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Legal Basics of Certified Evaluation & Discipline. Teresa T. Combs KSBA Director of Legal & Administrative Training Services. KRS 161.120 Disciplinary Actions Relating to Certificates - Appeals. The EPSB may: Revoke, suspend, or refuse to issue or renew certificates…

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Legal basics of certified evaluation discipline

Legal Basics of Certified Evaluation & Discipline

Teresa T. Combs

KSBA

Director of Legal & Administrative Training Services


Krs 161 120 disciplinary actions relating to certificates appeals
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

  • 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 161 750 nonrenewal of limited contracts
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
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 161 740 eligibility for continuing service status
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 161 790 termination of continuing contract
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.

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Krs 161 790 termination of continuing contract1
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
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.

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Documentation continued
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
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 161 790 termination of contract by board
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 161 790 termination of contract by board1
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
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

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Sufficiency of charges1
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

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Krs 161 790 termination of contract by board2
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
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.

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Administrator demotion
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.

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Administrator demotion continued
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.

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Superintendent s statement of grounds
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.

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Demotion hearing process
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.

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Demotion hearing process continued
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.

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Tips on dealing with employees
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.

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Tips on dealing with employees continued
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.

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Tips on dealing with employees continued1
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.”

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Don t set yourself up for failure
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.

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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.

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Evaluation tips continued
Evaluation Tips Continued

  • Don’t discuss employee problems with others.

  • Give praise where it is due verbally & in writing.

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Focus on what is important
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.

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Honesty
Honesty

  • Don’t wait until evaluation time to discuss problems.

  • Supervisor feedback –

    • Positive & negative –

    • Should be ongoing

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Be fair
Be Fair

  • Be objective

  • Consider circumstances beyond employee’s control.

  • Consider past performance

  • Avoid biases unrelated to job performance.

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Follow up
Follow Up

  • Exhibit patience if you see obvious effort to improve.

  • Important to give feedback on effort shown/improvement, or lack thereof.

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The fear factor
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.

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Equal treatment
Equal Treatment

  • Except where the law dictates additional protection for some

    • Example:

      • Americans with Disabilities Act

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Corrective action plans suggestions
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.

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Corrective action plans suggestions continued
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.

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Corrective action plans suggestions continued1
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.

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Corrective action plans suggestions continued2
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.

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Corrective action plans suggestions continued3
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.

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Teacher termination timelines
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.

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Teacher timeline continued
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.

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Tribunal case
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

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Due process
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

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Due process continued
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

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Unlawful or unsafe assignments
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

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Conduct unbecoming a teacher
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.

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Conduct unbecoming a teacher continued
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

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Conduct unbecoming a teacher continued1
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

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Conduct unbecoming a teacher continued2
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

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Conduct unbecoming a teacher continued3
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

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Conduct unbecoming a teacher continued4
Conduct Unbecoming a Teacher Continued

  • Proof of conduct of an immoral nature or “conduct unbecoming a teacher” which is sufficient to merit discharge of a tenured teacher should be of the same quality required by other subsections of the statute:

    • That is, written documentation from impartial sources substantiating the charges, or

    • Its substantial equivalent.

      • Board of Education of Hopkins County v. Wood

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Conduct unbecoming a teacher off school premises
Conduct Unbecoming a Teacher Off School Premises

  • Since conduct unbecoming a teacher or immoral conduct, unless limited to behavior occurring on the school premises during school hours, could not possibly be documented by a record of school supervisory personnel in a manner that is probative or appropriate as contemplated by KRS 161.790 --

    • The requirement that written records of a teacher’s conduct be in her personnel file before disciplinary action is taken can relate to professional performance in the school and not to activities elsewhere.

      • Board of Education of Hopkins County v. Wood

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Conduct unbecoming a teacher continued5
Conduct Unbecoming a Teacher Continued

  • To merit dismissal, a teacher’s conduct of an immoral nature or unbecoming a teacher that occurs outside the classroom

    • Should have some relation to the teacher’s occupation.

      • Mere private short-comings that might come to the attention of the board of education but have no relation to the teacher’s involvement with or example to the school community will not suffice.

