Addressing Teacher Performance Issues and

Contract Renewals ©

Campbell Shatley, PLLC674 Merrimon Ave.Suite 210Asheville, NC (828) 378-0064

Since Last We Met . . . • NCAE v. State of North Carolina

• Guilford/Durham County Schools v. • State of North Carolina

• 2014 Legislative Session• Salary Increases

• 2014 Election

NCAE v. State of NC • Filed in 2013

• Challenged the constitutionality of abolishing tenure

• Pipeline Argument: Teachers not awarded tenure yet challenged that the State had made the promise of tenure if they worked four years in a district

• NCAE did not request a temporary injunction; instead made the tactical decision to try to have the entire matter heard by the Court before Boards made 25% selections

GCBOE v. State of NC• Filed in 2014• The new statute (115C-325.1 et al.)

unconstitutionally interfered with Board’s contracts with teacherso "Carrot and Stick" Approach: We’ll give you

more money if you give up tenure• GCBOE moved for preliminary injunction• May 2014, Honorable Richard Doughton awarded

the injunction• GCBOE did not have to adhere to 25% Rule• Everyone except GCBOE scrambles, trying to

figure out whether this applies to them.

Back to Your Previously Scheduled Program

• A few weeks later, Honorable Robert Hobgood hears the NCAE case on the merits

• Enters Summary Judgment for NCAE (citing Judge Doughton’s opinion)

• Ruling put forth a permanent injunction staying any aspect of the 2013 Appropriations Act that interfered with tenure rights

• Ruling enjoined the 25% Mandate• Ruling found that Pipeline Teachers did not have

standing

Let the Games Begin• Legislature comes back into session in May 2014• Several proposals are offered:

o Appeal the NCAE ruling?o A new 35% provision?o Place career status back into the law?o Dual salary schedule (tenure v. non-tenured)?

• In the end, the new budget did not address 115C-325.1 et al.

• However, teachers were given a raise and a new salary schedule

Let’s try this again . . .

Status as of September 1, 2014 Status Through 2018 2018 and Beyond

Career Status Maintains Career Status Maintain Career Status

Probationary/Contract Teacher 1 year contracts 1, 2, or 4 year contracts

Career Status Teacher Moves 1 Year Contracts 1, 2, or 4 year contract

Teacher Contract Non-Renewals

A. Legal Basis1. Deadline to notify teacher = June 12. Teacher has right to “Petition” Board for hearing3. Campbell Shatley recommends: “The petition must

state: 1) the basis for the appeal; and 2) the relevant facts underlying the claim. Hearings may be granted by the board only when the employee presents evidence of a violation of state law or unlawful discrimination.”

4. Final decision from Board = June 15 or later if hearing

5. Reason for Recommendation = ANY RATIONAL BASIS6. Reason cannot be

o “Arbitrary or Capricious = Nothing in the “record”.o Record = evaluations, memos, letters, etc. in the personnel fileo “Discriminatory = existing law (race, age, sex, disability, etc.)o “Personal” = ? . . . “It’s always personal!”

» Use a “disinterested administrator” to review the principal’s recommendation in cases of possible personal bias

o Political = First Amendment issue» Personal job complaints NOT protected speech» Matters of public concern ARE protected speech

7. Board does not have to make “findings”, HOWEVER, Board must see the reasons in the personnel file for a performance-based non-renewal.

• Take-Aways

• Principal must notify Superintendent before June 1 to allow time for Superintendent to meet with teacher (resignation)

• Principal should finish summative evaluation before recommending non-renewal to Superintendent (put problem employees on a faster track)

• Principal must be able to articulate “reasons” and show them in the Personnel file to the Board of Education before making recommendation to Superintendent

Employee Write-Ups• Documentation

o Evaluations including artifacts and comments!

o All written warnings, directives, and reprimands should be artifacts on the next evaluation.

• Elements of a write-up

o i) the performance issue, ii) why it impacts students and/or the administration of the school, iii) any previous warnings, directives, reprimands, iv) all previous attempts to assist the employee in improving and v) a clear statement as to whether the employee has or has not made any improvement.

o Use Plain English!

o Your “audience” is the teacher AND the Board of Education

Use of Growth/Improvement Plans

A. Growth Plan Triggers• Monitored = At least one “developing” on the

Summative Evaluation• Directed = At least one “not demonstrated” or at least

one “developing” two years in a row on the Summative Evaluation

B. Growth Plan timelines• Monitored = 1 school year (even if mid-year)• Directed = 1 school year or shorter as determined by

LEA

C. Growth Plan components• identify the Standards and Elements to be improved, • the goals to be accomplished, • the activities the teacher shall complete to achieve

Proficiency, and • a timeline

D. Mandatory Improvement Plans (MIPs)• “Last resort” and completely optional• Exception for low-performing schools =

Superintendent must “consider” MIP or recommendation for dismissal if triggered

E. Mandatory Improvement Plan Triggers (“MIPs”)• Teacher receives a rating that is below proficient or

otherwise represents unsatisfactory or below standard performance on any standard on any observation or year-end evaluation

