EMPLOYEE DOCUMENTATION:
PDAS AND BEYOND! !
JUNE 2013
Kevin Lungwitz
Attorney
The Lungwitz Law Firm, P.C.
Austin, Texas
Kevin@LungwitzLaw.com
!
Why Document?
1.
___________________!
!
2.
___________________!
3.
___________________!
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Documenting for incompetency
n  Whose
job is it to document for
incompetence? Will you have any
assistance?
n  Whose
job is it to document a
teacher for “ONE BAD ACT.” Will
you have assistance?
n  Our
primary focus today is
documentation for incompetence.
3
(c) The Lungwitz Law Firm 2013
Not intended as specific legal advice
1
Documenting/Investigating
ONE BAD ACT
n
Notify supervisors, school attorney.
n
Notify law enforcement, CPS within 48 hours?
n
Get written statement from accused?
n
Place employee on paid administrative leave?
n
Promptly notify parent(s), others?
n
Get statements from witnesses.
n
Maintain confidentiality.
n
Interview accused?
n
Consult with supervisors, attorney regarding conclusions.
n
See, “Investigation of Alleged Wrongdoing by Employees in the School
Setting,” Texas School Administrators Legal Digest, June 2011.
4
BURDENS OF PROOF
Q:
What does the admin have to prove to
terminate a teacher’s term/continuing
contract in mid-term?
A:
_________________ (see DFBA legal)
Q:
What does the admin have to prove to NR
a teacher’s contract at the end of the
term?
A:
_________________ (see DFBB local)
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BURDENS OF PROOF
BONUS Q: What does the admin/board have to
conclude to “terminate” a probationary
contract teacher’s contract at the end
of the term?
A:
_________________ (see DFAB legal)
BONUS Q: What does the admin have to prove to
“terminate” an at-will employee?
A:
____________________ (see DCD legal)
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(c) The Lungwitz Law Firm 2013
Not intended as specific legal advice
2
What about at-will employees?
Q:
A:
Do you have to document at-will
employees? Why? Why not?
_______________________
See DCD (local) and DN (local)
Q:
What could happen if you fire the
custodian but have no objective,
performance-based documentation?
A:
______________________
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Burdens: Who do you have to convince?
n  Q:
What is the difference between a NR and
termination?
n  A:
NR’s are more about procedure than substance.
n  A:
Terminations are more about substance than
procedure.
n  A:
NR’s are more political than legal.
n  A:
Terminations are more legal than political.
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Burdens: Who do you have to convince?
n  Mid-contract
terminations: Heard by Independent
Hearing Examiner (IHE) assigned by the TEA. Full,
due process hearing. Good cause.
n  Term
contract NR: Heard by school board in quasidue process hearing. Or, at school board discretion,
by IHE or contract lawyer. Review on appeal “substantial evidence.”
n
Termination of prob. contract T: Sch bd grievance.
n  Termination
n
of at-will employee: Sch bd grievance.
Legal burdens aside, can you look your bosses and
board in the eye, and tell them you did your best
before recommending dismissal?
(c) The Lungwitz Law Firm 2013
Not intended as specific legal advice
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3
NONRENEWALS vs. TERMINATIONS
Q:
Is there a difference in documentation
between NR’s and terminations?
A:
_______________________
Q:
What is progressive discipline? What is
remediation? Are these required?
A:
_______________________
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TERMINATIONS
NONRENEWALS
ONE BAD ACT
INCOMPETENCE
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INFORMAL DOCUMENTATION:
Verbal Correction: What, Why, and How?
What are the Pros/Cons of using verbal
correction?
n
Do you document the verbal correction?
Maybe, maybe not.
n
n If
you do, you have created a “note to the
file.”
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(c) The Lungwitz Law Firm 2013
Not intended as specific legal advice
4
INFORMAL DOCUMENTATION:
Note to the File: What, Why, and How?
n  Anecdotal
file for each employee for good and bad;
diary in spiral notebook; Email to self/H.R.
n
n
What are the Pros/Cons of using a note to the file?
Do you share the note with the employee? Maybe,
maybe not. If so, it is no longer informal.
n  If
not, can you sandbag the employee later?
n  Bootstrapping
the note to the file.
n  Who
can access your notes to the file? How should
they be written?
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WHICH IS THE BETTER
“NOTE TO FILE?”
1-7-13; Ms. Thompson is
a capital K Klutz. Today
she forgot that her class
was supposed to lead the
morning assembly. She
was unprepared and so
she sang the school song
by herself. What a nut!
I told her to not screw
this up again. !
1-7-13; Today, Ms.
Thompson was unprepared
to lead the morning
assembly. She said the
confusion was due to a
change in the schedule. I
advised her to doublecheck the schedule, and to
be prepared tomorrow.
She assured me she would
be ready.
