personnel issues (2)

8/14/2019 Personnel Issues (2)

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William Allan Kritsonis, PhD



Overview

Chapter V deals with personnel issues thatarise during employment relationships.

These disputes include:

I. Reassignments ,Compensation, & TexasTeacher Appraisal History

II. Teacher Appraisal

III. Employment Benefits

IV. Wage/Hour Requirements,Worker’s/Unemployment Compensation, &

Employee Grievances & Organizations



Reassignment: J.Hughes Most Texas teacher and administrator contracts

contain a clause which states that theemployee may be assigned and reassigned atthe discretion of the superintendent.

Complaints concerning an illegal reassignmentlikely will not receive a hearing at the Texas

Education Agency, unless the employee hassuffered financially.

TEC 7.057 (a)(2) states, “The commissioner’s jurisdiction is limited to cases involving partiesaggrieved by the school laws of this state or a

provision of a written employment contractbetween the school district and a schooldistrict employee if a violation causes or wouldcause monetary harm to the employee.”



Reassignment: Cont.

Smith v. Nelson (2001): The court held thatthe commissioner did not have the jurisdiction to hear the appeal of a man whowas reassigned from head coach/athleticdirector to P.E. teacher. There was a written

contract involved, but the man’s salaryremained the same after the reassignment.He tried to claim that his loss of status wouldmake it harder for him to find good coaching jobs in the future. The court disagreed!

Allegations of speculative future losses arenot enough to give the commissioner jurisdiction over such a case.



Compensation Disputes:J.Hughes Educators should be aware of the “penalty-free resignation date”

which varies form district to district and year to year. This isimportant if an educator contemplates relocating. The educatorwill not be locked into a contract at a school they no longerdesire to teach at if they execute decisions prior to this date.The date is calculated to be no later than the forty-fifth daybefore the first day of instruction of the following school year.

San Elizario Educators Association v. San Elizario I.S.D.: The SanElizario school board set salaries on July,10th. However, theteachers were locked into their contracts as of July 1st . When thenew salary schedule actually lowered the salaries of someteachers, they took matters to the commissioner. Thecommissioner ruled the district was obligated to compensate the

teachers pursuant to the previous year’s salary schedule.



Compensation Disputes: Cont.

Can the district get money back from anemployee if they were overpaid?

School district tries to recoup sick leaveoverpayments made the previous year.

(Benton v. Wilmer-Hutchins I.S.D.,1983)

The court held that the dispute over theprevious year’s overpayments was unrelatedto and could not generate deductions from

teacher paychecks. The current salarieswere amounts lawfully due, reasoned the

court, and were not subject to the proposedunilateral deductions by the district.



Texas Teacher AppraisalHistory:J. Hughes Prior to the passage of the Term Contract Nonrenewal Act (TCNA) in 1981 there was no state law requiringany kind of teacher evaluation in Texas.

The TCNA required that all contract teachers beevaluated in writing at least once a year. All other

decisions about evaluation, including what instrumentto use, were left to the local districts.

House Bill 72 in 1984 imposed the Texas Teacher Appraisal System (TTAS) which tried to adopt auniform system of teacher evaluation in Texas.

TTAS was intended to be an instrument that measuredthe difference between the average classroom teacherand the instructional star.

Despite huge state investments in the development of TTAS, in 1993 the legislature dismantled the programand made significant changes to the appraisal system.



Teacher Appraisal: A. MorrisonThe current appraisal system is known as PDAS (Professional

Development and Appraisal System) and is based onobservable, job-related behaviors. It involves a single

appraisal by a single appraiser, assessing performance ineight domains which include:

1. Domain I: Active, successful student participation in thelearning process

2. Domain II: Learner-centered instruction

3. Domain III: Student Progress: Evaluation and Feedback

4. Domain IV: Management of discipline, instruction, time,and materials

5. Domain V: Communication

6. Domain VI: Professional Development

7. Domain VII: Compliance with policies

8. Domain VIII: Academic improvements in studentperformance



Teacher Appraisal: PDAS(Cont.)

Although there are eight Domains on the PDAS, a single failure bythe teacher may impact several.

