William Kritsonis, School Law, Ch 5 Personnel Issues

1
Personnel Issues

• William Allan Kritsonis, PhD

2
Overview

• Chapter V deals with personnel issues that arise
  during employment relationships. These disputes
  include
• I. Reassignments ,Compensation, Texas Teacher
  Appraisal History
• II. Teacher Appraisal
• III. Employment Benefits
• IV. Wage/Hour Requirements, Workers/Unemployment
  Compensation,
• Employee Grievances Organizations

3
Reassignment J.Hughes

• Most Texas teacher and administrator contracts
  contain a clause which states that the employee
  may be assigned and reassigned at the discretion
  of the superintendent.
• Complaints concerning an illegal reassignment
  likely will not receive a hearing at the Texas
  Education Agency, unless the employee has
  suffered financially.
• TEC 7.057 (a)(2) states, The commissioners
  jurisdiction is limited to cases involving
  parties aggrieved by the school laws of this
  state or a provision of a written employment
  contract between the school district and a school
  district employee if a violation causes or would
  cause monetary harm to the employee.

4
Reassignment Cont.

• Smith v. Nelson (2001) The court held that the
  commissioner did not have the jurisdiction to
  hear the appeal of a man who was reassigned from
  head coach/athletic director to P.E. teacher.
  There was a written contract involved, but the
  mans salary remained the same after the
  reassignment. He tried to claim that his loss of
  status would make it harder for him to find good
  coaching jobs in the future. The court
  disagreed! Allegations of speculative future
  losses are not enough to give the commissioner
  jurisdiction over such a case.

5
Compensation DisputesJ.Hughes

• Educators should be aware of the penalty-free
  resignation date which varies form district to
  district and year to year. This is important if
  an educator contemplates relocating. The
  educator will not be locked into a contract at a
  school they no longer desire to teach at if they
  execute decisions prior to this date. The date
  is calculated to be no later than the forty-fifth
  day before the first day of instruction of the
  following school year.
• San Elizario Educators Association v. San
  Elizario I.S.D. The San Elizario school board
  set salaries on July,10th. However, the teachers
  were locked into their contracts as of July 1st.
  When the new salary schedule actually lowered the
  salaries of some teachers, they took matters to
  the commissioner. The commissioner ruled the
  district was obligated to compensate the teachers
  pursuant to the previous years salary schedule.

6
Compensation Disputes Cont.

• Can the district get money back from an employee
  if they were overpaid?
• School district tries to recoup sick leave
  overpayments made the previous year.
• (Benton v. Wilmer-Hutchins I.S.D.,1983)
• The court held that the dispute over the previous
  years overpayments was unrelated to and could
  not generate deductions from teacher paychecks.
  The current salaries were amounts lawfully due,
  reasoned the court, and were not subject to the
  proposed unilateral deductions by the district.

7
Texas Teacher Appraisal History J. Hughes

• Prior to the passage of the Term Contract
  Nonrenewal Act (TCNA) in 1981 there was no state
  law requiring any kind of teacher evaluation in
  Texas.
• The TCNA required that all contract teachers be
  evaluated in writing at least once a year. All
  other decisions about evaluation, including what
  instrument to use, were left to the local
  districts.
• House Bill 72 in 1984 imposed the Texas Teacher
  Appraisal System (TTAS) which tried to adopt a
  uniform system of teacher evaluation in Texas.
• TTAS was intended to be an instrument that
  measured the difference between the average
  classroom teacher and the instructional star.
• Despite huge state investments in the development
  of TTAS, in 1993 the legislature dismantled the
  program and made significant changes to the
  appraisal system.

8
Teacher Appraisal A. Morrison

• The current appraisal system is known as PDAS
  (Professional Development and Appraisal System)
  and is based on observable, job-related
  behaviors. It involves a single appraisal by a
  single appraiser, assessing performance in eight
  domains which include
• Domain I Active, successful student
  participation in the learning process
• Domain II Learner-centered instruction
• Domain III Student Progress Evaluation and
  Feedback
• Domain IV Management of discipline, instruction,
  time, and materials
• Domain V Communication
• Domain VI Professional Development
• Domain VII Compliance with policies
• Domain VIII Academic improvements in student
  performance

