by Pamela Leist | Mar 31, 2014 | Board Policy & Representation, Labor and Employment, Legislation
The Ohio House Education Committee has unveiled sweeping changes to Substitute Senate Bill 229 with regard to teacher and principal evaluations. The original version of SB 229, which passed the Senate unanimously on December 4th, 2013, modified frequency and composition of teacher evaluations and reduced some of the burden on school administrators. The new version of the Bill proposed by the House Education Committee, however, would modify both the OTES and OPES evaluation systems in ways that would undoubtedly place additional strain on the relatively untested evaluation systems. The proposed changes include the following:
- Bumps student growth measures back up to 50% from the 35% proposed by the Senate, unless a district elects to use an alternative “student survey” framework (available for grades 4-12), in which case the final rating would be comprised of 40% SGM, 40% teacher performance rating, and 20% student survey results;
- Requires that an evaluator use an average score if a teacher receives different scores on the observations and review components of the evaluations;
- Increases SGM from three to five total possible ratings: “Most Effective”, “Above Average”, “Average”, “Below Average”, and “Least Effective”;
- Adds new performance level rating of “Effective” that will exist in the realm between “Skilled” and “Developing”;
- Requires that at least one formal observation of a teacher be unannounced;
- Beginning in 2015, allows districts to evaluate “Accomplished” and “Skilled” teachers every other year, but only if the teacher’s SGM score is rated “Average” or higher (teachers must still receive one observation and a conference in the “off” year);
- District can elect not to evaluate 1) a teacher who is on leave for 70% or more of the year, and 2)a teacher who submitted notice of retirement before Dec. 1st;
- Teachers rated “Effective” “Developing” or “Ineffective” must be placed on an improvement plan;
- In 2015 and beyond, districts cannot assign students to a teacher who has been rated ineffective for two or more years (but does not specify what a district should do with these teachers!);
- A district is also prohibited from assigning a student teacher to a teacher who is “Developing” or “Ineffective” during the previous year;
- If a teacher with at least ten years of experience receives a designation of either “Least Effective” or “Below Average” on his/her SGM rating, that teacher may be rated “Developing” only once;
- Mandates that results of an evaluation must follow the teacher even if he/she is transferred to a new building or takes employment elsewhere;
- Requires ODE to develop a standardized framework for assessing SGM for all non-value added grade levels and subjects by 2016;
- By 2016, districts must administer assessments to students in each of grades K-12 for English Language Arts, Mathematics, Social Studies, and Science. Assessments must be selected by ODE and based on value-added progress dimension or vendor-developed student growth measures (may include assessments already required by law);
- Beginning next July, evaluators must verify completion of at least one evaluation training course outlined in the bill;
- After July 1, 2015, the State Board must ensure individuals seeking licensure as superintendent, assistant superintendent, principal, vocational director, administrative specialist, or supervisor have completed a teacher evaluator training;
- The revised bill mandates that the State Board of Education must develop a standards based system for principals and assistant principals, which districts must conform to;
- Third grade reading guarantee assessments must either be value-added or vendor-approved assessments;
- ODE must provide detailed report of school performance on evaluations to general assembly, and must accept comments for improvement from districts that it passes on to general assembly;
- Exempts from collective bargaining all amendments made by the bill to 3319.111, 3319.112, 3319.113, 3319.114, 3319.115, and 3319.117;
- Permits a district to enter into a MOU with union that stipulates value-added progress demission rating issued for 2014-2015 will not be used when making decisions regarding dismissal, retention, tenure or compensation.
The substitute bill currently awaits approval in the House Education Committee before it will be sent to the full House for a vote. The bill will also need to be voted on again by the Senate before it proceeds to the governor for final signature. We will keep you posted on the progress of the bill, and also encourage clients to voice opposition to the drastic changes listed in the bill. To review the Legislative Service Commission’s comparison synopsis, click here.
by Gary Stedronsky | Mar 6, 2014 | Labor and Employment
We’ve recently seen an increase in the number of FMLA “Health Care Provider” certifications that are completed by chiropractors. As many of you know, the FMLA grants eligible employees up to 12 weeks of unpaid leave for several reasons, including a serious health condition. An employer is permitted to request a certification from an employee’s health care provider to verify that the employee does indeed have a serious health condition Many school districts and other employers have been accepting these certifications from chiropractors without realizing that it is very rare that such a certification must be accepted.
