RECENT LEGISLATIVE CHANGES TO MAINE S TEACHER AND PRINCIPAL EVALUATION LAWS AUGUST 2012

Transcription

1 RECENT LEGISLATIVE CHANGES TO MAINE S TEACHER AND PRINCIPAL EVALUATION LAWS AUGUST 2012 Prepared for Maine School Management Association by Bruce W. Smith, Esq. Legal Counsel for Maine School Management Association 84 Marginal Way, Suite 600 Portland, Maine

2 1. INTRODUCTION In its second regular session, the 125th Maine State Legislature enacted an important new law that will require school units to develop and implement new teacher and principal evaluation systems by the beginning of the school year. Following the enactment of a three-year probationary period during the first session of the 125th Legislature, 1 An Act to Ensure Effective Teaching and School Leadership 2 makes further fundamental changes to Maine s teacher employment law. The law will also have a substantial impact upon teacher nonrenewal and layoff, and may pave the way for performance-based compensation. This memorandum reviews key aspects of the new law, including: The mandatory elements of the new statutorily mandated teacher and principal evaluation systems, including a requirement that student learning be a significant factor in teacher and principal evaluation; The uses of the evaluation system, including provisions stating that two consecutive annual ratings of ineffective constitute just cause for nonrenewal, and that teacher effectiveness ratings must be a factor in selecting teachers for layoff; The impact on principal employment; The implications for collective bargaining; The timeline for development and implementation of evaluation systems; and An unrelated provision concerning teacher certification. When used in the statute and in this article, the term educator includes both teachers and principals. 1 See Recent Legislative Changes To Maine s Teacher Employment And Evaluation Statutes, prepared for Maine School Management Association in 2011 by Harry Pringle. 2 P.L. 2012, ch. 635 (L.D. 1858). Most of the law is codified at Title 20-A, Chapter

3 2. EVALUATION AND PROFESSIONAL GROWTH SYSTEM L.D. 1858, Public Law, Chapter requires each school administrative unit to develop and implement a performance evaluation and professional growth system for teachers and principals that complies with the new law; that meets criteria to be established by rules written by the Maine Department of Education (DOE); and that is approved by the DOE. 4 The statute requires that the system include the following elements: a. Standards of professional practice by which the performance of educators must be evaluated. The Department must provide, by rule, a set of criteria for determining acceptable locally-determined standards, for both teachers and principals. 5 b. Multiple measures of effectiveness, including but not limited to student learning and growth. 6 c. A rating scale consisting of four levels of effectiveness. The proportionate weight of standards and measures of effectiveness is a local decision, but measurements of student learning and growth must be a significant factor in rating an educator. The rating scale must set forth the professional growth opportunities and employment consequences tied to each level. At least two of the levels must represent effectiveness and at least one must represent ineffectiveness. 7 d. A process for using information from the evaluation process to inform professional development. 8 e. Implementation procedures that address: 3 The complete text may be found at A M.R.S.A A M.R.S.A (1) A M.R.S.A (2) A M.R.S.A (3) A M.R.S.A (4). 2

4 1. Evaluation of educators on a regular basis. The frequency may vary depending upon the effectiveness level at which the educator is performing, but observations, formative feedback and continuous improvement conversations must occur throughout the year for all educators; 2. Ongoing training on implementation of the system for all educators and evaluators; 3. A peer review component to the evaluation and professional growth system; and 4. Formation of a steering committee composed of teachers, administrators and other staff that is advisory to the school board and regularly reviews and refines the system to ensure that it is aligned with school unit goals and priorities. 9 f. Any educator who receives a summative rating of ineffective in any given year shall be provided with the opportunity to implement a professional improvement plan USES OF RATINGS FOR EMPLOYMENT PURPOSES The law provides that a superintendent shall use effectiveness rating of educators to inform strategic human capital decision making, including but not limited to decision making regarding: Recruitment; Selection; Induction; Mentoring; Professional development; Compensation; 9 20-A M.R.S.A. 1055(10), 13704(5) A M.R.S.A (6). 3

