LEGAL REQUIREMENTS FOR ADDRESSING PERFORMANCE DEFICIENCIES OF SPECIAL EDUCATION TEACHERS. Goals To Be Achieved. Due Process

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1 LEGAL REQUIREMENTS FOR ADDRESSING PERFORMANCE DEFICIENCIES OF SPECIAL EDUCATION TEACHERS Presented by: Sarah A. Schmanke Betsey A. Helfrich Mickes Goldman O Toole, LLC 555 Maryville University Drive, Suite 240 Office: (314) Fax: (314) sarahs@mickesgoldman.com bhelfrich@mickesgoldman.com Goals To Be Achieved Improve the quality of education provided to students Provide a safe and healthy environment for staff and students Communicate district s standards and consequences of failure to meet standards Comply with state and federal requirements Enhance confidence of the community in their school district Due Process A teacher is entitled to due process before his/her contract can be terminated. The nature of the due process depends on: The tenure or probationary status of the teacher The nature of the reason for dismissal 1

2 Missouri Teacher Tenure Law An indefinite contract with a permanent teacher shall not be terminated by the board of education of a school district except for: Physical or mental condition unfitting him to instruct or associate with children; Immoral conduct; Incompetency, inefficiency or insubordination in line of duty; Willful or persistent violation of, or failure to obey, the school laws of the state or the published regulations of the board of education of the school district employing him; Excessive or unreasonable absence from performance of duties; or Conviction of a felony or a crime involving moral turpitude. Section RSMo Incompetency, Inefficiency or Insubordination Tenured Teachers: At least thirty days before service of notice of charges of incompetency, inefficiency, or insubordination in line of duty, the teacher shall be given by the school board or the superintendent of schools warning in writing, stating specifically the causes which, if not removed, may result in charges. Thereafter, both the superintendent, or his designated representative, and the teacher shall meet and confer in an effort to resolve the matter. Section RSMo Incompetency, Inefficiency or Insubordination Probationary Teachers: If in the opinion of the board of education any probationary teacher has been doing unsatisfactory work, the board of education shall provide the teacher with a written statement setting forth his alleged incompetency and specifying the nature thereof, in order to furnish the teacher an opportunity to correct his fault and overcome his incompetency. If improvement has not been made within ninety days of receipt of the notification, the board of education may terminate the employment of the probationary teacher immediately or at the end of the school year. Section RSMo 2

3 Charges and Corresponding Due Process Requirements of Incompetence, Insubordination and/or Inefficiency Notice of Deficiency Requirements of All Other Charges Not Required Probation Period Meet and Confer On-Going Observations Remediation Efforts Not Required Not Required Not Required Not Required Charges and Corresponding Due Process (continued...) Requirements of Incompetence, Insubordination and/or Inefficiency Statement of Charges Notice of Hearing Public Hearing Written Decision Judicial Appeal Requirements of All Other Charges Also Required Also Required Also Required Also Required Also Required Incompetency, Inefficiency, or Insubordination Terms not statutorily defined, but case law has defined the scope of these terms: Incompetency and Inefficiency: The inability to perform professional teaching duties in a manner acceptable to the Board. See e.g., Artherton v. Bd. OF Educ., of Sch. Dist. of St. Joesph, 744 S.W.2d 518,522(Mo. App. 1988) Insubordination: A willful disregard of express or implied direction or a defiant attitude. See e.g., McClellon v. Gage, 770 S.W.2d 466, 469 (Mo. App. 1998) 3

4 Correcting Teacher Incompetency, Inefficiency, and/or Insubordination Often Requires: Frequent observations Effective performance evaluations Honest communication with teachers about their progress or lack thereof Teacher s understanding that if significant improvement is not made, termination will be recommended Identify Non Performing Probationary Teachers Identify likely nonrenewals in September or as early as possible Board input If unsure by year 2 begin thinking about the nonrenewal process The Evaluation Process Missouri Law: The board of education of each school district shall cause a comprehensive, performance based evaluation for each teacher employed by the district. Such evaluations shall be ongoing and of sufficient specificity and frequency to provide for demonstrated standards of competency and academic ability. All evaluations shall be maintained in the teacher's personnel file at the office of the board of education. A copy of each evaluation shall be provided to the teacher and appropriate administrator. The state department of elementary and secondary education shall provide suggested procedures for such an evaluation. Section RSMo 4

