SUPERVISION, EVALUATION,

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SUPERVISION, EVALUATION, TERMINATION/DISCHARGEO
F SCHOOL EMPLOYEES

• By Ramon Vigil, Esq.
• Cuddy McCarthy, LLP
• NMASBO 2012

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PERSONNEL ACTION MUST BE Lawful
Ethical Practical
Lawful
Practical
Ethical
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Hiring Process

• Application
• Interview (What can you ask?)
• References / Background Checks
• Vacancy Notice Local Hiring Procedures
• Use of Committees
• Notification to Applicants

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Supervision/Evaluations

• Purpose
• Improvement
• Support Personnel Decisions
• Procedures governed by Statutes, PED Regulations,
  Local Board Policy, Union Contract
• Know Job Descriptions of Employees

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Cycle of Supervision

• Specify Purpose Criteria
• Train Supervisors/Evaluators
• Pre-Conference
• Conduct Multiple Observations
• Formal Informal Job Observations
• Conduct Conferences
• Identify Areas for Development Improvement

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Cycle of Supervision (Cont.)

• Design a Growth Plan or Improvement Plan
• Provide Assistance, Guidance Support
• Determine if performance has improved (Sufficient
  Growth? Development?)
• Make employment decision

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Employee Evaluation Minimums

• Multiple Observations formal informal at the
  job site
• Confer Before/After Each Observation
• Identify Strengths Areas for Growth
• Collaboratively Develop Plan for Improvement
• Provide Assistance (individual guidance,
  workshops, classes, etc.)

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Cycle of Supervision

• IF THE SUPERVISOR CONSIDERS WORK PERFORMANCE
  UNSATISFACTORY, NOTICE SHOULD BE GIVEN TO THE
  EMPLOYEE OF THE POSSIBILITY FOR
  TERMINATION!!!!!!!!!!!!!!!!!!!!!!!!!

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Unsatisfactory Work Performance v. Misconduct

• Use Cycle of Supervision to identify and address
  unsatisfactory work performance
• Document with employee evaluations and employee
  growth plans
• Use Investigation Procedures / Interviews w/
  employees for Misconduct
• Document with memo/letter of reprimand

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Know the Difference

• Tenured v. Non-tenured employees
• Myth 1 Tenured employee can never be
  terminated.
• Myth 2 Non-tenured employee can be terminated
  for no reason.
• Term Contract v. At-Will Contract

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Termination / Definitions

• Termination In the case of a non-certified
  employee, the act of severing the employment
  relationship with the employee. In case of
  certified non-renewal of contract.
• Just Cause reason that is rationally related to
  an employees competence or turpitude or the
  proper performance of his duties and that is not
  a violation of the employees civil or
  constitutional rights

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Discharge / Definition

• Discharge severing the employment relationship
  with a certified/licensed employee prior to the
  expiration of the current employment contract.
• Licensed School Employees teachers, school
  administrators and instructional support
  providers.

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Instructional Support Providers

• Person employed to support the instructional
  program, including educational assistant,
  librarian, school counselor, social worker,
  school nurse, speech-language pathologist,
  physical therapist, occupational therapist,
  recreational therapist, interpreter for the deaf
  and diagnostician.

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NM Statutes

• Termination Sections 22-10A-24 and 25
• Termination Hearing before the Board of Education
• Termination Appeal Hearing before an Independent
  Arbitrator
• Notice of Reemployment Termination Section
  22-10A-22 Certified Instructors only

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NM Statutes

• Section 22-10A-26
• Excepted from Termination Provisions
• Certified School Administrators
• Non-Certified employee hired to perform primarily
  district wide management function
• Teacher hired to fill position of teacher
  entering military service

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NM Statutes

• Discharge sections 22-10A-27 and 22-10A-28
• Discharge Hearing before the Board of Education
• Hearing is recorded
• Appeal to an Independent Arbitrator
• Decision of Arbitrator may be appealed through
  the judicial process

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Protected Activities / Statutory Defenses to
Termination

• First Amendment Freedom of Speech, Association
• Union Activity
• Religious Activity
• Political Activity
• Retaliation for EEOC claim, Workers Comp.,
  Whistle Blower
• Title VII Race, Color, National Origin, Gender,
  Religion

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Protected Activities / Statutory Defenses to
Dismissal (cont.)

• Americans w/ Disabilities Act (ADA)
• Age Discrimination in Employment Act (ADEA)
• NM Human Rights Act, NMSA Section 28-1-7A All
  of Title VII plus Ancestry, Sexual Orientation,
  Gender Identity, Spousal Affiliation, Mental
  Handicap Serious Medical Condition

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