Ensuring Lawful, Ethical, and Practical Personnel Actions in Schools

1. SUPERVISION, EVALUATION, & TERMINATION/DISCHARGEOF SCHOOL EMPLOYEES By Ramon Vigil, Esq. Cuddy & McCarthy, LLP NMASBO 2012 Cuddy & McCarthy, LLP

2. PERSONNEL ACTION MUST BE • Lawful • Ethical • Practical Lawful Practical Ethical Cuddy & McCarthy, LLP

3. Hiring Process • Application • Interview (What can you ask?) • References / Background Checks • Vacancy Notice & Local Hiring Procedures • Use of Committees • Notification to Applicants Cuddy & McCarthy, LLP

4. Supervision/Evaluations • Purpose: • Improvement • Support Personnel Decisions • Procedures governed by Statutes, PED Regulations, Local Board Policy, Union Contract • Know Job Descriptions of Employees Cuddy & McCarthy, LLP

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6. 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 Cuddy & McCarthy, LLP

7. 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 Cuddy & McCarthy, LLP

8. 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.) Cuddy & McCarthy, LLP

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10. Cycle of Supervision • IF THE SUPERVISOR CONSIDERS WORK PERFORMANCE UNSATISFACTORY, NOTICE SHOULD BE GIVEN TO THE EMPLOYEE OF THE POSSIBILITY FOR TERMINATION!!!!!!!!!!!!!!!!!!!!!!!!! Cuddy & McCarthy, LLP

11. 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 Cuddy & McCarthy, LLP

12. 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 Cuddy & McCarthy, LLP

13. 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 employee’s competence or turpitude or the proper performance of his duties and that is not a violation of the employee’s civil or constitutional rights Cuddy & McCarthy, LLP

14. 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. Cuddy & McCarthy, LLP

15. 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. Cuddy & McCarthy, LLP

16. 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 Cuddy & McCarthy, LLP

17. 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 Cuddy & McCarthy, LLP

18. 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 Cuddy & McCarthy, LLP

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20. 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 Cuddy & McCarthy, LLP

21. 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 Cuddy & McCarthy, LLP

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