INDIANA UNIVERSITY OF PENNSYLVANIACareer & Technical Education Leadership Development Program

Competency Guide Sheet

Name: __________________________________ Date: ______________________

Competency Number: 903

Competency Title: Employee Discipline

Revision: August 2008

Criteria Selection: Which criteria on the LPAF for this competency will be checked as “N/A” and which will be checked as “Attained”?

Background (Theory) Resources

For this competency, you may wish to read:

School Code, Section 1123 Tenure Reform Law, Act 16 of 1996 Teacher evaluation information on the Pennsylvania Department of Education

website, www.pde.state.pa.us, especially forms PDE 426, PDE 427 and PDE 428

For this competency, you may wish to select an Internet site that addresses one of the following topics. Include the link as the final item on your documentation list. Include a copy of page one of the site with your completed competency.

Tenure Reform Law, Act 16 of 1996 Teacher Evaluation Systems Teacher Rating Systems Employee Discipline Managing Interpersonal Conflict

List of Key Points or Key Concepts: What in your reading did you find particularly important or valuable?

1.

2.

3.

4.

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5.Implementation Plan: Your implementation plan should reflect your key points and should be approved by your resource person(s) before you take any action.

Documentation: As you develop this competency, document your actions. This documentation could include:

1. Copy of professional employee evaluation and discipline procedures used in a career and technology center2. Notes from a meeting with a career and technical education administrator regarding employee discipline3. Brief written description of your attempt at coping with an

employee discipline issue. The statement could include:a. The factors leading up to the behavioral problem (i.e., the

background)b. A description of the inappropriate behaviorc. Your strategy for dealing with the behavior in questiond. The reaction of the affected employee to your effortse. Your overall reactions of the effort

4. Memos, letters or other paperwork concerning the situation.

NOTE: Names and all other identifying information must be removed from all confidential information.

Enabling Objective

After completing the required reading, demonstrate knowledge of the professional employee discipline process.

Activity

Select an Internet site that addresses the discipline of career and technical education professional employees. The site selected should include information needed to complete the Self-Check, p. 11 in this guide sheet. Include the link as the final item on

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your documentation list. Include a copy of page one of the site with your completed competency.

Optional Activity

You may wish to interview an experienced career and technical education leader with whom you can discuss the processes used when it is necessary to discipline a professional employee.

The following information was provided by Lee V. Price, Esquire, Andrews and Price, Pittsburgh, PA.

I. GROUNDS FOR DISMISSING A PROFESSIONAL EMPLOYEESection 1122 of Pennsylvania Public School Code, Tenure Reform Law, Act 16 of 1996

1. Incompetence2. Unsatisfactory teaching performance based on two consecutive ratings of the

employee’s teaching performance that are to include classroom observations, not less than four months apart, in which the employee’s teaching performance is rated unsatisfactory

3. Persistent negligence in the performance of duties4. Willful neglect of duties5. Persistent and willful violation of or failure to comply with School Laws of the

Commonwealth (including official directives and established policy of the Board of Directors)

6. Immorality7. Intemperance8. Cruelty9. Physical or mental disability as documented by competent medical evidence,

which after reasonable accommodation of such disability as required by law substantially interferes with the employee’s ability to perform the essential functions of this employment

10. Advocating of or participating in un-American or subversive doctrines11. Conviction of a felony or acceptance of a guilty plea or nolo contendere

therefore

Items 1 through 5 above required adequate documentation. Item 3 specifically requires adequate performance evaluations, fully documented with anecdotal records.

II. LEGALLY REQUIRED TO RATE

Section 1123 of the School Code states that a rating system must be used for the purposes of determining whether a professional shall be dismissed for incompetence

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and for determining whether a temporary professional employee should be granted professional employee status (i.e., tenure).

On March 29, 1996 the Pennsylvania General Assembly adopted the Tenure Reform Law, Act 16 of 1996. In regard to the granting of tenure, the Act specifically provides as follows:

A temporary professional employee initially employed by a school district, on or after June 30, 1996 whose work has been certified by the district’s superintendent to the secretary of the school district, during the last four (4) months of the third year of such service, as being satisfactory shall thereafter be a “professional employee” within the meaning of this article.

(Temporary professional employee’s are still to be rated two times per year during this three-year period.)

