INDIANA UNIVERSITY OF PENNSYLVANIACareer & Technical Education Leadership Development Program

Competency Guide Sheet

Name: _________________________________________________ Date: ________________________

Competency Number: 901

Competency Title: Dealing with the Solicitor and Legal Issues in School

Level of Development: Guided Application

Introduction:

Directors of Career and Technical Education (CTE) Centers have the responsibility of dealing with many major and complex legal issues of the school operation and administration. Fortunately, legal counsel, through the solicitor is available to help directors meet these challenges. That stated, it is important, therefore, that directors form a good relationship with the school solicitor, as he or she can aid the director in many ways weaving through the complexities of school jurisdiction and management.

First and maybe foremost, the solicitor is the director’s and Joint Operating Committee’s (JOC) legal advisor. The scope of legal counsel includes but is not limited to the following issues: (Rodman). Contractual language and the laws relative to the Pennsylvania Labor Relations Board (PLRB);

The collective bargaining process, agreements, compensation plans (CBA’s or CP’s) for professional staff, clerical, support and maintenance personnel;

School law (Pennsylvania Public School Code 1949 as amended);

Levin’s Pennsylvania School Law and Rules;

Levin’s Pennsylvania School Personnel Action in addition to case law that stems from court decisions;

Counsel on special education and related issues on Individuals with Disabilities Education Act (IDEA 2004) as well as (Gaskins v Pennsylvania Department of Education);

Policy making and management language for board policies;

Articles of agreement between the sending districts and the CTC as well as post-secondary institutions and outside agencies;

Issues relative to the Professional Code of Conduct and Ethics violations.

A good school solicitor must have a positive relationship with the CTE Center Director, the Joint Operating Committee (JOC) and each superintendent on the Professional Advisory Committee (PAC). The solicitor must be respected by the superintendents and the JOC; have or develop a history with the organization; demonstrate expertise, knowledge as well as excellent research skills; and finally, demonstrate skills required to locate answers or solutions to the director’s or board’s questions in a timely fashion by disseminating the results in written form, in person, email, or via telephone.

New CTE directors will have questions in the following major areas: Board Policies; The Pennsylvania School Code; Personnel Actions; Special Education; Student Discipline; Staff Discipline; CBA or CP; Articles of Agreement; Hiring Practices; Grievance Procedures and Resolution; School Renovations; Terminations of both Professional and Non-Professional Staff; in addition to Evaluation of Professional as well as Non-Professionals (Clark/Felice).

In addition to the Solicitor you should enlist the aide of another outside professional service for your collective bargaining agreements, compensation plans, writing job descriptions, etc.

The following might be an example of the follow-up correspondence that you would receive after making contact with such a firm.

Pursuant to your (director) telephone contact with our office, please, do not hesitate to contact our office again.

I have included a short listing of our firm’s services:

grievance/arbitration handling; personnel issue management; advice and assistance relative to any public sector personnel or collective bargaining

concern; discipline and discharge; policy/procedure evaluation and/or development/updates; negotiations advice and/or assistance; unfair labor practice charge handling, plus a wide variety of management training.

Services are performed by highly skilled consultants, with extensive expertise, from 1970 through present, in the public sector arena of Pennsylvania, as defined by Act 195 and related state and federal legislation.

Our consultants are professionals in the fields of industrial and labor relations, business management and education. They have collectively serviced over one hundred (100) public entities ranging from county governments and agencies, public school districts, to boroughs. Additionally, our affiliated legal services are available on an ‘as need’ basis. Professional references are available upon request as well as a description of our most recent services and settlements.

ABC Consulting, Inc.’s strongest asset is our ability to tailor our services your exacting needs while providing those services at one of the most cost effective rates available in Pennsylvania.

In order to effectuate the primary goals and objectives you (the director) expressed in your request for a proposal, we would suggest the following:

1) Analyses of the duties, responsibilities and essential job functions of each of the USA Technology Center.

2) Review, modify and update the current classification system of the USA Technology Center to assure that the job descriptions accurately reflect the duties, responsibilities, knowledge, skills, abilities, and qualifications for each distinct position.

3) Develop and implement an objective organizational structure. 4) Develop and/or update written policies and procedures that clearly define the role of the

Joint Operating Committee and the rules and regulations applying to all staff.5) Aide in the development and implementation of an annual performance evaluation

system for all staff consistent with state mandates.6) Define the appropriate role for the position of director, principal, business manager, and

all other administrative or managerial positions.

Resources:

Counsel for Exceptional Children – “The voice and vision of special education”http://www.ideapractices.org/

Clark, Edwin M., Jr. Solicitor832 Philadelphia St.Indiana, PA 15701724.463.8791

Family and Advocates Partnership for Education (FAPE)http://www.fape.org/idea/2004/summary.htm

Free and Appropriate Public Education (FAPE)http://www.fapeonline.org/Fed%20Cases.htmhttp://www.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html

FERPAhttp://www.ed.gov/index.jhtmlhttp://www.ed.gov/offices/OII/fpco/ferpa/

FLMAhttp://www.dol.gov/esa/whd/fmla/http://www.opm.gov/oca/fmla/index.htm

HIPAA http://www.hipaa.org/http://aspe.hhs.gov/admnsimp/pl104191.htm

IDEA 2004http://www.ed.gov/policy/speced/guid/idea/idea2004.htmlhttp://www.ed.gov/about/offices/list/osers/osephttp://www.ed.gov/offices/OSERS/IDEA/http://www.wrightslaw.com/

Mary Rodman, Director, Cumberland-Perry AVTS110 Old Willow Mill RoadMechanicsburg, PA 17050-1816Phone 1-717-697-0354Fax 1-717-697-0592

Michael Levin - Levin Legal Group1301 Masons Mill Business Park1800 Byberry Rd.Huntingdon Valley, PA 19006-3518  Phone: 215- 938-6378Fax: 215-938-6375Email: mlevin@levinlegalgroup.comWebsite levinlegalgroup.comLevin’s Pennsylvania School Laws and Rules

Pennsylvania School Laws and Rules, West GroupLevin’s Pennsylvania School Personnel Actions

Pennsylvania School Personnel Actions Book, Banks-Baldwin Law Publishing, 1989

National School Boards Association (NSBA)http://www.nsba.org

National School Board Associations (NSBA) Counsel of School Attorney’s (COSA)

http://www.nsba.org

Pennsylvania Department of Education (PDE)http://www.pde.state.pa.us

Pennsylvania School Boards Association (PSBA) Pennsylvania School Solicitors Association (PSBSA)http://www.psba.org

Pennsylvania School Code 1949 as amendedhttp://www.pacode.com/secure/data/001/chapter3/s3.13.htmlhttp://www.pacode.com/secure/tips.html

Pennsylvania Association of School Personnel Administratorshttp://www.paspa.org/

Pennsylvania Depart of Labor and IndustryPennsylvania Labor Relations Boardhttp://www.dli.state.pa.us

Public Sector Counsel Service (PSCS)Mr. James Felice and Ms. Donna M. Wetzel1060 Mt. Pleasant RoadGreensburg, PA  15601-57691-800-657-1658724-837-3623 FAX

Pennsylvania School Law Handbook, Pennsylvania School Board Association, 1992 and 2001.Levin, Michael I. Pennsylvania School Laws and Rules Annotated, Banks-Baldwin Law Publishing Company, Cleveland, 1992.Levin, Michael I. 2001-2002 Pennsylvania School Personnel Actions. West Group, 2001.

United States Department of Educationhttp://www.ed.gov/admins/landing.jhtml?src=pn

Key Concepts - Dealing with the Solicitor and Legal Issues in School (PSBA/NSBA) As director, you and your solicitor have two excellent resources at your disposal. They are the National School Boards Association (NSBA) and the Pennsylvania School Boards Association (PSBA). The NSBA

can keep you apprised of Federal Education issues like “No Child Left Behind” (NCLB), Carl Perkins Act (Reauthorization), Individuals with Disabilities Act (IDEA-2004) as well as Supreme Court rulings relative to educational decisions, in addition to being a baseline source for establishing board policy. The PSBA is a vital source of information specific to Pennsylvania issues such as Gaskins v. Pennsylvania Department of Education. A critical component of PSBA is targeted toward assisting you, the solicitor, and the JOC developing policy. They will have their legal team review the submissions correlating it to the portion of the applicable law, Pennsylvania School Code, Title, or Act, under which the policy is authorized. They will validate it for accuracy within the statues as well as offer suggestions if it does not.

According to the NSBA, “Policy making is a crucial school board role in our system of education governance. Like Congress, school boards establish the direction and structure of their school district by adopting policies through the authority granted by state legislatures. School board policies have the force of law equal to statutes or ordinances. Policies establish directions for the district; they set the goals, assign authority, and establish controls that make school governance and management possible. Policies are the means by which educators are accountable to the public”.

Working in conjunction with the PSBA, the NSBA’s National Education Policy Network (NEPN) helps foster better communication, understanding, and management of local school districts through better policy-making by providing sample policies in use by school boards throughout the U.S. The solicitor is a key member of the team on investigation of policy.

The NSBA sites, “Our decentralized education structure places local school boards at the center of the governance process. Because school boards oversee education and represent lay involvement, they can provide a structure for public accountability and a way for parents as well as the community to influence vital policy issues affecting schools. Local governance of public education must involve the community if it is to reflect the community’s concerns, values, and expectations of quality education. School boards vested with both community responsibility and pedagogical policy oversight, play a unique and far-reaching role in bridging understanding between the school and the larger community.”

School boards today must exercise their responsibilities in an increasingly complex legal environment. Resources spent defending lawsuits are resources not available for the education of children. The NSBA offers a wide array of resources helping school boards and solicitors understand this legal environment, keep up to date with new and emerging legal developments, and anticipate, prevent, as well as overcome legal challenges. If you are a Council of School Attorneys member looking for more resources, visit the “member’s only website” linked through the NSBA cite.

