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TASPA WINTER CONFERENCE Growth Plans and

Documentation: Planning for the Best while Preparing for the

Worst

Erik Nichols and Debbie Esterak Rogers, Morris and Grover, L.L.P.

December 10, 2015

Horror Stories �  Numerous parental complaints about a teacher led

to his nonrenewal, but absent any documentation, the alleged complaints were deemed hearsay and the teacher won his age discrimination claim against the district.

�  Reliance on rumors about a teacher-student sexual relationship was insufficient when no documentation supported the allegations, so the teacher’s nonrenewal was overturned.

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�  Learn the who, what, when, where, and why of documentation

�  Walk away with practical advice, tips, and examples for better documenting employee issues.

Topic 1: Who Gets Documented?

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Who gets documented?

�  Contract employees � Chapter 21

�  Probationary

�  Term

�  Continuing

� Non-chapter 21

�  Non-contract employees � At-will employees

Who gets documented: At-will employees

�  Policy DCD �  Who are generally at-will employees?

�  Technical employees; clerical employees; paraprofessional employees; professional employees not entitled to a Chapter 21 contract and not employed by a written contract

�  Can terminate for any reason that’s not illegal or no reason

�  But, cannot terminate for an illegal reason �  Race/color, sex, national origin, religion,

disability, retaliation, etc.

�  STILL NEED DOCUMENTATION!!!

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Who gets documented: Non-Chapter 21 Contract Employees

�  Administrative contracts �  Generally, management level

�  Usually 1-year term

�  Do not carry Chapter 21 rights

�  Termination (during contract): Policy DCE – good cause

�  End of term: Policy DCE – any reason or no reason but not an impermissible reason (age, sex, religion, etc.)

Who gets documented: Chapter 21 Contract Employees

�  Probationary and Term Contract employees �  Classroom teachers, principals, librarians, nurses, and

counselors �  Usually 1-year term contracts �  Termination before end of contract for Good Cause

(employee entitled to notice, may appeal to an IHE, oral argument before board, right to appeal)

�  Termination at the end of the contract, aka Nonrenewal, for reasons defined by the Board in DFBB (Term) or best judgment of District (Probationary)(DFAB). Employee entitled to reasonable notice, term contract e’ees may request a hearing and may appeal the decision

�  Again, no employment action for impermissible/discriminatory reason!

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Topic 2: What Gets Documented?

What gets documented? �  Employment issues

�  Disciplinary issues: attendance, job performance, insubordination, etc. �  of BOTH contract & at-will employees!

�  Student/parent issues �  Inappropriate communication with

student/parent, lack of communication, etc.

�  Community issues �  Social media missteps are becoming

more and more common… Check DH (LOCAL) for specific restrictions on personal use of electronic media, as well as with students

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What gets documented? �  One-time, big and bad incidents

�  So big and bad that the conduct alone will likely lead to termination

�  Examples: drugs at work, assault, failure to report child abuse/neglect, etc.

�  Patterns of conduct �  Low-performing employee, non-serious

violations of policies and procedures �  Usually events over a period of time �  Examples: competency issues, tardies, etc.

Topic 3: Why document?

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Why document: At-will Employees

�  At-will employees may be terminated for any reason so long as not an illegal reason

�  What is an illegal reason? �  race, color, national origin,

religion, sex, pregnancy, disability, age, genetic information, retaliation

�  At-will employees can bring grievances, lawsuits, file complaints with the EEOC, TCHR, SBEC, OCR, etc.

�  If no documentation, district will have no proof to defend itself…and possibly you!

Why document: At-will & Contract Employees

�  Primary purpose: Improve Performance

�  Puts employee on notice of deficiencies or problems in performance

�  Allows supervisor an opportunity to inform employee of what is needed for improvement

�  Provides employee clear direction on how to improve �  Documentation is often perceived as a negative –

change that perception! – should show parties are working together to improve

�  Not “writing up” employee – documents are to identify problems and to suggest ideas and methods to improve performance

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Why document: At-will & Contract Employees

�  Negates the “it never happened” defense �  Employee can’t later say “I didn’t know” or “They

never told me”

�  Helps supervisor remember specific details at hearing, which may occur several months after events occurred �  Documentation makes it easier for multiple or

successor supervisors to track behavior, performance

�  Demonstrates history and/or patterns of employee’s performance �  Eliminates the “I’ve never had a problem before”

attempt to blame personality conflict with supervisor

�  Supports your successors who inherit the personnel problem

Topic 4: What type of

documentation?