The Tenure Reform Law also added new reasons for discharging a tenured employee, as well as clarifying existing reasons. Some commentators and legislatures have stated that the intent of the Tenure Reform Law was to make it easier for school districts to improve the quality of their teaching staff by terminating the services of unsatisfactory teachers.

One lawyer consulted believes the General Assembly is telling school districts two things: teachers really do matter when it comes to a student receiving a quality education; and quality teaching services should be commensurate with existing levels of teaching salaries.

III. WHY DOCUMENT?

You may someday have to justify your evaluation You may someday have to be a witness

If you don’t take the time to write it down when it happens, the fact-finder may believe it was not serious. Potential fact-finders are arbitrators, school boards and Department of Education representatives.

Document everything relevant to poor performance If you tell a teacher to specifically do something, or refrain from doing something,

document that this conversation occurred.

Without adequate documentation, administration cannot win a grievance.

IV. WHAT IS INCOMPETENCY?

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Pennsylvania courts have defined incompetence as incapacity to teach arising out of either lack of substantive knowledge of the subject to be taught, lack of ability, or lack of desire to teach according to proper methodology. Courts have also defined incompetence as deficiencies in personality, composure, judgment and attitude.

The Department of Education defines incompetence as two consecutive unsatisfactory ratings of a professional employee. Two consecutive unsatisfactory ratings ensures that dismissal is not based on the first instance of unsatisfactory performance, but that dismissal follows notice and an opportunity for the professional employee to improve.

Section 1123 of the School Code requires that a rating system must be used for determining whether a professional employee should be dismissed for incompetence.

The amendments of the School Code adopted by the Tenure Reform Law also make it clear that fairness dictates that the two unsatisfactory ratings be at least four months apart. This gives the professional employee a statutorily established opportunity to improve. This may also be encouraging school districts to initiate the rating process earlier in the school year. This should be done particularly for teachers whose performance is already suspect.

V. CHALLENGING EVALUATIONS

If a teacher is dismissed for incompetence, the teacher will generally challenge the validity of the rating itself. These challenges are made on substantive and procedural grounds. Substantive grounds simply means that the teacher is, in fact, incompetent. Procedural grounds means that the evaluation processes required in the Collective bargaining Agreement or the Department of Education regulations were not followed. Even if substantive grounds exist for an unsatisfactory rating, failure to follow proper procedure can result in the entire rating being abrogated.

Examples of specific conduct found to substantively support charges of incompetence and unsatisfactory rating are as follows:

Failure to maintain proper relationship with students Lack of classroom control Deficient content and quality of required reports Failure to give sufficient or proper tests Deficient lesson plans Inability to motivate students Failure to maintain good working relationship with clerical and teaching staffs Failure to maintain proper teaching pace Inability to respond appropriately to situations Use of poor English

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VI. ANECDOTAL RECORDS

How do you prove substantive grounds for unsatisfactory ratings? By utilizing anecdotal records. Anecdotal records are specific evidence of a teacher’s performance, conduct or inaction, reduced to writing. This is generally done in a narrative form, with short and concise comments. Anecdotal records are documentation. Anecdotal records should be contemporaneous.

Examples of anecdotal records include:

Building principal’s personal notes

If you see a teacher do something that you feel the need to bring to the professional employee’s attention, document it, even if verbal. This can simply be a note to yourself that on a particular date and time you advised the teacher not to do something or to do something. If you reach the point of a written reprimand, you can then go back and reference with specificity your prior verbal directives.

Rating documents

Rating documents should require comments. Comments are anecdotal records. Remember, evaluations are not based merely upon the classroom observation.

If you maintain personal notes, you can then incorporate these notes into the final evaluation, with specificity.

Comments or submissions by teachers

If a teacher complains to you about a fellow employee, request the teacher to place it in writing. Even if the teacher declines to do so, you should make a written note of it.

Notes from parents

VII. EVALUATION PROCEDURE

Arbitrators and hearing examiners appointed by the Department of Education will often overturn a substantively justified unsatisfactory rating on procedural grounds.

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Required Department of Education and School Code Procedures for Unsatisfactory Ratings:

1. Ratings substantiated (i.e., supported) by anecdotal records. The records must include specific evidence likely to be important in the event of a dismissal. (Again, if you don’t write it down, it must not have been important).

