Certificated Evaluations - Tulare County Education Office

Certificated Evaluations
Presented by:
Jeanne Nava
Assistant Superintendent, Human Resources
Tulare County Office of Education
Progressive Discipline
Oral Warning
Written Warning
Letter of Reprimand
Suspension without Pay
Progressive Discipline
• Steps may be repeated where the cause
for disciplinary action requires persistent
violation of a rule or where the evaluator
wants to establish a pattern of deficient
• Steps may be skipped based on the
severity of the employee’s conduct subject
to any limitations in the collective
bargaining agreement.
Evaluation Purpose
• Powerful management tool to assist
teachers to perform at their highest level;
• Provide a struggling teacher active
• When evaluation does not improve
performance, documents generated will be
used in subsequent disciplinary
proceedings; and
Evaluation Purpose
• Documents generated will also be
available to use as a shield against
potential wrongful termination or related
• Progressive discipline policies must be
carefully drafted to avoid creating
unexpected contractual obligations.
• Consult legal counsel before any such
policy is implemented.
Peer Assistance and Review
• If a teacher receives an overall unsatisfactory
evaluation, he/she must participate in the Peer
Assistance and Review process.
• The site administrator should evaluate the
teacher based upon his/her performance.
• If, in the site administrator’s opinion,
performance is not improving with the
combination of assistance, a 90-day letter of
unsatisfactory performance should be issued
approximately 100 days prior to the end of the
second year of the cycle.
Evaluation Procedure Checklist
1. Every certificated employee must be evaluated
regularly at least once a year for probationary
employees and at least every other year for
permanent employees per your certificated
bargaining agreement.
2. Spend time drafting specific comments for the
“areas of strength”, “areas of improvement”
and “other comments” section of the
evaluation. Do not feel constrained by space
on the evaluation. Attach additional sheets, if
Evaluation Procedure Checklist
3. Draft your comments using the first three
letters of FRISK (i.e., Facts, Rule,
4. All evaluations (especially for
probationary employees, or if the teacher
is in need of improvement) should be
reviewed by a District Administrator.
Evaluation Procedure Checklist
5. Provide a copy of each completed evaluation
to the employee and hold a conference to
discuss the evaluation with the employee
(Education Code 44664(b)).
6. If the evaluation has an improvement plan,
discuss the plan and your expectations for the
next evaluation period. At this conference,
have the employee sign the document to
indicate receipt, but not necessarily agreement
as to the contents. If the employee refuses to
sign, simply write “Refused to Sign” and date
and initial it.
Evaluation Procedure Checklist
7. The evaluation goes in the employee’s
personnel file after the employee has been
given the right to respond. (See your
bargaining agreement for the exact number of
8. Employees are not entitled to union
representation at evaluation meetings, except
in highly unusual situations where some form
of discipline might be imminent. (Weingarten
Evaluation Procedure Checklist
9. Take time to do a thoughtful evaluation; don’t
just check boxes. Box checking evaluations
are useless for the purpose of progressive
10. If the employee was “written up” during the
year, make reference to the FRISK documents
and attach them to the evaluation as evidence.
11. If an employee receives a less than
satisfactory evaluation, it should NOT BE A
Probationary Employees
• Non-reelection under Education Code
44949.21 is not a “for cause” dismissal.
• A first year probationary employee may be
noticed at any time prior to the end of the
school year, preferably before the end of
• A second year probationary employee
MUST be notified on or before March 15th.
Probationary Employee
• While non-reelection is not a “for cause”
dismissal, you cannot dismiss for
prohibited reasons (i.e., discrimination,
retaliation, etc.).
• It is inappropriate to non-reelect a
probationary employee to avoid a layoff
situation, because doing so deprives the
teacher of the 39-month reemployment
right entitlement.
Probationary Employees
• Teachers of Districts with 250 ADA or less
generally do not earn tenure. Education
Code Sections 44929.43 and 44948.2 are
the sections of code which deal with the
mid-year dismissal of a K-12 probationary
teacher for these small districts.
Probationary Employees
• While generally districts wait until March 15th to
do non-reelection, there is a provision in
Education Code 44948.3 for mid-year dismissals
in cases of more egregious wrong-doing.
• This process requires a statement of charges
and a hearing before an administrative law judge
(ALJ) from the Office of Administrative Hearings.
The process is more like classified employee
dismissals, the ALJ presides at the evidentiary
hearing and then makes the findings and
recommendations to the governing board, which
may or may not follow those recommendations.
The Two Most Common Problems
with Summative Evaluations
• Issuing good evaluations for less than
satisfactory performance.
• Giving bad evaluations with conclusory
statements and no documentation.
Proving Unsatisfactory
• Common Evidentiary Factors:
– Did clear identifiable performance standards exist and
cover the conduct alleged to have been engaged in
by the employee?
– Were these performance standards reasonable and
applied consistently to other employees?
– Did the district provide credible evidence by reference
to specific acts of omission or commission that the
employee failed to meet these performance
Proving Unsatisfactory
• Common Evidentiary Factors:
– Did the district attempt to help the employee correct
the deficient performance through suggestions for
improvement, offers of assistance, and clear
directions on the proper conduct or level of
performance the employee is expected to follow in the
– Did the district expressly inform the employee of the
consequences for failing to improve his/her teaching
– Did the employee have sufficient time to raise his or
her performance to acceptable levels?