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Type of Documentation � Notes to the file �  for minor informal verbal counseling

� Memoranda �  Documenting specific incidents of

misconduct �  Documenting conferences

� Evaluations

� Appraisal records/forms

� Performance Improvement Plans

What should documentation look like?

� Documentation should tell the whole story as if you were not going to be there to tell it �  Be objective �  Include all the players �  Chronology �  If someone who knows none of the

facts or prior history reads the documentation, he/she will know the whole story by reading the documentation

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What should documentation look like?

�  Who: Who was involved? Who witnessed conduct? List each person

�  What: What did the employee do? What happened?

�  Where: Exact location of incident/conduct

�  When: Specifics of when incident/conduct occurred – date, time, etc.

�  Why: Why is documentation necessary? (because policies, rules, procedures violated)

What should documentation look like?

�  Explain each and every rule, policy, procedure, and directive violated

�  Explain consequences of the conduct or future similar actions

�  Issue specific directives, including remedial action

�  Offer opportunity to respond

�  Dated signature of employee acknowledging receipt of documentation

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What should documentation look like?

�  Be prompt �  Document ASAP after the event �  Date the documentation �  Include dates and to the extent possible, times

�  Be professional �  District / division letterhead �  Document facts, not feelings �  Use correct grammar, proofread, etc.

�  Each adult involved should complete own documentation, date, and sign

Some basics �  Use active voice, not passive voice

�  Who said what; who admitted what; who acknowledged fault; who directed change in behavior; who agreed to change behavior

�  Erase forever from your vocabulary: �  “It was indicated that…” �  “It was suggested that…” �  “It is understood that…” �  “It was stated that…” �  Other similar, passive voice, vague statements

�  Write the notice/memo so that the reader will know exactly what happened in the event

�  Investigate, confer, write—in that order

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Some more basics �  Just the facts

�  Do not attempt to create a verbatim transcript

�  Avoid using general statements; give factual details of conduct/event that has caused concern

�  Do not use hyperbole, sarcasm, or angry words �  Keep it simple, direct, concise �  Do not use educational jargon; write for a lay person to

read

�  Edit the finished document – eliminate spelling and grammatical errors

�  Make directives clear, unambiguous, and direct �  Don’t leave loopholes or wiggle room

How Can These be Improved?

�  You were hostile to a parent.

�  You left your work area untidy again.

�  You came to the football game drunk.

�  You are always negative.

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Verbal Warning �  Use when an employee is:

�  Experiencing difficulty in work performance �  Failing to perform at an acceptable level �  Failing to comply with established work rules

�  1st attempt to correct the problem with verbal counseling

�  Give the employee a description of the problem and corrective action required

�  Place a note in the file as a reminder

Example: Verbal Warning �  Description of current problem

�  Ms. Jones found you sleeping during work hours; there is no sleeping during the work day.

�  You arrive at least 15 minutes late on a regular basis. Specifically, you arrived 15 minutes late on Sept. 28 and Sept. 30. Employees must arrive by 7:45 a.m.

�  I witnessed you and Mr. Weber arguing in front of other employees; you must work together and present a positive working environment.

�  I witnessed what I considered to be inappropriate behavior with a sales representative from A-1 Specialties; we must be courteous to vendors.

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Example: Verbal Warning �  Corrective action required

�  You are directed not to sleep during the work day.

�  You are directed to arrive by 7:45 a.m. every day and follow District policies and procedures in the event you will arrive late to work.

�  You are directed to not argue with other employees and to present a positive, polite working environment.

�  You are directed to be courteous to vendors.

�  If appropriate, cite applicable policy and procedures.

Verbal Warning �  Employee’s comments, if any

�  Ask employee if there is a reason for the conduct, something going on, anything employee would like for you to know – but be careful

�  Discuss options with the employee �  Discuss consequences, if appropriate �  Include comments in the note to the file

�  Remember the Educator’s Code of Ethics & Standard Practices – for all notices, memos, warnings, evaluations

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Example of Verbal Warning Note to File

�  Ethel Employee – secretary �  Aug. 26: arrived to work late –

supervisor had informal conference, directed Ethel to arrive to work on time and to comply with procedures re: arrival times and notification procedures

�  Sept. 1: arrived to work 30 minutes late, failed to notify supervisor that she would be tardy

Specific Incident Memoranda �  Use when:

�  the situation does not improve after the employee has received verbal counseling

�  the circumstances involve more serious behavior such that a written warning is warranted even though a verbal warning has not been issued

�  Remediation is necessary

�  Supervisor should meet with employee to: �  Discuss the specific problem �  Clarify any misunderstandings �  Define what must be done to resolve the problem

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Specific Incident Memorandum � Make calls

�  Your supervisor, HR

�  Is there an immediate need to remove this employee?

