Legal Basics of Certified Evaluation & Discipline

Legal Basics of Certified Evaluation & Discipline Teresa T. Combs KSBA Director of Legal & Administrative Training Services

KRS 161.120Disciplinary Actions Relating to Certificates - Appeals • The EPSB may: • Revoke, suspend, or refuse to issue or renew certificates… • Impose probationary or supervisory conditions upon • Issue a written reprimand, or • Admonishment; or • Any combination of those actions. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

KRS 161.730 • KRS 161.730 requires each board of education to enter into written contracts of employment with all teachers, either “limited” or “continuing”; • A limited contract means: • A contract for the employment of a teacher for a term of one year or for a portion of a school year. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

KRS 161.750Nonrenewal of Limited Contracts • Any teacher may be non-renewed under a limited contract upon notice. • The superintendent shall present written notice of nonrenewal no later than May 15. • The teacher shall be presumed to have accepted employment if he/she does not give notice within statutory timelines. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

KRS 161.720 • A continuing service contract… • Remains in effect until the teacher: • Retires; • Resigns; or • Is terminated or suspended. • Board of Education of Perry County v. Jones No portion of this document is to be reproduced without the express permission of Teresa T. Combs

KRS 161.740Eligibility for Continuing Service Status… • Teachers eligible for continuing service status in any school district shall… • Hold a standard or college certificate… • Meet the qualifications for Vocational Education Teachers… • Currently employed teacher reemployed after teaching • Four (4) consecutive years in same district… • Four (4) years within a Six (6) year period in same district. • A new district may require one probationary year before granting tenure. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

KRS 161.790Termination of Continuing Contract • (1)(a) Insubordination, violation of the school laws/regulations of KBE, EPSB, regulations of the local board or refusal to recognize/obey the authority of the superintendent, principal, or any other supervisory personnel. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

KRS 161.790Termination of Continuing Contract … • (b) Immoral character or conduct unbecoming a teacher; • (c) Physical or mental disability (but ADA); or • (d) Inefficiency, incompetency, or neglect of duty, when a written statement identifying the problems or difficulties has been furnished the teacher or teachers involved. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Documentation • A tribunal shall be appointed on the request of a teacher (or certified administrator). • Teachers dismissed by a distinguished educator have a right of appeal. • OAG 92-135. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Documentation Continued • Documentation is required for dismissal of teachers by a distinguished educator. • A superintendent receiving a recommendation of dismissal shall follow the procedures in KRS 161.790(3) to 161.790 (6) and KY OAG says teacher has the right to a tribunal. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Hearing Entitlement • Teacher who has served as a school principal is entitled to a hearing prior to being transferred to a non-certified administrative position. • Crawley v. Board of Education of Marion County No portion of this document is to be reproduced without the express permission of Teresa T. Combs

KRS 161.790Termination of Contract by Board… • As an alternative to termination • The superintendent may impose other sanctions, including: • Suspension without pay • Public reprimand or • Private reprimand • Suspension with pay per local board policy. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

KRS 161.790Termination of Contract by Board… • Charges of insubordination, inefficiency, incompetency, or neglect of duty shall be supported by… • A written record of teacher performance by… • Superintendent; • Principal; or • Other supervisory personnel of the district • The superintendent shall furnish • A written statement specifying in detail the charge(s) against the teacher. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Sufficiency of Charges • Charges against a tenured teacher in connection with a termination are not sufficient where they generally charge inefficiency and are unsupported by a teacher’s performance record and statement identifying the problem. • Blackburn v. Board of Education of Breckinridge County • The charges must be specific to support discharge of the teacher. • Osborne v. Bullitt County Board of Education No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Sufficiency of Charges • Charges of “inefficiency, incompetency and neglect of duty” are not sufficiently specific, but a attached report stating details must be considered a part of the charges and sufficient. • Knox County Board of Education v. Willis. • Charges which give notice of their essential nature and bases are sufficient. • Board of Education of Ashland School District v. Chattin No portion of this document is to be reproduced without the express permission of Teresa T. Combs

