Improvement Plan or Dismissal Based On Classroom Performance
Will an observation end up as a recommendation for an improvement plan or a dismissal based on classroom performance? You have your qualified evaluators. You have a teacher assessment system that has been approved for implementation by your Board. You’ve done your first formal observation of the year and… “OH, NO! The parent complaints were correct! You’ve just observed a flame-out of epic proportions—or more likely, a presentation so disjointed and boring that you had a hard time following along, and the kids were even less inclined to do so. Now, what? It has been my observation that most administrators are educators and that many educators are overly kind. The formal observation, written feedback and eventual performance improvement plan discussed below should not be used as an opportunity to exercise that kindness.
Whether or not the teacher is a probationary teacher or a continuing teacher, the next part of the process is the same. The first formal observation should be used to begin the improvement plan process. Within 10 business days after the formal observation, the qualified evaluator is required to provide written feedback to the teacher.
The improvement plan process begins for the teacher when the Board designee issues the teacher a preliminary notice of intent to dismiss or not re-employ the teacher based on inadequacy of classroom performance. This preliminary notice is a statement that advises the teacher that the teacher has forty-five (45) instructional days to correct the noted inadequacies while maintaining adequate classroom performance in all other areas. The preliminary notice must include a copy of the “valid evaluation” that is pertinent to the inadequacy of classroom performance claim—the written feedback provided after the first formal evaluation fills this requirement.
The governing board must be notified of the issuance of the preliminary notice of intent to dismiss or not re-employ the teacher within ten (10) school days of its issuance along with a copy of the evaluation. The written notice and the evaluation will be filed with the Board. Because of the statutory privacy rights associated with the evaluation, it is my opinion that the filed evaluation instrument should be kept with the same degree of security as executive session minutes.
The preliminary notice must also include a performance improvement plan (“PIP”) that is designed to help the teacher correct inadequacies and, at the end of the 45 day plan, to be able to demonstrate adequate classroom performance. The PIP is required to include recommendations as to the instructional areas that need improvement along with professional development opportunities. The PIP needs to spell out the steps needed to be accomplished by the teacher in order for the teacher to move from being an inadequate teacher to at least an adequate teacher. Each of these steps should include incremental deadlines that must be met.
As an example: If you write, “I expect you to prepare daily lesson plans,” the teacher (or teacher’s attorney) would argue several points on behalf of the teacher: One, your expectations aren’t mine—you “expect” it, but you have not directed me to do it. Secondly, without an interim deadline, I, as the poor teacher, could wait until instructional day 44 and hand you 45 poorly written lesson plans. Instead, say: “You will prepare daily lesson plans for your classes following the ‘say-show-do’ lesson plan form (attached). The lesson plans will track state educational standards appropriate to your classes’ age level. You will turn in lesson plans for the upcoming week by no later than Thursday at 3:00 PM of the preceding week.” Does it end there? Of course not. After you tell the teacher to write the lesson plan, you still need to move to the next step and direct the teacher to follow the: “You will provide instruction to your students in conformance with your submitted lesson plans. Walk-throughs and informal observations will be used to verify that you are complying with this directive.”
For the professional development component, you may want to have the teacher observe a master teacher early on in the PIP—if you want that to happen, you must direct it to happen within a set deadline. You might have the teacher watch an educational video demonstrating the techniques or read an educational work promoting the process. Again, if you want it done, you must direct that it be done and that it be done within a set timeline. Make sure to meet with the teacher to verify that the teacher understands each of the requirements listed in the PIP and that all the teacher’s questions about what must be done to accomplish these goals is clear. Take time for you or a mentor teacher to demonstrate how to access the standards and how to incorporate the standards into the model lesson plan.
A possible benefit of using directive language and setting interim goals is that you can include within the PIP something like, “failure to comply with any or all of these directives may be deemed to be insubordination and may result in disciplinary action being taken.” That would allow you to take interim disciplinary steps, if needed, to make sure that the lesson plans are turned in in a timely manner, that they do comply with the model, and that they are being followed in the classroom. A day off with pay for failure to comply so that the plans can be completed may be temporarily satisfying, but recall that day would not be an instructional day for the teacher, requiring you to move the completion day further back. Documenting the failures as insubordination may provide you with an alternative method for requesting the non-renewal of a probationary teacher; this time not for “classroom performance” but for reasons other than classroom performance.
