October 4, 2024
Part 4

Legal Update on Employee Performance Standards in Wisconsin School Districts: Hot Tip #4

WASDA Conference Legal Update Education Lawyer

Welcome back to our legal update series based on Kirk’s presentation at the WASDA Spring Conference. Thus far, we’ve covered performance standards, Hot Tips #1 & 2, and Hot Tip #3.

In this installment of the series we’re shifting our attention Hot Tip #4, which contains four main points:

  • Managing the Form (Don’t Let it Manage You)
  • Teacher Evaluations: Management and Supervision
  • Administrator Evaluations and Nonrenewal
  • Evaluations in General, and Evaluation Factors

Let’s jump right in …

Hot Tip #4

EVALUATIONS: MANAGE THE FORM (DON’T LET IT MANAGE YOU)

  1. Mathematical averages do not necessarily mean that performance standards are being met.
  2. Any one criterion can be critical to your employment.
  3. The district reserves the right to determine what is in the best interest of the district. 
  4. Read our essay (or listen to what the administration is telling you is important).

EVALUATIONS: TEACHER

Management & Supervision

  1. The “Desk File,” Generally:
    1. You generally can have a file that isn’t part of the regular personnel file (i.e., it is secret) to track specific performance issues or personnel problems, as long as its purpose, use, and disposition is proper.
    2. This procedure applies primarily to behavior that is problematic only if it is frequent and/or represents an established pattern of behavior over time (e.g., tardiness). 
    3. You can’t have such a file if your district has passed rules about personnel files or other recordkeeping practices that prohibit this practice. Your board policies, handbooks, and contracts shouldn’t inadvertently restrict your ability to do this.
    4. Usually, this is a principal’s concern. However, superintendents may need to track certain performance issues themselves and — even if they don’t — need to make sure that principals don’t create records that they shouldn’t.
    5. An employee has the right to see their own personnel file up to two times every calendar year. Wis. Stat. § 103.13(2). This means that the proverbial “desk file” has to have a temporal property to it, because an employee can use the fact that materials that belong in the personnel file were not there in any number of ways tactically.
  2. The “Desk File,” Content:
    1. Identify the issue/behavior and determine whether it should be monitored.
    2. If it should be monitored, make a specific notation (including date, time, place, and specific observations).
    3. Continue to make specific notations as events/behavior warrants.
    4. At some point, you will have to make a call: Is the behavior significant enough to warrant further action or were those situations aberrations that require no further monitoring?
      1. If no further monitoring is required, the file materials can be destroyed.
      2. If the matter does require further action, the file materials can be used to produce a specific, capable personnel document to share with the employee and place in the personnel file.

EVALUATIONS: ADMINISTRATOR

Nonrenewal

  1. Superintendents must have a calendar-based flow chart for administrator contract renewal and nonrenewal.
    1. When do evaluations have to be done under policy, and are they done, in fact, before any recommendations are made concerning administrators’ contracts?
    2. What is the school board meeting schedule in relation to the statutory renewal and nonrenewal timelines?
    3. Are there conflicting obligations created by general policy (e.g., school board policy) or by specific commitments (e.g., plans of improvement)?
  2. By law, nonrenewal will generally be sustained if statutory procedures have been followed, if there is a non-arbitrary or capricious basis for the decision, and the contract and/or policy do not contain a more demanding job security standard. 

    Thus, the reason(s) for the proposed nonrenewal should be understandable, performance-based, and cast in terms of the superintendent’s judgment.

EVALUATIONS: IN GENERAL

Evaluation Factors

  1. Responsiveness to the superintendent.

    An administrator can reasonably be expected to be responsive to the superintendent’s leadership and direction, including:

    1. Supporting the superintendent’s agenda
    2. Carrying out expected duties
    3. Refraining from backbiting or undermining

    A superintendent can reasonably be expected to evaluate and place administrators on notice about this expectation. Evaluations should account for and, in some instances, even include provisions for assessment that are based on contributions to the superintendent’s goals and objectives.

This brings us to the end of our discussion on this hot tip. Next up, we’ll tackle two more of Kirk’s hot tips:

  • Hot Tip #5, Cover These Subjects: Make the Employment Contract Work
  • Hot Tip #6: Cover These Subjects: Review and Regulate Use of Technology — Now

Until then, if you found this article informative, you may also like: