This 6-part series recaps Kirk Strang’s legal update from April’s WASDA Spring Conference.
Here’s a quick overview of the topics we’re covering in the series:
- The Scale of Performance Standards
- Hot Tips 1 & 2
- #1: Make the PIP work for you
- #2: Require the subject of the Performance Improvement Plan to prepare written reports
- Hot Tip #3: Teacher Evaluations and Writing an Essay
- Hot Tip #4: Manage the Form, Teacher Evaluations, and More
- Hot Tips 5 & 6
- #5: Make the employment contract work
- #6: Review and regulate use of technology NOW
- Hot Tip #7: Evaluation Goals & Confidentiality, Plus Volunteer Standards
Our first installment of the series covers what Kirk refers to as the scale of performance standards, which include:
- At-will
- Not unlawful
- Non-arbitrary & Capricious
- Just Cause
Performance Standards
“AT WILL”
- Definition. In an at-will employment relationship, employers and employees can end the working relationship at any time, for any reason (that is not unlawful).
- Usage. In schools, extra-curricular assignments are a common example of at-will employment. An extra-curricular letter of assignment should make clear that:
This is not an employment contract;
The district may terminate employment at any time, for any reason that is not unlawful. A finding of poor performance is not required in order to terminate employment.
JUST CAUSE
-
Definition. Wisconsin Courts have determined that “just cause” does not have “one plain and ordinary meaning.”
In Kernz v. J.L. French Corp., 2003 WI App 140, the Wisconsin Court of Appeals concluded that “just cause” is an ambiguous contract provision. Therefore, the uncommunicated subjective beliefs of the employer and employee were admissible to determine the intended meaning of the standard.
A 1965 Wisconsin Supreme Court case established the “just cause” test for the termination of a tenured municipal employee. The Court held that impairment of the performance of an employee’s job duties is not the sole justification for termination. Rather, certain conduct — unrelated to an employee’s job duties — may justify termination simply due to its undermining of public confidence in the municipal service.
— State ex rel. Gudlin v. Civil Service Comm., 27 Wis.2d 77, 87, 133 N.W.2d 799, 805 (Wis. 1965).
The Wisconsin Supreme Court has since noted that there must be a nexus — or sufficient rational connection — between the employee’s conduct and his/her job duties.
Only if the employee's misconduct has sufficiently undermined the efficient performance of the duties of employment will ‘cause’ for termination be found.
In determining whether ‘cause’ for termination exists, courts have universally found that persons assume distinguishing obligations upon the assumption of specific governmental employment. Conduct that may not be deleterious to the performance of a specific governmental position — i.e. a Department of Agriculture employee — may be extremely deleterious to the performance of another governmental occupation — i.e. teacher or houseparent in a mental ward. Thus it is necessary for this court to determine the specific requirements of the individual governmental position.— Safransky v. Personnel Bd., 62 Wis.2d 464, 474, 215 N.W.2d 379 (Wis. 1974).
In the next installment of this series we’ll cover the first two hot tips from Kirk’s WASDA spring conference legal update — making the PIP work for you, and requiring the subject of the Performance Improvement Plan to prepare written reports.
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