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See if you can find the bootstrapped
note to the file:
Email/Memo
From: Principal Puckersworth
To:
Teacher Tammi Thompson
Date: 1-28-13
Dear Ms. Thompson: Today, you were unprepared to lead
the morning assembly, which caused confusion among
parents, students and teachers. (BOOTSTRAP ALERT!)*
This also happened on 1—7-13, and you and I spoke about
that on that day. You assured me then that you would be
better prepared. Please check the schedule and make sure
that this does not happen again. Please let me know if I can
help in any way.
* You do not actually write “BOOTSTRAP ALERT” in the email/memo
(c) The Lungwitz Law Firm 2013
Not intended as specific legal advice
15
5
PROGRESSIVELY FORMAL
DOCUMENTATION
1.  Verbal correction
6.
Appraisal
2.  Note to File
7.
TINA or PGP
8.
Written Directive; Memo of
Specific Incident
4.  Walk-through notes
9.
Written Reprimand
5.  Other cumulative
documentation (i.e. 3rd
party complaints/
statements;
documentation by
someone other than T’s
supervisor)
10.  Billboard on the toll way*
3.  Email to the employee
11.  Recommendation of
dismissal
************************************
A successful nonrenewal will have several
of these components.
* Not really. Would violate confidentiality
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A WORD ABOUT ELECTRONIC
COMMUNICATION…
n  Email/texting:
n  Follow
They are recorded forever.
the New York Times rule.
n  An
email or text to your colleague saying,
“I’m going to make Mr. Schneebly’s life hell
for filing that grievance against me,” will
haunt you.
n  Does
it matter if it is on your email system or
the school email system?
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FOLLOW YOUR
SCHOOL’S APPRAISAL CALENDAR:
Each school district shall establish a
calendar for the appraisal of teachers. The
appraisal period for each teacher must
include all of the days of a teacher's
contract. Observations during the appraisal
period must be conducted during the
required days of instruction for students
during one school year.
19 Tex. Admin. Code Sec. 150.1003 (d)
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(c) The Lungwitz Law Firm 2013
Not intended as specific legal advice
6
PDAS CUMULATIVE
DOCUMENTATION RULE
The annual teacher appraisal shall consist of:
1.  At least 1 classroom observation of at least _____
minutes, “with additional walk-throughs and observations
conducted at the discretion of the appraiser”
2.  A written summary of each observation which must be
shared with the T within ______ working days of the
observation;
3.  Teacher self-report;
4.  “Cumulative data of written documentation collected
regarding job-related teacher performance, in addition to
classroom observations;”
5.  A summative report;
6.  A summative annual conference.
!
19 Tex. Admin. Code Sec. 150.1003
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PDAS CUMULATIVE
DOCUMENTATION RULE
n
Any external or outside documentation that will influence
the teacher’s evaluation must be shared in writing with
the teacher within __________ working days of the
appraiser’s knowledge of the occurrence. The principal shall
also be notified in writing when the appraiser is not the
teacher’s principal.
Tex. Admin. Code §150.1003
n
WHY?? _________________________
n
Fowler v. La Porte ISD, TEA Docket No. 014-R10-998
(Comm’r Educ. 1999)
n
Scott v. Azle ISD, TEA Docket No. 031-R10-0208
(Comm’r Educ. 2012)
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Teacher Appraisals
n
n
The evaluation is the GOLD STANDARD for contract
nonrenewal.
The most recent evaluations must be considered by the
board before making a decision not to renew a contract, if
the evaluations are relevant.
Tex. Educ. Code §21.203 (a).
n
n
A B.E. is not required in one or more domains for contract
nonrenewal, but the teacher’s lawyer will always look for
this.
Teacher lawyers will scour the evaluation for inappropriate
documentation, commentary, unfair notification, and signs
of punitive verbiage.
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(c) The Lungwitz Law Firm 2013
Not intended as specific legal advice
7
Teacher Appraisals
n  There
should be no surprises (to you or the
teacher) in the evaluation.
n  If
the evaluation is bad, your administrative
team should have already created walk-through
notes shared with the employee pointing out
deficiencies; possibly a PGP in place.
n  Teacher
lawyer will look for walk-through notes
to support a bad evaluation.
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ALWAYS CHECK LOCAL POLICY
n DNA
n DN
(Legal & Local)
(Local)
n DNB
(Legal and Local)
n Appraisal
calendar
n These
are your road maps to procedurally
successful employee appraisals.
!
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Miscellaneous Teacher
Appraisal Rules
Q: How frequently must a teacher be formally appraised?
A: At least annually, unless local policy allows for a waiver of
the annual appraisal.
Tex. Educ. Code §21.352(c)
Q: Can the 45 minute observation be chopped into shorter
pieces How?
A: Yes, by written agreement, but the pieces must add up to 45
minutes. Email will suffice.
