Addressing Teacher
Performance Issues and
Contract Renewals ©
Campbell Shatley, PLLC
674 Merrimon Ave.
Suite 210
Asheville, NC
(828) 378-0064
Since Last We Met . . .
• NCAE v. State of North Carolina
• Guilford/Durham County Schools v.
•
State of North Carolina
• 2014 Legislative Session
• Salary Increases
• 2014 Election
NCAE v. State of NC
• Filed in 2013
• Challenged the constitutionality of abolishing tenure
• Pipeline Argument: Teachers not awarded tenure yet
challenged that the State had made the promise of tenure
if they worked four years in a district
• NCAE did not request a temporary injunction; instead made
the tactical decision to try to have the entire matter heard
by the Court before Boards made 25% selections
GCBOE v. State of NC
• Filed in 2014
• The new statute (115C-325.1 et al.)
unconstitutionally interfered with Board’s contracts
with teachers
o "Carrot and Stick" Approach: We’ll give you more
money if you give up tenure
• GCBOE moved for preliminary injunction
• May 2014, Honorable Richard Doughton awarded
the injunction
• GCBOE did not have to adhere to 25% Rule
• Everyone except GCBOE scrambles, trying to figure
out whether this applies to them.
Back to Your Previously
Scheduled Program
• A few weeks later, Honorable Robert Hobgood
hears the NCAE case on the merits
• Enters Summary Judgment for NCAE (citing Judge
Doughton’s opinion)
• Ruling put forth a permanent injunction staying
any aspect of the 2013 Appropriations Act that
interfered with tenure rights
• Ruling enjoined the 25% Mandate
• Ruling found that Pipeline Teachers did not have
standing
Let the Games Begin
• Legislature comes back into session in May 2014
• Several proposals are offered:
o
o
o
o
Appeal the NCAE ruling?
A new 35% provision?
Place career status back into the law?
Dual salary schedule (tenure v. non-tenured)?
• In the end, the new budget did not address 115C325.1 et al.
• However, teachers were given a raise and a new
salary schedule
Let’s try this again . . .
Status as of September 1, 2014
Status Through 2018
2018 and Beyond
Career Status
Maintains Career Status
Maintain Career Status
Probationary/Contract Teacher
1 year contracts
1, 2, or 4 year contracts
Career Status Teacher Moves
1 Year Contracts
1, 2, or 4 year contract
Teacher Contract
Non-Renewals
A.
Legal Basis
1. Deadline to notify teacher = June 1
2. Teacher has right to “Petition” Board for hearing
3. Campbell Shatley recommends: “The petition must
state: 1) the basis for the appeal; and 2) the relevant
facts underlying the claim. Hearings may be granted
by the board only when the employee presents
evidence of a violation of state law or unlawful
discrimination.”
4. Final decision from Board = June 15 or later if hearing
5. Reason for Recommendation = ANY RATIONAL BASIS
6. Reason cannot be
o
o
o
o
o
“Arbitrary or Capricious = Nothing in the “record”.
Record = evaluations, memos, letters, etc. in the personnel file
“Discriminatory = existing law (race, age, sex, disability, etc.)
“Personal” = ? . . . “It’s always personal!”
» Use a “disinterested administrator” to review the principal’s
recommendation in cases of possible personal bias
Political = First Amendment issue
» Personal job complaints NOT protected speech
» Matters of public concern ARE protected speech
7. Board does not have to make “findings”, HOWEVER, Board
must see the reasons in the personnel file for a performancebased non-renewal.
• Take-Aways
• Principal must notify Superintendent before June 1 to allow
time for Superintendent to meet with teacher (resignation)
• Principal should finish summative evaluation before
recommending non-renewal to Superintendent (put problem
employees on a faster track)
• Principal must be able to articulate “reasons” and show them
in the Personnel file to the Board of Education before making
recommendation to Superintendent
Employee Write-Ups
• Documentation
o Evaluations including artifacts and comments!
o All written warnings, directives, and reprimands should be
artifacts on the next evaluation.
• Elements of a write-up
o i) the performance issue, ii) why it impacts students
and/or the administration of the school, iii) any
previous warnings, directives, reprimands, iv) all
previous attempts to assist the employee in improving
and v) a clear statement as to whether the employee
has or has not made any improvement.
o Use Plain English!