9
Teacher Appraisal PDAS (Cont.)

• Although there are eight Domains on the PDAS, a
  single failure by the teacher may impact several.
• Miller v. Clyde I.S.D.,2003 In Clyde I.S.D. a
  teacher admitted that for two months she had not
  been teaching phonics as required by the
  district. Based on this information, the
  principal rated the teacher below expectations
  in four domains. In her appeal to TEA, the
  teacher argued that since the law requires each
  domain to be rated independently it was
  improper for the principal to rely on a single
  factor to reduce her rating in four domains. The
  commissioner did not agree with this line of
  reasoning.
• Rules adopted pursuant to PDAS require that a
  teacher be identified as a teacher in need of
  assistance if the teacher is evaluated as
  unsatisfactory in one or more domains.
• If the teacher is so designated, the supervisor
  and teacher must develop an intervention plan.
• However, the teacher can be nonrenewed without
  all this taking place
• Kinnaird v. Morgan I.S.D., 1999 In this case,
  the commissioner approved the non-renewal of a
  teacher despite the fact that he was not first
  given an intervention plan.

10
Teacher Appraisal PDAS (Cont.)

• PDAS is an annual affair, unless the district
  decides to appraise some teachers less frequently
  and the teacher agrees.
• If a teachers appraisal reflects a rating of at
  least proficient with no areas of deficiency,
  the teacher can be appraised less than once a
  year, provided that it is done at least every
  five years. The district must have a written
  agreement with any such teacher.
• Schools now are specifically authorized to send
  copies of a teachers evaluation (along with any
  rebuttals) to a district in which the teacher has
  applied for employment.
• Teacher appraisals are not accessible to the
  public.
• TEC 21.355 A document evaluating the
  performance of a teacher or administrator is
  confidential.

11
Teacher Appraisal PDAS (Cont.)

• The confidentiality of a teacher evaluation goes
  beyond the general public.
• Atty. Gen. Op. GA-0055, 2003 The attorney
  general issued an opinion in 2003 stating that
  the SBEC (State Board for Educator
  Certification), the governmental entity with
  authority over teacher certification, has no
  right of access to teacher evaluations.
• The Texas Administrative Code specifies that the
  PDAS is for classroom teachers only.
• Fenter v. Quinlan I.S.D. (2002) The commissioner
  concluded that a librarian is not a classroom
  teacher and is not entitled to the PDAS process.
  If the district chooses to evaluate librarians in
  some other manner, it may do so.

12
Teacher Appraisal PDAS (Cont.)

• How are administrators evaluated?
• For those administrators whose employment
  requires educator certification, state law
  requires a process quite similar to PDAS.
• The local district is to use either its own
  locally developed system or the commissioners
  recommended system.
• The law specifically prohibits the use of school
  funds to pay any administrator who has not been
  appraised within the preceding fifteen months.
• Principal Appraisals
• Their appraisals include consideration of the
  performance of the campus with regard to the
  academic excellence indicators and campus
  objectives, which are a part of the campus
  improvement plan (CIP).

13
Employment Benefits Deonta Daniels

• Planning and Preparation Period
• Exactly what benefits an employee is entitled to
  depends to a great extent on the actual wording
  of the employment contract and the policies of
  the school district.
• Each classroom teacher must have at least 450
  minutes within each two-week period for
  instructional preparation, parent-teacher
  conferences, evaluating students work (grading),
  and planning.
• TEC 22.003(a) During this planning and
  preparation period, the teacher may not be
  required to participate in any other activity.
• Duty-Free Lunch
• Classroom teachers and full-time librarians also
  are entitled to at least a 30 minute lunch period
  free from all duties and responsibilities
  connected with instruction or supervision of
  students, unless the district is faced with such
  dire situations as personnel shortage, extreme
  economic conditions, or unavoidable or unforeseen
  circumstances.
• TEC 21.405 In ay event a teacher may not be
  required to supervise students during the
  duty-free lunch more than one time per week.
• Teacher Retirement
• Government Code 822.001 Requires every employee
  of Texas public school districts to belong to
  T.R.S. (Teacher Retirement System of Texas).
• School districts are not required to participate
  in the federal Social Security system, and most
  do not.
• School districts also may provide various
  insurance programs for their employees paid for
  out of local funds.