• Superintendent or designee must determine that an individual, monitored or directed growth plan will not satisfactorily address the deficiencies

• Any time a licensed employee engages in inappropriate conduct or performs inadequately to such a degree that such conduct or performance causes substantial harm to the educational environment and immediate dismissal or demotion is not appropriate

• Principal shall document the exigent reason for immediately instituting a MIP

F. MIP Development and Elements• With teacher input• Minimum of sixty (60) instructional days to complete (90

instructional days or by the beginning of next school year for low-performing)

• Target specific performance areas with substantial deficiencies • Set of strategies • Uses a qualified observer (except for low-performing schools)

G. Results of Principal Reassessment• Principal reviews plan compliance & report from qualified

observer• Failure to become proficient = Principal may recommend

dismissal / demotion / non-renewal• Failure to become proficient = substantial evidence of the

employee's inadequate performance under G.S. 115C-325.

• Take-Aways

o MIPs are optional

o Question for all action plans vs. recommendation for non-renewal = Can this employee be saved through the use of a plan?

CONTRACT TEACHERS(Principals' Action Timeline)

August May June 1

· Counsel· Direct · Warn In Writing· Reprimand

· Evaluate- Artifacts!- Comments!

· MIP?

May 1 – 15

Complete Summative

Principal Recommendation to Superintendent

· Growth Plan· MIP· Non-Renewal

Superintendent / Designee meets with Teacher

Superintendent issues formal Notice of Non-Renewal

Contract Non-Renewal Appeal

• Prior to the new statute, a contract teacher had 30 days to appeal the decision to Superior Court.

• The Court reviewed only the record (i.e. documents used to support non-renewal)

• Over the last decade, appellate courts have provided favorable case law in this area

• This specific provision was not included in the new statute

• A non-renewed teacher may raise the argument that s/he has a right to a full trial

Dismissal During Contract Period

• Looks a lot like dismissal of career status teacher• May only be dismissed for certain reasons:

o Inadequate Performance, Immorality, Neglect of Duty, Insubordination, etc.

• Teacher has right to:o Written notice of the grounds for terminationo Opportunity to respondo Hearing before the Board

• No hearing before Hearing Officer• Appeal to Superior Court is on the record• Court has no authority to award monetary damages;

may only direct Board to enter into a contract for one year

Wait a Minute!• Are you telling me that:

1. A teacher during the term of his contract has an appeal right which will be reviewed on the record; but

2. A non-renewed teacher may be entitled to a trial?

Dismissal of Career Teachers

A. Higher Legal Standard =

1. "In determining whether the professional performance of a career employee is adequate, consideration shall be given to regular and special evaluation reports prepared in accordance with the published standards of performance which shall have been adopted by the board.

2. Failure to notify a career employee of an inadequacy or deficiency in performance shall be conclusive evidence of satisfactory performance.

3. Inadequate performance for a teacher shall mean: (i) the failure to perform at a proficient level on any standard of the evaluation instrument; or (ii) otherwise performing in a manner that is below standard.

4. For a career teacher, a performance rating below proficient shall constitute inadequate performance unless the principal noted on the instrument that the teacher is making adequate progress towards proficiency given the circumstances. N.C.G.S. § 115C-325(e)(3)."

PROHIBITED STAFF / STUDENT RELATIONSHIPS

TOLERANCE LEVEL

WARNING SIGNS & ACTIVITIES THAT CAN LEAD TO CLAIMS OF SEXUAL HARASSMENT/SEXUAL MISCONDUCT

• One-on-one personal, non-educational email, cell phone, and/or TEXT MESSAGING between staff and students!!!!!!!!!!!!!!!!!!!!

• Being alone with a single student in an isolated, non-public area of the school

campus

• Allowing students to "visit" during planning periods or other non-class time

• Offering students rides in personal vehicles

• Buying gifts for students or giving individual students "special treats" or school privileges

• Repeated hugging of students or any kissing of students

• Engaging in talk containing sexual innuendo or banter with students including jokes

• Tutoring outside of the normal school hours or remediation programs • Taking students to dinner or movies, spending too much time where students

congregate, or interacting with students socially outside of school or engaging in any peer-like behavior

• Dressing provocatively, or like a teenager, instead of professionally

• Talking with students about their personal and relationship issues (this is the job of the school counselor!) or talk about your personal issues

• Getting "too close" to parents; offering to baby-sit for students

• Taking students to your home to do yard work or household chores

• Taking an overall, undue interest in a child or becoming a "substitute parent"

• Sharing inappropriate material, especially pornography, with students

BOTTOM LINE:

ALL EMPLOYEES SHOULD MAINTAIN AN APPROPRIATE “EDUCATOR / STUDENT”

RELATIONSHIP