Certificated Evaluations

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Certificated Evaluations

• Presented by
• Jeanne Nava
• Assistant Superintendent, Human Resources
• Tulare County Office of Education

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Progressive Discipline

• Oral Warning
• Written Warning
• Letter of Reprimand
• Suspension without Pay
• Dismissal

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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
  employees conduct subject to any limitations in
  the collective bargaining agreement.

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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

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Evaluation Purpose

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

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CAUTION !

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

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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 administrators 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.

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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.

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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.

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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.

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Evaluation Procedure Checklist

• The evaluation goes in the employees 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)

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Evaluation Procedure Checklist

• Take time to do a thoughtful evaluation dont
  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!

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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.

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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.

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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.

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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.

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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.

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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?

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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?

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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.

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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.

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Districts Should

• Document
• Document
• Document unsatisfactory performance

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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.

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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).

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What the Law Requires

• Evidence proving unsatisfactory performance
• Unfitness to teach (Morrison Standards)
• Fairness

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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

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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.

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Definitions

• Immoral Conduct may include
• Falsification of documents
• Sexual Harassment

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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 teachers 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.

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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

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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.

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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 ones conduct fails to
  meet the expectations of the employing school
  district.

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Definitions

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

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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.

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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.

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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.

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Definition

• Moral Turpitude
• Courts have held that while not every public
  offense may involve conduct constituting moral
  turpitudeit 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.

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Questions?