2. Rating discussed with employee within five working days after the final observations preceding the rating.

a. This discussion can take place before or after the rating is approved by the superintendent.

b. Five days can be extended by emergency or extenuating circumstances.3. Give the employee the opportunity to sign rating form.4. If the employee won’t sign, then refusal should be recorded and dated.

Employees must be notified I writing of this notation within ten days.5. Superintendent must approve rating and sign same.

a. This does not mean superintendent needs to have done the rating. Superintendent need not have personal knowledge of facts; superintendent can rely solely on recommendation of subordinate (i.e., the principal).

VIII. PERSISTENT NEGLIGENCE IN THE PERFORMANCE OF DUTIES

Persistent means a series of individual incidents, or one incident carried on for a substantial period of time. Examples of negligence are as follows:

Disregard of pupil disciplinary policy Failure to attend meeting Failure to comply with student testing and record keeping requirements Repeated lateness Improper release of students from class Failure to prepare or file a lesson plan Refusal to comply with superior’s directive Excessive absenteeism Sleeping in class Failure to provide excuse for illness or disability Teaching improper subject Failure to maintain proper classroom temperature settings

You can only prove persistence by contemporaneous documentation. Verbal warnings and dates should be noted. If a written notice to teacher is given, it should specify what duty is involved, and why that duty was breached.

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IX. WILLFUL NEGLECT OF DUTY

Unlike persistent negligence, willful neglect of duty can be merely one incident. Willful presumes some intent and some power of choice. For willful neglect, the employee needs to have been aware of specific work requirements.

X. PERSISTENT AND WILLFUL VIOLATION OF AND FAILURE TO COMPLY WITH SCHOOL LAWS OF THIS COMMONWEALTH

Please note that school laws specifically include official directives and established policy of the Board of Directors. Persistent negligence will eventually cross over to persistent willful violation. For persistent and willful violation, the employee needs to have been aware of specific job requirement. In so notifying teachers, refer to specific policy or state that it is an official directive.

XI. IMMORALITY

Immorality is not specifically defined by the Public School Code. Cases have defined immorality as “a course of conduct which offends the moral of the community and sets a bad example for the youth whose ideals the teacher is obligated to foster and elevate. Examples of the types of conduct which the courts or the Pennsylvania Department of Education have determined to be immorality are the following:

Criminal Conduct: Shoplifting, illegal gambling, stealing food from employee dining room, DUI, corrupting minors

Sexual or Amorous Conduct toward Students: This is the most obvious conduct which would be grounds for immorality. Examples of cases where immorality as found to have existed: male teacher concealing himself in girls’ locker room; amorous relationship, without or without a sexual relationship; proposed spankings; physical contact of a sexual nature; making sexually oriented remarks to students that students find embarrassing

Vulgar or Profane Language: Examples are referring to student as “slut,” “homo,” etc; showing or sexually explicit film; racial slurs

XII. DRUG LAW CONVICTIONS

Any employee of a school district, intermediate unit or an area vocational technical school/career and technology center who is convicted of delivery of a controlled substance or convicted of possession of a controlled substance with the intent to deliver must be terminated from employment with the school entity.

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XIII. PUBLIC SCHOOL CODE—SECTION 514

This Section concerns nonprofessional employees. Irrespective of whether the employee is covered by a collective bargaining agreement or not, this School Code provision covers suspension without pay or dismissal of such nonprofessional employees.

Section 514 of the Public School Code states that nonprofessional employees may be disciplined or discharged for the following reasons:

Incompetence Intemperance Neglect of duty Violation of school laws of the Commonwealth Improper conduct Misappropriation of School Administered Funds: Utilization of school district

resources for personnel gains without any accounting Lying to Supervisors: Including lying during an investigation; lying on

employment application Misrepresenting Use of Sick Leave Distributing Racial Hate Jokes in School Permitting Students to Drink on a Fieldtrip Possession of Drugs Act 34 Crimes

XIV. INTEMPERANCE

The term is not limited to merely improper use of alcohol or drugs. The term has been defined as a loss of self-control. Some of the cases that have been brought involve a teacher’s use of excessive force with a student a teacher’s continuous loss of control with students and colleagues in that the teacher used threats to get what she wanted and bad mouthed her supervisors.

