Effectively Evaluating Staff Performance and Communicating with Employees to Improve Effectiveness

1
Effectively Evaluating Staff Performance and
Communicating with Employees to Improve
Effectiveness

• Megan E. Shafer, Esq. and Kenneth A. Roos, Esq.
• Wisler Pearlstine, LLP
• Office Court at Walton Point
• 484 Norristown Road
• Blue Bell, PA 19422
• 610-825-8400

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OVERVIEW

• Evaluating Non-Professional Employees
• Discipline/Termination of Non-Professional
  Employees
• Evaluating Professional Employees
• Discipline/Termination of Professional Employees
• Common Problems/Evaluation Strategy

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Evaluation of Nonprofessional Employees

• Typically governed by Board policy
• Evaluation protocols can also be found in
  CBA/Handbooks

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Evaluation of Nonprofessional Employees

• Suggestions for conducting evaluations
• Be specific
• Use input from multiple sources, if possible
• Use satisfactory ratings to set up unsatisfactory
  ratings
• Detail where satisfactory employees need to
  improve
• Tell them exactly what will or can happen if they
  do not improve
• Rate marginal employees more often than required
  by law or policy
• Personally observe classroom or workspace
• Do not sugarcoat
• Include union representatives in the process

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Evaluation of Nonprofessional Employees

• Performance Improvement Plans
• Implementation before/after unsatisfactory rating
• Articulate specific problems and expected
  improvement
• Identify ramifications for failure to meet
  improvement goals
• Establish timelines for check-in and final review
• Identify sources to assist with performance
• State to whom questions can be directed regarding
  plan and that, absent questions, they are
  presumed to understand the plan
• Preserve right to terminate for misconduct

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Evaluation of Nonprofessional Employees

• Last Chance Agreements
• Used in lieu of termination
• Agreement not to engage in specified conduct (for
  a specified time period)
• Failure to do so will result in immediate
  termination without regard to concepts of
  progressive discipline
• No recourse to the grievance/ arbitration
  procedure contained in CBA to protest
  termination, nor shall there be any other rights
  to challenge such termination

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Evaluation of Nonprofessional Employees

• Last Chance Agreements (cont.)
• Only grievance that can be filed relating to
  facts underlying such a termination is one that
  the District allegedly acted arbitrarily toward
  Employee by terminating his/her employment or
  that the facts upon which the violation is based
  are not credible by a preponderance of the
  evidence. Should arbitration occur, the
  Districts production of any evidence whatsoever
  supporting any violation of a District rule,
  regulation, policy, or practice will constitute a
  lack of arbitrary treatment and will further
  constitute just cause for the termination.
• Union acceptance of arrangement

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Discipline/Termination of Nonprofessional
Employees

• Nonprofessional employees may be
  disciplined/terminated for the following reasons
• Incompetency
• Intemperance
• Neglect of duty
• Violation of school laws of the Commonwealth
• Other improper conduct (policy, CBA)

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Discipline/Termination of Nonprofessional
Employees

• Basis for Discipline/Termination
• Just cause provision of CBA
• Progressive discipline generally required except
  where immediate discharge warranted.
• Verbal warning
• Letter of warning (indicate that future
  misconduct will result in disciplinary action up
  to and including termination)
• Recommendation of suspension or termination

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Discipline/Termination of Nonprofessional
Employees

• Procedural requirements
• Whenever employee required to meet with
  supervisor concerning any matter which could
  adversely affect employee status
• Employee must be given reasonable prior written
  notice of time and nature of meeting and
• Employee entitled to have representatives
  present.

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Discipline/Termination of Nonprofessional
Employees

• Employee must receive written notice regarding
  for discipline or discharge at the time action is
  taken. Copy should be sent to the following
• Employee
• Employees immediate supervisor
• Union president
• Employees personnel file

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Governing Law

• School Code
• 1108 TPEs
• 1123 Rating Systems
• Department of Education Standards
• 22 Pa. Code 351.21-351.28

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Evaluating Professional Employees

• All tenured and non-tenured teachers (but not
  LTS) and all other professional employees (i.e.,
  supervisors, principals, assistant principals,
  dental hygienists, counselors, nurses,
  librarians, school psychologists, etc.) must be
  rated.

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Evaluating Professional Employees

• Tenured teachers and other professional employees
  must be rated at least once per year.
• Non-tenured teachers and other professional
  employees must be rated at least once each
  semester.

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Evaluating Professional Employees

• Rating form
• Rating form PDE-5501 must be used unless
  alternative form approved by PDE.
• Number ratings for performance
• Check box for gross deficiencies

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Alternate Forms

• Process for approval of alternate form relatively
  easy
• Can synchronize with PDE 427
• For union members, you must use particular form
  if specified by CBA.

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Rating Instruments

• Detailed process for rating employees
• Established forms for observations etc.
• May supplement School Code and State Regulations
• May not contradict School Code and State
  Regulations
• Generally gives the professional employee
  additional protections.
• Typically cannot be changed unilaterally

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Evaluating Professional Employees

• Four main categories
• Personality
• Preparation
• Technique
• Pupil reaction

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Evaluating Professional Employees

• All ratings (whether satisfactory or
  unsatisfactory)
• Require substantiation by anecdotal records
• Require at least one classroom observation
• Must be discussed with teacher within 5 working
  days after the day of the final observation
  preceding the rating
• Must give teacher opportunity to sign rating

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Evaluating Professional Employees

• Superintendent must approve unsatisfactory
  rating.
• May rely on recommendations of principals
• Superintendent may also rate the employee
  originally
• Review applicable CBA to determine other
  requirements.

