Effective Documentation

1. Effective Documentation ESCAMILLA & PONECK, INC. Beverly R. Rickhoff

2. Types of Employees • The Texas Education Code basically provides that every school district teacher or administrator should have a Probationary, Continuing, or Term Contract

3. Probationary Contract Employee • A probationary contract is a one-year contract. The District can renew this one-year contract for two additional one-year periods. • A fourth year probationary contract can also be given to a teacher. • Mid-Year Hires: a teacher that begins teaching in mid-year will have completed his/her probationary period after serving the District for a full year. • Example: Teacher begins January 1996, Probationary Period ends May 1997.

4. HB 558 • Amends TEC § 21.102(a) to allow a district to employ teacher under a probationary contract if the teacher has allowed two or more years to pass before returning to district employment. Previously, Chapter 21 would not allow a school district to rehire a former teacher on a probationary contract, if the teacher had attained term or continuing contract status in that district before the lapse in service.

5. Continuing Contract Employee • This type of contract must be in writing and is given to teachers. “Teacher” means a principal, supervisor, classroom teacher, counselor, or other full-time professional employee who is required to hold a certificate issued by the State Board of Education Certification or a nurse.

6. Term Contract Employee • A term contract may not exceed five school years. • The teacher must serve probationary period before being given a term contract. • No property interest in contract beyond its term. • Staff Sheets should be prepared advising staff what type of contract each employee holds.

7. HB 1394 • Amends §21.202 of the Education Code to allow a principal or classroom teacher who has experience as either a principal or classroom teacher, respectively, to be hired under a term contract regardless of whether the person is being employed by the district for the first time.

8. Termination of Probationary, Continuing or Term Contract Employee • Probationary Contract Employee. • The Education Code allows the district to discharge a probationary contract employee at any time for “good cause” or at the end of contract term. • The board is required to give notice of its (decision) to terminate the employment of the teacher not later than the 45th day before the last day of instruction. (This was changed by Senate Bill 4. Previously, the board only had to give notice of it intent, now it must give notice of its decision.) • If notice is late, employee will be employed for another year.

9. Continuing Contract Employee • A teacher employed under a continuing contract may be discharged at any time for good cause or be suspended without pay. Suspension must be supported by good cause and cannot extend longer than the current school year. • If a teacher is discharged because of his/her fitness or conduct, the teacher is entitled to evaluation reports or any other memos, if requested in writing.

10. HB 1113 • TEC §21.106 has been amended. The addition of Subsection (d) allows a district an alternative method to return a teacher to probationary status. The new provision of the law does not require a district to first propose termination; however, the superintendent must provide the teacher with written notice of his or her intent to recommend termination or non-renewal. Other specific notice requirements are required and the new language still provides that the teacher’s agreement to the return to probationary status is required.

11. Term Contract Employee • The District may discharge a term contract employee at any time for good cause as determined by the board. The board may also suspend a teacher without pay for a period not to extend beyond the end of the school year for good cause pending discharge of the teacher or in lieu of terminating the teacher. • The District may non-renew an employee’s term contract if the district gives notice to the teacher no later than the 45th day before the last day of instruction in a school year. Failure to give timely notice is fatal.

12. Due Process • Probationary Contract Employee. • “Termination at the end of the school year” • “Best interests of the District.” • Decision cannot be appealed to Commissioner. • Teacher has right to grievance pursuant to District policy. • Failure to give timely notice is fatal. • Teacher has right to sue district in a court of law. • Administrators should be prepared to defend their actions by having documentation to establish the legitimacy of their recommendation.

13. “Termination during the school year.” • The District will have the burden of establishing that good cause exists to terminate the teacher’s probationary contract. • Due Process Hearing will be held.

14. Continuing Contract Employee. • To discharge a continuing contract teacher, the district is required to prove good cause. • Due Process Hearing will be held. • District has burden of proof by a preponderance of the evidence.