Miller v. Clyde I.S.D.,2003: In Clyde I.S.D. a teacher admitted that

for two months she had not been teaching phonics as required bythe district. Based on this information, the principal rated theteacher “below expectations” in four domains. In her appeal toTEA, the teacher argued that since the law requires each domain tobe rated “independently” it was improper for the principal to relyon a single factor to reduce her rating in four domains. Thecommissioner did not agree with this line of reasoning.

Rules adopted pursuant to PDAS require that a teacher beidentified as “a teacher in need of assistance” if the teacher isevaluated as unsatisfactory in one or more domains.

If the teacher is so designated, the supervisor and teacher mustdevelop an intervention plan.

However, the teacher can be nonrenewed without all this takingplace

Kinnaird v. Morgan I.S.D., 1999: In this case, the commissionerapproved the non-renewal of a teacher despite the fact that hewas not first given an intervention plan.



Teacher Appraisal: PDAS(Cont.) PDAS is an annual affair, unless the district decides to appraise

some teachers less frequently and the teacher agrees.

If a teacher’s appraisal reflects a rating of at least “proficient”

with no areas of deficiency, the teacher can be appraised lessthan once a year, provided that it is done at least every fiveyears. The district must have a written agreement with any suchteacher.

Schools now are specifically authorized to send copies of ateacher’s evaluation (along with any rebuttals) to a district in

which the teacher has applied for employment. Teacher appraisals are not accessible to the public.

TEC 21.355 : A document evaluating the performance of a teacheror administrator is confidential.



Teacher Appraisal: PDAS(Cont.) The confidentiality of a teacher evaluation goes

beyond the general public.

Att’y. Gen. Op. GA-0055, 2003: The attorneygeneral issued an opinion in 2003 stating thatthe SBEC (State Board for EducatorCertification), the governmental entity withauthority over teacher certification, has no right

of access to teacher evaluations. The Texas Administrative Code specifies that

the PDAS is for classroom teachers only.

Fenter v. Quinlan I.S.D. (2002): Thecommissioner concluded that a librarian is not a

classroom teacher and is not entitled to thePDAS process. If the district chooses toevaluate librarians in some other manner, itmay do so.



Teacher Appraisal: PDAS(Cont.)How are administrators evaluated?

For those administrators whose employment requireseducator certification, state law requires a processquite similar to PDAS.

The local district is to use either its own locallydeveloped system or the commissioner’srecommended system.

The law specifically prohibits the use of school fundsto pay any administrator who has not been appraisedwithin the preceding fifteen months.

Principal Appraisals

Their appraisals include consideration of theperformance of the campus with regard to theacademic excellence indicators and campus objectives,which are a part of the campus improvement plan(CIP).



Employment Benefits: DeontaDaniels

Planning and Preparation Period:

Exactly what benefits an employee is entitled to depends to a great extent onthe actual wording of the employment contract and the policies of the school

district.

Each classroom teacher must have at least 450 minutes within each two-week period for instructional preparation, parent-teacher conferences, evaluatingstudent’s work (grading), and planning.

TEC 22.003(a): During this planning and preparation period, the teacher maynot be required to participate in any other activity.

Duty-Free Lunch:

Classroom teachers and full-time librarians also are entitled to at least a 30minute lunch period free from all duties and responsibilities connected withinstruction or supervision of students, unless the district is faced with such diresituations as personnel shortage, extreme economic conditions, or unavoidableor unforeseen circumstances.

TEC 21.405: In ay event a teacher may not be required to supervise studentsduring the duty-free lunch more than one time per week.

Teacher Retirement: Government Code 822.001: Requires every employee of Texas public school

districts to belong to T.R.S. (Teacher Retirement System of Texas).

School districts are not required to participate in the federal Social Securitysystem, and most do not.

School districts also may provide various insurance programs for theiremployees paid for out of local funds.



Employment Benefits: Cont.Personal Leave:

TEC 22.003(a): The law specifically states that the local school board maynot restrict the purposes for which the leave may be used.

There is no limit on the accumulation of personal leave and it moves withthe employee from one district to another.