5 Assignment; and Dismissal. 11 The two items above that particularly stand out are compensation and dismissal. Though not touted as a law that will require performance-based compensation, these provisions certainly can be read to require consideration of educator effectiveness in setting compensation, as well as in making dismissal decisions. A. Just Cause for Nonrenewal Another important provision of the statute states that receipt of summative effectiveness ratings indicating that a teacher is ineffective for two consecutive years constitutes just cause for nonrenewal of a teacher s contract, unless the ratings are the result of bad faith. 12 This provision should add greater certainty to the process of nonrenewing ineffective continuing contract teachers. The effect of the provision is that an arbitrator may not overturn a teacher nonrenewal decision based on two consecutive ineffective ratings unless the teacher can prove that the ratings were the result of bad faith. Although not defined in the statute, bad faith would likely involve improper conduct by the evaluator, such as deliberately falsifying ratings or deliberately considering factors that are irrelevant to the evaluation of the teacher s performance. The reference in the law to two consecutive years does not define what is meant by a year. Because the deadline for notifying a continuing contract teacher of nonrenewal is six months before the contract termination date 13 (February 27 in most units, earlier in some Aroostook County units), schools should consider using a calendar year evaluation cycle, so that annual ratings are given in January. Otherwise, if the second annual rating of ineffective is given A M.R.S.A Id A M.R.S.A

6 after the nonrenewal notice date, the teacher will be entitled to another full school year of employment after having received two consecutive ratings of ineffective. Nothing in the law states that a teacher must receive two consecutive years of ineffectiveness ratings in order to be nonrenewed. When a teacher has not received two consecutive ratings of ineffective, there may still be sufficient evidence to nonrenew the teacher, although an arbitrator would have the authority in such a case to determine whether the evidence establishes that just cause for nonrenewal exists. B. Grieving Evaluations In addition, the new law provides that the professional judgment of the evaluator is not subject to appeal or grievance, unless the evaluation or rating was given in bad faith. 14 Grievances regarding implementation of the evaluation, that is, procedural compliance with the evaluation system in particular evaluations, may be filed. 15 C. Teacher Layoffs The statute also amends the teacher layoff law to state that the criteria negotiated to govern the order of layoff must include the teacher s effectiveness rating. 16 Some teacher contracts now include performance evaluation in reduction in force criteria. Those contracts that do not have such provisions will need to be revised to comply with the law. 4. IMPLICATIONS FOR PRINCIPALS Many, but not all, aspects of the new law apply to principals. The new evaluation systems required by L.D must apply to principals. 17 Nothing in the law prevents adjustment of evaluation standards for principals suitable to their positions, but the standards A M.R.S.A Id A M.R.S.A The evaluation systems will apply to all educators, defined to include both teachers and principals. 20-A M.R.S.A (1). 5

7 governing principals presumably must include student learning and growth. Principals will also be rated based on four levels of effectiveness, and must be evaluated on a regular basis. Principals who are rated ineffective must have an opportunity to implement a professional improvement plan. Two important provisions of the law do not apply to principals. First, the requirement that an effectiveness rating be considered in determining order of layoff does not apply to principals. 18 (Indeed, few principals have collective bargaining agreements governing order of layoffs, and the legality of such provisions is dubious.) Second, the provision stating that two consecutive ratings of ineffective shall be grounds for nonrenewal does not apply to principals IMPLICATIONS FOR COLLECTIVE BARGAINING While school units will have until to implement their new evaluation systems, school boards negotiating new contracts must carefully consider the implications of the new statute when negotiating contract language now, rather than wait until after the law s requirements are fully implemented. Specific provisions of the law that are likely to affect collective bargaining agreements include: the provision requiring that teacher effectiveness be included as a factor in reductions in force; the bar to grieving the professional judgment of evaluators; and the provision stating that two consecutive annual rating of ineffective shall constitute just cause for nonrenewal. In addition to any proposals that school boards make to comply with the new law, they should anticipate that local unions will make proposals that involve educational policy and are not consistent with the language and intent of the new law. Given the potential legal implications of such contract language and its relationship to the A M.R.S.A allows teachers to bargain order of layoff, but the law does not apply to principals. 19 The nonrenewal provision expressly applies to teachers only. 20-A M.R.S.A

