William Allan Kritsonis, PhD

Overview

Chapter V deals with personnel issues that arise during employment

relationships. These disputes include:I. Reassignments ,Compensation, &

Texas Teacher Appraisal HistoryII. Teacher Appraisal

III. Employment BenefitsIV. 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 the employee may be assigned and reassigned at the discretion of the superintendent.

Complaints concerning an illegal reassignment likely will not receive a hearing at the Texas Education Agency, unless the employee has suffered financially.

TEC 7.057 (a)(2) states, “The commissioner’s jurisdiction is limited to cases involving parties aggrieved by the school laws of this state or a provision of a written employment contract between the school district and a school district employee if a violation causes or would cause monetary harm to the employee.”

Reassignment: Cont. Smith v. Nelson (2001): The court held

that the commissioner did not have the jurisdiction to hear the appeal of a man who was reassigned from head coach/athletic director to P.E. teacher. There was a written contract involved, but the man’s salary remained the same after the reassignment. He tried to claim that his loss of status would make it harder for him to find good coaching jobs in the future. The court disagreed! Allegations of speculative future losses are not 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 is important if an educator contemplates relocating. The educator will not be locked into a contract at a school they no longer desire to teach at if they execute decisions prior to this date. The date is calculated to be no later than the forty-fifth day before the first day of instruction of the following school year.

San Elizario Educators Association v. San Elizario I.S.D.: The San Elizario school board set salaries on July,10th. However, the teachers were locked into their contracts as of July 1st. When the new salary schedule actually lowered the salaries of some teachers, they took matters to the commissioner. The commissioner 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 an

employee if they were overpaid?

School district tries to recoup sick leave overpayments made the previous year.

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

The court held that the dispute over the previous year’s overpayments was

unrelated to and could not generate deductions from teacher paychecks. The current salaries were amounts lawfully due, reasoned the court, and were not

subject to the proposed unilateral deductions by the district.

Texas Teacher Appraisal History: J. Hughes Prior to the passage of the Term Contract Nonrenewal

Act (TCNA) in 1981 there was no state law requiring any kind of teacher evaluation in Texas.

The TCNA required that all contract teachers be evaluated in writing at least once a year. All other decisions about evaluation, including what instrument to use, were left to the local districts.

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

TTAS was intended to be an instrument that measured the difference between the average classroom teacher and the instructional star.

Despite huge state investments in the development of TTAS, in 1993 the legislature dismantled the program and 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 on observable, job-related behaviors. It involves a single appraisal by a single appraiser,

assessing performance in eight domains which include:

1. Domain I: Active, successful student participation in the learning 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 student performance

Teacher Appraisal: PDAS (Cont.) Although there are eight Domains on the PDAS, a single

failure by the 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 by the district. Based on this information, the principal rated the teacher “below expectations” in four domains. In her appeal to TEA, the teacher argued that since the law requires each domain to be rated “independently” it was improper for the principal to rely on a single factor to reduce her rating in four domains. The commissioner did not agree with this line of reasoning.

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

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

However, the teacher can be nonrenewed without all this taking place

Kinnaird v. Morgan I.S.D., 1999: In this case, the commissioner approved the non-renewal of a teacher despite the fact that he was 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 less than once a year, provided that it is done at least every five years. The district must have a written agreement with any such teacher.

Schools now are specifically authorized to send copies of a teacher’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 teacher or 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 attorney

general issued an opinion in 2003 stating that the SBEC (State Board for Educator Certification), the governmental entity with authority 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): The commissioner concluded that a librarian is not a classroom teacher and is not entitled to the PDAS process. If the district chooses to evaluate librarians in some other manner, it may do so.

Teacher Appraisal: PDAS (Cont.)How are administrators evaluated? For those administrators whose employment

requires educator certification, state law requires a process quite similar to PDAS.

The local district is to use either its own locally developed system or the commissioner’s recommended system.

The law specifically prohibits the use of school funds to pay any administrator who has not been appraised within the preceding fifteen months.