Narrowing the scope to educational needs and issues in the PSBA legal department offers public school entities throughout the Commonwealth a broad range of indispensable legal information and assistance. According to PSBA, “Staff attorneys stay abreast of the latest developments in public school law and liability avoidance strategies, and are experienced in advising and representing public schools in litigation as well as a myriad of legal matters.” Through your schools membership, you as well as your solicitor are provided attorneys, free of charge, for consultation to member solicitors, school directors and administrators on general legal concepts, as well as on specific issues facing their districts.

As a part of your district’s PSBA membership they offer a variety of regularly scheduled as well as customized school law workshops and training programs, ranging from expert-level programs designed to help school officials and solicitors keep up to date on the latest case law and legislation; programs for non-attorney school personnel (administrators/supervisors) and boards on essential legal principles and practical necessities.

Additionally, PSBA delivers to members a package of publications and periodicals designed to keep Pennsylvania’s public school attorneys (solicitors) and management well informed on the latest legal, legislative, labor and economic news. A comprehensive subscription is included with membership in the Pennsylvania School Board Solicitors Association (PSBASA), another part of your solicitor’s professional

repertoire. Your solicitor should be a part of this organization to keep current and provide the best legal advice and opinions to the superintendent of record, you, and the JOC on your local concerns and issues.

With all of the above stated, PSBA legal services are not a substitute for the advice and assistance of your solicitor. PSBA’s legal services are designed to enhance the effectiveness of the solicitor, who can best advise you and the JOC when retaining special counsel with particular expertise is appropriate. Though PSBA has a very strong legal staff, their legal services division does not seek or accept appointment as a regular solicitor.

Another complement of a solicitor’s membership in PSBA is their e-mail update network which provides periodic alerts and legal summaries, updates, and new suits that are brought against districts or PDE. The network allows PSBA to provide solicitors with valuable information in a cost-effective format, often including information and references not distributed in other formats or posted on this Web site. The network is limited to members of the Pennsylvania School Board Solicitors Association (PSBSA).

Funneling all the above down and bringing it to a local level, the solicitors role is defined as the following:

The solicitor works for the JOC and with the Director of the Career and Technology Center. According to Edwin M. Clark, Jr., Esquire, a solicitor for over 30 years at several different districts in Pennsylvania, “To be an effective solicitor you need to keep out of the politics of the district. It is the solicitor’s job to stay abreast of current legal issues, case law, and statutes and not to become embroiled in the politics. A solicitor must confine his advice legal aspects of the issues at hand and refrain from providing his or her personal opinion on matters facing the board”.

He is quick to point out that a solicitor is not superhuman, “You can’t cover all the aspects; case in point, labor issues should be sent to labor relations specialist like PSCS (Public Service Consulting Service), they are better prepared to handle that because that it their primary focus.”

Clark further believes “A key attribute for a solicitor to possess is “reasonableness” in dealing with his constituent groups concerns. Every solicitor has PSBA and it legal department as its primary resource to guide the solicitor”.

Clark also indicates that “the “Best Practice” for a CTE director is “…don’t barrel ahead without first getting advice from the solicitor”. With the evolution of education over the past three decades, Clark sees “…operating a school is big business today and most attorneys (solicitors) get into the position without being specialist in education. The solicitor is a member of your team, therefore get him or her information and alert your solicitor to potential problems before they get to be real issues. The biggest key for any new director is to obtain the solicitor’s advice.

Clark points out, “Don’t be afraid to get their (solicitor’s) opinion. You shouldn’t be afraid to ask”. Clark’s experiences have taught him that “…in education today, rarely are issues black and white, but more often are shades and hue of gray.

Every solicitor should have a job description. If one doesn’t currently exist, contact other CTC directors, participating superintendent(s), as well as PSBA polling each group or entity for their solicitor’s job descriptions. After compiling the information, craft a job description for the solicitor. Once you are satisfied with your effort, present the job description to the Professional Advisory Committee (PAC) (Superintendents of your participating districts) for their approval. Once it has been approved by the PAC have it placed on the agenda for the next regularly scheduled JOC meeting for their consideration and adoption. The following is a sample job description. If your solicitor currently does not have a job description you may want to use the following as a frame work.

SOLICITOR Adjunct to

BOARD OF DIRECTORS

Job Description

EXAMPLES OF DUTIES

The Solicitor’s duties shall include, but not be limited to:

The Solicitor shall advise and furnish the Joint Operating Committee’s (JOC) Board of Directors, the Professional Advisory Committee (PAC) Superintendent of Record, and the CTE Director opinions, both verbally and in writing, as directed, on all matters and questions of the law requested, including interpretations of statutes and case law.

The Solicitor shall prepare legal papers including resolutions for any subject, advertising, and all other legal papers as directed by the JOC.

He or she shall commence and prosecute all actions brought by the Board for all/or any account or subject, and shall defend actions brought against the ENTITY and its Board except actions covered by insurance where counsel is designated by the carrier.

Attend all regular and special meetings of the Board when requested.

The above shall not limit the scope of activities of the Solicitor, who may participate in other activities of the ENTITY as designated by the Board and as required by law.

Perform other such duties, which require legal assistance as the Board may direct.

The CTC solicitor should be accessible to the director and the JOC twenty-four (24) hours a day, seven (7) days a week, if necessary. All of the solicitor’s phone numbers should be on the director’s speed dial at work, home, and cell phone. Accessibility is an important facet in this relationship.

Interaction between the JOC and the solicitor may include the following: attend JOC meetings and serve in the capacity as historian for the CTC; review and recommend policies and language; act as the counsel for the JOC during Hearings (Commonwealth, student, teacher, staff); provide guidance for what should or must be approved by the JOC as well as what requires a 2/3rds majority vote of the board versus a quorum; guidance on verbiage for critical motions before the JOC; guidance for Executive Session(s) (Sunshine Law provisions); guidance for IEP’s (Individualized Education Programs), FERPA (Family Educational Right and Privacy Act), HIPAA (Health Insurance Portability and Accountability Act 1996), FMLA (Family Medial Leave Act), etc.

The solicitor maybe involved in hiring personnel; consultation before evaluations; disciplinary actions including demotion and/or termination of temporary or professional staff (in accordance with Levin’s pg. 706 – Professional Employee’s Checklist); Performance Appraisal Plan (Levin’s pg. 716); directives; grievances; contract negotiations as well as interpretations of the CBA or CP; memorandums of understanding or agreements; and expanding the bargaining unit.

There are several distinct relationships that exist between the solicitor and different individuals or groups. One of those is between the solicitor and the building administrators including the director and principal, as well as students related to Special Education and IEP issues including but certainly not limited to “appropriate” placements, discipline hearings, complaints, and allegations of abuse or misconduct.

Directors must fully understand every aspect of the solicitor’s job. Directors need to appreciate the solicitor’s sphere of influence as it includes the operations of school projects or programs such as

construction and/or renovation projects; contracts; bidding requirements (local auditors, CPA); guidance in establishing quotas or enrollment issues; teacher and student/parent handbooks; as well as school procedures and practices.

A director’s best practice is to be proactive and not reactive by speaking with the solicitor before a problem arises. The director speaks to the solicitor before actions are taken or as soon as possible after they have been taken. The director needs to know who to contact in an emergency; and when to use all resources available (i.e. School Code; Policy Manual; CBA; CP; etc.) to avoid wasting time. The school solicitor should be considered a key member of the school’s resource team.

Be sure the solicitor has ALL the facts so he or she can correctly guide actions effectively. The solicitor must be kept in the information loop and not out of it.

The solicitor has the ability, knowledge, expertise, and savvy to keep school leaders out of trouble with the Board, teachers, staff, students, parents, and courts. It is vital, therefore, that every director of a Career and Technical Center develop a relationship with his or her solicitor that revolves around the four “P’s,” i.e., Be “Proactive,” Be “Professional,” Be “Productive,” and Stay “Positive”. A relationship that respects this philosophy will aid the director’s professional growth by bringing to bear professional development issues and heightening the awareness of broader topics in education as they relate to the governance of the school, students, and staff.

Key Concepts in Major Legal Issues in CTE Center Directors (PSCS/Felice)

The Solicitor’s Job Description

Board Policies

The Pennsylvania School Code 1949, as Amended

Personnel Actions

Special Education

Student Discipline

Staff Discipline

Collective Bargaining Agreements

Articles of Agreement

Hiring Policies

Grievance Procedures

School Renovation Issues

Termination of Professional Staff

PDE Program Approvals

Current Strategic Plan

Job Descriptions for All Employees

Evaluation of Non-Professional Employees

ORIGIN OF THE ROLE AND POWERS IN PENNSYLVANIA PUBLIC EDUCATION: (PSCS/Felice)

The role of public education is a state right and responsibility. This responsibility arises from the 10 th Amendment to the United States Constitution where it states: “the powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people.” [Reaffirmed by US v. Rodriguez]

The constitution of the Commonwealth of Pennsylvania gives the responsibility of the maintenance and support of public education to the General Assembly. However, the General Assembly [as the constitutionally ordained school board] delegates and meets its obligations to public education through:

Regulatory statutes

Appropriations

Agencies

State Board of Educations, local school boards and districts.

Actions of school boards are generally governed by the following:

Provisions in both the Pennsylvania and United States Constitutions.

Statutes passed by the Pennsylvania General Assembly.

Rules, regulations, standards and policies adopted by the State Board of Education.

Statutes enacted by the Congress of the United States.

Regulations, directives and guidelines issued by the Department of Education, other state and federal regulatory agencies.

Court decisions.