5 The Evaluation Process Missouri Law: In determining the professional competency of or efficiency of a permanent teacher, consideration should be given to regular and special evaluation reports prepared in accordance with the policy of the employing school district and to any written standards of performance which may have been adopted by the school board. Section (2) RSMo The Evaluation Process June 2010, Senate Bill 291 directed schools to adopt teaching standards including certain elements The Missouri Model Educator Evaluation System rolled out in 2012 to align with these standards Schools have option of adopting the state model system or developing their own evaluation process to align with seven essential principles The Evaluation Process Whichever evaluation tool is utilized: Be accurate and honest Provide concrete examples Discuss methods for improvement Follow District policies for progress (such as improvement plans) Evaluation may trigger notice of deficiencies 5

6 Notice of Deficiency Essentials Specific Deficiencies Failure to Maintain Classroom Discipline Use of Demeaning Statements to Students Align with indicators if applicable Draft Deficiencies with Consciousness Mindful of student confidentiality Careful re noncompliance with IDEA Need Not Prove Existence of Deficiencies (Not Subject to Debate) Notice of Deficiency Essentials (Cont.) Length of Probationary Period (Duration of Deficiencies) Designation of Administrator to Assist Teacher During Probationary Period Signed by Superintendent Notification of Meet and Confer Meetings Meet and Confer Essentials Participants Union Representative? Purpose Review the Deficiencies Discuss remediation plan Concrete steps for improvement Advise of job threatening position Send confirming memo 6

7 Remediation Plan Goal is to help teacher improve Advise of Frequency of Observations Team of Observers? Advise of Bi Weekly Conferences with teacher Remediation Plan (Cont.) Offer additional affirmative steps to improve performance: Released time for observation Sample IEPs Mock IEP Professional conferences Written or video materials Probationary Period Essentials (Cont.) Conferences Bi weekly conferences with teacher to review past observations If improvement observed, qualify level of improvement and additional improvement required Document conference and share documentation 7

8 Making The Decision To Issue Dismissal Charges for Incompetency, Inefficiency and/or Insubordination Has The Quality of Instruction Reached A Satisfactory Level? Need Not Prove Every Deficiency One Is Sufficient Does Documentation Support Finding of Incompetency, Inefficiency and/or Insubordination? Where is the Board? Who Issues? Statement of Charges Essentials Superintendent Board of Education Individual Charges Inform The Teacher of the Specific Conduct When, Where, Who Involved, What Happened? Must reflect deficiencies Balance between identification of students and giving teacher due process Keep IDEA compliance issues in mind Missouri Case Law Hellmann v. Union School District, (Mo. App. 2005) Special Education teacher Reevaluations and IEPS not completed properly for two school years, documentation was requested, failed to be submit District implemented job target during period of job target, met several times to discuss how to properly complete forms and meet compliance standards teacher continued to fail to complete work District then implemented notice of deficiencies notice contained nearly five pages of specific performance deficiencies (mostly related to incomplete paperwork for her students). 8

9 Missouri Case Law (Cont.) District met and conferred with teacher Extended notice of deficiencies Ultimately issued a statement of charges Hearing was held Board terminated and appeal followed Teacher contended that District failed to meet and confer with her claims District utilized a hands off approach standard did the Board exercise the required good faith effort to give the teacher a chance to remedy the defects? See Ivan v. Hazelwood, 710 S.W.2d 464 (Mo. App. 1986) Missouri Case Law (Cont.) Record showed that District worked with teacher prior to issuing notice of deficiencies After issuing notice they assigned the special education director to help her address the identified deficiencies The district gave her continuous reminders about deadlines Teacher was provided resources such as copies of sample IEPS Numerous conferences were held with teacher District properly complied with meet and confer requirements District s termination decision was upheld Conclusion Reminders for Successfully Remediating Performance: Be accurate Follow Board Policies and Procedures Document efforts Keep an eye toward improvement Keep Superintendent and Board informed 9

10 QUESTIONS? 10