Other charges of intemperance include inappropriate behavior with a student. Remember, one act may fit into a variety of charges. Courts have held that merely acting unprofessional does not rise to the level of intemperance.

XV. CRUELTY

Cruelty is the intentional and malicious infliction of physical suffering on human beings; or the wanton, malicious and unnecessary infliction of pain on the human body or mind. A single incident can be sufficient to support a charge of cruelty.

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Conduct that has been held to constitute cruelty includes assaulting a student; verbal abuse of a student; belittling and intimidating students—calling students jerks, brain dead, idiots and losers.

XVI. DUTY TO INVESTIGATE

Investigating an employee is the legal responsibility of an administrator. Employee handbooks, staff in-service and periodic memos should clearly state that the school board will not tolerate unsatisfactory teaching performance or unacceptable behavior.

The “Litmus Test” for an administrator who has been given information suggesting unacceptable behavior could be: “Would I want my child in that teacher’s class?” If the answer is no, begin an investigation. What can trigger the investigation?

Parent complaints Pupil complaints Teacher complaints Supervisor first hand knowledge

XVII. FAIRNESS “RIGHTS”

Employees have the right to expect, and perhaps more importantly, arbitrators expect the following:

Reasonable knowledge of what standards are expected Receipt of feedback from observation Being notified about complaints lodged against them (but not necessarily by

whom, except at a hearing or pre-hearing discovery) Help from administration to improve Sufficient time to carryout prescribed improvements

XVIII. PROGRESSIVE DISCIPLINE

Arbitrators always look for progressive discipline for less serious offenses. Once serious offense, however, can justify skipping progressive discipline. Progressive discipline typically involved four levels:

Oral warnings or reprimand Written reprimand, with copy typically placed in the employee’s personnel file Suspension without pay Dismissal

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XIX. JUST CAUSE

For most arbitration proceedings, just cause must exist for issuing the discipline. To determine whether just cause exists, arbitrators look at the following factors:

Was the employee forewarned by the school district of the possible disciplinary consequences of the employee’s conduct? Can the employer prove by documentation that such notice was given?

Is the rule reasonably related to the operation of the school district’s business? Was application of the rule reasonable under the particular circumstances of the case?

Did the school district make a reasonable effort to determine whether the employee did in fact violate the rule?

Was the investigation conducted fairly and objectively by the school district? Did the investigation produce substantial evidence or proof that the employee

was guilty as charged? Can the school district produce adequate proof or evidence that the employee was guilty of violating the rule?

Has the school district applied the rule and penalties consistently, and even handedly, and without discrimination to all employees? Note: The discipline an administrator imposes, or does not impose, has an impact on the future ability of the school district to administer discipline for the same offense.

Is the degree of discipline administered by the school district consistent with the seriousness of the offense and the past record of the employee?

Self Check

Some questions require a more detailed response. You are reminded to be as brief, yet as complete as possible.

1. According to Pennsylvania law, what are the possible grounds for dismissal for a professional employee?

2. List several reasons why it is important for an administrator to document information related to the actions of professional employees.

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3. How have Pennsylvania courts defined incompetence?

4. Why must the two unsatisfactory ratings used to document incompetence be done at least four months apart?

5. List examples of specific conduct found to substantively support charges of incompetence and unsatisfactory ratings.

6. Define anecdotal records and list several examples of anecdotal records.

7. What are the required Pennsylvania Department of Education and School Code Procedures for unsatisfactory ratings?

8. What are some examples of negligence?

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9. How have court cases defined immorality and what are some examples of immorality?

10.What are the four levels typically involved in progressive discipline?

11.To determine whether or not just cause exists, arbitrators look at what factors?

Model Answers

Compare your written responses to the Self Check with the Model Answers given below. Your answers need not exactly duplicate the model responses; however, you should have covered the same MAJOR points.

1. Possible grounds for dismissal are Incompetence unsatisfactory teaching performance based on two consecutive ratings of the

employee’s teaching performance that are to include classroom observations, not less than four months apart, in which the employee’s teaching performance is rated unsatisfactory

persistent negligence in the performance of duties willful neglect of duties persistent and willful violation or failure to comply with school laws of the

Commonwealth immorality intemperance cruelty physical or mental disability as documented by competent medical evidence,

which after reasonable accommodation of such disability as required by law substantially interferes with the employee’s ability to perform the essential functions of his employment

advocating of or participating in un-American or subversive doctrines

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Conviction of a felony or acceptance of a guilty plea or nolo contendere therefore

2. Pennsylvania courts have defined incompetence as an incapacity to teach arising out of either lack of substantive knowledge of the subject to be taught, lack of ability or lack of desire to each according to proper methodology; deficiencies in personality, composure, judgment and attitude.