        • Board of Education of Hopkins County v. Wood

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Abandonment of employment
Abandonment of Employment

  • Teacher in effect resigned when he took an indeterminate voluntary leave of absence without consent of school board, which had denied a leave of absence.

    • Miller v. Noe

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Common pitfalls
Common Pitfalls

  • Protected Discrimination Areas under Federal Law

    • Race

    • Color

    • National Origin

    • Age

    • Religion

    • Sex

    • Disability

    • Genetic Information

    • Pregnancy

  • Other Areas of Legal Challenge:

    • Fundamental rights such as First Amendment speech & association rights;

    • Equal treatment for those similarly situated

    • Retaliation;

    • Whistleblower

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Disability
Disability

  • A tenured teacher is subject to dismissal due to physical and mental disability.

    • Kelly v. Board of Education of Monticello Independent School District

      • (Americans with Disabilities Act now adds to this – If teacher cannot perform essential job functions even with reasonable accommodation.)

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Interactive process required
Interactive Process Required

  • Fields v. St. Bernard Parish School Board

    • The school board failed to engage in an interactive process with a former substitute teacher

    • The plaintiff stopped reporting to work when she was diagnosed with Post Traumatic Stress Disorder which she claimed was related to several student attacks. She requested a teacher’s aide be in the classroom with her.

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Interactive process required continued
Interactive Process Required Continued

  • After the teacher advised her school board of her disability and limitations, the school board had a duty under the ADA to engage in the interactive process of making a good-faith effort to determine if reasonable accommodation was necessary for the teacher.

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Sharing medical information
Sharing Medical Information

  • The employer can require relevant medical information to verify the asserted medical problem & limitations.

  • Note: Due to possible FMLA overlap, direct supervisor should not contact physician.

    • Under FMLA, employee’s direct supervisor is prohibited from contacting the health care provider. Only the employer’s health care provider, human resources professional, leave administrator or management official may contact the employee’s health care provider.

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Sharing medical information continued
Sharing Medical Information Continued

  • The EEOC also advised it is permissible for an employer to share medical information with appropriate decision-makers, such as supervisors, to enable them to make employment decisions in line with the ADA.

  • Substantial Limit

    • “Substantially limits” need no longer be severe.

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Tribunal
Tribunal

  • Under Teacher termination statute, once a teacher chooses to challenge charges and sanctions alleged and imposed by a school superintendent, the superintendent is limited to presenting evidence of the charges and recommending a sanction much like a prosecutor in a criminal case.

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Tribunal continued
Tribunal Continued

  • The decision both as to the facts of the charges and the appropriate sanction is vested wholly in the three-member tribunal.

  • Tribunal has the discretion to accept or reject the sanction proposed by the superintendent and the discretion to impose an alternative or less severe sanction.

    • James v. Sevre-Duszynska

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Evaluation appeal
Evaluation Appeal

  • Thompson v. Board of Education of Henderson County

    • A nonrenewed limited contract teacher may appeal the supervisor’s findings of fact in his or her evaluation.

    • The evaluation appeals panel overturned the supervisor’s evaluation.

    • The district had to reemploy the teacher.

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Meeting timelines
Meeting Timelines

  • Jamison v. Ronald D. Gullett

    • Jamison appealed the evaluation to the local evaluation appeals panel.

    • The SEAP found the Appellant failed to file a timely appeal.

    • The appellate court agreed.

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Extra service duties
Extra Service Duties

  • Board of Education of Erlanger-Elsmere School District v. Bill Code

    • Tenured certified high school teacher was not entitled to formal written evaluation of his performance as coach prior to nonrenewal of that extra service contract.

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Krs 156 557 704 kar 3 345 standards for improving performance
KRS 156.557 & 704 KAR 3:345Standards for Improving Performance…

  • Each certified school employee shall be evaluated by system developed by local district and approved by KDE.

  • The local district may determine the length, frequency and nature of observations conducted by an evaluator.