Unfortunately, accumulated sick leave cannot be converted into personalleave and will still be governed by prior law (S.S.L.P.,1995), which limitedits use to sickness or death in the immediate family.

Health Insurance:

TEC 22.004: Requires each school district provides its employees healthinsurance. The insurance plan must be comparable to the insuranceprogram the state offers its employees and cost may be shared byemployees and the district.

Under the state’s health insurance program, schools districts must certifyannually to the executive director of the Employees Retirement Systemthat the district’s coverage meets the requirements of the statute.



Employment Benefits: Cont.Assault Leave:

This paid leave can continue, if necessary, up to two full years and leave taken as aresult of an assault may not be deducted from accrued sick leave. (This is paid leaveon top of the sick leave the employee already has.)

TEC 22.003: Upon investigation of an assault claim, the district may change the assaultleave status and charge the leave, first against accumulated personal leave, and then,if necessary, against the employee’s pay.

Penal Code /TEC 22.003 (c)): To be eligible for assault leave, the employee must bephysically assaulted by a person who could be prosecuted for having committed anassault, or who could not be prosecuted for an assault only because the person’s ageor mental capacity makes the person a nonresponsible person.

Temporary Disability Leave:

TEC 21.409: Provides that each full-time educator employed by a school district isentitled to a leave of absence for temporary disability without fear of termination.

Request must be made to the superintendent and must include a physician’sstatement confirming the inability to work and indicating the date the employeewishes to begin the leave and the probable date of return.

During pregnancy, teachers are allowed to take a leave of absence only for the perioda physician certifies they are unable to work.

Temporary leave is unpaid. The primary purpose of the leave is to assure theemployee that he or she will have a job upon returning to good health.



Employment Benefits:Temporary DisabilityLeave(Cont.)What happens if a teacher is due back from disability

leave and there are no openings on the campus wherethe teacher taught?

The attorney general concluded that the teacher returning fromdisability leave must be placed on his or her former campus

unless another principal voluntarily accepts the employee. Thereturning employee is to go to the former campus if a position isavailable there. However, if no position is available, the schoolcannot force some other principal to accept the employee. As of the beginning of the next school year, however, the schooldistrict has the duty to make sure a position is available.

TEC 21.409(a): The contract or employment of the educator may

not be terminated by the school district while the educator is onleave of absence for temporary disability.



Employment Benefits: Cont.Family and Medical Leave:

Under the Family and Medical Leave Act (FMLA), eligible employees are entitledto up to twelve weeks of unpaid leave per year:

1. To care for a newborn, adopted, or foster children;

2. To care for a spouse, child, or parent with serious health conditions;

3. Or when serious health conditions prevents the employee from performingthe essential functions of the job.

Miscellaneous Leave Policies:

Other types of leave allowed by the state include military leave anddevelopmental leave.

TEC 431.005: Provides employees who are members of state militia or theU.S. reserve forces up to fifteen days per year of leave without loss of salaryfor participation in authorized duty.

TEC 21.452:The Board of Trustees may grant certified teachers who haveserved at least five consecutive years in the district a developmental leave of

absence for study, research, travel, or other suitable purpose. While on developmental leave, the teacher is entitled to the same employee

benefits available to other employees of the district.



Wage / Hourly Requirements:Daimon Sweet

In 1985 the U. S. Supreme Court ruled that the minimum-wageand maximum-hour provisions of the Fair Labor Standards Act(FLSA) apply to local government functions.

The FLSA provisions do not apply to everyone.

Workers are divided into two general categories – “exempt”and “non-exempt”.

“Exempt” means employees are not covered by the FLSAprovisions and thus are not entitled to extra benefits for work in excess of the forty-hour week (“overtime”).

“Non-exempt” means that employees are covered by the FLSAprovisions and thus are entitled to extra benefits (“overtime”and “comp time”) if they work more than forty hours a week.

Exempt employees fall under three broad categories:Executive, Administrative, and Professional.

Teachers and school administrators who serve as principals,assistant principals, and other positions related to instructionare specifically exempt from FLSA coverage.