15. Term Contract Employee. • Non-renew. • TIME: If a term employee’s contract will be non-renewed, the District must give the teacher notice 45 days before the last day of instruction. • Hearing will be before the Board or Hearing Examiner. • The most recent evaluations of teacher will be considered if relevant to the reason for non-renewal.

16. Recommendation: Complete evaluations before taking recommendation of termination to the Board. • HB 1440 - Amends TEC §21.203(a) and §21.352(c) to change the required frequency of teacher appraisals in certain circumstances to once every five years. Teachers who qualify for less frequent appraisal than once each year must agree in writing and their most recent evaluation must (1) rate the teacher as at least proficient, or the equivalent, and (2) not have identified any area of deficiency.

17. Discharge During the Term. • Termination must be for good cause. • Due process hearing will be conducted. • Hearing is held before Hearing Examiner.

18. HB 1022 - TEC has been amended by adding §21.0031 that voids a probationary, term, or continuing contract if the employee fails to hold or fulfill the requirements for the necessary certificate or permit. The new statute provides districts with the alternative to terminate the employee; suspend the employee with or without pay; or retain the employee as an at-will employee at the same or reduced rate of pay in a position other than classroom teacher. The decision cannot be appealed, and no notice or hearing are required.

19. SB 1109 – Section 21.058 is added to the Education Code to provide for the revocation of a Chapter 21 certificate held by a person who is convicted of a Title 5 felony offense or is a registered sex offender, if the victim of the offense is under 18 years of age.

20. SB 1109 Cont’d. - The addition of Article 42.018 to the Code of Criminal Procedure requires the clerk of court to provide notice to the State Board for Educator Certification of certain convictions or deferred adjudication of a Chapter 21 certificate holder not later than the 5th day after the conviction or granting of the deferred adjudication. Notice must only be provided when the offense is a Title 5 offense or requires the person to register as a sex offender and the victim is under the age of 18 years old.

21. Hearing Examiner Process • The Hearing Examiner is the “judge” of the case. • At the hearing, the teacher has the right to be represented by a representative of his/her choice, hear the evidence on which the charges are based, cross-examine each adverse witness, and present evidence.

22. The Texas Rules of Evidence apply at the hearing. • Party Admission • Business Record • The School District has the burden to prove by a preponderance of the evidence that good cause exists to terminate the teacher’s contract.

23. Provide a mentor teacher Have beginning teacher observe a mentor teacher’s lesson Provide opportunities for in-services, trainings, workshops Beginning Teachers

24. Uninspired Teachers • Change of classroom assignment or grade level • In-services, training, workshops to obtain new ideas/teaching techniques • Review lesson plans to assure change of curriculum • Determine if growth plan is necessary

25. Documentation

26. Why do we Need to Document? • Documentation, effective documentation that is, is an absolute necessity in most termination and non-renewal situations. • Effective documentation can evidence a teacher’s failure to conform to the accepted standards of conduct of the profession, can be used to reflect that remediation was given, and can be used to reflect that the teacher was on notice of any problems.

27. conduct potentially harmful to students (inappropriate sexual comments or innuendoes) assaults/threats of assault refusal to follow Board policy or directives misappropriation of public funds ethics violations manufacturing grades failure to comply with corporal punishment policies criminal conduct aggressive physical contact with students Examples of Good Cause

28. Commissioner’s Definition of Good Cause • The Commissioner has stated that good cause for discharging an employee is defined as the employee’s failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances; an employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship. Baker v. Rice ISD, Docket No. 227-R2-493 (Comm’r Sept. 1995). • Texas Education Code 26.008(b): Good cause now includes encouraging or coercing a child to withhold information from a parent.

29. Remediation • The standard of good cause necessarily involves remediation. • After remediation is offered and there is little improvement, there may be good cause for termination. • No hard and fast rules as to how much remediation is required in a particular circumstance.