The Public School Code is a compilation of the statutes enacted by the Legislature having direct and pertinent reference to:

Public Education

Programs

Operation

Management

The Public School Code [1949] and the publications of the Department of Education through Articles I –XXVII [§§ 101-2702] and XXVIII- XL[§§2801-4409] cover the above, the administrative organization of education via the Department of Education, the State Tax Equalization Board, taxation by municipalities, motor vehicles [i.e. school buses], child labor, discrimination in hiring and non-public education.

SCHOOL DISTRICT, SCHOOL BOARD AND BOARD MEMBERS BY DEFINITION:

The jargon of education can be confusing and somewhat disorientating; therefore, distinction must be established for key terms associated within the educational hierarchy.

SCHOOL DISTRICT: is political subdivision of the state, created by the state to carry out the state’s obligation to public education. CTE Centers are not school districts but moreover a united jointure or satellite of the participating districts which are usually within county boundaries, but certainly have a geographical reference.

SCHOOL BOARD: CTE Centers are a subdivision of the participating school district boards with each participating district school board having a sitting member on the CTE board. This board is commonly referred to as the Joint Operating Committee (JOC). Because the JOC is an extension of the sending districts board, all rules and statutes that are handed down by the General Assembly for the districts school boards also apply to the JOC.

The JOC is an agency:

1) found at the local level, created by the General Assembly, to which the General Assembly has delegated authority.

2) charged with operating the CTE Center.3) that is legislative not administrative in nature.4) that derives it authority from the General Assembly, and has no rights or authorities, except

those that are specifically given to it by action of the Legislature or can be reasonably implied by the same.

SCHOOL BOARD MEMBERS: are state officials:

1) that are elected locally.2) commonly termed ‘local’ officials.3) charged to carry out the Legislature’s educational mandates.

POWERS AND DUTIES OF THE BOARD OF SCHOOL DIRECTORS

The Board of School Directors [members of the local school board or JOC] comprises a corporate body with its powers and duties defined by law. [§211]

Duties and Powers:

1) Establish, equip and maintain a sufficient number of elementary and other schools [i.e., high school(s), trade school(s), kindergarten, etc.], as it deems proper

2) Advertise for bids 3) Shape policy for a sound educational program 4) Fix the length of the school term 5) Adopt textbooks 6) Appoint teachers and administrators 7) Appoint tax collectors 8) Levy taxes and adopt the budget 9) Buy and sell land 10) Dismiss teachers after hearings 11) Create indebtedness 12) Adopt courses of study 13) Establish additional schools 14) Designate depositories for school funds 15) Enter into contracts 16) Fix salaries of officers and teachers 17) Remove any of its officers or appointees under certain circumstances 18) Attend meetings or conventions at the district’s expense 19) Vested with all necessary powers to enable it to carry out the provisions of the School Code

SCHOOL BOARD MEETINGS:

School Board meetings must be held at least once every two (2) months as established by the General Assembly. All board members must be given reasonable notice of all special meetings [other than regular meetings with pre-established dates]. Public notice must be given for all special and regular meetings [Act 84 -1986 which is commonly referred to as the Sunshine Act] by: (1) being published in a newspaper of general circulation at least 3 days [72 hours] in advance for a regular meeting, or 1 day [24 hours] for a special or rescheduled meeting; (2) posting notice at the principal office of the agency or at the public building in which the meeting is to be held.

Only the Board President has the power to call special meetings. Three or more Board Members may make a written request for a special meeting to the Board President. All official action or deliberations by a quorum of the agency shall take place at a meeting open to the public, including committee meetings. By statute, executive sessions and conferences do not have to open to the public.

A quorum is half or more of the legal membership of the board and a quorum must be present to legally transact school board business. School board members must be present to vote at a public meeting for the vote to be valid [precluding telephone meetings].

School board members may only attend meetings of committees of which he/she is a member.

School Board members are prohibited by the School Code from engaging in any business transaction while a member of the board. In a situation of doubt, school board directors may obtain an opinion from the solicitor and the state Ethics Commission.

It is never possible for an individual board member or a subcommittee of school board to transact business for the school board. This provision is attributable to the board being a corporate body, and an affirmative vote of a majority of all members of the board is needed to take action on business before the board.

EXECUTIVE SESSIONS:

Executive sessions are permitted by Act 84, may be held before, during or after an open meeting; have no time limit; but may have no official action taken during the session. The reason[s] for the executive session must be announced at the public meeting immediately prior or subsequent to the executive session.

Executive sessions may be held for the following reasons:

1) Discussion of personnel issues2) Matters relative to collective bargaining or arbitration3) To consider the purchase or lease of real property4) To consult with an attorney or other professional adviser concerning litigation or potential litigation5) To discuss matters that are privileged under law

CONFLICTS OF INTEREST:

School board members may not be interested in, or do business with, the school district during their elected term(s) of office. Conflicts of interest conditions are set forth in Act 195, §1801 and the Public Officials Ethics Acts [1978 & 1989]. For example, a school board member who has a parent, spouse, child, brother or sister, in a bargaining unit cannot be involved in the collective bargaining process, except that he/she may vote on the ratification of a contract. It is advised that a board member with such a conflict not have access to budget information relative to bargaining prior to the proposed budget being made public. Other examples of conflicts include acceptance of gifts and employment of relatives commonly referred to as nepotism.

ROLE OF THE BOARD AND ITS INTERACTIONS WITH SCHOOL DISTRICT EMPLOYEE’S OR GROUPS:

Other than the seven (7) classifications of employment found in the School Code [listed below]:

1) Superintendent

2) Assistant Superintendent

3) Professionals

4) Temporary Professionals

5) Substitute

6) Special Teachers

7) Business Administrators

All remaining school districts employees can be divided into two separate categories: public officers and nonprofessionals, generally known as classifieds.

CLASSIFICATIONS OF EMPLOYMENT FOUND IN PUBLIC SCHOOL DISTRICTS and DEFINED BY THE PUBLIC SCHOOL CODE

Superintendent and Assistant Superintendent:

The superintendent and the assistant superintendent are unique classifications of employees within a public school district. Each is expressly recognized in the School Code. [24 PS §10-1071.] Each CTE Center director will have another committee to develop a positive relationship with and that is the Professional Advisory Committee commonly referred to as the PAC. The members of this committee include all of the superintendents from each of the participating sending schools. The CTE Center’s articles of agreement will define a term of service for each of those individuals to serve as “The Superintendent of Record” which usually has a monetary remuneration attached.

The superintendent’s statutory duties are set for in the §1081 of the School Code. Generally the rules pertaining to district superintendents are applicable to assistant superintendents. However, the assistant superintendent has no statutory duties and has no right to sit on the board or speak on matters before the board. Both the superintendent and assistant superintendent contract individually with the local school board for services in terms of three (3) to five (5) years. Neither the superintendent nor the assistant superintendent are included in the professional classification as defined by the School Code and therefore do not have the status of tenure.

Professionals

Professionals are individuals who are hired into a permanent position by a school district into a classification requiring tenured personnel. The term professional is defined differently for use under the School Code and under the Public Relations Act [PERA-Act 195]. Until stated, the term ‘professional’ is restricted to §1101(1) under the School Code.

The term ‘professional ’ shall include those are certificated as teachers, supervisors, supervising principals, principals, assistant principals, vice-principals, directors of vocational education (CTE Centers), dental hygienists, visiting teachers, home & school visitors, school counselors, child nutrition program specialists, school librarians, school secretaries [only if the selection of whom is on the basis of merit as determined by eligibility lists] and school nurses.

The qualifications for professional status include:

1) Certification – i.e. teaching certificate recognized by the Commonwealth of Pennsylvania: permanent college certificate; normal school diploma/certificate; special permanent certificate; other certificates as issued by the Commonwealth.

2) Tenure – having successfully served three (3) years in a probationary status [Tenure Reform Act of 1996].

A key provision of this statute is “…when a transfer occurs from a tenured to a non-tenured category, the employee does not carry the tenure into the new position. If a tenured principal accepts a transfer to a non-tenured administrative assistant position, the former principal loses his professional status [and tenure] on the transfer”.

Temporary Professional:

Temporary professionals are individuals who are hired into a permanent position by a school district as well as into a classification requiring tenured personnel. Temporary professionals have three (3) years [if hired after June 30, 1996, Tenure Act – 1996] to acquire tenure. The temporary professional is a probationary employee. The probationary period is governed by the Tenure Act of 1996 and applicable provisions of any collective bargaining agreement.

Substitutes:

A substitute is an individual employed temporarily to fill in for an absent employee [24 PS §11-1101(2)]. In order to teach as a substitute, the individual must be properly certificated. Tenure does not apply to substitutes. The term ‘substitute’ is defined under the School Code as:

…any individual who has been employed to perform the duties of a regular professional during such period of time that the regular professional is absent on sabbatical leave of for other legal cause authorized and approved by the board of school directors or to perform the duties of a temporary professional who is absent.

Special Teachers:

This classification may be filled as a permanent teaching position by special, permanent certificated and tenured professionals or by temporary professionals who hold temporary special certification and has attained tenured status. The School Code authorizes the employment of special teacher: [24 PS §11-1107]:

The board of school directors in every district may employ such special teachers, including special teachers who speak the idiomatic or colloquial language of immigrants residing in the school district, for the purpose of easing the transition period of such immigrants, qualified herein as provided, as they may deem necessary for any of the public schools or departments thereof in the district.

EVALUATION, RATINGS, TENURE, DISCIPLINE AND DISMISSAL:

The areas of evaluation, ratings, tenure, discipline and dismissal are defined in many aspects by the employment classification of the involved. For example, since superintendents and assistant superintendents do not have the status of professional employees under the School Code, each has no protections provided by tenure [defined and discussed below]. However, evaluations and ratings of both positions are within the purview of the board of directors, limited usually by contract language that may be in place with the contracted employees.

