Practical Considerations About H.B. 362’s Evaluation Amendments

 

Governor Kasich signed H.B. 362 on June 12, 2014, and it will become effective 90 days later on September 11.  The Ohio Department of Education has summarized the key changes, which are codified in R.C. §§3319.111 and 3319.112.  We are attaching ODE’s summary for your convenience.  The purpose of this Update is to explore practical ramifications of these changes.

1.        How does H.B. 362 affect a board of education’s teacher evaluation policy?

If an evaluation policy touches on subjects in H.B. 362, it should be amended to reflect the changes that will become effective in September.  However, if after adopting its policy, a board entered into a collective bargaining agreement that contains requirements consistent with the old law (for example, a statement that a teacher rated “Accomplished” on the most recent evaluation shall be evaluated once every two years), the labor contract still controls the issue unless it is modified by a mid-term memorandum of agreement or a successor contract.  This is because the terms of an existing labor contract supersede board policy, except where it is illegal to do so.

Even if a board amends its evaluation policy to reflect the new law, it still may be required to follow more stringent provisions in an existing contract until they are modified.  A board also would likely have a duty to bargain about use of the “alternative framework” for student growth (the 42.5%, 42.5%, 15% approach, rather than the 50% student growth and 50% evaluator appraisal).  For these reasons, the board should not opt for the alternative framework in its policy without first providing the teachers union an opportunity to bargain about this subject.

2.               How does H.B. 362 affect current collective bargaining agreements?

A collective bargaining agreement that currently is in effect or becomes effective prior to September 11, 2014 controls the issues addressed in the contract.  For example, if the contract requires that every teacher except for those rated “Accomplished” be evaluated at least once annually, this will still prevail even though the new law now provides an exception for “Skilled” teachers.  Also note that contract language stating “each teacher” or “all teachers” will be evaluated annually does not contain an exception for teachers absent for more than half the school year, as provided in H.B. 362.  Such a contract requires teachers to be evaluated regardless of their absence unless modified by a memorandum of agreement or in a successor agreement.

3.         How can a school district take advantage of the “improvements” in H.B. 362?

H.B. 362 was enacted largely to address administrators’ concerns about the burden of annual evaluations and teachers’ fears about the evaluation process.  The teachers union and the board may have common interests in taking advantage of the greater flexibility allowed by H.B. 362.  With regard to collective bargaining, school districts fall into two categories: (1) districts that have contracts in place for the 2014-15 school year and perhaps subsequent years; and (2) those still negotiating or about to bargain a successor agreement.

For the first group of districts, taking advantage of H.B. 362’s provisions will require a memorandum of agreement, which likely must be ratified by the union’s members and adopted by the board.  This memorandum would amend the current contract.  Issues the parties may wish to address include:  the freedom to not formally evaluate “Accomplished” teachers annually, but instead once every three years; freedom to evaluate “Skilled” teachers every two years; the exception to evaluation requirements for teachers absent more than half of a school year; and the “alternative framework” of 42.5% student growth, 42.5% evaluator appraisal and 15% other.  If bargaining occurs on these topics, the union may propose some process and forms for the new requirement that “Accomplished” or “Skilled” teachers be observed formally at least once and conference with their evaluator in “off” years.  Obviously, it is in management’s interest to not burden “off” years with cumbersome procedures, which simply would be pitfalls to trip administrators.

If a collective bargaining agreement does not regurgitate the prior law’s requirements (for example, that “Skilled” teachers be evaluated annually), but instead has language like “teachers shall be evaluated in accordance with R.C. Sections 3319.111 and 3319.112,”  the changes in H.B. 362 will be automatically incorporated into the contract when the new law becomes effective.  In this instance, no memorandum of agreement will be necessary except to use the “alternative framework” for the mix of student growth, evaluator appraisal, and other measures.  Since the statute sets up the 50%-50% approach to student growth and evaluator appraisal as the default requirement, choosing the alternative method would be subject to negotiations, regardless of whether it is addressed in the current contract.