8 evaluation law, school board negotiators are encouraged to obtain professional advice when negotiating these provisions. With regard to order of layoff, the statute amends 20-A M.R.S.A , which previously stated that order of layoff for teachers is negotiable and that seniority may be a factor, but not the sole factor, in order of layoff and recall. The law now provides that the teacher s effectiveness rating must be a factor in order of layoff. School boards entering into teacher contract negotiations should propose necessary changes to existing reduction in force clauses to comply with this provision. Most teacher collective bargaining agreements now include provisions stating that no teacher shall be nonrenewed without just cause. As a matter of state law, once the new evaluation systems are implemented, two consecutive annual ratings of ineffective shall constitute just cause for nonrenewal. This law will not necessarily require modifications to existing just cause clauses, but each such provision should be reviewed to ensure that there is nothing that conflicts with the new law. Additionally, union proposals on this issue should be anticipated and should be analyzed carefully. Perhaps the most complex area for potential negotiation is teacher and principal evaluation. The Maine Labor Relations Board has issued a patchwork of decisions in the past regarding the negotiability of teacher evaluation provisions in collective bargaining contracts. Certain aspects of evaluation have been deemed to be non-negotiable educational policy, 20 others to be mandatorily negotiable, 21 and others to be permissive subjects of bargaining 22 which 20 The form, content, frequency and selection of evaluators for teacher evaluations have been held to be nonnegotiable educational policy. See Pringle, Tchao & Chapman, Maine School Law at (4 th ed. 2012) for a discussion and list of subjects of bargaining that are mandatory, permissive, educational policy and illegal, including citations to court and Maine Labor Relations Board decisions. 21 Id. 22 The criteria and standards for teacher evaluation are permissive subjects of bargaining. Id. 7

9 may, but do not have to be negotiated. There is nothing explicit in the new statute that alters the scope of bargaining concerning evaluations, but it will for the first time prescribe, in its text and through rules to be issued by DOE, standards for evaluation and professional growth, as listed above. Clearly, it will not be legal to negotiate any contract language that conflicts with the new statute and the rules to be issued by DOE. There are likely to be issues, however, concerning negotiation of aspects of evaluation that are not directly addressed by the law or DOE rules. In particular, unions can be expected to make proposals concerning the impact of the law, rules and evaluation systems on negotiable subjects of bargaining. School board negotiators should be cautious about such proposals, to ensure that they do not unduly restrict the discretion of the board and administrators in creating and implementing the new evaluation systems. 6. IMPLEMENTATION SCHEDULE The amendment to the teacher layoff statute requiring that teacher effectiveness ratings must be a factor in making reduction in force (RIF) decisions is effective August 30, Since such effectiveness ratings will not be generated until the new evaluation system is implemented, however, there is some uncertainty as to when effectiveness ratings may start being used in making RIF decisions. In the meantime, there is no reason why existing RIF clauses that require consideration of evaluations should not be followed. The statutory timetable provides that, during the school year, each school unit must develop an evaluation and professional growth system that complies with the statute, in collaboration with teachers, principals, administrators, school board members and other members of the public. 23 In the school year, each school unit must operate the system developed as a pilot project in one or more schools in the unit. The new evaluation system must A M.R.S.A