o Your “audience” is the teacher AND the Board of
Education
Use of
Growth/Improvement Plans
A. Growth Plan Triggers
• Monitored = At least one “developing” on the
Summative Evaluation
• Directed = At least one “not demonstrated” or at least
one “developing” two years in a row on the Summative
Evaluation
B. Growth Plan timelines
• Monitored = 1 school year (even if mid-year)
• Directed = 1 school year or shorter as determined by
LEA
C. Growth Plan components
• identify the Standards and Elements to be improved,
• the goals to be accomplished,
• the activities the teacher shall complete to achieve
Proficiency, and
• a timeline
D. Mandatory Improvement Plans (MIPs)
• “Last resort” and completely optional
• Exception for low-performing schools =
Superintendent must “consider” MIP or
recommendation for dismissal if triggered
E. Mandatory Improvement Plan Triggers (“MIPs”)
• Teacher receives a rating that is below proficient or
otherwise represents unsatisfactory or below standard
performance on any standard on any observation or
year-end evaluation
• Superintendent or designee must determine that an
individual, monitored or directed growth plan will not
satisfactorily address the deficiencies
• Any time a licensed employee engages in inappropriate
conduct or performs inadequately to such a degree that
such conduct or performance causes substantial harm
to the educational environment and immediate
dismissal or demotion is not appropriate
• Principal shall document the exigent reason for
immediately instituting a MIP
F. MIP Development and Elements
• With teacher input
• Minimum of sixty (60) instructional days to complete (90
instructional days or by the beginning of next school year for
low-performing)
• Target specific performance areas with substantial
deficiencies
• Set of strategies
• Uses a qualified observer (except for low-performing
schools)
G. Results of Principal Reassessment
• Principal reviews plan compliance & report from qualified
observer
• Failure to become proficient = Principal may recommend
dismissal / demotion / non-renewal
• Failure to become proficient = substantial evidence of the
employee's inadequate performance under G.S. 115C-325.
• Take-Aways
o MIPs are optional
o Question for all action plans vs.
recommendation for non-renewal = Can this
employee be saved through the use of a plan?
CONTRACT TEACHERS
(Principals' Action Timeline)
August
 Counsel
 Direct
 Warn
 Reprimand
 Evaluate
-Artifacts!
-Comments!
 MIP?
May
June 1
In Writing
May 1 – 15
Complete
Summative
Principal
Recommendation
to Superintendent
 Growth Plan
 MIP
 Non-Renewal
Superintendent /
Designee meets
with Teacher
Superintendent
issues formal
Notice of
Non-Renewal
Contract Non-Renewal
Appeal
• Prior to the new statute, a contract teacher had
30 days to appeal the decision to Superior Court.
• The Court reviewed only the record (i.e.
documents used to support non-renewal)
• Over the last decade, appellate courts have
provided favorable case law in this area
• This specific provision was not included in the
new statute
• A non-renewed teacher may raise the argument
that s/he has a right to a full trial
Dismissal During Contract Period
• Looks a lot like dismissal of career status teacher
• May only be dismissed for certain reasons:
o Inadequate Performance, Immorality, Neglect of
Duty, Insubordination, etc.
• Teacher has right to:
o Written notice of the grounds for termination
o Opportunity to respond
o Hearing before the Board
• No hearing before Hearing Officer
• Appeal to Superior Court is on the record
• Court has no authority to award monetary damages;
may only direct Board to enter into a contract for one
year
Wait a Minute!
• Are you telling me that:
1.
A teacher during the term of his contract has
an appeal right which will be reviewed on
the record; but
2.
A non-renewed teacher may be entitled to
a trial?
Dismissal of Career Teachers
A. Higher Legal Standard =
1. "In determining whether the professional
performance of a career employee is adequate,
consideration shall be given to regular and
special evaluation reports prepared in
accordance with the published standards of
performance which shall have been adopted by
the board.
2. Failure to notify a career employee of an
inadequacy or deficiency in performance shall
be conclusive evidence of satisfactory
performance.
3. Inadequate performance for a teacher shall
mean: (i) the failure to perform at a
proficient level on any standard of the
evaluation instrument; or (ii) otherwise
performing in a manner that is below
standard.
4. For a career teacher, a performance rating
below proficient shall constitute inadequate
performance unless the principal noted on
the instrument that the teacher is making
adequate progress towards proficiency
given the circumstances. N.C.G.S. § 115C325(e)(3)."
PROHIBITED STAFF / STUDENT RELATIONSHIPS
TOLERANCE LEVEL
WARNING SIGNS & ACTIVITIES THAT CAN LEAD TO CLAIMS OF
SEXUAL HARASSMENT/SEXUAL MISCONDUCT
•
One-on-one personal, non-educational email, cell phone, and/or TEXT
MESSAGING between staff and students!!!!!!!!!!!!!!!!!!!!
•
Being alone with a single student in an isolated, non-public area of the school
campus
•
Allowing students to "visit" during planning periods or other non-class time
•
Offering students rides in personal vehicles
•
Buying gifts for students or giving individual students "special treats" or school
privileges
•
Repeated hugging of students or any kissing of students
•
Engaging in talk containing sexual innuendo or banter with students including
jokes
• Tutoring outside of the normal school hours or remediation programs
• Taking students to dinner or movies, spending too much time where
students congregate, or interacting with students socially outside of
school or engaging in any peer-like behavior
• Dressing provocatively, or like a teenager, instead of professionally
• Talking with students about their personal and relationship issues (this is
the job of the school counselor!) or talk about your personal issues
• Getting "too close" to parents; offering to baby-sit for students
• Taking students to your home to do yard work or household chores
• Taking an overall, undue interest in a child or becoming a "substitute
parent"
• Sharing inappropriate material, especially pornography, with students
BOTTOM LINE:
ALL EMPLOYEES SHOULD MAINTAIN AN
APPROPRIATE “EDUCATOR / STUDENT”
RELATIONSHIP