Worker’s/UnemploymentCompensation: Daimon Sweet

Worker’s Compensation: State law provides that schooldistricts shall extend such benefits to its employees by oneof the following options: (1)Becoming a self-insurer,(2)providing insurance under worker’s compensationinsurance contracts or policies, or (3)entering into

interlocal agreements with other political subdivisionsproviding for self-insurance.

Unemployment Compensation: The state’s effort to helppeople over the rough spots and is intended to providecompensation for a specified number of weeks to peoplewho are unemployed through no fault of their own.

There are two situations where an employee should notreceive unemployment compensation benefits: (1) If theemployee voluntarily quits or (2) if the employee isdismissed for misconduct.



Employees Grievances: DaimonSweet Employment Grievances: A Little History

Texas Constitution, Article I,27: Provides that the citizens shall have theright, in a peaceable manner, to… apply to those invested with thepowers of government for redress of grievances… by petition, address,or remonstrance (grievance).

Government Code 617.005: Acknowledges the right of public employeesto present grievances concerning their wages, hours of employment orconditions of work either individually or through a representative thatdoes not claim the right to strike.

Two significant changes happened during the 1980s to employeegrievances in the public sector: (1) The scope of what was determined“grieveable” expanded tremendously and (2) the responsibility of schooladministrators and board members to hear grievances was spelled outin some detail for the first time.

Grievances are routinely filed over assignments and reassignments,appointments to extra duty, salary and extra pay, teacher appraisal, and

the wording of reprimands or other written communications.

If an employee is terminated and has no other means of complainingabout the decision, a grievance can be filed.



Hearing Employee Grievances:Daimon Sweet Texas Constitution, Article I, 27: Does not require school

boards to negotiate or even respond to grievances andcomplaints filed by those being governed, but surely theymust “stop, look, and listen”.

The Texas Constitution simply requires school boards to“consider” the grievances addressed to them by citizens,including the district’s employees.

The Texas Constitution only guarantees citizens access to thegovernment’s ear. According to the court, although a schoolboard does not have a duty to provide formal procedures forcitizens to vent their complaints, it must “consider” petitionsand grievances.

An open forum at each board meeting suffices to provide theconstitutionally required access to the school board.



The Role of EmployeeOrganizations: Daimon Sweet

Collective Bargaining on the National Scene:

National Labor Relations Act (NLRA) 1935 – Bargaining Rights

The right to organize collectively or to refrain from doing so.

The right to be represented by a single bargaining agent.

The right to democratic internal union organization.

The right to bilateral negotiations over conditions of employment.

The right to a binding contract between the employer and theunion (individual employee rights are surrendered to thebargaining agent).

The right to strike or to negotiate binding arbitration of both

grievance and contract term disputes.



The Role of EmployeeOrganizations: Cont.

The Law in Texas:

Texas has a “right-to-work” law with regard to public employment.

Government Code 617.004: An individual may not be denied publicemployment because of the individual’s membership ornonmembership in a labor organization.

Government Code 617.002: Texas specifically bans collectivebargaining in the public sector.

Government Code 617.003 and 617.005: Texas prohibits strikes ororganized work stoppages by public employees and allows publicemployees to present their grievances only through organizations thatdo not claim the right to strike.

Texas law does not prohibit unions from existing, nor public employeesfrom joining them. In fact, Texas law repeats itself in an effort to makesure that employees are not forced into membership in any particular

group.

To facilitate membership in professional organizations, the legislaturehas added TEC Code 22.001 requiring school districts to deduct from anemployee’s salary an amount equivalent to membership fees or dues ina professional association if the employee so request.



References andAcknowledgements:

The Educator’s Guide to Texas School Law; Jim Walsh,Frank Kemerer, and Laurie Maniotis.6th ed.

Jett v. Dallas I.S.D. (1989)

Anderson v. Pasadena I.S.D. (1999)

Finch v. Fort Bend I.S.D. (2003)

Briggs v. Crystal City I.S.D. (1972)

San Elizario Educators Association v. San Elizario I.S.D.

Benton v, Wilmer-Hutchins I.S.D. (1983)

Miller v. Clyde I.S.D. (2003) Kinnaird v. Morgan I.S.D. (1999)

Fenter v. Quinlan I.S.D. (2002)

Strater v. Houston I.S.D. (1986)

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