THE IMMORTAL WORDS OF DONALD TRUMP - Nonrenewals in the era of OTES. Are you ready?

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

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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

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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

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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,
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      except deadlines

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

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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

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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

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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
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      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
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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

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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
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       (3319.111(C)(1))

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
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      Yes. Do it quickly and complete the evaluation on May 1

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

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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

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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
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       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

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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)

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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

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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

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Survey Question No. 5

     It is May 15. John Tasich, an 11th 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

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Survey Question No. 5

     Can we nonrenew John?
     • Sure, we completed the evaluation
     • No, requires “just cause” termination
     • No, this is academic freedom

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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
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       overloaded schedule of the evaluating
       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?
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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?

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Questions?

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Future Webinar in This Series

     Wuz Op?
     Ohio’s New Special Education Operating Standards. What you need to know
     today.
         Wednesday, April 2, 2014

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Thank you

     Contact us with any questions or issues:

     • Dan Jaffe: daniel.jaffe@squiresanders.com
     • Linda Gorczynski: linda.gorczynski@squiresanders.com

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