Although many people seek treatment from chiropractors for very serious injuries and ailments, the Department of Labor has concluded that a chiropractor is not to be considered a health care provider unless the treatment provided consists of “manual manipulation of the spine to correct a subluxation.” This diagnosis must also be demonstrated by an X-ray to exist.
This means that school districts and other employers are not required to accept FMLA certifications from chiropractors unless an employee has seen the chiropractor for this one specific reason. We’ve found that many clients mistakenly accept certifications from chiropractors for many other ailments. So, the next time you see a FMLA Health Care Provider certification from a chiropractor you will likely be able to refuse to accept it unless it is for the limited treatment and diagnosis of manual manipulation of the spine to correct a subluxation. The certification must also indicate that such a diagnosis was confirmed to exist by an X-ray.
For more information on this topic and a list of other health care providers that can complete FMLA Health Care Provider certifications, please see the U.S. Department of Labor’s website at:
http://www.dol.gov/whd/regs/compliance/1421.htm
by Erin Wessendorf-Wortman | Feb 11, 2014 | General, Labor and Employment
On February 10, 2014, the U.S. Department of the Treasury and the Internal Revenue Service gave businesses an extra year to comply with the Affordable Care Act’s employer mandate. Click for U.S. Treasury Press Release.
Effective immediately, businesses with 50-99 employees will not face penalties for failing to provide health care coverage until 2016. However, these businesses will have to provide the government with information regarding their employees’ health insurance plans.
Previously, businesses with 100+ employees needed to provide health care coverage by January 1, 2015 for at least 95% of full-time workers or face a penalty of $2,000 per full-time employee (minus the first 30 employees). Now, the administration has amended this requirement so that on January 1, 2015, businesses with 100+ employees must offer health care coverage to at least 70% of their full-time workers, or face a penalty. This percentage jumps back up to 95% on January 1, 2016.
by Erin Wessendorf-Wortman | Jan 10, 2014 | Board Policy & Representation, General, Labor and Employment, School Management
The State Employment Relations Board (SERB) upheld the clear and unambiguous language of R.C. §3319.111, holding that school districts may implement a new teacher evaluation policy in line with OTES without negotiating with their teachers association when the applicable collective bargaining agreement naturally expires.
The Parma Education Association filed an unfair labor practice charge against the Parma City School District Board of Education alleging that the Board of Education violated the collective bargaining agreement and collective bargaining laws when the Board of Education unilaterally implemented a new teacher evaluation procedure while the parties were in negotiations for a successor collective bargaining agreement and the current agreement had expired.
SERB indicated that school districts are not typically allowed to make changes to the terms and conditions of employment during negotiations of an expired collective bargaining agreement. However, if laws specifically indicate that they supersede the collective bargaining rights outlined in Chapter 4117 of the Revised Code, then a school district may follow the specifics of the law. In this case, R.C. §3319.111 specifically states that teacher evaluation procedures supersede Chapter 4117 of the Revised Code and any conflicting terms of a collective bargaining agreement when the existing collective bargaining agreement naturally expires.
The Board of Education did not violate the rights of the Parma Education Association. The Board of Education acted within its legal rights when it unilaterally implemented its teacher evaluation policy and procedures once its current collective bargaining expired, even though it was negotiating a successor collective bargaining agreement.
SERB’s decision appears obvious based on the clear, unambiguous language of the statute, but this decision is important to highlight the management rights given to boards of education in establishing teacher evaluation policies and procedures through the House Bill 153 and Senate Bill 316 changes to R.C. §3319.111.
by Pamela Leist | Dec 12, 2013 | General, Labor and Employment
On November 19, 2013, the Ohio Supreme Court concluded that, pursuant to R.C. 3319.16, acts of insubordination constitute “good and just cause” to terminate a teacher’s contract as long as the underlying rules or directives violated were themselves reasonable and valid. John Freshwater was an eighth grade science teacher at the Mount Vernon City School District. As early as 1994, Freshwater began to interject religious principles into his classroom instruction. Specifically, he supplemented school curriculum with religious handouts, showed videos on creationism and intelligent design, displayed religious materials in the classroom, made statements about the Bible, and awarded extra credit to students who attended religiously-based seminars that were critical of evolution. Although district administration occasionally directed Freshwater not to incorporate religious materials or teachings into his instruction, he generally received positive evaluations during the twenty-one years he taught in the district. His students also usually received the highest scores on state achievement tests.