19 TAC Sec. 150.1003 (g).
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(c) The Lungwitz Law Firm 2013
Not intended as specific legal advice
8
Miscellaneous Teacher
Appraisal Rules
n  An
appraiser must be the teacher’s
supervisor or a person approved by the board.
n  An
appraiser who is a classroom teacher may
not appraise other teachers on her campus,
unless it is impractical because of the number
of campuses, or the appraiser is the dept. or
grade level chair whose job description
includes classroom observation
responsibilities.
n
Tex. Educ. Code §21.351(c); see 19 T.A.C. §150.1006
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Miscellaneous Teacher
Appraisal Rules
n  Appraise
classroom teaching, not extracurricular
activities.
Tex. Educ. Code §21.353
n  Evaluations
are confidential. This includes
reprimands, etc.
Tex. Educ. Code §21.355; Abbott vs. North East Indep. Sch. Dist.,
212 S.W.3d 364 (Tex. App. - Austin 2006, no writ).
n  Advance
notice may be given.
Tex. Educ. Code §21.352(d) 19 T.A.C. §150.1003(d);
check local policy
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SUMMATIVE RULES
n Share
summative report with the teacher
at least 5 work days before the summative
meeting.
n Summative
meeting must be held at least
15 work days before the last day of
instruction.
19 T.A.C. Sec. 150.1003(h)(i)
27
(c) The Lungwitz Law Firm 2013
Not intended as specific legal advice
9
TINA’s and PGP’s
n  A
teacher lawyer will always look for a properly
adopted PGP or TINA in a contract nonrenewal
case. Why?
n  Is
a PGP or TINA required for contract
nonrenewal?
n
Kinnaird v. Morgan Indep. Sch. Dist., Docket No. 165-R3-588
(Comm. Educ. 1991)
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TINA’s and PGP’s
Q:
A:
Q:
A:
When MUST a teacher be placed on a
PGP?
When the teacher is evaluated as
unsatisfactory in 1 or more domains; or
B.E. in 2 or more domains.
When MAY a teacher be placed on a PGP?
When the appraiser has documentation
that would potentially produce an
evaluation rating of B.E. or unsatisfactory.”
19 T.A.C. Sec. 150.1004; Durand v. Hillsboro Indep. Sch. Dist.,
Docket No. 056-R10-1198 (Comm. Educ. 1998).
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!
TINA’s and PGP’s
n  Must
be developed collaboratively
19 T.A.C. Sec. 150.1004
n  “Come
in, sit down, sign here” is not collaborative.
Michael v. Houston Indep. Sch. Dist., Docket No. 012-R10-1000
(Comm. Educ. 2000)
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(c) The Lungwitz Law Firm 2013
Not intended as specific legal advice
10
Principal/AP evaluations
n Not
as many rules as teacher appraisals.
n Look
at policies DN (local) and DNB (legal)
and (local) for guidance.
n
Cannot use anonymous complaints/data
n See
attached TEPSA article
31
Avoiding or defending against
discrimination and retaliation claims
n  Adverse
action may not be taken against an
employee because of:
1)
WHO THE EMPLOYEE IS: Discrimination
(age, gender, race, disability, nationality,
color, religion) or:
2)
PROTECTED CONDUCT: Retaliation (free
speech, pursuing grievances, workers comp
claim, refusing to perform an illegal act, etc.)
n  Documentation
can help substantiate the legal
reason for dismissal.
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Avoiding or defending against
discrimination and retaliation claims
n
Swift documentation/investigation is important. Ask yourself these
hard questions before recommending adverse employment action:
1.
Have other employees been treated differently for engaging in
conduct similar to that of the employee being nonrenewed?
2.
Has the employee recently engaged in protected conduct (i.e. free
speech, grievances, union activity, etc.); or is a member of a
protected class (age, gender, race, disability, etc.)?
3.
Is performance-related documentation weak?
If yes to any, work with H.R. & the school attorney to figure out how to
proceed.
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(c) The Lungwitz Law Firm 2013
Not intended as specific legal advice
11
RESIGNATIONS
n  Resignations
n  Never
may solve a lot of problems.
force or coerce a resignation.
n  Allow
representation at meeting (not because
you have to, but because it is the right thing
to do).
n  Allow
time for employee to make a rational
choice.
n  Forward
resignation immediately to person
with authority to accept.
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COMMON-SENSE TIPS FOR
DOCUMENTATION
n  Stick
to the verifiable facts. Who, what, when,
where, etc. Exaggeration diminishes credibility.
n  Remain
unemotional. It’s your job. Anger diminishes
professionalism.
n  Write
every important piece of documentation so that
a stranger would understand what you are saying and
be convinced of the veracity of the stated facts.
n  If
needed, cite policy, contract language, code of
ethics, laws, handbook provisions, etc.
n  Accurately
summarize chronological history in
watershed documentation.
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(c) The Lungwitz Law Firm 2013
Not intended as specific legal advice
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