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Local evaluation system shall include
Local Evaluation System Shall Include

  • Formative evaluation

    • Continuous cycle of collecting evaluation information…

  • Summative evaluation;

    • Summary of and conclusions from the evaluation data at end of cycle, including:

      • Formative evaluation data, including that from teacher internship period.

      • Multiple observations for nontenured

      • Multiple observations for tenured if observation results are unsatisfactory.

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Krs 156 557 standards for improving performance
KRS 156.557Standards for Improving Performance…

  • All evaluations of certified employees…

    • On evaluation forms

    • Under evaluation procedures developed by a committee.

  • The evaluation procedures and forms must be designed to foster professional growth and support personnel decisions.

    • Available district resources should support the growth plan.

  • The immediate supervisor shall be the primary evaluator.

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704 kar 3 345 evaluation guidelines
704 KAR 3:345Evaluation Guidelines

  • Evaluation criteria and process must be explained to certified personnel before the end of the first month of reporting for employment each school year.

  • Changes made to plan after that employee’sfirst school month shall not apply to that employee until the following school year.

  • Must include professional growth plans which shall:

    • Be aligned with specific goals & objectives of the school or district improvement plan.

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704 kar 3 345 evaluation guidelines section 7
704 KAR 3:345Evaluation Guidelines (Section 7)

  • Right to appeal summatives.

  • Right to a hearing for every appeal.

  • Opportunity to review documents reasonably in advance of the hearing.

  • Right to presence of evaluatee’s chosen representative at hearing.

  • Formative evaluation conference within 1 week following each observation.

  • A summative evaluation conference at end of evaluation cycle.

  • A copy of the evaluation must be given to evaluatee.

  • Opportunity for evaluatee to put a written response to the evaluation in his/her personnel record.

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704 kar 3 345 evaluation guidelines section 8
704 KAR 3:345Evaluation Guidelines (Section 8)

  • If a substantive change is made to the evaluation plan the local board shall utilize the evaluation committee.

  • Examples of substantive change:

    • Cycle;

    • Observation frequency;

    • A form; or

    • An appeal procedure.

  • A revision to the plan shall be reviewed and approved by the local Board and KDE.

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Policies
Policies

  • Management – 02.3

    • Supervisors shall direct employees under their supervision in keeping with local policies, procedures, and legal requirements.

    • Supervisors shall monitor employee performance.

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Failure to train supervise
Failure to Train/Supervise

  • Don’t forget substitutes

  • Ellis v. Cleveland Municipal School District

    • Claimed substitute teacher slammed kid into a chalk board; threw her on the ground and choked her.

    • Case tried on claim of failure to train or supervise under 42 USC § 1983

    • Trial court granted summary judgment for school district.

    • Court noted substitute applicants had to attend an orientation.

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Failure to train supervise continued
Failure to Train/Supervise Continued

  • District gave substitute a Substitute Teacher’s Manual and a Substitute Teacher’s Handbook.

    • Manual said substitute was to use professional judgment in a disciplinary situation, and

    • No corporal punishment was allowed.

  • Manual stated all substitute teachers must read it.

  • Substitute teacher did not remember getting the manual.

  • Court held trial court properly granted summary judgment to the district.

No portion of this document is to be reproduced without the express permission of Teresa T. Combs


Failure to train supervise continued1
Failure to Train/Supervise Continued

  • Court stated to succeed on a failure to train or supervise claim, the plaintiff must prove:

    • 1) Training or supervision was inadequate for the tasks performed;

    • 2) Inadequacy was result of employer’s deliberate indifference; and

    • 3) Inadequacy was closely related to or actually caused the injury.

No portion of this document is to be reproduced without the express permission of Teresa T. Combs


Supervisor protection
Supervisor Protection

  • Without delay deal with —

    • Safety                          

    • Improper activities with students

    • Legal violations

    • Discrimination/harassment allegations

    • Inadequate credentials   

No portion of this document is to be reproduced without the express permission of Teresa T. Combs


Policies1
Policies

  • Suspension – 03.173

    • The superintendent may suspend a teacher.

    • An employee shall be suspended with pay only per Board policy.

No portion of this document is to be reproduced without the express permission of Teresa T. Combs


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