14
Employment Benefits Cont.

• Personal Leave
• TEC 22.003(a) The law specifically states that
  the local school board may not restrict the
  purposes for which the leave may be used.
• There is no limit on the accumulation of personal
  leave and it moves with the employee from one
  district to another.
• Unfortunately, accumulated sick leave cannot be
  converted into personal leave and will still be
  governed by prior law (S.S.L.P.,1995), which
  limited its use to sickness or death in the
  immediate family.
• Health Insurance
• TEC 22.004 Requires each school district
  provides its employees health insurance. The
  insurance plan must be comparable to the
  insurance program the state offers its employees
  and cost may be shared by employees and the
  district.
• Under the states health insurance program,
  schools districts must certify annually to the
  executive director of the Employees Retirement
  System that the districts coverage meets the
  requirements of the statute.

15
Employment Benefits Cont.

• Assault Leave
• This paid leave can continue, if necessary, up to
  two full years and leave taken as a result of an
  assault may not be deducted from accrued sick
  leave. (This is paid leave on top of the sick
  leave the employee already has.)
• TEC 22.003 Upon investigation of an assault
  claim, the district may change the assault leave
  status and charge the leave, first against
  accumulated personal leave, and then, if
  necessary, against the employees pay.
• Penal Code /TEC 22.003 (c)) To be eligible for
  assault leave, the employee must be physically
  assaulted by a person who could be prosecuted for
  having committed an assault, or who could not be
  prosecuted for an assault only because the
  persons age or mental capacity makes the person
  a nonresponsible person.
• Temporary Disability Leave
• TEC 21.409 Provides that each full-time educator
  employed by a school district is entitled to a
  leave of absence for temporary disability without
  fear of termination.
• Request must be made to the superintendent and
  must include a physicians statement confirming
  the inability to work and indicating the date the
  employee wishes to begin the leave and the
  probable date of return.
• During pregnancy, teachers are allowed to take a
  leave of absence only for the period a physician
  certifies they are unable to work.
• Temporary leave is unpaid. The primary purpose
  of the leave is to assure the employee that he or
  she will have a job upon returning to good
  health.

16
Employment BenefitsTemporary Disability
Leave(Cont.)

• What happens if a teacher is due back from
  disability leave and there are no openings on the
  campus where the teacher taught?
• The attorney general concluded that the teacher
  returning from disability leave must be placed on
  his or her former campus unless another principal
  voluntarily accepts the employee. The returning
  employee is to go to the former campus if a
  position is available there. However, if no
  position is available, the school cannot force
  some other principal to accept the employee. As
  of the beginning of the next school year,
  however, the school district has the duty to make
  sure a position is available.
• TEC 21.409(a) The contract or employment of the
  educator may not be terminated by the school
  district while the educator is on leave of
  absence for temporary disability.

17
Employment Benefits Cont.

• Family and Medical Leave
• Under the Family and Medical Leave Act (FMLA),
  eligible employees are entitled to up to twelve
  weeks of unpaid leave per year
• To care for a newborn, adopted, or foster
  children
• To care for a spouse, child, or parent with
  serious health conditions
• Or when serious health conditions prevents the
  employee from performing the essential functions
  of the job.
• Miscellaneous Leave Policies
• Other types of leave allowed by the state include
  military leave and developmental leave.
• TEC 431.005 Provides employees who are members
  of state militia or the U.S. reserve forces up to
  fifteen days per year of leave without loss of
  salary for participation in authorized duty.
• TEC 21.452The Board of Trustees may grant
  certified teachers who have served at least five
  consecutive years in the district a developmental
  leave of absence for study, research, travel, or
  other suitable purpose.
• While on developmental leave, the teacher is
  entitled to the same employee benefits available
  to other employees of the district.

18
Wage / Hourly RequirementsDaimon Sweet

• In 1985 the U. S. Supreme Court ruled that the
  minimum-wage and maximum-hour provisions of the
  Fair Labor Standards Act (FLSA) apply to local
  government functions.
• The FLSA provisions do not apply to everyone.
• Workers are divided into two general categories
  exempt and non-exempt.
• Exempt means employees are not covered by the
  FLSA provisions and thus are not entitled to
  extra benefits for work in excess of the
  forty-hour week (overtime).
• Non-exempt means that employees are covered by
  the FLSA provisions and thus are entitled to
  extra benefits (overtime and comp time) if
  they work more than forty hours a week.
• Exempt employees fall under three broad
  categories Executive, Administrative, and
  Professional.
• Teachers and school administrators who serve as
  principals, assistant principals, and other
  positions related to instruction are specifically
  exempt from FLSA coverage.

