of factors for a district to examine (Morrison Factors): • Harm caused by the conduct (not only to students, but also the district, teachers, other staff, and the community; • Notoriety of conduct; • Proximity or remoteness in time;

31. Definitions • Evident Unfitness Morrison Factors continued: • Extenuating or aggravating circumstances; • Motive for the conduct; • Whether prior help has been given; • Likelihood of reoccurrence; and • Chilling effect on legal rights, if any.

32. Definitions • Evident Unfitness for Service • In Woodland Joint USD v. Commission on Professional Competence (1992) 4 Cal. Rptr. 2d 227, an appellate court formally defined “evident unfitness” as conduct showing that a person is “clearly not fit, not adapted to or unsuitable for teaching, ordinarily by reason of temperamental defects or inadequacies.” The Court continued that it “connotes a fixed character trait, presumably not remediable merely on receipt of notice that one’s conduct fails to meet the expectations of the employing school district.”

33. Definitions • Examples of Evident Unfitness: • Insulting remarks, disregard for Policy, and lack of discipline with students; • Vulgar remarks and gestures; • Racist statements.

34. Definitions • Unprofessional Conduct • No definition exists in the Education Code • In Woodland, the court simply found that “unprofessional conduct” was something short of evident unfitness to teach. • Accordingly, like “immoral conduct,” the main inquiry in an “unprofessional conduct” inquiry is whether the employee is “fit to teach.”

35. Definitions • Unprofessional Conduct • This is shown by a pattern of sub-standard performance. • It is crucial to show that the teacher was specifically and repeatedly notified that the performance was deficient, provided a remediation plan, and given assistance and time to correct inadequacies.

36. Definitions • Persistent Violation • This term requires that an employee has been notified of a requirement and continues to violate it. San Dieguito Union HSD v. Commission on Professional Competence (1985) 220 Cal. Rptr. 351. • However, one instance of such may not constitute “persistent” violation.

37. Definition • Moral Turpitude • Courts have held that “while not every public offense may involve conduct constituting ‘moral turpitude’…it is inherent in crimes involving fraudulent intent, intentional dishonesty for purposes of personal gain, or other corrupt purpose.” Rice v. Alcohol Beverage Control App. Bd. (1979) 152 Cal. Rptr. 285, review denied.

38. Questions?