37 TH ANNUAL MASPA WINTER CONFERENCE EXTREME HR EDITION MAKEOVER December 3, 2009

1. 37TH ANNUAL MASPA WINTER CONFERENCE EXTREME HR EDITION MAKEOVER December 3, 2009 Passing the Rough Inspection: EVALUATION AND TENURE ACTIONS Presented by: Gary J. Collins, Esq. William J. Blaha, Esq. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

2. “The quality of our expectations determines the quality of our action.” Andre Godin PART I:EVALUATIONS Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

3. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140 Probationary Teachers • Length of Probationary period is4 years. MCL 38.81(i); MSA 15.1981(1). • A teacher is not required to serve more than 1 probationary period in any one school district. MCL 38.82; MSA 15.1982.

4. Notice of Satisfactory Service • Rule: 60 days before the end of the school year (deadline is May 1 if teacher hired at beginning of year since June 30 is end of year by legal definition) for each year in the probationary period, a teacher must be given notice of whether services are satisfactory. • No notice given = Satisfactory Service • Anniversary Date Rule: In cases where a teacher is hired at a time other than commencement of a school year, the notice must be given 60 days prior to the anniversary date of hire. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

5. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140 Obligations of a School District for Professional Development of Teachers during their Probationary Period • Individualized Development Plan: Must be provided for teachers employed at least one school year and developed by an administrator and the teacher. • Year End Performance Evaluations: • Based on at least 2 Classroom Observations 60 days apart unless agreed otherwise • Address Progress on IDP Goals

6. Just Cause Standard • Just cause standard is not applicable by teacher tenure law in year-end nonrenewal of Probationary Teacher Contract. • The parties’ collective bargaining agreement may require just cause for terminating a probationary teacher regardless of midyear termination or nonrenewal of contract. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

7. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

8. Tenured Teachers Frequency of Evaluation: Are you harassing or helping?? • The State Tenure Commission has held that evaluating a teacher 12 times in one school year is not improper. • All evaluations should provide guidance and suggestions for improvement. • To prove a claim of harassment, the teacher must show: (1) the controlling board or its agent; (2) acted or engaged in conduct which was; (3) improper or unreasonable under the circumstances; (4) with the intent to interfere; and (5) which did interfere with the teacher’s proper performance of his or her job. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

9. Miscellaneous Issues Individualized Development Plan • Used for less than Satisfactory Evaluations of tenured teachers • Administrator must continue to assess teacher’s progress in future evaluations Collective Bargaining Agreement • May provide for a different evaluation procedure such as more frequent observations and evaluations which are not required under the Tenure Act. Untimely Evaluations • Failure to conduct evaluations every three years is conclusive evidence that the teacher’s performance was satisfactory. • Untimely Evaluations = Satisfactory Service Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

10. Legal Standards for Teacher Incompetency Beebee test: • The teacher’s knowledge of the subject; • His/her ability to impart it; • The manner and efficacy of his discipline over his students; • His/her rapport with parents and other teachers; and • His/her physical and mental ability to withstand the strain of teaching. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

11. Proof of Adverse Effect Factors which might indicate adverse effect include: • Demands from parents that students must be transferred; • Teacher impairing proper teacher/student relationship and being no longer able to act as proper role model for students; • Demands for transfer from students; • Reduction in number of students electing course; • Children who previously liked school wanting to stay home; • Children who transferred from class having to complete a great deal of “catch-up” work in new class; • Improperly hampering pursuit or completion of legitimate goals (e.g., failure to complete projects); failure to administer tests needed to measure student achievement; • Other school district or community group withdrawal of support of programs or refusal to participate in programs involving teacher; • Teacher’s creating dissention which threatens and impairs function and purpose of school district (e.g., where incidents cause “fear, trauma, upset and embarrassment to those present” and become “the subject of inquiry and comment among faculty and students”); • Inability to maintain a positive learning environment in classroom – where students in the classroom are inattentive and engage in disruptive, unproductive, and occasionally unsafe behavior; • Insubordinate conduct causing administrators to be upset and meetings to be unproductive and rescheduled; • Breakdown of rapport with other staff members. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

12. Evaluation Guidelines Need to show the following to prove Incompetence: • The teacher was informed of the need to improve performance and was given recommendations and assistance to help improve; • The teacher was given adequate time to improve performance; and • The teacher did not improve performance. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

13. “Some people change their ways when they see the light, others when they feel the heat.” Caroline Schoeder PART II: DISCIPLINE Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

14. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140 Michigan Tenure Case Decisions (1985-2008)