�  All witnesses to document �  Example: You, assistant, any

other witnesses

�  Investigate/Document �  Who, what, when, where, why

Specific Incident Memoranda �  Description of Current Problem

�  A clear statement of the problem area(s)

�  Previous attempts to deal with the problem, if any �  Detail previous attempts to address

problem (include previous verbal notices based on notes to the file)

�  Explain rationale for this step being taken

�  Corrections Needed �  Detail what change in performance is

necessary �  Explain consequences for failing to

improve �  Give specific directives

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Specific Incident Memoranda �  Assistance Provided by Supervisor

�  How will you help the employee succeed?

�  Employee’s Comment �  Allow employee to detail his/her comments

�  Employee’s signature �  If employee refuses to sign the notice, note “refused to

sign” on the form and have it witnessed by a supervisor or manager within the division or by an HR representative

�  Send original notice to HR for retention in employee’s personnel file

Teacher Appraisal/Evaluation �  T-TESS contemplates a pre-conference, observation,

post-conference, and end of year conference with a focus on the following four Rubrics: �  Planning �  Instruction �  Learning environment, and �  Professional practices and responsibilities

�  Individual rubrics are established for each dimension of the T-TESS Rubric to include specific descriptors of practices for each of the performance levels – distinguished, accomplished, proficient, developing, and improvement needed.

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Teacher Appraisal/Evaluation �  T-TESS contemplates ongoing communication,

collaboration, information sharing, assessments, and acknowledgment of strengths and needs in order for individuals and teams to accomplish both personal and organizational goals

�  DNA (LOCAL): Components of the appraisal system shall ensure that teachers receive appropriate guidance and feedback

Appraisal Pitfalls �  Districts can adopt T-TESS or their own district-

created appraisal system.

�  Regardless of the system used, make sure any timelines, documentation requirements, and notice provisions are followed.

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Evaluations �  Evaluations:

�  Review your documentation and last year’s evaluation

�  Remember: these follow employee and stay in his/her file

�  Take your time – these should take a lot of time to complete

�  Be specific and truthful

�  This could be the most important documentation!

�  Only address classroom

performance if the teacher also

directs extracurricular activities

Professional Growth Plans

�  Main goal is to help employee be successful

�  Use when an employee is: �  Not performing up to expectations

�  Uncertain regarding job responsibilities/expectations �  Not improving and nonrenewal or termination is

anticipated

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Professional Growth Plans

�  Document classroom behavior based on classroom observation both before and after a growth plan is developed

�  Documentation can justify need for a growth plan and guide the specific directives needed

�  Documentation based on walk-throughs after the growth plan is developed will indicate compliance with directives and help establish a pattern of behavior

TINA Requirements �  19 TAC 150.1004 requires intervention plan to

include:

�  Domain(s) that designate teacher as TINA �  Directives/recs for professional improvement activities �  Evidence used to determine successful completion of

improvement activities �  Directives for changes in behavior �  Evidence used to determine if behavior has changed;

and �  Specific timeline for successful completion

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Drafting Tips for Growth Plans

1. Give the employee notice of areas which need improvement/need change, such as:

�  Instructional issues/student performance

�  Compliance with laws/policies/procedures �  Other job-related behaviors (e.g. tardiness, timely

submission of required reports, etc)

�  Attitude/Affective Issues (professional communication skills, cooperation, etc)

2. Indicate foundation for directive (policy, job description, PDAS, T-TESS, TEKS, Code of Ethics)

Drafting Tips for Growth Plans

3.  List requirements designed to help the employee meet the directive(s) listed (attend training, meet with supervisor to discuss lesson plans, observe other teachers, etc.)

4.  Give a specific timeline for completion of each professional growth activity.

5.  Specify directives for changes in behavior plus evidence that such changes are occurring. Use linking words: “Encourage student participation so that most students are participating in lesson.”

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Drafting Tips for Growth Plans

6.  Provide a reasonable time for growth and improvement. The amount of time will vary depending upon many factors: �  How complex is the change?

�  What did previous evaluations look like?