In 2003, the Board of Education rejected Freshwater’s proposal to amend the district’s science curriculum by incorporating material that criticized the theory of evolution. However, Freshwater ignored the Board’s decision and continued to teach certain topics in accordance with his religious beliefs. A few years later, the district’s superintendent issued a written directive to Freshwater that he must delete all supplemental materials which were not scientifically accepted. Again, Freshwater chose not to comply with the directive.
Matters came to a head in the fall of 2007, when parents complained Freshwater used an electrical instrument to burn what appeared to be the sign of the cross into their son’s arm. Freshwater confirmed he used the instrument to mark the student, but denied the mark was intended to be a cross. The district responded by sending Freshwater a letter stating he could not use classroom instruments to shock students.
The following spring, Freshwater met with the school principal again to discuss issues related to his religious instruction. At the conclusion of the meeting, he received written orders in clear and unequivocal terms that he could not display religious materials in the classroom. Freshwater was specifically directed to remove the Bible displayed on his desk and a poster of the Ten Commandments that hung on his door. The written notice also stated “[u]nless a particular discussion about religion or religious decorations or symbols is part of a Board-approved curriculum, you may not engage in religious discussions with students while at school or keep religious materials displayed in the classroom.”
Freshwater refused to comply with the order despite several follow-up requests. Meanwhile, the parents of the student who was shocked in class sent a demand letter and filed suit against the district. In response, the district hired an outside investigator to observe Freshwater’s classes. The investigator reported that Freshwater taught creationism and intelligent design in class, discussed various other religious subjects, distributed religious materials, and made statements such as “science is wrong because the Bible states that homosexuality is a sin.” The investigator also discovered that Freshwater gave extra credit to students who viewed a movie on intelligent design.
Eventually by the end of the 2007-2008 school year, the Board decided to terminate Freshwater’s teaching contract pursuant to ORC 3319.16. At the public hearing, a referee addressed four specific grounds for termination set forth in the board’s resolution: (1) the burn incident, (2) Freshwater’s failure to adhere to curriculum, (3) Freshwater’s role in the Fellowship of Christian Athletes organization, and (4) his disobedience of orders. The referee concluded that claims (2) and (4) constituted just cause for termination.
Freshwater appealed the decision to court. Both the Court of Common Pleas and the Court of Appeals for Knox County upheld termination, and the Ohio Supreme Court granted review of the matter. The Court’s decision in the case was limited to whether the district met the just cause standard mandated by R.C. 3319.16. The Court provided only a cursory review of constitutional issues regarding Freedom of Religion and the Establishment Clause. Therefore, the Court did not provide any substantial guidance to school boards or teachers as to the constitutionality of teaching or displaying religious materials in a public school setting.
The Supreme Court ultimately held that in this case, Freshwater’s repeated acts of insubordination alone constituted “good and just cause.” The Court focused on Freshwater’s persistent disobedience and refusal to comply with administrative directives, and specifically on his refusal to remove religiously-oriented materials from class. According to the Court, “good and just cause” under ORC 3319.16 includes insubordination, which is defined as a willful disobedience of, or refusal to obey, a reasonable and valid rule, regulation, or order issued by a school board or by an administrative superior. The letter from Freshwater’s principal made clear that he could not “engage in any activity that promotes or denigrates a particular religion or religious beliefs while on board property, during any school activity” or while teaching, as mandated by Board policy and the law. The Court concluded that the district’s orders were both reasonable and valid, and further that Freshwater willfully refused to comply with the directives. The Court summarized their findings by stating that “Freshwater [was] fully entitled to an ardent faith in Jesus Christ and to interpret Biblical passages according to his faith, but he was not entitled to ignore direct, lawful edicts of his superior while in the workplace.”