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Evaluating Professional Employees for
Instructional Certification Purposes

• Effective September 2, 2004, all school staff
  members working under a Pennsylvania
  Instructional I certificate that are being
  recommended for an Instructional II certificate
  must forward a completed Instructional I to
  Instructional II Assessment Form PDE 427 with
  their application.

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Evaluating Professional Employees for
Instructional Certification Purposes

• Tenure required per Act 16
• 3 years
• At least last review must be successful
• Source for this slide is found at
  http//www.teaching.state.pa.us/teaching/lib/teach
  ing/_Level_I_to_Level_II_ONLY--Blue_Copy.ppt.

• Level I to II assessment required per Chapter 49
• 3 years
• At least 6 successful evaluations PDE 427
• Other components as 24 credits required for Level
  II

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Evaluating Professional Employees for
Instructional Certification Purposes

• As part of the evaluation process to recommend
  teachers for an Instructional II, districts are
  strongly encouraged to use the Semi-Annual
  Employee Evaluation Form for Instructional I
  Teachers (PDE 426).
• Districts are permitted, however, to continue to
  use the existing PDE 5501 evaluation form or the
  district's own developed, state-approved
  professional employee evaluation form.

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Evaluating Professional Employees for
Instructional Certification Purposes

• The PDE 426 and 427 looks at four categories and
  aspects of teaching  
• Planning and Preparation  
• Classroom Environment  
• Instructional Delivery  
• Professionalism
• Source for this slide is found at
  http//www.teaching.state.pa.us/teaching/lib/teach
  ing/_Level_I_to_Level_II_ONLY--Blue_Copy.ppt.

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Evaluating Professional Employees for
Instructional Certification Purposes

• PDE 426
• Optional form
• Can continue to use PDE 5501 or PDE approved
  locally developed form
• Source for this slide is found at
  http//www.teaching.state.pa.us/teaching/lib/teach
  ing/_Level_I_to_Level_II_ONLY--Blue_Copy.ppt.

• PDE 427
• Mandatory form to be used when recommending for
  Instructional II (Sept. 2004)

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Evaluating Professional Employees for
Instructional Certification Purposes

• PDE 426
• Semi-annual evaluation of Instruction I teacher
  in 4 categories
• Used 2 times a year for 3 years
• Satisfactory or unsatisfactory rating
• Teachers performance criteria in each category
  contains content at the level of an initial
  instructor
• Initial instructor will be gaining further skills
  over each of the 3 or more years.
• Source for this slide is found at
  http//www.teaching.state.pa.us/teaching/lib/teach
  ing/_Level_I_to_Level_II_ONLY--Blue_Copy.ppt.

• PDE 427/RELATION TO PDE 426
• Overall assessment of the 6 (or more) PDE 426
  forms the categories findings
• Used for Instructional II recommendation by
  Assessor and Superintendent
• Level of performance requires that the initial
  teacher has achieved skills beyond the stated
  minimums established in the PDE 426

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Termination of Professional Employees

• Ratings as basis for dismissal for incompetency
• TPE only 1 unsatisfactory rating
• Professional employee
• 2 consecutive unsatisfactory ratings
• Must include classroom observations, at least 4
  months apart

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Termination of Professional Employees

• Examples of conduct that courts have determined
  justifies unsatisfactory ratings for teachers
• Relationships with students
• Classroom control
• Conduct and quality of required reports
• Insufficient or improper tests
• Lesson plans
• Relationships with co-employees
• Proper practices such as confidentiality of
  student information
• Excessive unexcused absenteeism

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Termination of Professional Employees

• Other bases for dismissal
• Immorality
• Intemperance
• Cruelty
• Persistent negligence in the performance of
  duties
• Willful neglect of duties
• Physical or mental disability
• Un-American activities
• Conviction or guilty plea with respect to a
  felony
• Persistent and willful violations of school law

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A Few Common Problems

• Employee suddenly becomes ill before an
  evaluation meeting
• Employee raises mental/physical medical
  condition/disability
• Employee claims poor performance is someone
  elses fault

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Strategies for Effective Rating

• Always begin with the end in mind
• Follow the Rating system to the letter
• Use satisfactory ratings to set up unsatisfactory
  ratings
• Make it clear that improvement is required or
  else next rating will be unsatisfactory

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Strategies for Effective Rating (cont.)

• Use the numbering system to send clear messages
• Use Performance Improvement Plans
• Rate more than required
• Use multiple observers
• Keep union involved

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Strategies for Effective Rating (cont.)

• Offer training and other support
• Combine with Discipline
• Have counsel review all unsatisfactory ratings
• Consider negotiated resignations in lieu of
  discharge
• Neutral references
• Extended health care benefits
• Expungement of ratings and disciplinary documents

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How to Avoid Litigation and Liability

• Know the law
• Give an exit interview
• Be careful giving references
• Be sensitive to potential discrimination claims