30. Types of Documentation • Oral Directives • Written Directives

31. Written Directives • Memo to file • Specific incident memoranda • Summary memoranda • Observation memoranda

32. Memoranda to File • Used basically to record minor infractions and serve as a memory-jogger. • Always note only the FACTS…keep it clean and unemotional. • Can be combined to create a summary memoranda.

33. Examples of Memo to File • Bad: • 3/15/2003: Ms. Segura turned in lesson plans late again. Ms. Jones, Department Chair, said this is because Ms. Segura has a drinking problem that is affecting her teaching duties. Told Ms. Jones to keep tabs on Ms. Segura and report to me.

34. Better: • 3/15/2003, Monday: 9am: Office: Spoke with Ms. Segura and reminded her that lesson plans are due on Fridays. She apologized and said it would not happen again. 2nd time late with lesson plans

35. Specific Incident Memoranda • Memoranda that apply to specific incidents or complaints. • First conference with the employee regarding the incident and then write the memo reflecting both the incident and the conference.

36. date of incident date and time of employee conference facts of incident laws, policies, directives or ethical provisions violated advise that conduct is not acceptable direct and advise regarding future conduct remedial activities advise if no improvement future employment status jeopardized employee signs memoranda Essential Elements of Specific Incident Memoranda

37. Summary Memoranda • Pull together and document all memos to file and any other incidents that have occurred. • Conference with the employee. • If employee files written response, draft a follow up memo addressing concerns. • Same essential elements of specific incident memo apply here.

38. Observation Memoranda • Part of the formal appraisal instrument and used to record and reflect the employee’s job performance. • Vital piece of evidence that can support contract terminations or non-renewals.

39. What can be Considered Documentation? • Memoranda • Written parent complaints • Copies of grade books or lesson plans • Receipts and attendance slips from in-services • Electronic recordings • Remember: to be used for termination the teacher has to be aware of the existence of the documentation.

40. How can I use Documentation? • Begin developing it at the beginning of the school year, or at the first sign of a problem. • Use it to identify problem employees for remediation or termination. • Use it for planning during termination time. • Use it to protect yourself and the district should litigation arise.

41. Creating Documentation During Investigations • Secure a written specific statement of the allegations from the complainant. • Contact the personnel department. • Conference with the employee regarding the allegations and obtain a statement from the employee. • Conduct witness interviews and obtain signed statements. • Create a final investigation report that includes all findings, facts and your recommendations.

42. Planning • Identify employees. • Identify the types of contracts that were given to your teachers. • Look, in particular, at the performance of all third year probationary teachers. Remember, a third year probationary teacher can be recommended for a fourth year probationary contract. • Identify ineffective or marginally ineffective teachers. • Identify weaknesses and begin to offer remediation activities.

43. Timeliness to Consider. • Begin effectively documenting today. • As mid-year approaches, school attorneys will need to meet with school administration to begin discussing potential terminations. • 45th day before the last day of instruction; • potential board meetings and agendas; and • deadlines for evaluations and assessments. • As mid-year approaches, contact Personnel Office. The School attorney will review these files with the Personnel Office to discuss the strengths/weaknesses of each case. If the file does not support termination, assistance will be offered to the administrator in order to complete documentation for termination.

44. Resignation Conference. • Discuss purpose of conference; • Begin by stating when you began to work with employee; • Advise employee that board will be considering administration’s recommendations for termination/non-renewal; • Advise employee that you will be recommending non renewal/termination for following reasons: • 1. ; 2. ; 3. ; • State Chronology of Events; • discuss directive issues, attempts to remediate, and problems which continue;

45. Resignation Conference Cont’d. • Discuss what strategies you utilized to provide remediation: • verbal conferences - professional assistance • growth plans - previous memos; • Discuss status/impression of improvement /lack thereof; • Discuss non renewal/termination will be taken to board on ; • If you wish to resign, you may do so voluntarily, but no later than . (Personnel office needs to be contacted); • Option is yours – Not hear anything then, I will assume that you will not resign, and administration will move forward with termination/non renewal.