19
Workers/Unemployment Compensation Daimon Sweet

• Workers Compensation State law provides that
  school districts shall extend such benefits to
  its employees by one of the following options
  (1)Becoming a self-insurer, (2)providing
  insurance under workers compensation insurance
  contracts or policies, or (3)entering into
  interlocal agreements with other political
  subdivisions providing for self-insurance.
• Unemployment Compensation The states effort to
  help people over the rough spots and is intended
  to provide compensation for a specified number of
  weeks to people who are unemployed through no
  fault of their own.
• There are two situations where an employee should
  not receive unemployment compensation benefits
  (1) If the employee voluntarily quits or (2) if
  the employee is dismissed for misconduct.

20
Employees Grievances Daimon Sweet

• Employment Grievances A Little History
• Texas Constitution, Article I,27 Provides that
  the citizens shall have the right, in a peaceable
  manner, to apply to those invested with the
  powers of government for redress of grievances
  by petition, address, or remonstrance
  (grievance).
• Government Code 617.005 Acknowledges the right
  of public employees to present grievances
  concerning their wages, hours of employment or
  conditions of work either individually or through
  a representative that does not claim the right to
  strike.
• Two significant changes happened during the 1980s
  to employee grievances in the public sector (1)
  The scope of what was determined grieveable
  expanded tremendously and (2) the responsibility
  of school administrators and board members to
  hear grievances was spelled out in some detail
  for the first time.
• Grievances are routinely filed over assignments
  and reassignments, appointments to extra duty,
  salary and extra pay, teacher appraisal, and the
  wording of reprimands or other written
  communications.
• If an employee is terminated and has no other
  means of complaining about the decision, a
  grievance can be filed.

21
Hearing Employee Grievances Daimon Sweet

• Texas Constitution, Article I, 27 Does not
  require school boards to negotiate or even
  respond to grievances and complaints filed by
  those being governed, but surely they must stop,
  look, and listen.
• The Texas Constitution simply requires school
  boards to consider the grievances addressed to
  them by citizens, including the districts
  employees.
• The Texas Constitution only guarantees citizens
  access to the governments ear. According to the
  court, although a school board does not have a
  duty to provide formal procedures for citizens to
  vent their complaints, it must consider
  petitions and grievances.
• An open forum at each board meeting suffices to
  provide the constitutionally required access to
  the school board.

22
The Role of Employee Organizations Daimon Sweet

• Collective Bargaining on the National Scene
• National Labor Relations Act (NLRA) 1935
  Bargaining Rights
• The right to organize collectively or to refrain
  from doing so.
• The right to be represented by a single
  bargaining agent.
• The right to democratic internal union
  organization.
• The right to bilateral negotiations over
  conditions of employment.
• The right to a binding contract between the
  employer and the union (individual employee
  rights are surrendered to the bargaining agent).
• The right to strike or to negotiate binding
  arbitration of both grievance and contract term
  disputes.

23
The Role of Employee Organizations Cont.

• The Law in Texas
• Texas has a right-to-work law with regard to
  public employment.
• Government Code 617.004 An individual may not be
  denied public employment because of the
  individuals membership or nonmembership in a
  labor organization.
• Government Code 617.002 Texas specifically bans
  collective bargaining in the public sector.
• Government Code 617.003 and 617.005 Texas
  prohibits strikes or organized work stoppages by
  public employees and allows public employees to
  present their grievances only through
  organizations that do not claim the right to
  strike.
• Texas law does not prohibit unions from existing,
  nor public employees from joining them. In fact,
  Texas law repeats itself in an effort to make
  sure that employees are not forced into
  membership in any particular group.
• To facilitate membership in professional
  organizations, the legislature has added TEC Code
  22.001 requiring school districts to deduct from
  an employees salary an amount equivalent to
  membership fees or dues in a professional
  association if the employee so request.

24
References and Acknowledgements

• The Educators Guide to Texas School Law Jim
  Walsh, Frank Kemerer, and Laurie Maniotis.6th ed.
• Jett v. Dallas I.S.D. (1989)
• Anderson v. Pasadena I.S.D. (1999)
• Finch v. Fort Bend I.S.D. (2003)
• Briggs v. Crystal City I.S.D. (1972)
• San Elizario Educators Association v. San
  Elizario I.S.D.
• Benton v, Wilmer-Hutchins I.S.D. (1983)
• Miller v. Clyde I.S.D. (2003)
• Kinnaird v. Morgan I.S.D. (1999)
• Fenter v. Quinlan I.S.D. (2002)
• Strater v. Houston I.S.D. (1986)