Evaluation, ratings, tenure, discipline and dismissal of professional employees [and to some extent temporary professionals] is clarified and defined by the School Code and its exigent case law.

Tenure:

Tenure is a legal concept that provides certain employees [i.e. professional employees, as defined above] the “property right” known as tenure by legislative action. The property right of tenure cannot be removed without due process and just cause. The Pennsylvania court has stated that, “the twin goals of the teachers’ tenure provisions of the Code [are] to provide students with the highest possible quality of instructors and to safeguard teachers from arbitrary and capricious personnel actions…”[Gabriel v Trinity Area School District, 350 A.2d at 207 (1976)]

The Tenure Reform Act, Act 16 of 1996, broadened permissible reasons for discharging tenured employees and increased the length of time that an employee must be employed before achieving tenure.

I. Tenured [professional]

A. Is conferred currently after three (3) years of satisfactory service.

B. This period was increased to three (3) years in 1996 by Act 16 [Tenure Reform Act] for teachers being hired after June 30, 1996.

C. Constitutes a “property right” of an employee, that entails due process to extinguish.

D. May be terminated for two (2) unsatisfactory performance rating

II. Non-tenured [temporary professional or probationary employee]

A. Does not include a property right by law. Probationary period for beginning teachers is three years (3)

B. This period was increased to three (3) years in 1996 by Act 16 for teachers being hired after June 30, 1996.

C. Probationary period is fixed by law and not by the local Board of Education, except in special circumstances.

D. Differs from permanent certification which may take six (6) years to acquire though tenure occurs in three.

E. The probationary period may be extended – for cause – on a year-to-year basis, if the choice is dismissal or extension of the probationary period.

Evaluations and Ratings – Professional and Temporary Professionals:

The evaluation and rating of professionals [and temporary professionals] is delineated under §1123 -Rating System, of the School Code.

In determining whether a professional employee shall be dismissed for incompetence, and in rating the services of a temporary professional , the professional or temporary professional shall be rated by an approved rating system which shall give due consideration to personality, preparation, technique, and pupil reaction, in accordance with standards and regulations for such scoring as defined by rating cards to be prepared by the Department of Public Instruction, and to be revised, from time to time, by the Department of Public Instruction with the cooperation and advice of a committee appointed by the Superintendent of Public Instruction, including representation from district superintendents of schools, classroom teachers, school directors,

school supervisors, and such groups or interests as the Superintendent of Public Instruction may deem appropriate. Rating shall be done by or under the supervision of the superintendent of schools or, if so directed by him the same may be done by an assistant superintendent, a supervisor, or a principal, who has supervision over the work of the professional or temporary professional who is being rated: Provided, That no unsatisfactory rating shall be valid unless approved by the district superintendent.

The current state approved rating form, as developed by the Secretary of Education [the old Superintendent of Public Instruction] is known as the PDE 427, which replaced the former DEBE 5501.

Professionals:

The School Code requires professionals employees be rated, annually. The rating must be based upon a minimum of one (1) in classroom evaluation, done within the school year. The annual evaluation/rating must be based upon: anecdotal records [i.e. personal notes of the building principal]; rating documents, observations and conference reports, memorandum, misconduct referrals, submissions by the teacher and/or notes from parents. The evaluation/rating form may only be done by an employee(s) of the district who possesses a Level I or II Supervisory Certificate, [i.e. a supervisor, principal, assistant superintendent, superintendent, etc.]. The final approval of the annual evaluation/rating form [PDE 427] must be done by the Superintendent or CTE Director and bear that signature. However, the superintendent need not have personal knowledge of the facts underlying an unsatisfactory rating and may rely on the recommendations of subordinates [Travis v Teter, 370 Pa 326 (1952)]. A professional employee has provided satisfactory service when rated satisfactory or when not rated at all. The rating of professionals is incumbent upon the superintendent; however in CTE settings the director, assistant director, principal, or supervisor will act on behalf of the “Superintendent of Record”.

Professionals may be discharged for “unsatisfactory teaching performance” based on two consecutive unsatisfactory ratings of the employee’s teaching performance that are to include classroom observations, not less than four (4) months apart, in which the professional’s teaching is rated unsatisfactory [Tenure Reform Act 1996, State Board of Education requirements]

Temporary Professionals:

Temporary professionals are held to a probationary period for three (3) years. In order to attain tenure, the temporary professional must be rated a minimum of two (2) times per year, based upon classroom observations performed by an employee(s) of the district who possesses a Level I or II Supervisory Certificate, [i.e. a supervisor, principal, assistant superintendent, superintendent, etc.]. The temporary professional may be dismissed or discharged after receiving one unsatisfactory rating.

After three (3) years as a temporary professional, and having received a satisfactory rating during the last four (4) months of the third year, the employee is granted tenure and classification as a professional. Having attained the status of tenured professional as described above, the attainment is recorded in the records of the board and written notification thereof shall be sent also to the employee and PDE. The employee is then tendered a regular contract of employment as provided for professionals.

Superintendent, Assistant Superintendent:

The Public School Code allows school boards to change superintendents between prescribed terms of three (3) to five (5) years. Notice must be given to the superintendent at least 150 days prior to the expiration of the elected term that the board of directors is going to consider other candidates for the position.

According to the School Code the superintendent and assistant superintendent may only be disciplined and/or discharged for good and just cause.

Discipline and Discharge of Tenured [professional] versus Non-tenured [temporary professional or probationary]

Temporary Professional:

A. May be terminated for two (2) unsatisfactory performance ratings.

B. The employee must have at least two observations; one must be performed by the primary supervisor, usually the building principal, of which the initial and final observations are four (4) months apart. These observations define the teaching performance area and are grounds for dismissal. Such discharge is based upon unsatisfactory ratings derived from “Unsatisfactory Teaching Performance.”

1. Strict compliance with the requirement of anecdotal records must accompany all unsatisfactory ratings.

2. Anecdotal records may be composed of:

a. Personal notes of the qualified observer.b. Rating documentsc. Observation and conference reportsd. Submissions by the teachere. Notes from parents.

3. Anecdotal records are:

a. a brief narrative of a specific incidentb. includes who, what, when, where and whyc. factual details of the incident make somewhat contemporaneously with the

observations.d. personal work product with a shelf life of the school year, UNLESS, utilized

specifically in a disciplinary situation or in support of a rating unsatisfactory.

C. “Unsatisfactory Teaching Performance” is the area carved out by the legislature in 1996 under the general heading of incompetence.

D. Incompetence: encompasses both physical and/or mental deficiencies and is not specifically defined in the school code; however, incompetence is, generally accepted as:

1. lack of substantive knowledge of the subject(s) to be taught 2. lack of ability 3. lack of desire to teach according to proper methodology4. want of a physical ability [*may be termed persistent negligence]5. inability6. incapacity7. lack of ability, or legal qualification or fitness to discharge duties

E. Types of conduct that have supported charges of incompetence and unsatisfactory ratings:

1. Failure to maintain proper relationships with students2. Lack of classroom control3. Deficient content and quality of required reports4. Failure to give sufficient or proper tests5. Deficient lesson plans6. Deficient student records

7. Inability to motivate students8. Failure to maintain a good working relationship with clerical and teaching staffs9. Carelessness with confidential student records

10. Failure to maintain the proper teaching pace11. Excessive unexplained absenteeism12. Inability to respond appropriately to situations13. Use of poor English14. Failure to follow directions

DISMISSAL of TEMPORARY PROFESSIONAL:

Regarding dismissal of Temporary Professionals, the only substantive grounds appearing to be different for dismissing this classification of employee from a regular professional is the need for only one (1) unsatisfactory rating.

Procedurally the dismissal of a temporary professional appears for all purposes to be a local agency hearing with the initial appeal to the Court of Common Pleas and not to the Secretary of Education as in a regular professional or grievance/arbitration process as stated under the CBA (collective bargaining agreement).

SUBSTANTIVE GROUNDS:

Only one ground for the dismissal of a temporary professional:

Unsatisfactory service as set forth on a rating form 24 PS §11-1108 (a) of the School Code. One could use PDE 426 or the old PDE 5501 form for Temporary Professionals evaluation.

Temporary professionals are considered to have less job protection than that of a regular professional – i.e. property right as conferred by tenure. However, may only be dismissed for reasons as set forth in 24-PS §11-1122 of the Code and also unsatisfactory rating.

The Court said 24 PS § 5-514 “only applied to permanent employees (professional), and that 24 PS §11-1108 provision covering temporary professional employees empowers the Board to discharge a temporary employee after an unsatisfactory rating without a hearing. Nicolella v. Trrinity School Board 281 A.2d 832 (1971)

A temporary professional may be dismissed for any of the reasons supporting the dismissal of a regular professional. [Immorality, Incompetence, Intemperance, Unsatisfactory Teaching Performance, Cruelty, Persistent Willful Negligence in the Performance of Duties, Willful Neglect of Duties, Mental Derangement, Un-American or Subversive Activities, Persistent Willful Violation of the School Laws, Physical or Mental Disability, Conviction or Plea to a Felony, Illegal Drugs, Conviction of Designated Crimes, Wearing of Religious Garb, Incompatible Positions, Abandonment, Violation of Wiretapping and Surveillance Control Act.]

UNSATISFACTORY RATING:

If the basis of discharge is unsatisfactory rating, then the school district need only submit a proper unsatisfactory rating into the record and produce the person(s) whose observations of the employee’s performance formed the basis of the rating. However, the rater must be qualified under the Code [Supervisory I or II Level Certificate]

The ratings are entitled to the presumption of regularity as defined in Young v. Littlestown Area School District, 358 A.2d 120 (1976).