The Supreme Court’s decision confirmed that insubordination alone may constitute just cause as long as the rule or directive is reasonable, and the employee willfully or intentionally refused to comply. However, it is important to note that the standard for just cause itself has not been lessened by the Court’s decision, and districts should be cautious to interpret the case otherwise.
Further, even though the Ohio Supreme Court did not address whether Freshwater’s actions violated the Establishment Clause of the U.S. Constitution to any great degree, school districts should be ever mindful of possible Establishment Clause infringements. The U.S. Supreme Court has interpreted the Establishment Clause to strictly forbid any law or act undertaken by a public entity that furthers religion, or attempts to disapprove of a particular religion or religion in general. The U.S. Supreme Court and lower courts repeatedly emphasize that a public entity must remain neutral on the subject of religion.
In this case, the extent to which Freshwater incorporated religious beliefs and displays into his classroom and instruction very likely constituted an Establishment Clause violation. Because of the many legal implications of such violations, we highly recommend that you contact legal counsel for advice on any issue that involves religion in schools.
Freshwater v. Mt. Vernon City School Dist. Bd. Of Edn., 2013-Ohio-5000 (November 19,2013).
by Gary Stedronsky | Dec 12, 2013 | General, Labor and Employment
The Strasburg-Franklin Local School District provided its teachers with school district laptops. A teacher asked if he could take his laptop home for the summer and was told that he could but that he needed to return it by June 30th. The teacher failed to return the laptop until late July.
The IT department inspected the laptop upon return because the teacher had previously downloaded a virus. The IT department discovered 84 thumbnails of graphic, sexual images in the laptop’s temporary internet files. The images were all cached within 23 minutes on one day.
The teacher claimed he had searched for the actor “Shane Diesel” on his computer because the actor was mentioned in a conversation earlier that day. He also claimed that “porn thumbnail pop-ups” appeared when he clicked on a link in a Wikipedia page.
The school district initiated termination proceedings and a hearing was held with a state referee. The referee found that the teacher’s actions could give rise to the suspension or termination of his teaching contract; but mitigating factors suggested a suspension rather than a termination (the teacher had good performance reviews). Therefore, the referee recommended a suspension of 45 days for the failure to return the laptop by June 30th and 45 more days for inappropriate use of a school computer.
The school district accepted the referee’s findings of fact but rejected the proposed discipline and terminated the teacher. The teacher appealed to the court of common pleas. The court of common pleas reversed the school district’s termination because it found that the images were not hostile to the community and this was private conduct that had no impact on his professional duties. The teacher was then reinstated with full back pay.
The school district appealed to the Fifth District Court of Appeals. The appellate court concluded that it could only overturn the lower court if the lower court’s decision constituted an “abuse of discretion” – a difficult standard of review for the school district to overcome.
The appellate court denied the school district’s appeal finding no abuse of discretion in the lower court’s ruling. The appellate court reviewed other termination decisions in Ohio and found that appellate courts will affirm a board of education’s termination decision when the teacher’s behavior had or could have had a serious effect on the school system. In this case, the appellate court found that the teacher’s actions did not occur on school property and did not involve any students. This also was not a criminal act. Therefore, the appellate court determined that the lower court did not abuse its discretion because the conduct had no impact on the teacher’s professional duties and his actions were not hostile to the school community.
The discovery of pornography on a school district computer is employment misconduct that is generally considered a “slam dunk” termination case (alcohol, drugs, violence, and sexual conduct are some others). The teacher was unquestionably wrong in using the school district’s laptop in this manner. In fact, readers are cautioned not to utilize their school computers or devices to Google “Shane Diesel” out of curiosity. Trust me, the Google results alone should have told this teacher that this was off-limits. Yet, the teacher clicked-away and the state referee and courts overturned the school district’s termination decision because the teacher’s behavior supposedly had no impact on his professional duties. This decision demonstrates that there really are no “slam dunk” termination cases. Every decision to terminate a teacher must be made with the understanding that the time and money invested in a termination case may not always result in the desired outcome – no matter how strong you think the case is.
Winland v. Strasburg-Franklin Local School District Board of Education, Fifth District Court of Appeals, Case No. 12 AP 10 0058