Districts Should…
• Review existing contract evaluation language to
avoid technical impediments. For example:
– Avoid limiting formal evaluation to establish goals and
– Avoid requiring that goals and objectives be
established solely by mutual agreement.
– Avoid including the judgment of the evaluator under
the contract grievance procedure.
– Avoid making written warnings and letters of
reprimand subject to the grievance process.
– Include an overall evaluation rating, such as
“satisfactory” and “unsatisfactory.”
Districts Should…
• Initiate training and in-service of evaluators to
review evaluation procedures, performance
standards and documentation techniques
(FRISK) to maximize uniformity.
• Standardize the evaluation process to cover
substance, format and approach.
• Establish and define unsatisfactory performance
and related performance standards in plain,
detailed, and complete language to avoid
Districts Should…
• Document
• Document
• Document unsatisfactory performance
Grounds for Dismissal
• Education Code 44932 contains 12
grounds under which a permanent
certificated employee can be dismissed.
• Several of the grounds are antiquated or
otherwise relied upon infrequently.
Grounds for Dismissal
• The most commonly used grounds are:
Immoral or unprofessional conduct (a)(1);
Dishonesty (a)(3);
Unsatisfactory performance (a)(4);
Evident unfitness for service (a)(5);
Physical or mental condition unfitting him or her to instruct
or associate with children (a)(6);
– Persistent violation of or refusal to obey school laws of the
state or reasonable regulations prescribed for the
government of the public schools by the State Board of
Education or by the governing board of the school district
employing him or her (a)(7); and
– Conviction of a felony or any crime involving moral
turpitude (a)(8).
What the Law Requires
• Evidence proving unsatisfactory
• Unfitness to teach (Morrison Standards)
• Fairness
• For dismissals based on unprofessional
conduct or unsatisfactory performance,
written notice with an opportunity to
correct is required under EC 44938.
• Correction Period:
– For unprofessional conduct – at least 45
calendar days
– For unsatisfactory performance – at least 90
calendar days
• Immoral Conduct
– Not defined by Education Code. The Supreme Court
in Board of Education v. Jack M. (1977) 139 Cal. Rptr.
700, held that the proper criteria to apply in a case of
immoral conduct is whether the employee is “fit to
– Applying this standard, courts have found “immoral
conduct” to exist where there has been willful,
flagrant, or shameless conduct showing moral
indifference to the opinions of respectable members
of the community. Board of Education of San
Francisco Unified SD v. Weiland (1960) 4 Cal Rptr.
• Immoral Conduct may include:
– Falsification of documents
– Sexual Harassment
• Evident Unfitness for Service
– No definition of Evident Unfitness in the
Education Code.
– In Morrison v State Board of Education (1969) 82
Cal. Rptr. 175, the California Supreme Court held
that “unfitness for service” may be found where it
can be shown that a teacher’s “retention in the
profession poses a significant danger or harm to
either students, school employees, or others who
might be affected by his actions as a teacher.”
• Evident Unfitness for Service
– In order to make the determination whether
the conduct rises to the level of Evident
Unfitness, the courts have set forth a number
of factors for a district to examine (Morrison
• Harm caused by the conduct (not only to students,
but also the district, teachers, other staff, and the
• Notoriety of conduct;
• Proximity or remoteness in time;
• Evident Unfitness Morrison Factors
– Extenuating or aggravating circumstances;
– Motive for the conduct;
– Whether prior help has been given;
– Likelihood of reoccurrence; and
– Chilling effect on legal rights, if any.
• Evident Unfitness for Service
– In Woodland Joint USD v. Commission on
Professional Competence (1992) 4 Cal. Rptr. 2d 227,
an appellate court formally defined “evident unfitness”
as conduct showing that a person is “clearly not fit,
not adapted to or unsuitable for teaching, ordinarily by
reason of temperamental defects or inadequacies.”
The Court continued that it “connotes a fixed
character trait, presumably not remediable merely on
receipt of notice that one’s conduct fails to meet the
expectations of the employing school district.”
• Examples of Evident Unfitness:
– Insulting remarks, disregard for Policy, and
lack of discipline with students;
– Vulgar remarks and gestures;
– Racist statements.
• Unprofessional Conduct
– No definition exists in the Education Code
– In Woodland, the court simply found that
“unprofessional conduct” was something short
of evident unfitness to teach.
– Accordingly, like “immoral conduct,” the main
inquiry in an “unprofessional conduct” inquiry
is whether the employee is “fit to teach.”
• Unprofessional Conduct
– This is shown by a pattern of sub-standard
– It is crucial to show that the teacher was
specifically and repeatedly notified that the
performance was deficient, provided a
remediation plan, and given assistance and
time to correct inadequacies.
• Persistent Violation
– This term requires that an employee has been
notified of a requirement and continues to
violate it. San Dieguito Union HSD v.
Commission on Professional Competence
(1985) 220 Cal. Rptr. 351.
– However, one instance of such may not
constitute “persistent” violation.
• Moral Turpitude
– Courts have held that “while not every public
offense may involve conduct constituting
‘moral turpitude’…it is inherent in crimes
involving fraudulent intent, intentional
dishonesty for purposes of personal gain, or
other corrupt purpose.” Rice v. Alcohol
Beverage Control App. Bd. (1979) 152 Cal.
Rptr. 285, review denied.

similar documents