It is the burden of the temporary professional to show that the rating was defective or was issued in bad faith, arbitrarily or capriciously (Supra, Nicolella v. Trinity). The employee’s supervisors need only to make conscientious observations and sincere suggestions for improvement and the unsatisfactory rating will be upheld (Supra Young v. Littlestown).

Receiving a satisfactory rating prior to the unsatisfactory is immaterial. The rationale is that there are four areas necessary for a teacher to become entitled to tenure status of a permanent teacher. Travis v. Teter 87 A.2d 177 (1951). As of this writing, there has been no refuting or change in the history of this precedent setting case.

Furthermore, a school board does not err in refusing to hear and/or consider testimony from student(s) and parent(s) as to the employee’s teaching abilities. They may but are too compelled to.

PROCEDURE for DISCHARGE:

Discharge of a temporary professional may be done with a local agency hearing only, unless the CBA specifically states that the temporary employee has a right to the grievance/arbitration process.

If the employee has been rated unsatisfactory in the last four month’s during the 2nd year of service and is dismissed, the temporary professional is entitled to contest the dismissal in proceeding under the Local Agency Law (Supra, Young v. Littlestown).

Additionally, an employee who has been rated unsatisfactory during the last four months of service and has not been dismissed may contest the rating and assert the right to be tendered as a regular professional (i.e. Local Agency Law - If he/she fails to do so the employee may be kept as a temporary professional thru the 3rd and subsequent years, if needed).

An unsatisfactory rating in any time but the last four months of the 2nd years is incontestable under Local Agency Law.

Predetermination Hearing [Loudermill Hearing]:

Due to the lack of property rights of the temporary professionals, it may appear to be bereft (to deprive of something or take away) of the expectation of due process right. This is not true since the employee has the expectation of continued employment; the temporary professional is then entitled to due process.

Therefore the predetermination hearing as set forth in Cleveland Board of Ed v. Loudermill, 105 S.Ct. 1487 (1985). Due process requires that the employee at least be given the opportunity to be heard by the Board prior to dismissal and apprised at the predetermination hearing of the reasons for such action.

Due Process:

1. Due process does not have to be formal or in the nature of an evidentiary hearing.

2. Due process must be conducted prior to the employee being removed from the position and the meeting should be conducted by the individual or individuals who will make the decision.

3. The employee should be given the opportunity to address the allegations against him/her and to also address the appropriateness of termination under the circumstances.

4. The School Code and the Local Agency Law permit that the formal school board hearing follow the administrative action discharging the employee provided that the hearing is offered to the employee and if requested is held within a reasonable period of time.

5. The suspension may be initially imposed and enforced, provided that a hearing is sought and is afforded within a reasonable time thereafter.

When discharging an employee before a formal hearing, the following must occur:

1. An informal administrative hearing must precede the discharge:

2. Notice of an opportunity for a formal hearing must be promptly provided.

3. A formal hearing must be scheduled within a reasonable time, when such a hearing is requested by the employee.

4. Notice of the hearing need not contain a listing or explanation of the charges against the employee as long as he/she has been provided with a copy of the unsatisfactory rating. Phillis v.

Board of School Directors of Mechanicsburg Area School District , 617 A.2d 830 (1992).

5. The unsatisfactory rating and the persons making the supporting observations are all that is needed for the evidence for a prima facie case.

6. The district, in the case of a temporary professional, need not make anecdotal records. The person who rated the employee need only testify and explain the rating process as well as the observations which were the basis for the evaluation. The rating form alone is sufficient to establish a prima facie case.

7. It then becomes the burden of the employee to prove that the rating or consequent dismissal was fraudulent, arbitrary, or capricious or contrary to law.

GENERAL SUMMARY – Temporary Professional Discharge

1. The testimony of the rater, the rating form and the observations equals a prima facie case.

2. Anecdotal records are not necessary. Supra. Phillis v. Mechanicsburg.

3. Numerical scores need to be set forth in the appropriate area of each form. Absence of same is equal to satisfactory.

4. Approval and signature of the Superintendent

5. Format of the Rating PDE 5501 or PDE 426 is all that is required for a rating form.

6. Post Evaluation Conference is held within 7 days of processing the rating.

7. Predetermination Hearing is held as per procedures above.

8. Formal hearing with School Board is held as follows:

I. Teacher receives unsatisfactory rating(s)

A. One rating –Unsatisfactory for temporary professional is adequate

B. Two ratings for professional. Each rating must have 2 observations of the which the #2 and #3 must be 4 months apart.

1. Following first unsatisfactory, with adequate anecdotal records, the professional is presented a plan of improvement PIP. (Professional Improvement Plan)

2. Plan of improvement is commenced and documented with bench marks and goals as well as a time table for improvement.

3. If points of the plan are met then the professional or temporary professional may not be given an unsatisfactory rating for teaching performance.

II. [Loudermill Hearing] Superintendent or CTE director presents the unsatisfactory rating to the teacher in conference. He/she presents the anecdotal records with the rating as corroboration.

A. Teacher may wish to bring representation, however, this is not indicated by law, but to avoid an additional grievance, it may be acceded to (approved) by the principal, who clearly notes that since it is not a disciplinary hearing, but a professional meeting, that he is allowing the representative out of graciousness.

B. Format should have points of the improvement plan and specific dates, times and facts relative to what is constituting unsatisfactory teaching performance [must use terms from Tenure Act]

III. Superintendent or CTE director notifies the teacher after the above #II, that he/she has set a meeting relative to the unsatisfactory rating.

A. The employee may bring an association representative including his or her Uni-Serve representative – not necessarily of the employee’s choice- but a representative since the meeting may affect his or her continued employment.

B. Meeting: Indicate to the employee that the superintendent or CTE Director is contemplating bringing charges for dismissal against the employee for unsatisfactory teaching performance.

C. At the meeting, inquire [superintendent/CTE Director] if the employee has any facts or evidence for the superintendent or director to consider prior to making the decision relative to the charges.

1. The employee may request a reasonable extension for facts and evidence gathering to present (neither superintendent nor the director should suggest this extension).

2. If the employee or union representative re-approaches the superintendent or

director in a reasonable time period (24 hours), the superintendent or director may reconvene the Loudermill Hearing to have the employee’s fact/evidence presented.

D. Take notes on who was present, what was the gist of the conversation(s) and what was the supporting evidence .

1. State the charges drawn up by the Superintendent of Record or Director

a. Must be signed by the Board President and the Secretary to the Board.

b. Neither individual in the above (a.) may inquire as to the charges nor are they encouraged to read or ask questions.

c. This is a “Chinese Wall”–separating the Board from the prosecution of the case; since it is to be the Local Agency and not tainted by information about the case.

2. The statement of charges focus on the lack of teaching performance [Tenure Act terms] and specific references to the unsatisfactory rating and the records of same are listed.

3. The Statement of Charges does not include the unsatisfactory rating form or the anecdotal records.

4. Local Agency Hearing before the Board is scheduled in no less than 10 days and no more than 15 days from the date of the sending of the Statement of Charges.

5. Elects with Local Agency hearing or Grievance.

6. The Local Agency must obtain two (2) attorneys, one to represent the Board, and one to Prosecute on behalf of the Superintendent.

NATURE OF THE SCHOOL BOARD HEARING FOR DISCIPLINARY SUSPENSION:

Two types of disciplinary suspension:

1. suspensions pending discharge, which are imposed by the school district administration during pendency (state of pending litigation) of dismissal procedures, (Suspension of powers begin with the Superintendent).

2. punitive suspensions, which are imposed as an alternative to the more drastic disciplinary action of discharge.

3. Neither type are specifically referred to in the school code; however, both are permissible. Maines v. Millcreek Twp Dist. 28 SLIE 55 (1991).

Disciplinary Suspension without Discharge:

A. Substantive Considerations:

Rike V Secretary of Education 494 A(2d0 1388 (1985 ) “ …a board of school directors possesses the authority to impose lesser forms of discipline that complete

termination of a tenured teacher’s contract is beyond questions…”.PA CONST. Art. III, Section 14,...

”has created school districts and imbued them with ‘all the necessary powers to enable them to carry out the provisions of this act.’ [SCH 211] including the power to employ teachers [SCH1106]. “Inherent in the school district’s power to employ; is the power to control certain activities. [Neshaminy Fed of Teachers v Neshaminy School District]…” The power to regulate conduct, of course would be illusory absent a

concomitant power to enforce rules through the imposition of some form of discipline.”

The conduct does not have to be of the level to warrant dismissal under Section 1122 of the Code. Suspensions (punitive) are not equivalent to discharge. However, under 1122 where one of the grounds of dismissal has been established, it is unnecessary for the school district to prove that the employee is unfit to teach.

Where a “just cause” clause is in effect in the collective bargaining agreement, the movement of the action to arbitration by the union may find the arbitrator in a position of deciding if a “cause” exists, and also if the penalty was suitable. The union will likely challenge the reasonableness, uniformity, past practices or severity.

If the disciplinary suspension is enacted by the Board for one of the reasons for dismissal enumerated in 1122, and the employee’s conduct does not satisfy the legal standards of 1122, the suspension will be overturned. Procedural Considerations:

A. School Boards as well as the school district administrators have the authority to impose disciplinary suspensions. In Maines v. Millcreek Twp School Dist, the court said, “The authority of the superintendent to impose a disciplinary suspension is beyond question.”

B. Proceeding under the dismissal provisions of the School Code and providing to the all the procedures attending that process before imposing a disciplinary suspension, the temporary nature of the suspensions suggests that less formalized procedures are required. Some form of process is required; however, based on the length/severity of the suspension, the process may very well depend on the length of the suspension the school district seeks to impose. The differing of process length finds support in the regulations of the State Board of Education relating to student disciplinary procedures. [22 PA Code Chapter 12]

C. The longer the suspension the longer and more elaborate the process becomes.

i. Suspension of 1-3 DAYS : May require an informal pre-suspension hearing at which time the employee is provided with the charges and a description of the evidence against him or her and is given an opportunity to present his or her case.

ii. Suspensions of 4-10 DAYS : May necessitate the added procedure of allowing the employee to bring in witnesses to talk to the administration.

iii. Suspensions over 10 DAYS : Probably commands the adherence to the dictates of the Local Agency Law, which allows the employee to challenge the action before the school board of directors.

