September 25, 2024
Part 2

Legal Update on Employee Performance Standards in Wisconsin School Districts: Hot Tips #1 & 2

WASDA Conference Legal Update Education Lawyer

In this article, we continue diving into Kirk Strang’s legal update from April’s WASDA Spring Conference with his first two hot tips.

  • Hot Tip #1: Make the PIP work for you
  • Hot Tip #2: Require the subject of the Performance Improvement Plan to prepare written reports

In case you missed it, the first part of the series was all about scale of performance standards.

Let’s get started with Kirk’s hot tips ….

Hot Tip #1

MAKE THE PIP WORK FOR YOU

  1. If this is the employee’s last chance, and failure to improve under the PIP will result in nonrenewal/termination, make that clear in the PIP itself.
  2. Use the PIP to create a record of past efforts made to coach the employee (e.g., meetings with supervisors and classroom supervision). In many cases, making coachability and responsiveness an issue is productive.
  3. Do not be afraid to place an employee on a PIP, even if you fully intend to nonrenew their contract. In that case, a PIP is still appropriate in order to better serve student/educational interests.
  4. Carve out a place for a PIP. You want it to override other, possibly competing instruments. Make clear that the PIP isn’t modified by anything else.

Hot Tip #2

Require the subject of the Performance Improvement Plan to prepare written reports.

EVALUATIONS: TEACHER

In General

  1. Utility of Evaluations. Employee performance issues generally call for a focused assessment of the problem and an examination of the regimen that will need to be used to address the problem. As a result, a comprehensive evaluation is often of little help, because its design is meant to cover all significant aspects of teacher performance; consequently, it will provide very little on any given subject unless a written addendum on the subject was prepared and appended to the evaluation.
  2. Evaluation Tripwire. An evaluation can mess us up. If an area is unacceptable and cannot persist (e.g., to the point of relieving the teacher of duty), the annual, comprehensive evaluation may not carry all of the water we need, but it can be our undoing. Consistency is key!
  3. Putting Limits on Evaluations. An evaluation should not be given the power to mess us up. Qualify the import of evaluations; they are a primary tool, but not the only important measure of performance.

The Teacher Contract

  1. Teacher job duties language.
    1. Make sure the language doesn’t limit the district’s reasonable expectations; avoid the claim that “it’s not in my contract” (e.g., have something that provides … “and shall also perform such other duties and responsibilities as may be assigned, provided by policy and/or handbook, or as are reasonably expected of a professional teacher at expected levels of performance”).
    2. Example: “Teacher’s duties may include, but are not limited to, daily preparation, supervision of extra and co-curricular activities, attendance at staff meetings and in-service training, participation in meetings with parents/guardians, curriculum writing, assessment, collaboration, professional development and supervision of study halls, cafeteria, and corridors, expectations outlined in the teacher job description, and such other duties that the board or administration may direct.
  2. Job performance.
    1. Make clear who will determine whether the teacher’s performance is acceptable. 
    2. Example: “IT IS FURTHER AGREED that said services shall be provided and duties performed at a level deemed acceptable to the board and/or the district’s administration.”
  3. Job security.
    1. Watch for language that provides a different level of job security than what you actually want, language that differs from what appears in the handbook or board policy, or language that does not provide any statement about job security at all, that is, the standard for terminating the contract (which will create a scenario where common law takes over and provides common law cause).

Authority

  1. Review your Board Policies, Employee Handbook, and past practice. 
    1. When do evaluations have to be done under board policy?
    2. Are evaluations done, in fact, before any recommendations are made concerning employee contracts?
    3. Are evaluation cycles interfering with effective evaluation?
    4. Does the district do its own evaluations or does it limit its evaluations to those mandated by EE?
    5. What framing language (if any) do we have for evaluations in other documents? Words of limitation or words that suggest evaluations have to be considered for almost anything to the point of being authoritative.

In the next installment of the series, we’ll explore Hot Tip #3: Teacher Evaluations and “Writing an Essay.”

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