10 be fully implemented by the school year. Nothing in the law, however, prohibits a school unit from fully implementing the system earlier than the school year. A good deal of work must be done at the state level before school units begin developing their local systems. The law creates a Maine Educator Effectiveness Council that is charged with making recommendations to the Commissioner and the Legislature s Education Committee regarding implementation of the law. 24 The Council has been appointed by the Commissioner and includes: the Commissioner or his designee; a member of the State Board of Education; four teachers appointed from a list provided by the MEA; two administrators appointed from a list provided by the MPA and the MSSA; two school board members appointed from a list provided by the MSBA; one faculty member representing an educator preparation program; two members of the business community; and two members of the general public. The Council must submit a report to the Commissioner and the Education Committee by November 1, The Educator Effectiveness Council is charged with important tasks that are likely to shape the rules to be adopted by DOE. These duties include: recommending professional practice standards; a four-level rating scale; measures of student learning and growth; and major components of the evaluation process. 25 As of this writing, the Council has had several meetings. 26 Presumably based upon the recommendations of the Educator Effectiveness Council, the DOE must adopt rules to implement the new law. 27 The rules must include a rule relating to the method of identifying the educators whose effectiveness ratings are affected by the measurement of learning or growth of a particular student. These rules will be major substantive rules, which 24 P.L. 2012, ch. 635, A Id A M.R.S.A

11 means that they must be approved by the Legislature and therefore could be the focus of a closely-watched political process. 7. FUNDING ISSUES The law appropriately contemplates that school units will incur costs in developing their new evaluation systems. Therefore, it provides that the Commissioner shall calculate the amount available to assist school units beginning with the school year. 28 Any such funding, of course, will be subject to legislative approval. 8. TEACHER CERTIFICATION The new statute includes a second part addressing teacher certification, including provisions regarding collection of data on educator preparation program; alternative pathways to certification; conditional certification; and rules regarding math and reading instruction proficiency for K-8 teachers. 29 The section on educator preparation program data does not appear to impose any obligations on local school units, but the other provisions bear noting. The law requires the State Board of Education to develop and adopt rules providing a method for a person who has not completed an approved educator preparation program to obtain certification through an alternative pathway that meets the following requirements: a. It is designed for candidates who can demonstrate subject matter competency directly related to the certificate endorsement being sought through prior academic achievement or work experience; b. It may feature an accelerated program of preparation; c. Use of mentorship programs that partner teacher candidates with mentor teachers; and A M.R.S.A (6) A M.R.S.A (6). 10

12 d. Accountability provisions to ensure that candidates demonstrate the knowledge and skill established by law prior to issuance of a provisional certificate. The law also requires the State Board of Education to establish a working group to develop one or more alternative certification pathways that meet statutory standards. 30 The working group must submit a report to the Legislature s Education Committee by November 1, The law on conditional certificates was amended to state that a school unit may employ a conditionally certified teacher or educational specialist who is in the process of becoming professionally certified notwithstanding the availability of provisionally or professionally certified teachers or educational specialists. 31 This amendment will preempt the current DOE rule that requires superintendents to submit an affidavit certifying that the school unit actively sought a certified teacher but was unable to do so when employing a conditionally certified teacher. Finally, the statute requires the State Board of Education to amend its certification rules to require that any person seeking a K-8 certification endorsement must demonstrate proficiency in math and reading instruction, including evidence-based reading instruction. 32 Evidence- based reading instruction is defined to mean instructional practices that have been proven by systematic, objective, valid and peer-reviewed research to lead to predictable gains in reading achievement. The requirement will apply to all teachers and specialists, including teachers in special education and teachers of English language learners. The law contains no deadline and does not specify whether it will apply to teachers being recertified. 30 P.L. 2012, ch. 635, B A M.R.S.A (10). 32 P.L. 2012, ch. 635, B-5. 11

13 9. CONCLUSION The Act to Ensure Effective Teaching and School Leadership is an ambitious not to mention the first effort by the Legislature to direct the purpose, substance and consequences of teacher and principal evaluation. The law was controversial in the Legislature, and the potential for further controversies in the crafting of the governing rules and local evaluation policies, as well as in local collective bargaining, will persist as rules are written and contracts are negotiated. The impact on the quality of education and student learning will take years to measure, but the boldness of the law in implementing state-directed policy on teaching effectiveness should not be underestimated. 12