D. Where a disciplinary hearing is imposed by the agreement of the parties, the agreement and basis for the agreement need not be made public by the school district as long as the agreement is confirmed by the school board at a public meeting.

School district administration must present evidence that supports the suspension. The affected employee may cross-examine school district witnesses and present rebuttal evidence. A hearing which is merely investigatory in nature or simply gives the employee an opportunity to talk to the school board does not comport with the requirement of the Local Agency Law.

No Pre-Suspension Hearing Required:

Suspensions need not be preceded by a school board hearing as long as the post suspension hearing is provided within a reasonable period of time. The procedure sanctioned by the Commonwealth Court requires the school board to adopt resolutions suspending professional employees and to conduct a subsequent Local Agency Law hearing followed by a written adjudication containing findings of fact and conclusions of law.

[Sto-Rox School District v. Horgan ]

A school board resolution is not found to be a final adjudication, which must be a Local Agency hearing. Also, the employee was found to be entitled to back pay from the date of the suspension to the date of the final adjudication. It should be noted that the judiciary in PA has concluded that no pre-suspension hearing is necessary, there is a concern that the federal judiciary may not come to the same conclusion. Courts in other jurisdictions have held that a post-suspension hearing alone is a violation of the employee’s rights.

Pre-Hearing Investigation:

Pre-hearing investigations fall under four (4) areas:

1. investigations by the school board

2. investigations by the school administration

3. constitutional implications of an investigation

4. labor law implication of investigation that include direct questioning of the employee

School Boards:

1. Boards are assumed to have investigated the charges prior to the charges being made.

2. A Board member having an opinion at the time the charges are made, that, if warranted, does preclude their participation.

3. It is only required that the members of the board hear and determine that charges against the appellant are based on the evidence, regardless of previous impressions. Lomas v. Northwestern Lehigh School District 444, A(2d) 1319 (1982).

4. The courts have pointed out that the governmental agencies may both prosecute and/or investigate a matter and adjudicate the same matter as long as the functions are not shared by the same people. This absolutely does not prohibit members from being somewhat involved in the investigatory and the adjudication phases.

5. Where a school board undertakes an investigation, the employee has a right to counsel. An investigation of facts and the solicitation of information do not in and of themselves constitute proof of bias or fixed opinion.

6. It is generally held that the school administration should do a thorough and proper investigation of all relevant information. The board has thus created a “wall of division.”

7. The Board president and secretary must sign the statement of charges.

ADMINISTRATION:

The administration should investigate and make recommendations that the employee be suspended, etc.

Labor Law Considerations:

In the pre-hearing investigation process, the employee has the right to union representation and the union has certain rights to information, Weingarten Rights, which are the right of employees to have union representation at investigatory interviews which was confirmed and announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689 ).

Investigation:

a. Verifiably factual

b. Accurate

c. Should not harbor any indication of harassment, intimidation or embarrassment. Direct Questioning:

a. Verbal interviews

b. Written questions and answers

c. Sworn responses to either written or oral questions.

Student Witnesses:

a. Students should not be removed from class or questioned without prior parental consent.

b. If any documents are produced as a result of the questioning of the child, the documents fall within the definition “educational record” (June 11, 1998)

SUMMARY – School Board Hearings:

Local Agency Hearing:

The Board members may not know of the charges any time prior to the actual hearing presentation.

Only the Board Secretary and President sign the charges on the recommendation of the superintendent. They do not participate in any way prior to the Hearing relative to determinations or information.

This is to ensure the continued neutrality of the Board as a local agency in a hearing.

The board presides at the hearing as judge and jury.

To avoid the appearance of prejudice:

a. Must remain objective

b. Therefore, Board may have no involvement prior to this Hearing.

c. Board should be advised to not engage in any discussion with any staff; community members, etc., relative to any evaluations and/or discharges relative to employees.

Special Education Law: (Wrightslaw)

Another major caveat in the legal issues that face a CTE director is special education. These issues have become more complex and litigious than ever before. They are a clear source of concern for directors to ensure that they and their staff remain compliant with the statues and laws governing special education rights of students, which include the American’s With Disabilities Act (ADA); Section 504; as well as the IDEA reauthorizations.

One excellent source of information that can be accessed is through the Wrightslaw Foundation, which is a special education advocacy group.

Special Education Legislation changed again on November 17, 2004, the House-Senate Conference Committee agreed on changes to reauthorize the Individuals with Disabilities Education Act (IDEA-2004). It predecessor was IDEA ’97 which caused a revolutionary change in special education. It was signed into law on Friday, November 19, 2004, as the House and Senate both voted to reauthorize the Act and President Bush signed the legislation.

The following is a summary of some of the most critical changes affecting children with disabilities and their families in IDEA 2004, concentrating on the IEP process, due process and the discipline provisions. How these changes affect children will depend, at least in part, on how the U.S. Department of Education interprets them through policies and regulations and how they are implemented at the state, district and school level. Most of the changes went into effect on July 1, 2005.

A new provision in the Act (IDEA 2004) authorizes the Secretary to issue only regulations necessary to secure compliance with the statute. This provision may limit the Secretary’s authority to issue regulations that could be useful in clarifying ambiguities. A new section of the Act also suggests that states minimize the number of rules, regulations and policies to which the school districts are subject.

A book published by Wrightslaw, a Special Education Advocacy group who provides training programs about IDEA, through their website focuses on five key statutes that superintendents, directors, principals, and special education teachers and supervisors need to know and understand:

IDEA 2004: Changes in Key Statutes:

Section 1400 - Finding and PurposesSection 1401 - DefinitionsSection 1412 - State Responsibilities (the “Catch All” statute)Section 1414 - Evaluations and IEPsSection 1415 - Procedural Safeguards (Rules of Procedure)

Through a series of articles, published on the web, Wrightslaw discussed substantive changes to the above five statutes by section and subsection. To illustrate the changes the deleted text from the IDEA (‘97) has been struck through. The added text is in italics. In some cases, they either describe or summarize the changes. Since they are an advocacy group they provide editorial comments which appear in a different font.

Wrightslaw: Special Education Law includes the full text of the Individuals with Disabilities Education Act of 1997. Wrightslaw: From Emotions to Advocacy (FETA) includes the five key statutes. These articles are cross-referenced to Wrightslaw: Special Education Law and Wrightslaw: From Emotions to Advocacy (FETA).

Articles on the site include: How Will IEP’s Change Under IDEA 2004? New language in IDEA is designed to ensure that children with disabilities are taught by highly qualified teachers and receive research based instruction. This article focuses on new requirements for personnel training, IEPs, and scientifically based instruction.

Rule 11 & Attorneys Fees - Many parents and their advocates have expressed concerns about the “new” attorney fee statute in IDEA 2004 permitting school districts to recover fees from attorneys who represent parents. Pete Wright analyzes these new provisions, improper litigation, frivolous actions, and the practical implications of this new statute.

This law, as amended by the 2004 changes, will not provide mandatory full funding. Although the annual amounts now authorized (permitted) to be spent on IDEA would achieve full funding in six years, that assumes these amounts will actually be appropriated (spent), and explains why mandatory funding of IDEA is so important. In fact, two days after Congress passed the IDEA Conference Report with its “glide path to full funding” it appropriated significantly less funding for special education than it had just promised.

IEP PROCESS:

1. Short-term objectives. The long established obligation for IEP teams to spell out short-term objectives for meeting each child’s measurable annual IEP goals no longer exists for most children. Such short-term objectives are only required for the very small percentage of children (generally less than 1% of students with disabilities) who are taking alternate assessments aligned to alternate achievement standards. The No Child Left Behind Act (NCLB) limits participation on these assessments to students with the most significant cognitive disabilities. NCLB also provides that both grade-level and alternate achievement standards should be aligned with state content standards. Parents should ensure that their child’s academic IEP goals are also aligned with these standards. Short-term objectives are essential stepping stones toward these goals for all students with disabilities, not just a very small percentage.

In states that offer alternate assessments aligned to alternate achievement standards, it is the IEP team that determines whether a child fits the criteria for students with the most significant cognitive disabilities. Parents, as members of the IEP team, may feel pressure to agree that their child fits these criteria in order to retain short-term objectives. Such pressure directly undermines the accountability provisions of NCLB.

Even if these short-term objectives are not mandated by law, all parents may still request their child’s IEP team to identify them. IDEA 2004 still requires a description of how progress toward meeting will be measured and parents can contend that short-term objectives are the answer. Without short term objectives parents will have virtually no way of measuring whether their children are making progress in achieving their annual goals and will not be informed participants in their child’s education. In addition, teachers will not have a guide as to the intervening steps that should be taken towards achieving these goals and when they should be taken. Teachers will also have great difficulty developing meaningful progress reports to the parents.

2. IEP progress reports . The progress the child is making toward meeting the annual goals must be reported, but there is no longer a reference to “the extent to which the progress is sufficient to attain the goal by the end of the year.” This information seems especially important to parents and teachers if there is a shared commitment to help all children learn to high standards set for all. Parents may see progress all year only to realize in June that the progress was not sufficient to meet the goal.

3. Transition information in IEP. The amendments clarify that the transition process for a student with a disability now begins at age 16 and is not merely a plan for transition. Parents should request that the student’s IEP, when appropriate, include a statement of inter-agency responsibilities and any needed linkages since this language is no longer in the statute.