�  What type of employee are you dealing with (at-will, probationary, term contract with many years of experience)?

�  Is the behavior remediable?

�  District politics (is this a beloved employee?)

Growth Plan Compliance

�  If, at end of plan, employee has satisfied all of the goals, employment should be continued

�  If, in supervisor’s discretion, the most important but not all goals are met, employment may be continued and the plan can be extended to allow more time to satisfy all goals

�  If employee does not satisfy the plan, supervisor should make recommendation to division director, HR director, superintendent for termination of employment

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Grounds for Termination �  Generally, two instances:

�  Failure to comply with official directives as indicated through the disciplinary process (notices, memos, PGP)

�  Serious incident in which corrective action is impractical or unwarranted

�  At-will v. Contract �  Check policy/procedures to determine whose approval must be

obtained for termination

�  Local policy DH extends the Educators’ Code of Ethics to all employees

�  Recommendation for Termination �  Statement of performance/behavior problem(s) �  Summary of prior actions �  Justification for recommendation

Grounds for Immediate Termination

�  Insubordination; failure to comply with official directives

�  Conviction of a felony or any crime involving moral turpitude

�  Falsification of records

�  Theft of property from co-workers, clients, or District

�  Threat or assault on an employee, student, parent, or client

�  Willful destruction of property

�  Misrepresentation of facts to a supervisor or other District official

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Grounds for Immediate Termination �  Failure to report suspected child abuse

�  Use of obscene, abusive, threatening language or gestures

�  Disregarding safety or security regulations and practices

�  Violation of the District’s nondiscrimination and/or non-harassment policies

�  Leaving the workplace without authorization

�  Refusal to assist management in its conducting of an investigation

�  Possession, use, or being under the influence of alcohol, drugs, narcotic, controlled substances, stimulants, depressants, or similar mind or mood altering substances at a school or on the premises owned or under the control of the District

Topic 5: Where do I go for help?

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Where do I go for help? �  Board Policies

�  Standard Operating Procedures

�  Employee Handbook

�  Personnel Procedures

�  Job Descriptions

�  Supervisor

�  Human Resources

�  Legal

Who cares? Decisions based on documentation

�  Whether to take action �  You, human resources, supervisors, attorney

�  Grievance hearing �  You, grievant (employee), supervisors, attorney, Board

�  Termination hearing �  You, employee, supervisors, attorneys, hearing

examiner, Board, Commissioner of Education

�  EEOC, TCHR, SBEC, Workforce Comm. �  You, employee, supervisors, attorneys, agency

�  Lawsuit �  You, plaintiff, attorneys, judge, jury, public

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Discipline & Documentation: When is it too late?

NEVER! �  It’s never too late to start documenting

�  Be consistent �  Don’t single out specific employees �  Be fair, consistent across the board,

with all employees

Discipline & Documentation: Final tips

�  Begin to prepare for a hearing/grievance at the first sign of problem performance

�  Document, document, document – on appropriate form – citing applicable policy, SOP, rules

�  Evaluate frankly and honestly

�  Clearly point out deficiencies and offer help to improve at the earliest possible time

�  Make directives specific and clear

�  Afford adequate time for improvement of performance

�  Create an environment of success

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Discipline & Documentation: Final tips

�  Keep thorough, accurate, contemporaneous documentation of problem employee’s performance and other, job-related conduct

�  Improvement should be desired and expected, so clearly identify the unacceptable conduct in writing and provide a specific, written plan to correct deficiencies

�  Insist on competence and recommend termination/nonrenewal of incompetent employees or employees who fail or refuse to follow directives, PGP

�  Defend your professional judgment confidently

Sins of Employee Documentation

1.  Fails on the basics. (unsigned, undated, illegible)

2.  Created after the fact. (The longer it takes to document, the less genuine and reliable it will appear.)

3.  Appears unprofessional and unbusinesslike. (Sloppy, dirty, written on a Post-it)

4.  Tainted by inaccuracies. (Make sure all material facts are correct)

5.  Too vague to count. (“Talked to Ben Slackin about his behavior” “Joe, your work could be improved”)

6.  Reaches unsupportable conclusions. (“Ben is lazy.” “Tito was drunk.”)

7.  Tells white lies. (“Your job has been eliminated.”)

8.  Uses absolutes. (“always” “never”)

9.  Contains stray markings and notes.

10. Hints at discrimination. (“You are not a team player,” “you don’t fit in here,” “you have a bad attitude”)