Legal Mailbag – 1-16-19

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagatcasciacdotorg.


Dear Legal Mailbag:

As a new administrator, I am excited about my new responsibilities, especially the opportunity to evaluate teachers, playing my part in improving instruction for children. Well, I must say that it has been an eye-opening experience.

For starters, I have identified one of the most experienced teachers in my school as a poor performer. Her lessons lack coherence and her classroom management leaves much to be desired. I have worked closely with her for the last three months and I can say with assurance that she is an ineffective teacher.

My mother never coddled me and I knew just how to give this teacher some tough love. Specifically, I called a meeting with her and her union representative and laid it on the line. I told her that it was abundantly clear that she has no business standing in front of a classroom. I told her that we can do this the easy way or the hard way. I explained that the easy way will be a resignation with dignity now, effective at the end of the school year. By contrast, the hard way will be an intensive assistance plan, with extra responsibilities and weekly meetings, with little chance of an outcome other than termination.

I thought that my candor would be appreciated, but it was not. Not only did the union representative challenge my judgment about the teacher’s effectiveness, he also “demanded” that I be removed as the evaluator. Can I tell the union representative that we will not agree to his ridiculous demand?

Thank you,
Eager Beaver

Dear Eager:

Did anyone ever tell you that you have a big mouth? You are free to have your reservations about this teacher’s performance, but you are not free to write the teacher off prematurely and you certainly shouldn’t have told the teacher that you did.

As you noted in your question, the purpose of the teacher evaluation system is to improve instruction. But the process involves giving teachers support and making judgments appropriate to the circumstances, i.e., identifying performance deficiencies now and making the final judgment at the end of the process. Here, you concluded prematurely that the teacher is ineffective without giving her the benefit of the support and guidance to which she was entitled under your evaluation plan. Moreover, you communicated that conclusion to the teacher and her union representative. In short, you blew it, and you must be removed as the evaluator for this teacher.

The necessity of removing you as evaluator is apparent when we review the teacher contract termination process. Since July 1, 2014, it has been possible to terminate a teacher’s contract for incompetence or ineffectiveness pursuant to an expedited procedure. “Ineffectiveness” hearings are by statute limited to twelve hours (subject to extension for good cause shown) and they are appropriate when, through the established teacher evaluation procedure, a teacher is determined to be “incompetent” or “ineffective.” The statute describes such hearings as follows:

When the reason for termination is incompetence or ineffectiveness, the hearing shall (i) address the question of whether the performance evaluation ratings of the teacher were determined in good faith in accordance with the program adopted by the local or regional board of education pursuant to section 10-151b and were reasonable in light of the evidence presented, and (ii) be limited to twelve total hours of evidence and testimony, with each side allowed not more than six hours to present evidence and testimony except the board, subcommittee of the board or impartial hearing officer may extend the time period for evidence and testimony at the hearing when good cause is shown.

Conn. Gen. Stat. § 10-151(d). Thus, a hearing officer will make the determination whether this teacher is incompetent or ineffective by answering three questions:

• Did the Administration make its determination of incompetence or ineffectiveness “in accordance with” the evaluation plan?

• Did the Administration make its determination in “good faith”?

• Was that determination “reasonable in light of the evidence presented”?

Here, if you were to remain as the evaluator and the teacher were not able to demonstrate effectiveness through the intensive assistance program, the hearing officer would likely find that your judgments under the plan regarding the teacher’s effectiveness were undertaken in bad faith. After all, before providing any support at all through the intensive assistance program, you grandly announced that the teacher is ineffective. Good faith requires that you provide support and document progress to help the teacher improve, not to validate a conclusion that you already reached. I hope that you learned your lesson.