Transcript Understanding Tenured Teacher Dismissals under P.A. 97-008

Understanding Tenured Teacher
Dismissals pursuant to P.A. 97-008
Darren Reisberg and Jessica Riddick
Presented January 11, 2012
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Welcome!
The PowerPoint presentation will be
available later today at
http://webapps.isbe.net/educatordismissals
/Tenured_Teacher_Dismissals_011112.pp
tx.
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Purpose of the Webinar

Update hearing officers, administrators,
teachers and others on changes to the
tenured teacher dismissal system in
Illinois.
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Recent Education Reform
Legislation

P.A. 96-861 (SB 315): The Performance Evaluation
Reform Act (effective, January 15, 2010)
◦ Required that school districts, at specified points in time,
incorporate data and indicators of student growth into
teacher and principal performance evaluations
◦ Did not make any material changes to the tenured teacher
dismissal process

P.A. 97-008 (SB 7) (effective, June 13, 2011)
◦ Tied certain employment decisions, such as reductions in
force, the acquisition of tenure and the filling of new and
vacant positions, to performance
◦ Streamlined and made certain structural changes to the
tenured teacher dismissal process, with the overarching
goals of maintaining fairness for the tenured teacher and
preserving district resources
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Relevant Statutory and Regulatory
Sections

Section 24-12(d) of the Illinois School Code: Governs
dismissal process for all districts other than CPS
◦ Performance- or evaluation-based dismissals (i.e., resulting from
performance evaluations conducted pursuant to Article 24A of
the School Code)
◦ Conduct-based dismissals

Section 34-85 of the School Code: Governs dismissal
process for CPS (both tenured teachers and principals)
◦ Performance- or evaluation-based dismissal
◦ Conduct-based dismissal
Section 24-16.5 (new): Optional PERA dismissal process
(discussed further in the presentation)
 Part 51 of Title 23 of the Illinois Administrative Code:
Administrative rules establishing the procedures for tenured
teacher dismissals (for which amendments will soon be
proposed, as discussed further in the presentation)

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Written Notice to Teacher &
Motion by Board


Before setting a hearing on charges
stemming from causes considered
“remediable,” a board must give the teacher
reasonable warning in writing, stating
specifically, the causes that, if not removed,
may result in charges
No written warning is required if the causes
have been the subject of a remediation plan
pursuant to Article 24A of the School Code
(performance evaluations)
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Notice of charges to the tenured
teacher
Downstate:
 Written notice,
including bill of
particulars
 Served on teacher
within 5 days after
board approval
 Include hearing officer
selection options (after
7/1/12) (further
discussed later in the
presentation)
CPS:
 Written notice of
charges, including
specifications
 Served on teacher
within 10 business days
after approval of the
charges
 Include hearing officer
selection options
(after 7/1/12) (further
discussed later in the
presentation)
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Request for hearing by teacher
Teacher must request hearing in writing within 17
calendar days after receipt of notice
 Teacher must choose a hearing officer selection
option (mutual selection or board selection)
 Parties share cost of mutually selected hearing
officer; board pays for board-selected hearing
officer
 Teacher may be suspended without pay pending
hearing but if dismissal is not sustained, teacher
shall not suffer the loss of any salary or benefits
by reason of the suspension

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Hearing Officer qualifications





Clarification to required experience – 5 years
experience in labor and management relations no
longer limited to the education sector
Beginning 9/1/12, must have completed ISBE Hearing
Officer training so that the HO is familiar with issues
generally involved in evaluative and non-evaluative
dismissals (this is not the same pre-qualification/training
as will be required of those evaluating principals and
teachers under Section 24A-3 of the School Code)
Available to commence hearing within 75 days of
appointment and conclude within 120 days
Not a resident of the district (though, in CPS, HOs may
now reside within the district)
Able to issue decision re: dismissal within 30 days from
later of conclusion of hearing or closure of record
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Downstate: Hearing Officer selection
ISBE maintains master list of qualified HOs
 If notice of dismissal is sent prior to 7/1/12, OR if
it is sent after 7/1/12 and the teacher opts for a
mutually selected HO, ISBE provides list of 5 HOs
 3-business day period for parties to alternately
strike names or reject list

◦ ISBE selects any HO from master list who did not
appear on the rejected list, unless the parties agree to
select a HO not on the master list

If teacher opts for board-selected HO, board will
select any HO from the master list and notify
ISBE within 3 business days
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CPS: Hearing Officer selection



CPS maintains list of at least 9 qualified HOs
(developed in good faith consultation with
exclusive teacher and principal
representatives)
5 business day period to alternately strike
names
If the teacher or principal does not
participate in striking process, general
superintendent selects – either from CPS list
or ISBE master list
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Hearing Officer fees


ISBE pays HO from state funds if notice of
dismissal is sent to teacher prior to 7/1/12
If notice is sent on or after 7/1/12:
◦ Fees & costs determined by ISBE, but fees & costs
no longer paid by the state
◦ Parties may agree to supplement fees of a
mutually-selected HO not on ISBE’s list
◦ Parties share cost of mutually-selected HO
(50% - 50%)
◦ Board pays 100% of board-selected HO
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Prehearing & Discovery
Teacher shall answer the bill of particulars
(Downstate) or charges and specifications (CPS)
and aver any affirmative defenses
 HO schedules pre-hearing conference to set
discovery schedule and deadlines for initial
disclosures (witnesses and exhibits) and updates
thereto
 Interrogatories and Requests for Production
allowed. Additional discovery by HO discretion;
however discovery depositions are prohibited by
statute
 All to be further fleshed out in forthcoming
rulemaking