Principal Appraisals Their appraisals include consideration of the

performance of the campus with regard to the academic excellence indicators and campus objectives, which are a part of the campus improvement plan (CIP).

Employment Benefits: Deonta Daniels Planning and Preparation Period:

Exactly what benefits an employee is entitled to depends to a great extent on the 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, evaluating student’s work (grading), and planning.

TEC 22.003(a): During this planning and preparation period, the teacher may not be required to participate in any other activity.

Duty-Free Lunch:

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

TEC 21.405: In ay event a teacher may not be required to supervise students during 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 Security system, and most do not.

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

Employment Benefits: Cont. Personal Leave:

TEC 22.003(a): The law specifically states that the local school board may not restrict the purposes for which the leave may be used.

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

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

Health Insurance: TEC 22.004: Requires each school district provides its

employees health insurance. The insurance plan must be comparable to the insurance program the state offers its employees and cost may be shared by employees and the district.

Under the state’s health insurance program, schools districts must certify annually to the executive director of the Employees Retirement System that 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 a result of an assault may not be deducted from accrued sick leave. (This is paid leave on top of the sick leave the employee already has.)

TEC 22.003: Upon investigation of an assault claim, the district may change the assault leave 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 be physically assaulted by a person who could be prosecuted for having committed an assault, or who could not be prosecuted for an assault only because the person’s age or 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 is entitled to a leave of absence for temporary disability without fear of

termination.

Request must be made to the superintendent and must include a physician’s statement confirming the inability to work and indicating the date the employee wishes to begin the leave and the probable date of return.

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

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

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

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

The attorney general concluded that the teacher returning from disability leave must be placed on his or her former campus unless another principal voluntarily accepts the employee. The returning employee is to go to the former campus if a position is available there. However, if no position is available, the school cannot force some other principal to accept the employee. As of the beginning of the next school year, however, the school district 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 on leave of absence for temporary disability.

Employment Benefits: Cont.Family and Medical Leave:

Under the Family and Medical Leave Act (FMLA), eligible employees are entitled to 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 performing the essential functions of the job.

Miscellaneous Leave Policies:

Other types of leave allowed by the state include military leave and developmental leave.

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

TEC 21.452:The Board of Trustees may grant certified teachers who have served 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-

wage and 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 FLSA

provisions 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 FLSA provisions 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 instruction are specifically exempt from FLSA coverage.

Worker’s/Unemployment Compensation: Daimon Sweet

Worker’s Compensation: State law provides that school districts shall extend such benefits to its employees by one of the following options: (1)Becoming a self-insurer, (2)providing insurance under worker’s compensation insurance contracts or policies, or (3)entering into interlocal agreements with other political subdivisions providing for self-insurance.

Unemployment Compensation: The state’s effort to help people over the rough spots and is intended to provide compensation for a specified number of weeks to people who are unemployed through no fault of their own.

There are two situations where an employee should not receive unemployment compensation benefits: (1) If the employee voluntarily quits or (2) if the employee is dismissed for misconduct.

Employees Grievances: Daimon Sweet Employment Grievances: A Little History Texas Constitution, Article I,27: Provides that the citizens shall

have the right, in a peaceable manner, to… apply to those invested with the powers of government for redress of grievances… by petition, address, or remonstrance (grievance).

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

Two significant changes happened during the 1980s to employee grievances in the public sector: (1) The scope of what was determined “grieveable” expanded tremendously and (2) the responsibility of school administrators and board members to hear grievances was spelled out in 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 complaining about 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 and complaints filed by those being governed, but surely they must “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 the government’s ear. According to the court, although a school board does not have a duty to provide formal procedures for citizens to vent their complaints, it must “consider” petitions and grievances.

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

The Role of Employee Organizations: 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 the union (individual employee rights are surrendered to the bargaining agent).

The right to strike or to negotiate binding arbitration of both grievance and contract term disputes.

The Role of Employee Organizations: 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 public employment because of the individual’s membership or nonmembership in a labor organization.

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

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

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

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

References and Acknowledgements: 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)