4. IEP attendance and participation. A new section allows IEP team members to be excused from attendance if their area is not being discussed. When this section is read with new provisions allowing alternate means of meeting participation (e.g. conference calls), consolidation of re-evaluation meetings and other IEP meetings, and a pilot program authorizing up to 15 states to use multi-year IEPs, the combined effect is a revolution in the traditional IEP meeting. Some say these are positive changes, while others are concerned that these provisions will limit cross fertilization of ideas and undermine the interdisciplinary nature of IEP meetings (team members each bring areas or “disciplines” of expertise to the table).

While written parental consent is required before these actions can occur, parents may find that they are under considerable pressure to provide their consent. At least once a year the parents should be able to get all the members of their child’s team in one room, sharing ideas for the benefit of the child. The potential richness of these conversations cannot be anticipated in written

reports submitted by excused members, conference calls do not allow for the same flow of ideas. It is uncertain which IEP team member will turn the tide of a meeting.

5. Pilot program for multi-year IEPs. The Secretary of Education is authorized to approve proposals from up to fifteen (15) states to allow local school districts to offer, with parental consent, a multi-year IEP, not to exceed three (3) years. This option will limit parent participation in their child’s education by not having a comprehensive annual IEP review, except in certain situations. Also, three year IEPs will contain multi-year goals which can be expected to be less specific and harder to measure than annual goals--especially when benchmarks and short-term objectives are no longer required for all but those students with the most significant cognitive disabilities. Another serious problem is that the required elements under IDEA for these multi-IEPs are not as inclusive as for annual IEPs. This is true with respect to statements on progress reports, accommodations, supplementary aids and services and more. While the states may include these as required elements in the multi-year IEPs, IDEA does not mandate that they do so. Parents in these states will have to consent to the three year IEPs that must be reviewed at natural transition points by the IEP team. Therefore, it will be critical that parents are informed, knowledgeable and well prepared to deal with any pressure that may be put on them.

6. Pilot program for paperwork reduction. The Secretary of Education is authorized to grant waivers of statutory and regulatory requirements, for a period not to exceed four (4) years, to 15 states proposing to reduce excessive paperwork and non-instructional time burdens. The Secretary is prohibited from waiving requirements related to civil rights or the right of a child to a free appropriate public education (FAPE). How this process is implemented is a matter of special concern to parents, who worry that many requirements in the IEP process which parents consider to be related to civil rights and FAPE may be seen as contributors to the paperwork burden. Another significant concern is that “pilot” implies that this is the first step toward expanding these programs beyond the 15 states.

7. IEP team transition. Parents of a child transitioning from Part C services (early childhood) to part B services (school-age) can request an invitation to the initial IEP meeting be sent to representatives of the Part C system to assist with a smooth transition of services. This provision doesn’t require a Part C representative to attend but it does encourage collaboration.

8. Transfers between school districts. Services comparable to those described in the IEP in effect before a child’s transfer must be provided by the new school district. These services must continue until the previous IEP is adopted, or a new IEP is developed, adopted and implemented, in the case of a transfer in the same state or until a new IEP is developed, in the case of a transfer outside the state. This new provision will help parents of transferring students know what they can expect from their new schools.

DUE PROCESS

1. Procedural safeguards notice. The procedural safeguards notice will be distributed only once a year except that a copy will be distributed upon initial referral, when a parent makes a request for an evaluation, when a due process complaint has been filed or if a parent requests a copy. The notice will no longer be automatically distributed with the IEP team notice or upon reevaluation. This is only a problem if parents are unaware of their rights, including the right to request this notice if they need one.

2. Statute of limitations. Parents now have two years in which to exercise their due process rights after they knew or should have known that an IDEA violation has occurred. The interpretation of the language “should have known” will be critical.

3. Due process complaint notice. Parents who feel their child’s educational rights are being compromised must file a complaint with the school district (with a copy to the state) identifying the name and contact information of the child, describing the nature of the problem with supporting facts and a proposed resolution. A new provision provides that the school district shall file a response within ten (10) days unless the district within 15 days notifies the state hearing officer that it is challenging the sufficiency of the parent’s due process complaint notice. The State hearing officer has five (5) more days to make a finding. In addition to the obvious delay, of particular concern is that the complexity of filing for due process may have a chilling effect on parents.

4. Resolution session. Parents must go through a mandatory “resolution session” before due process. The school district will convene a meeting with the parents and relevant members of the IEP team within fifteen (15) days of when the school district receives the parent’s due process complaint. The school district has thirty (30) days from the time the complaint is filed to resolve the complaint to the satisfaction of the parents, after which a due process hearing can occur. This provision may encourage school systems to wait until a due process complaint is filed before trying to resolve issues. Attorney’s fees are not reimbursed for work related to the resolution session.

5. Attorney’s fees. Parent’s attorneys may be responsible for paying the school system attorney’s fees if a cause of action in a due process hearing or court action is determined to be frivolous, unreasonable, or without foundation. Parents may be responsible for the school system’s attorney fees if a cause of action was presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Obviously, parents should not file frivolous or improper causes of action, but it is important that school districts not use these changes in the law to intimidate parents. This could have a chilling effect on parents obtaining legal representation and filing valid complaints to improve their children’s education.

6. Qualifications for Hearing Officers. A positive change is that there are now explicit qualification requirements for Hearing Officers.

DISCIPLINE:

1. Stay put . The right of a student with a disability to “stay put” in the student’s current educational placement pending an appeal is eliminated for alleged violations of the school code that may result in a removal from the student’s current educational placement for more than 10 days. Previously the law only denied “stay-put” rights to students with disabilities involved in drugs, weapons or other dangerous behavior or activity. The right to “stay put” while a parent challenges the manifestation determination or proposed placement is a critical element to ensuring a student’s continued free appropriate public education in the least restrictive environment.

Moving back and forth between the current placement and an interim alternative educational setting during an appeal can have a significant negative impact on achievement for children who already have difficulty adjusting to transitions. Parents must remain vigilant and ensure that their children continue to be provided the educational programming and services they need to make progress toward meeting their IEP goals. If this progress is negatively affected, the school may recommend a change to a more restrictive setting for the future. In addition, for purposes of reporting Adequate Yearly Progress under the No Child Left Behind Act, individual schools do not have to count children who are transferred to alternative settings and are, therefore, not in the same school for the full academic year. This could create an incentive for disciplinary actions against students with disabilities.

2. Services to be received in interim alternative educational setting . A child is entitled to receive programming and services necessary to enable him or her to receive a free appropriate

public education consistent with section 612(a)(1) during the period in which he/she is in an interim alternative education setting. Under IDEA 2004, the student must be provided services to enable him or her to continue to participate in the general education curriculum and to progress toward meeting the goals in the IEP. The new provision replaced language requiring that a child in an interim alternative educational setting receive services and modifications, including those described in the student’s current IEP which will enable the child to meet the goals in the IEP. The change in language cannot be interpreted as diluting any of these services that are consistent with the definition of FAPE because a student with a disability must continue to receive FAPE during the period of removal from the student’s current educational placement.

3. Manifestation Determination Review. Before IDEA 2004, the burden was on the school district to show that the behavior resulting in a disciplinary action was not a manifestation of the child’s disability before being allowed to apply the same disciplinary procedures as they use for non-disabled children. The burden of proof for the manifestation determination review has now been shifted to the parents who have to prove that the behavior was caused by or had a direct and substantial relationship to the disability. The language requiring the IEP team to consider whether the disability impaired the child’s ability to control or to understand the impact and consequences of the behavior has been deleted. The language that gave the school an incentive to address behavior appropriately by requiring the IEP team to consider whether the IEP was appropriate has also been deleted.

Because the amendments to IDEA make it easier for schools to remove children for non-dangerous, non-weapon, non-drug related behaviors, and place the burden on parents to prove the connection between behavior and disability, parents will need to pay careful attention to the behavioral needs of their child in developing the IEP. Even if the child has not previously been subjected to disciplinary exclusion, parents may need to anticipate, to consider and spell out any concerns they may have about their child’s possible emotional and behavioral responses particularly when they are not provided the supports and services they may need.

4. Special Circumstances. Since 1997, IDEA had expressly authorized schools to unilaterally remove children to an interim alternative educational setting for as long as forty five (45) days for offenses involving drugs and weapons--even if the behavior was a manifestation of the student’s disability. In addition, a hearing officer could make the same decision if it was determined based on a preponderance of the evidence that keeping the child in the student’s current placement was substantially likely to result in injury to the child or others. Although school authorities have always had the authority to respond to an emergency and to unilaterally remove any student with or without a disability who is causing serious bodily injury to another, now schools can also unilaterally remove children for 45 days for “inflicting serious bodily injury.” This term is defined as involving a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

The hearing officer in determining whether to remove a child because maintaining the current placement is substantially likely to result in injury to self or others is no longer required to consider whether the school district’s proposed change in placement is based on a preponderance of the evidence. In addition, the amended statute no longer requires the hearing officer to consider whether the school has made reasonable efforts to minimize the risk of harm, including the use of supplementary aids and services. These changes, to the degree they have the effect of punishing the child even if proper supports could have prevented the problem, arguably violate Section 504 of the Rehabilitation Act.

5. 45 day limit. The forty five (45) calendar day limit on the removal for these offenses has been changed to forty five (45) school days, which is significantly longer [now nine (9) instead of six (6) weeks of school at a critical time when students with disabilities are being held accountable for meeting high state standards.]

6. Functional Behavioral Assessments. The requirement for Functional Behavioral Assessments and Behavioral Intervention Plans are maintained in the discipline provisions.

