Friday, May 21, 2010

Proposed Legislation to Improve New York’s Race to the Top Fund Application Also Changes Teacher Evaluation and Discipline Process

May 18, 2010

In an effort to improve New York State’s Race to the Top application for Phase II of the competition before the June 1, 2010 deadline, the New York State Education Department (“SED”), with the support of the New York State United Teachers (“NYSUT”) and its largest local, the United Feder ation of Teachers, recently submitted legislation that would create a comprehensive evaluation system for teachers and principals. Although the proposed legislation addresses several aspects of the Race to the Top selection criteria through the evaluation system it would create, it would have consequences for the procedures and penalties associated with the discipline of tenured teachers.

The proposed legislation would amend the Education Law by creating a new Section 3012-c, entitled “Annual professional performance review of classroom teachers and building principals,” creating a framework for an evaluation system for teachers and principals, addressing much of the reform plan criteria by which RTT applications are evaluated. Pursuant to the system, teachers and principals would undergo an annual pro fessional performance review based upon several factors, ultimately receiving a score which would translate to one of four ratings: highly effective, effective, developing, or ineffective. Teachers and principals given “developing” or “ineffective” ratings would be provided with support through customized improvement plans, and those receiving two consecutive “ineffective” ratings would be classified as having a pattern of ineffective teaching and could be considered for termination through an expedited hearing. Under the legislation, only 40 percent of each evaluation score would be based on student achievement measures, with at least 20 percent based on student growth not raw test scores. The remaining 60 percent would be based on locally negotiated processes that are “rigorous and comparable across classrooms” based upon regulations which would be issued by the Commissioner of Education (“Commissioner”). Thus, af ter the Commissioner issues regulations, the criteria would need to be negotiated between a district and the unions representing the district’s teachers and principals, similar to the APPR process. Additionally, the proposed legislation provides that districts must negotiate appeals procedures whereby evaluated teachers and principals may challenge the substance of the required annual professional performance review, the district’s adherence to the standards and methodology required for performance reviews, adherence to the Commissioner’s regulations and locally negotiated procedures, and the issuance of the teacher or principal specific improvement plans.

In addition to creating a framework for a comprehensive evaluation system, the legislation creates a new statutory procedure whereby certain i ncompetence cases must be completed by a single hearing officer in an expedited hearing – which must commence within seven days of a pre-hearing conference and must be completed within 60 days of the pre-hearing conference. If the expedited time frame is not adhered to, arbitrators/hearing officers could be removed from future cases. The expedited hearing process applies where charges of incompetence are brought against a tenured teacher or principal based solely upon a two-year “pattern of ineffective teaching or performance.” Additionally, any collective bargaining agreements which provide an alternative procedure to the 3020-a hearing process must meet the requirements of the expedited hearing for such agreements that become effective on or after July 1, 2010. The legislation does nothing to address the backlog of 3020-a hearings based upon teacher misconduct and abuse. The legislation requires that a pattern of ineffective teaching be based on “si gnificant evidence of incompetence,” sets prescribed allegations that may be pled in such charges and establishes defenses which employees may raise before the hearing officer in response to any allegation of a pattern of ineffective teaching or performance.

The legislation must be adopted by the end of the month if it is to add points to New York’s RTT score. Thus, changes in this area are expected to occur rapidly. We will continue to monitor this proposed legislation and its implications as it moves through the legislative process, and for more information on understanding the potential impact of this legislation please contact Laura M. Purcell, Douglas E. Gerhardt, Tracie L. Lopardi at 800-685-1429, or the Harris Beach attorney with whom you usually work.

This Legal Alert provides a brief analysis or commentary on matters related to labor and employment law, and does not purport to be a substitute for advice of counsel on specific matters.

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