3. It is important to document because an administrator may someday have to justify his/her evaluation, the administrator may someday have to be a witness, without documentation the fact-finder may not believe it was serious and without adequate documentation administration cannot win a grievance.

4. The two unsatisfactory ratings must be at least four months apart so that the professional employee is giving an opportunity to improve.

5. Examples include failure to maintain proper relationship students, lack of classroom control, deficient content and quality of required reports, failure to give sufficient or proper tests, deficient lesson plans, inability to motivate students, failure to maintain good working relationship with clerical and teaching staffs, failure to maintain proper teaching pace, inability to respond appropriately to situations and use of poor English.

6. Anecdotal records are specific evidence of a teacher’s performance, conduct or inaction, reduced to writing. Examples include building principal’s personal notes, rating documents, comments or submissions by teachers or notes from parents.

7. The required procedures are Ratings substantiated by anecdotal records Rating discussed with employee within five working days after the final

observations preceding the rating Give the employee the opportunity to sign rating form If the employee will not sign, refusal should be recorded and dated.

Employees must be notified in writing of this notation within ten days Superintendent must approve and sign rating

8. Examples of negligence include disregard of pupil disciplinary policy, failure to attend meeting, failure to comply with student testing and record keeping requirements, repeated lateness, improper release of students from class, failure to prepare or file a lesson plan refusal to comply with superior’s directive, excessive absenteeism, sleeping in class, failure to provide excuse for illness or disability, teaching improper subject and failure to maintain proper classroom temperature settings.

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9. Immorality has been defined y the courts as a course of conduct which offends the morals of the community and sets a bad example for the youth whose ideals the teacher is obligated to foster and elevate. Examples of types of conduct which have been determined to be immorality include criminal conduct, sexual or amorous conduct toward students, vulgar or profane language, and misappropriation of school administered funds, lying to supervisors, misrepresenting use of sick leave, distributing racial hate jokes in school, permitting students to drink on a fieldtrip, possession of drugs or Act 34 crimes.

10.The four levels are oral warnings or reprimands, written reprimand, suspension without pay and dismissal.

11.The factors an arbitrator would look at include a. Was the employee forewarned by the school district of the possible

disciplinary consequences of the employee’s conduct? Can the employer prove by documentation that such notice was given?

b. Is the rule reasonably related to the operation of the school district’s business? Was application of the rule reasonable under the particular circumstances of the case?

c. Did the school district make a reasonable effort to determine whether the employee did in fact violate the rule?

d. Was the investigation conducted fairly and objectively by the school district?

e. Did the investigation produce substantial evidence or proof that the employee was guilty as charged? Can the school district produce adequate proof or evidence that the employee was guilty of violating the rule?

f. Has the school district applied the rule and penalties consistently, and even handedly, and without discrimination to all employees?

g. Is the degree of discipline administered by the school district consistent with the seriousness of the offense and the past record of the employee?

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COMPETENCY #901

LEADERSHIP PERFORMANCE ASSESSMENT FORM

Competency: Employee Discipline

LEVEL OF PERFORMANCE

N/A

Not

A

ttain

ed

Atta

ined

Criteria:In coping with an employee discipline issue, the leadership intern:1. identified the actions in question2. assessed the causes of inappropriate behavior3. addressed the underlying problem(s) with the individual4. displayed empathy for the concerns of the individuals5. showed willingness to share his/her own feelings to establish rapport6. attempted to produce a positive situation7. suggested an appropriate time and place for a follow-up8. expressed a sincere desire to help9. discussed all relevant factors with person(s) being disciplined10. suggested alternative courses of action and their relative advantages/disadvantages11. maintained a positive attitude12. followed the school’s discipline procedure policy13. applied the appropriate laws and regulations regarding employee discipline

____________ ______ ____________ ______ ___________ ______Intern’s Initials Date SLRP’s Initials Date FRP’s Initials Date

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