Throughout the 45 days, make sure you or another qualified evaluator are conducting walk-throughs and occasional short observations to verify teaching is occurring, the lesson plan is being followed, the attention of the students is on the lesson, and whether the teacher is making good use of time. Make sure you and any other qualified evaluator document these walk-throughs and short observations and provide feedback to the teacher. Again, take the opportunity to answer questions and to suggest other options that might work. Document any other options/suggestions.
The second formal observation cannot occur until at least 60 calendar days after the first formal observation and, if it is going to be used to determine whether or not the teacher successfully completed the PIP, it should also take place after the 45th instructional day of the PIP. Neither formal observation can be conducted within 2 instructional days of a break of a week or more.
For those administrators who weren’t able to get to the first formal observation completed in the first semester, getting the PIP to the teacher, insuring the PIP is completed, conducting a second formal observation and the final evaluation and the follow-up feedback all accomplished before the end of school may not be easy. Under the best of circumstances, 45 instructional days may easily end up being a little over 2 calendar months.
For instance, February already cut short with a mere 28 non-Leap year days, loses yet another day with the President Day holiday, leaving it with 19 possible instructional days. March or April may contain a five day spring break. Even if March doesn’t have a Spring break, this year it only has 23 instructional days. When added to this year’s 19 instructional days in February, you are already cruising into April before you can find a full 45 instructional days. Schools that are on a 4 day school week have even more of a challenge fitting in all 45 instructional days into an improvement plan prior to the end of the instructional year.
Adding to the pressure may be a teacher who decides that he/she is having psychological issues because of the increased requirements and secures an expert who states that the teacher needs to take FMLA to recover from the psychological issues. In that instance, the FMLA time stops the 45 days from running. The teacher may be entitled to a new contract due to time elapsing before the completion of the PIP, but that doesn’t mean the PIP is dead. It can, and should, continue where it left off with the advent of the new school year. Be sure that the teacher is not placed into a different grade or subject matter with the new school year or the ability to nonrenew a teacher may be impeded.
For probationary teachers, the failure to successfully complete the PIP may result in the Governing Board voting to nonrenew the teacher for that reason. The probationary teacher is not offered a contract for the upcoming year. The probationary teacher has no right to a hearing prior to the nonrenewal.
A continuing teacher who fails an improvement plan may also be terminated, but the due process rights afforded in A.R.S. §15-539 must be followed with the adoption of a written statement of charges. In this case, the Board may adopt the charges and dismiss the teacher at the end of ten days or at the end of the contract year unless the teacher requests a hearing prior to the expiration of ten days following receipt of the charges and the intent to dismiss. If the continuing teacher requests a hearing, it is conducted in the same way as any other hearing to dismiss a teacher, only in this instance, the evidence will concern whether or not the “qualified evaluator” was actually qualified, whether or not the teacher was/is ineffective, whether or not the teacher successfully completed the plan, and, most likely, whether or not the whole process was just a witch-hunt because obviously the teacher is the most competent, most wonderful teacher ever, just ask him/her.
As always, be sure to consult your attorney through the process.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Dismissal Based On Classroom Performance, or other Education Law matters, please feel free to contact Candyce B. Pardee at 800.863.6718, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona with a branch office in Yuma, Arizona, and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.
 A.R.S. §15-501 (8). “[A] school principal or other person who is trained to evaluate teachers and who is designated by the governing board to evaluate the school district’s certificated teachers.” A.R.S. §15-537 (E)(4).
 A.R.S. §15-537 (A); A.R.S. §15-538.
 A.R.S. §15-537 (E) (1).
 A non-continuing teacher can be 1) a teacher who has been employed for less than the major portion of three consecutive school years or 2) a teacher who has been employed for more than the major portion of three consecutive school years but who has been designated in one of the two lowest performance classifications for two consecutive years or 3) a teacher who has been employed for more than the major portion of three consecutive years but who is in the lowest category for the previous year. A.R.S. §15-536 (D).
 A.R.S. §15-538.
 A.R.S. §15-537 (E)(1). Note, it does not say that a meeting with the teacher regarding the written feedback must occur within ten business days or that a meeting needs to take place at all, though that would certainly be recommended in order to make sure that the teacher understands the observed deficiencies.
 A.R.S. §15-537 (H)
 In more ways than one.
 Yes, finally, in this instance IF the teacher is improving, kind and encouraging words are appropriate. If the teacher still hasn’t a clue, however, now is not the time to pretend that he/she is doing a great job.
 A.R.S. §15-537 (E) (1).
 A.R.S. §15-537 (C) (2).
 A.R.S. §§15-539, 15-541.
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