7. Case-by-case determination. A paragraph has been added to the discipline provisions, which states that school personnel can consider any unique circumstances on a case-by-case basis when determining whether to change the placement of a child with a disability who violates a school code of conduct. This is a good provision for parents to quote when they are having trouble proving that their child’s behavior is a manifestation of the disability. It serves to remind the school personnel that common sense should prevail and all circumstances should be considered.

PUBLIC RELATIONS ACT – RIGHTS FOR ORGANIZATION: (PSCS/Felice)

Another key aspect of the director’s relationship with his Solicitor and agencies like PSCS is collective barging and compensation packages. The law covering this aspect of education is called the Public Employees Relations Act (PERA).

Who is covered by the Public Relations Act?  The Public Employees Relations Act (PERA) governs collective bargaining between public employers and their employees. The term "public employer" under PERA, includes not only the Commonwealth and its political subdivisions, including school districts and its boards, commissions, authorities, etc., but also nonprofit organizations and certain other institutions that receive grants or appropriations from local, state or federal governments.  Employees under PERA include any individuals employed by a public employer except elected officials; appointees of the Governor; management level employees; confidential employees; clergy and others in a religious profession, employees at church offices or facilities; and police and firefighters.

REPRESENTATION CASES:

Under PERA, employees may organize in units represented by organizations of their choice for the purpose of collectively bargaining with their employers concerning wages, hours and other terms and conditions of employment. Units of first level supervisors also may be organized to "meet and discuss" with their employers concerning issues which would be bargainable for rank and file employees. All units which came into existence after 1970 must be certified by the Pennsylvania Labor Relations Board (PLRB). One of the board's major functions is to determine the appropriateness of units, based on guidelines established in the act and in relevant case law. The board also determines whether employees in an appropriate unit wish to be represented by a specific organization. This is principally accomplished through secret ballot elections which are held at the employees' worksite or, in some instances, by mail ballot.  Representation cases are initiated most often by filing a petition which must be supported by a showing of interest by 30 percent of the employees in the proposed unit. Before an election is held, the PLRB may schedule a hearing to investigate any issues concerning the petition. If no major questions are raised concerning the propriety of the unit or other matters, the parties may eliminate the formal hearing by stipulating the time and place of the election, the eligibility list and various other matters. Joint election requests also may eliminate or reduce preliminary procedural steps before elections. This type of petition is most often filed when an employer does not question the appropriateness of the unit that the employee’s organization is attempting to organize.  When elections are held under PERA, organizations must receive a majority of the valid ballots cast in the election to be certified as the exclusive representative of a unit. If no choice receives a majority of the votes, a runoff election is held between the two choices that received the most votes.  

Units may be certified without conducting elections if an employer does not question either the appropriateness of a unit or the majority status of a petitioning organization and joins with the organization to request that the board certify the proposed unit.  Representatives may be decertified pursuant to the filing of a decertification petition, which must also be supported by 30 percent of the employees in the unit, or in the case of an employer filed petition, by a substantiated good faith doubt of the majority status of the representative. The certified representative will lose its bargaining status if it does not receive a majority of the valid votes cast in a decertification election or if it voluntarily decides to relinquish its representative status through the filing of a disclaimer of interest.  Parties also may petition the PLRB board for clarification of whether certain positions should be properly included in a unit. This procedure is available to determine managerial, supervisory or confidential status or to allocate newly created positions to appropriate bargaining units. Unit clarification procedures also may be used to merge two or more existing units.  The PLRB board also may amend a previously issued certification to reflect a change in the name or affiliation of an employee’s representative. UNFAIR PRACTICE CASES:  The PLRB board enforces and protects the rights of employees to organize and to bargain collectively through investigation of charges of unfair practices and direction of remedies if such practices are found. Article XII of the Public Employees Relations Act (PERA) outlines unfair practices prohibited for employers, employees or organizations. PERA prohibits employers from interfering, restraining or coercing employees in the exercise of their rights. Employers also may not refuse to bargain, dominate or interfere with the formation or administration of any organization, or discriminate against employees because of union activity. The enumerated or organization unfair practices restrict interference and unlawful restraints that could occur in bargaining relations with employers or in dealing with individual employees, including refusal to bargain in good faith. Parties may initiate PLRB board investigation of an alleged unfair practice by filing a charge on the board's Form PERA-9, Charge of Unfair Practices, which requests information on the specific subsection of PERA alleged to have been violated and on the specific facts and circumstances surrounding the charge.  The PLRB board's rules and regulations authorize the Secretary of the board to issue complaints in unfair practice charges when, upon review, it is determined that a sufficient cause of action is stated in the charge. After a complaint is issued, the case may be assigned directly to a hearing or to a conciliator for further investigation or discussions between the parties to arrive at a settlement of the case. Should the settlement effort fail, or should the case contain issues and circumstances which are not amenable to negotiated settlement, the case will proceed to a formal hearing.  At the hearing, a representative of the party filing the charge will prosecute the case before a PLRB board hearing examiner. The board does not provide legal counsel for individuals who have filed charges of unfair practices. The parties present testimony, examine and cross-examine witnesses and introduce evidence concerning the charge. A stenographic record is made of the hearing.  Upon conclusion of a hearing, the hearing examiner will issue a proposed decision and order to the parties containing a statement of the case, findings of fact, conclusions of law and an order either dismissing or sustaining the charge. The PLRB board reviews any exceptions to examiner decisions. If a charge is sustained, appropriate actions to remedy the effect of the unfair practice, including reinstatement of employees discharged in violation of the act, with or without back pay may be ordered. The board has the authority to petition the courts for the enforcement of such orders and for appropriate temporary relief or restraining orders.

 IMPASSE RESOLUTION CASES:  The PLRB board has limited powers relating to bargaining impasses between employers and employees under PERA and Act 88 of 1992.  PERA provides for mandatory mediation of bargaining impasses by the Pennsylvania Bureau of Mediation. After mediation, the PLRB board has the discretion within the statutory timetable to appoint fact-finding panels to make findings and recommendations for resolving disputes. Under Act 88, relating to school employees, the board must appoint fact finders under certain circumstances, and may make discretionary appointments at any time during bargaining. The PLRB board pays one-half of the cost of fact-finding while the parties share the other one-half. The board also submits panels for the selection of neutral arbitrators for interest arbitration to resolve bargaining issues involving employees who do not have the right to strike. PERA requires the board to pay the costs of the neutral arbitrator in those proceedings. The board must also pay one-half the cost of mandatory arbitration under Act 88.

In summary, being a CTE Director requires many things and one the most important is a desire to continue your professional development. This can be achieved through broader edification of the duties and responsibilities of the position, working as a team player with your JOC, PAC, Superintendent of Record, solicitor and staff; as well as a understanding how legal issues, labor law, collective bargaining, employee dismissal, tenure, special education, etc., all impact your ability to be an affective administrator.

Implementation Plan:

Investigate each position within your CTE Center for a current job description. Develop a job description for any current position for which one does not exist. Consult with your solicitor to validate any newly developed job descriptions before presenting them to the PAC and JOC.

Locate and review the following procedures, polices, and plans. Develop and implement an action plan for any deficiencies.

Solicitor’s Job description

Job Descriptions for All Employees on File

Board Policies (Board Policy Manual)

Pennsylvania School Code 1949, as Amended

Personnel Actions including Evaluations

Special Education Hierarchy and Program

Student Discipline

Staff Discipline (Current or Previous)

Current Collective Bargaining Agreements

Articles of Agreement Between the Participating Districts

Hiring Policies and Procedures

Grievance Procedures (Usually Located with in the CBA or CP)

School Renovation Issues (Current or Previous and Establish any Needs)

Termination of Professional Staff (Previous)

PDE Program Approvals

Current Strategic Plan

Evaluation of Non-Professional Employees (Previous and Current)

Documentation:

Site your findings for the following utilizing artifacts, which currently exist or were developed by you.

Solicitor’s Job Description

Board Policies (Board Policy Manual)

Pennsylvania School Code 1949, as Amended

Personnel Actions including Evaluations

Special Education Hierarchy and Program

Student Discipline

Staff Discipline (Current or Previous)

Current Collective Bargaining Agreements

Articles of Agreement Between the Participating Districts

Hiring Policies and Procedures

Grievance Procedures (Usually Located with in the CBA or CP)

School Renovation Issues (Current or Previous and Establish any Needs)

Termination of Professional Staff (Previous)

PDE Program Approvals

Current Strategic Plan

Job Descriptions for All Employees

Evaluation of Non-Professional Employees (Previous and Current)

Performance Assessment Criteria Items:

Competency #901Leadership Assessment Form

Competency: Dealing with the Solicitor and Legal Issues

Level of Performance

Criteria: N/A Not Attained AttainedIn determining the solicitor’s role at the CTC, the leadership intern…

1. …reviewed existing board policies

2. …met with the solicitor and reviewed pertinent sections of the Pennsylvania School Code and its impact of CTC policies and procedures

3. …met with the solicitor and reviewed pertinent sections of the Levin’s Pennsylvania School Laws, Rules and Personnel Actions

4. …met with the solicitor and reviewed recent JOC actions pertaining to board policy, finance, and budget

5. …reviewed the job description for the solicitor, and if one didn’t exist drafted one for future board approval

6. …discussed outcomes of hearings that the solicitor was involved with relative to special education and both student and staff discipline

7. …requested the solicitor’s comments on the existing CBA and CP for all employees

8. …asked for interpretation of the Articles of Agreement for post-secondary and external agencies

9. …discussed board hiring policies and practices with the solicitor

10. …discussed past grievances and their resolution with the solicitor

11. …discussed the renovation and/or construction projects that have been completed at the CTC

12. …discussed with the solicitor the termination process at the CTC 13. …discussed the non-professional staff evaluation

form and process with the solicitor

_________________ ______ _______________ ______ _______________ ______Intern’s Initials Date SLRP’s Initials Date Facilitator’s Initials Date