KRS 161.790Termination of Contract by Board… • The teacher may within 10 days after receiving the charges give notice of intent to challenge the charges. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Administrative Demotion – Equal Protection – KRS 161.765 • Proper test to be applied under the Equal Protection Clause and KY Const § 3 and 59 is whether a rational basis exists for the different treatment of administrator. • The ordinary duties of a school principal differ greatly from that of a teacher, thus justifying the different treatment. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Administrator Demotion • KRS 161.765 — Must have completed 3 years in an administrative position • Superintendent must give notice to both the local Board and the employee as set out in KRS 161.760 -- reduction in responsibility notice. • The notice and minutes should reflect a reduction in responsibility and a reduction in salary. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Administrator Demotion Continued • The earlier of: • (1) 90 days before 1st student attendance day or • (2) May 15 • Within 10 days of receiving the notice of demotion, administrator can file notice of intent to appeal with the superintendent. • If no appeal notice filed, demotion is final. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Superintendent’s Statement of Grounds • If appeal notice is filed, superintendent must provide a written statement of grounds for the demotion. • Must be specific and complete. • Where appropriate, the grounds must state: • Dates, times, names, places, circumstances. • Superintendent’s grounds statement must include; • Date, time , and place for a demotion hearing. • Demotion hearing must be between 20 and 30 days from service of the statement of grounds on the administrator. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Demotion Hearing Process • Upon receipt of superintendent’s grounds statement, administrator must, within 10 days, file a written answer. • Failure of the administrator to file this answer makes the process final. • The hearing is before the local board of education — Board chair presides. • Board may issue subpoenas. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Demotion Hearing Process Continued • Administrator can have a public or private hearing. • Only the matters in the superintendent’s statement of grounds will be heard. • Board makes its decision in private. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Tips on Dealing with Employees • Tell your staff they must comply with Board policy/procedure, SBDM policy/procedure & administrative directives. • Tell them failure to comply can lead to loss of their jobs; loss of their teaching certificates; & in some cases, civil litigation & criminal fines/penalties. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Tips on Dealing with Employees Continued • Address issues with staff in a timely fashion. • Document that you have discussed the problem with the staff member. • If the behavior is severe, make sure it gets recorded in the evaluation. • If the performance does not improve on even small issues you have addressed with your staff, put that in the evaluation. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Tips on Dealing with Employees Continued • Issue warnings & reprimands. • It is good to do this in writing with a statement in there that, “Further violation of Board policy/administrative directives, etc., can result in further disciplinary action up to & including termination of employment.” No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Don’t Set Yourself up for Failure • Don’t hire people who don’t fit the position – • From either: • A qualification/competency standpoint; or • A personality standpoint. • You do not want to dread going to work because you hired a bossy/whiny person. • Problems you perceive on paper or at the interview do not get better. • Beware of the applicant who tells you how he/she would change what you are currently doing – unless you ask that. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Evaluation Tips • Stay focused on job performance. • Don’t allow employee’s personal problems to intrude upon the performance discussion. • Treat the evaluation process seriously & convey that the employee should do the same. • Give constructive feedback/criticism. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Evaluation Tips Continued • Don’t discuss employee problems with others. • Give praise where it is due verbally & in writing. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Focus on What is Important • Avoid nit-picking. • Consider critical performance incidents/achievements (good or bad). • Prioritize employee improvement goals. • Be honest about the good, the bad, & the ugly. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Honesty • Don’t wait until evaluation time to discuss problems. • Supervisor feedback – • Positive & negative – • Should be ongoing No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Be Fair • Be objective • Consider circumstances beyond employee’s control. • Consider past performance • Avoid biases unrelated to job performance. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Follow Up • Exhibit patience if you see obvious effort to improve. • Important to give feedback on effort shown/improvement, or lack thereof. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

