THE IMMORTAL WORDS OF DONALD TRUMP Nonrenewals in the era of OTES. Are you ready? March 5, 2014 39 Offices in 19 Countries
Today’s Presenter Daniel A. Jaffe Of Counsel, Squire Sanders T +1 216 479 8304 daniel.jaffe@squiresanders.com Linda M. Gorczynski Associate, Squire Sanders T +1 216 479 8613 linda.gorczynski@squiresanders.com 2
Nonrenewal Statute 3319.11 • New notice deadline is June 1 • New deemed-accepted deadline is June 15 • Deadlines are not negotiable and supersede post-3/22/13 CBAs 3
Nonrenewal Statute 3319.11 • Basic Requirements have not changed: Three types of contracts: – Limited – Extended limited – Continuing Confusing procedure for granting extended limited contracts Eligibility requirements for continuing contracts 3 years/2 years having attained continuing contract status elsewhere 4
Nonrenewal Statute 3319.11 • Right to a “written statement describing the circumstances that lead to the board’s intention not to reemploy the teacher” • Right to a hearing before the board, with a written decision • Appeal to Court of Common Pleas • Still overturned by court only for “procedural violations or failure to comply with evaluation procedures” • Still can supersede 3319.11 by CBA, except deadlines 5
What is different in the Era of OTES • Nonrenewal under RC 3319.11 depends on the District having complied with RC 3319.111, the evaluation statute. RC 3319.111 is all new • 3319.111 takes precedence over any conflicting provisions in any post 9/24/2012 CBA 6
Litigation Over Old 3319.11 • “Instant tenure” / “Fair dismissal” provision enacted in 1988 HB 330. Eight years of clarifying Ohio Supreme Court litigation ensued over the evaluation provisions, including: Written report of the evaluation results – Specific recommendations regarding any improvements needed – Means for obtaining assistance in making the improvements 7
What is Coming with OTES? • Eliminated the troublesome “recommendations for improvement” and “means for obtaining assistance” language. But new uncertainties will accompany nonrenewals in the OTES era 8
Who is Authorized to Conduct the Evaluation? • Under 3319.111(D) evaluations must be conducted by Superintendent/Assistant Superintendent School principal Licensed supervisor, administrative specialist or vocational director Persons designated by any agreement entered into by the district (including CBA with peer review) Entities contracted by district (i.e. ESC), assuming proper licensure Note: All evaluators must first be credentialed by 9 ODE
Survey Question No. 1 Our ODE credentialed Principal is out with a really bad cold on a scheduled evaluation day. The uncredentialed Assistant Principal handles the observation on that day, but the Principal completes the evaluation. The resulting nonrenewal will be: Affirmed: “Evaluation” was done by Principal Affirmed: Credentials shouldn’t matter Overturned: Noncredentialed person did an observation Overturned: Assistant Principals handle student matters 10
Survey Question No. 1 The resulting nonrenewal will be: • Affirmed: “Evaluation” done by Principal • Affirmed: Credentials shouldn’t matter • Overturned: Noncredentialed evaluator • Overturned: AP’s do student matters 11
Observation Requirements and Deadlines • For teachers on limited/extended limited contracts under consideration for nonrenewal, three formal 30-minute observations are required (3319.111(E)(1)) • For other teachers, the evaluation only requires two formal 30-minute observations • Teachers rated accomplished can, by board resolution be evaluated every other year and with only one observation with a project • The evaluation must be completed by May 1 with reports issued by May 10 (3319.111(C)(1)) 12
Survey Question No. 2 A limited contract teacher who, as of April 30, we had no intention to nonrenew, has a truly awful observation-she is combative with students, insults the principal, encourages illegal drugs. Can we quickly set up a third formal observation on May 1 to satisfy the 3-observation rule? No. April 30 is the deadline No. All observations must be planned in advance under our CBA No. The third observation is obviously contrived for nonrenewal Yes. Do it quickly and complete the evaluation on May 1 13
Survey Question No. 2 Can we quickly set up a third formal observation on May 1 to satisfy the 3- observation rule? • No. April 30 is the deadline • No. Obs must be announced by CBA • No. 3rd obs is obviously contrived • Yes. Do obs and eval on May 1 14
Effectiveness Ratings (3319.112) • Each evaluation will result in an effectiveness rating of Accomplished Skilled Developing Ineffective • Ratings are based on Teacher performance Student growth measures 15
Survey Question No. 3 Judy Densch, an “accomplished” teacher on a limited contract was approved for one 30- minute observation (vs. two) and a Board- approved project demonstrating growth and practice at the accomplished level (3319.111(C)(2);(E)(2)). Unfortunately, her “project” involved conscripting students to throw snowballs at school busses. Can we nonrenew her? No. You cannot nonrenew an accomplished teacher Yes. Why not? No. You need 3 observations 16 1 and 3
Survey Question No. 3 Can we nonrenew her? • No. Can’t nonrenew accomplished • Yes. Why not? • No. You need 3 observations • 1 and 3 17
Retention in Board Policy • 3319.111(F) requires board policy to include procedures for using the evaluation results in making retention and promotion decisions and removal of poorly-performing teachers • With regard to removal of “poorly- performing” teachers, ORC does not define poorly performing (except in the context of RC 3319.58) 18
Survey Question No. 4 Can we nonrenew a teacher who is rated “developing” on his 3-observation evaluation? Why not? No Not if we are retaining an “ineffective” teacher Not if we are retaining another “developing” teacher 3 and 4 19
Survey Question No. 4 Can we nonrenew a teacher who is rated “developing” on his 3-observation evaluation? Why not? No Not if we keep “ineffective” teach Not if we keep another “developing” 3 and 4 20
Survey Question No. 5 It is May 15. John Tasich, an 11 th grade English teacher, rated “accomplished” on his 3-observation evaluation, says to his class: “We are not going to read In Cold Blood this year because Truman Capote was gay.” Can we nonrenew John? Sure, we completed the evaluation No, would require termination for “just cause,” not nonrenewal No, this is academic freedom 21
Survey Question No. 5 Can we nonrenew John? • Sure, we completed the evaluation • No, requires “just cause” termination • No, this is academic freedom 22
Hearing Requirements • There is no change in the nonrenewed teacher’s right to a hearing before the board of education. The big question is what will be the focus of that hearing • Under old 3319.11, the focus was on whether the teacher was given specific directions for improvement and the suggestions for attaining that improvement • Under OTES, the focus of the hearing may be on the evaluator’s rubric decisions, on the validity of the value added data or the overloaded schedule of the evaluating 23 administrator
Survey Question No. 6 We are using the OTES rubrics for distinguishing ineffective, developing, skilled and accomplished teachers. There is plenty of room for opinion, and it is hard to assess a year’s worth of performance in a few observations and walkthroughs. Will we have to support the rubric decisions we make at the nonrenewal hearing? Yes. Count on it No. The law does not allow rehashing the evaluator’s opinions No. That would be just impossible What is a rubric? 24
Survey Question No. 6 Will we have to support the rubric decisions we make at the nonrenewal hearing? • Yes. Count on it • No. No rehashing evaluator opinions • No. That would be just impossible • What is a rubric? 25
Questions? 26
Future Webinar in This Series Wuz Op? Ohio’s New Special Education Operating Standards. What you need to know today. Wednesday, April 2, 2014 27
Thank you Contact us with any questions or issues: • Dan Jaffe: daniel.jaffe@squiresanders.com • Linda Gorczynski: linda.gorczynski@squiresanders.com 28
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