For the second group of districts, the parties should anticipate the provisions in H.B. 362 and bargain changes to evaluation procedures, even though the bill will not be effective until September 11.  Obviously, most evaluation activities during the 2014-15 school year will occur after this date and can be based on terms the parties bargain in the fall.  A special problem may be presented if negotiations or an impasse drags on into the fall.  Boards generally are required to continue the status quo of expired contract terms.  However, in this instance, there needs to be a careful review of the new law, the expired contract and board policy to determine which terms will apply to evaluations for the upcoming school year.

If an existing labor contract or a contract still being negotiated contains no language about certain evaluation issues, H.B. 362 does not require such language to be added.  In this situation, board policy and the law will govern evaluations.  However, the union does have a right to bargain about (but not necessarily get the board to accept) changes in any evaluation language in an old contract or aspects of the evaluation procedure that are not in conflict with law.

4.         Are there practical problems with H.B. 362’s exception for teachers who are absent a majority of the school year?

Yes.  The new law says a board may “elect” to not evaluate a teacher on leave for at least half the school year.  A board would have to make this election after consulting and perhaps even bargaining with the teachers union.  (The same “election” issue exists for the new option to not evaluate a teacher who commits to retirement in writing by December 1.)

Early in the school year, administrators also may not know whether a teacher is going to be absent for half the year (which literally is 92.5 days of a 185-day work year, or 92 days of a 184-day work year).  Unless leave has been approved, or it is otherwise evident that a teacher will be off work for at least half the year, a district should include the teacher in their observation and evaluation schedule.  Some labor contracts require the first observation to occur by a specific date, such as December 15 or by the end of first semester.  These observations should be done if the teacher is present and can be observed, so the district will not find itself non-compliant if the teacher ends up working more than half the school year.

Finally, some part-time teachers may present a dilemma.  For teachers who work every day but only part of each day, the length of an absence can be determined in the same manner as full-time teachers – by counting the number of contract days and number of absences.  But what about teachers who work certain days of the week, such as Mondays, Wednesdays and Fridays?  The law is unclear whether an absence for “half the school year or more” means at least half of a part-time teacher’s contract days or at least half the school year for full-time teachers.  Logically it should be the former, but there is room for ambiguity to conclude otherwise.

5.         How can a district use the “alternative framework” for an evaluation’s percentage components?

The alternative framework moves the 50% student growth factor to 42.5%, and the evaluator’s appraisal from 50% to 42.5%.  For these components, there is no difference in their process, only in their weight.  The additional 15% offers a smorgasbord of possibilities:  self-appraisal; student surveys; portfolios of work and so forth.  The statute requires ODE to provide forms or instruments to use with these options.  We caution against using or committing to any aspects of the 15% component without first knowing and reviewing ODE’s work product.  ODE often adds language to forms that exceeds statutory requirements, and some requirements in its forms or instruments may be burdensome or inappropriate, or even defeat the purpose for using the alternative framework.

6.         How can we adopt a memorandum of agreement to address H.B. 362 if we have to wait for ODE to develop its forms for the alternative method’s 15% component?  

ODE intends to have these forms ready by the beginning of the school year.  However, we do not recommend relying on this promise.  Presumably, ODE will have its resources available before or at least early in the school year.  It would be most prudent to review ODE’s written product before entering into a memorandum of agreement with the union on this issue. 

This Legal Update is intended as general information and should not be relied upon as legal advice. If advice is required, please contact us at (614) 222-8686 or via email:

Julia A. Bauer Julia@sswlaw.com

Derek L. Haggerty Derek@sswlaw.com

Julie C. Martin Julie@sswlaw.com

Jessica K. Philemond Jessica@sswlaw.com

Patrick J. Schmitz Pat@sswlaw.com

Gregory B. Scott Gregory@sswlaw.com

Donald C. Scriven Donald@sswlaw.com

Jennifer Stiff Tomlin Jennifer@sswlaw.com

James K. Stucko Jim@sswlaw.com

Derek L. Towster DTowster@sswlaw.com