The Fear Factor • Do not be afraid to inform employee he/she has this job to accomplish employer’s goals – • Not employee’s own agenda. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Equal Treatment • Except where the law dictates additional protection for some • Example: • Americans with Disabilities Act No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Corrective Action Plans Suggestions • Identify specific professional development and provide continuing long-term follow up. • Plan a letter of reprimand outlining actions to be taken if inappropriate behavior continues. • Document very specifically the rules/directives that are not being followed (insubordination, confidentiality) and when the actions occurred. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Corrective Action Plans Suggestions Continued • Assign a coach/mentor to meet with this person on a weekly basis for feedback. • Identify a time when the district response to inappropriate actions will move from corrective to punitive. • Discuss administratively a timeline when you move from a counseling agenda to discipline. • Determine what actions/inactions will warrant termination or suspension. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Corrective Action Plans Suggestions Continued • Step by step plan to address gross misconduct that may lead to dismissal • Insure your plan of action has been developed for progressive discipline. • Work with superintendent and board attorney to insure the district is protected from liability that may result in legal actions against the district. • Have your material organized. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Corrective Action Plans Suggestions Continued • Document what you told teacher/employee to do – have teacher/employee sign he/she has seen it and understands it. • Set timelines to get training; to observe others; etc. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Corrective Action Plans Suggestions Continued • Have short-term periodic follow up. • Ask specific questions and get proof employee has done what you asked him/her to do. • Ask teacher what he/she has learned from these experiences. • Ask teacher how this has changed what he/she is doing. • Conduct additional paperwork reviews, or evaluations, as needed to check on results. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Teacher Termination Timelines • Sajko v. Jefferson County Board of Education • Court held notice to Superintendent was satisfied by facsimile to school district counsel on tenth day. However, the teacher provided notice to the Commissioner by regular mail, which the Commissioner did not actually receive until “day 11”. Kentucky Supreme Court held receipt of notice within the ten day time frame was required. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Teacher Timeline Continued • Court relied on general rule that if statute specifies written notice, but not how it is to be given, written notice is deemed to be given upon receipt. Court confirmed that both the Superintendent and the Commissioner must receive notice within the ten day deadline. Notice may be given by any legally recognized means, including mail, hand delivery and facsimile, but receipt within the deadline is required. The Court specifically declined to decide whether notice by telephone or e-mail within the deadline would suffice. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Tribunal Case • Hearing is public or private (teacher’s discretion). • Tribunal decision is by majority vote. • Teacher shall have the right to appeal to court. • Board may appeal tribunal decision to court. • Reis v. Campbell County • Tribunal may reduce penalty supt. recommends. • Fankhauser v. Cobb No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Due Process • Statutory procedure provided for termination of contract of tenured teacher does not deprive teacher of procedural process because the school board occupies the roles of employer, investigator, accuser, prosecutor, jury and judge. • Board of Education of Pulaski County v. Burkett No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Due Process Continued • Suspension of teacher did not violate any property or liberty interest in continuous pay and benefits, even though there was no hearing prior to imposition of suspension. • Teacher was given statement of charges, triggering tribunal which teacher did not utilize, and there was no indication that any pay loss she sustained could not be compensated through lawsuit. • Jefferson v. Jefferson County Bd of Education No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Unlawful or Unsafe Assignments • An order by a superior directing a teacher to search for a bomb or other life-threatening device need not be obeyed and dismissal charges against a teacher could not be successfully based on the refusal of a teacher to comply with such an unreasonable or dangerous assignment. • OAG 77-254 No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Conduct Unbecoming a Teacher • The R-rated movie “Pink Floyd – The Wall” was shown on a non-instructional day as a “treat” for the students. • Teacher had not previewed the film and left the room several times while the film was being shown and made no attempt to explain any message student might have derived from viewing it. No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Conduct Unbecoming a Teacher Continued • Held: • The teacher’s conduct in showing the film which contained violence and nudity to a high school class was not expressive or communicative. • Thus, First Amendment does not protect her from discharge for that conduct. • Fowler v. Board of education of Lincoln County, Kentucky No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Conduct Unbecoming a Teacher Continued • Where a charge for termination of a tenured teacher is based evidence of immoral character “or conduct unbecoming a teacher,” the requirement of KRS 161.790(2)(a) that the charge be supported by written records of teacher performance does not require an evaluation of the teacher during the tenure of employment. • Board of Education of Laurel County v. McCollum No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Conduct Unbecoming a Teacher Continued • Where a teacher who is supposed to be teaching homebound students calls in sick “but drives a coal truck to a neighboring state that day instead and submits a request for sick leave: • The termination of such teacher for conduct unbecoming a teacher is supported by sufficient evidence. • Board of Education of Laurel County v. McCollum No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Conduct Unbecoming a Teacher Continued • Contracts of tenured teachers may be terminated for conduct unbecoming a teacher or immoral conduct involving off-campus activities with students, notwithstanding written records indicating satisfactory teacher performance. • Despite the fact that their actual in-class teaching performance was satisfactory, tenured teachers can be discharged for off-campus smoking of marijuana with two fifteen-year-old female students. • Board of Education of Hopkins County v. Wood No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Legal Basics of Certified Evaluation & Discipline