15. SzopoCase Factors • Was the behavior planned or deliberate? • Did it constitute a crime? • Did it involve fraud, deceit, sexual misconduct, drugs, or a weapon? • What was the teacher’s motive or purpose? • Did the conduct result in harm to a specific victim, and if so, what is the gravity of the harm? • How much did the teacher’s conduct deviate from the norms of appropriate conduct for members of society and teaching professionals? • Was there any previous disciplinary record, especially for the same type of misconduct? • What effect did any previous punishment or interventions have on the teacher’s behavior? • What is the teacher’s attitude, including whether the teacher accepts responsibility and exhibits a willingness to change? • What is the likelihood the behavior will recur? Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

16. Any suspension exceeding 3 days in one school year is subject to proceedings under the Tenure Act. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

17. Union Representation • Weingarten Rights: • Teacher has the right to Union Representation at disciplinary meetings • Upon the teacher’s request; administration has no duty to inform teacher of their right to representation • When the teacher reasonably believes that disciplinary actions may result • If teacher requests Union Representation, discipline shall not be given until a representative is present Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

18. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

19. Misconduct and Insubordination • Insubordination is willful and disobedience of a reasonable, consistently applied directive or policy by a person who fully understands such directive or policy. • A school district must apprise the teacher that specific conduct is unacceptable and the teacher must be given adequate time to correct his or her behavior. • Even if a teacher’s problems are related to his or her competency, an administrator may discipline within the realm of insubordination, if the administrator can show: • A teacher’s non-compliance with a known reasonable directive from a person authorized to give such directive • Which the teacher understands and is capable of complying with; and • The teacher’s non-compliance interferes with the operation and management of the school district. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

20. Examples of Actions or Failures to Act • Failure to send incident reports • Failure to meet specific deadlines • Failure of principal to file investigation/discipline reports • Failure of principal to file information on number of students enrolled in classes • Violating directive to grade late papers • Violating verbal and written directives to provide students’ record grades • Failure to draft curriculum documentation • Leaving work early without permission • Failing to meet with advisory committee to help with community interaction, field trips • Excessive absences, provided notice has been given that absences are excessive and time has been given to rectify matter • Assaulting an administrator • Failure to improve poor relations with other staff • Failure to turn in lesson plans, grade book • Corporal punishment • Refusal to perform teachers’ rotating duties, including hall duty • Keeping students from class despite directive Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

21. Disciplinary Letter Checklist Before issuing discipline, make sure that you have reviewed and complied with all steps on the just cause flow chart. • A statement that this letter constitutes discipline (specify type of discipline, whether written warning, written reprimand or suspension without pay). • A statement of the facts involved in the misconduct, omission or failure to perform to an acceptable level. Such statement shall include: 1) the date of the incident, 2) time of the incident, 3) place of the incident, 4) witnesses to the incident and 5) actions of the individuals involved. • A quotation of the rule or regulation breached. If the behavior did not breach a rule or regulation but fell below an acceptable standard, a statement of the standard of behavior which employees will be expected to maintain. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

22. Disciplinary Letter Checklist (Cont.) • An outline of any previous discipline issued for comparable or related offenses, which are documented. • A statement if the employee does not improve, he/she will be subject to further disciplinary action. • A statement of a reasonable period of time within which it is expected that the misconduct, omission or the failure to perform to an acceptable level will be corrected. • A statement that the employee is being given another opportunity to improve his/her conduct, and an expression of hope that he/she will do so. • A statement outlining how the administration will help correct the employee’s behavior. • The Disciplinary letter shall be personally delivered to the employee and the employee shall acknowledge receipt. • A copy of the discipline shall be placed in the employee’s personnel file as a permanent record of misconduct or omission. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

23. Last Chance Agreement • In consideration of the District not proceeding with discharge, the employee will agree to a different discipline (such as suspension without pay), while applying certain conditions on the employee’s behavior (such as medical treatment), and a penalty for violation of those conditions. • The Commission has held that last chance agreements may be permissibly entered between a District and a teacher facing discharge for reasonable and just cause, if such agreement is executed properly and is created by exchange of sufficient consideration. • A last chance agreement would allow the District to impose conditions on conduct that does not directly impact students, which conduct the District could otherwise not regulate. Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

24. PSAs Operating by Year Source: Michigan Department of Education 2008 Public School Academy Report to the Legislature Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

25. Market share effect of PSAsSource: Michigan Department of Education 2008 Public School Academy Report to the Legislature Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140

26. PSA Students by YearSource: Michigan Department of Education 2008 Public School Academy Report to the Legislature

27. Thank you for attending our presentation on Passing the Rough Inspection:Evaluation and Tenure Action Gary J. Collins and William J. Blaha Collins & Blaha, P.C. 31700 Middlebelt Road Suite 125 Farmington Hills, MI 48334 (248) 406-1140