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Hearing, Witnesses & Scope

Subject to exception for good cause or by mutual
agreement:
◦ Hearing must commence within 75 days and conclude
within 120 days after selection of HO
◦ Each party shall have 3 days to present its case. ISBE is to
further define “day” in its forthcoming rulemaking (e.g., 7.5
hours such that the limitation for each party is 22.5 hours)
HO may limit each party to subpoena 7 witnesses
S.Ct. Rule 241: testimony by video-conference
allowed for good cause shown with adequate
safeguards
 In Art. 24A dismissals, HO must consider all
evaluations relevant to the issues at hearing


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“Good cause”

“Good cause” is defined as illness or
other unavoidable emergency of the
teacher, district representative, or their
legal representatives, the HO or essential
witness (as indicated in pre-hearing filing)
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Court reporters and transcripts
HO shall arrange for court reporter;
court reporter’s fees shall be paid by the
party (or parties) paying for the HO
 Parties pay for own copy of transcript

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Post-hearing briefs
May be filed up to 21 days after receipt of
transcript (unless deadline is extended by
HO for good cause or by mutual
agreement of the parties).
 ISBE will develop rules to limit page
length of briefs (e.g., not to exceed 20
pages, barring exception granted by HO
for good cause).

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HO Recommendation/ Decision
Downstate:
 HO issues decision of
retention or dismissal in
Article 24A
(performance evaluation)
matters OR issues
findings of fact and
recommendation for
dismissal for “conduct”
(significant change from
pre-SB7 structure)
 Within 30 days after
close of record
CPS:
 HO issues findings of
fact and
recommendation to the
board
 Within 30 days after
close of record
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Board action


No procedural changes for CPS
Downstate: (in “conduct” dismissals)
◦ Within 45 days after receipt of HO findings of fact &
recommendation as to (i) whether the conduct at
issue occurred; (ii) the conduct that did occur was
remediable; and (iii) the proposed dismissal should be
sustained, board must issue a written order to either
retain or dismiss
◦ School board may modify or supplement findings of
fact if board believes those findings are against the
manifest weight of the evidence
◦ If HO recommends retention and board dismisses,
board must state in its written order the reasons for
its decision
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Administrative Review
CPS:
 Administrative Review Law
 Action initiated in IL App
Ct (1st Dist).
 If appellate court orders
reinstatement, will remand
to board for back pay, etc.
 Board prepares and files
Record; parties share cost
Downstate:
 Administrative Review Law
 Board prepares and files
Record; parties share cost
 If trial court orders
reinstatement, will remand
to board for back pay, etc.
 Teacher may challenge the
board’s back pay
determination through
expedited arbitration (paid
for by board)
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Optional alternative evaluative dismissal process
for PERA evaluations (Section 24-16.5)
An option for all districts, including CPS
 Allows a district to dismiss a tenured teacher if
◦ teacher fails to complete remediation plan with rating
of at least “Proficient” (i.e., “Proficient” or
“Excellent”);
◦ the “Unsatisfactory” rating that preceded remediation
was a PERA evaluation; and
◦ the district complied with the pre-remediation and
remediation activities in Section 24-16.5

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Optional alternative evaluative dismissal process
for PERA evaluations (Section 24-16.5)

Prior to a school district using this option for the first
time, the school district must:
◦ Establish a list of qualified “second evaluators”. To be
qualified, one must either (a) by NBPTS certified with no
“U” or “NI” ratings in the last two evaluations; or (b) have
had “E” ratings in two of the last three evaluations (with
no “NI” or “U” ratings in the last three evaluations).
 District places at least two qualified individuals on the list; the
teachers’ representatives then have an opportunity to, within 21
days, add qualified individuals to that list; provided, however, that
the teachers’ representatives cannot add more individuals than
the number submitted by the district.
◦ Establish, in good faith cooperation with the teachers’
representatives, a process for the selection of a second
evaluator from the list
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Optional alternative evaluative dismissal process
for PERA evaluations (Section 24-16.5)
Then, if a school district wishes to use this option, it must
select a second evaluator using the established process
 The second evaluator cannot be the same individual who
determined the teacher’s “U” rating (and, if an administrator,
cannot report to the individual that determined the teacher’s
“U” rating).
 The second evaluator must either: (1) conduct the midpoint and final evaluation during the remediation period; or
(2) conduct an independent assessment of whether the
teacher completed the remediation plan with a rating equal
to or better than a “P” rating. The independent assessment
must include, without limitation, personal or video
observations of teacher practice.

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Optional alternative evaluative dismissal process
for PERA evaluations (Section 24-16.5)



To dismiss, district issues written notice to teacher in compliance
with Section 24-12(d) but must specify Section 24-16.5 dismissal
In addition to Section 24-12(d)/34-85 hearing process
requirements:
◦ HO must have completed Section 24A-3(b) pre-qualification
program (different than the standard HO training required by
9/1/12)
◦ Scope of hearing is more limited than in a standard dismissal
hearing (e.g., the focus is on (1) the “U” rating that led to the
remediation; (2) the remediation plan; and (3) the final
remediation evaluation)
Each party limited to 2 days to present case (unless a longer period
is ordered by the HO or mutually agreed to by the parties)
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Optional alternative evaluative dismissal process
for PERA evaluations (Section 24-16.5)
HO shall not issue a decision; shall, within 30 days of the
close of the record, issue only findings of fact and a
recommendation to board to retain or dismiss
 Within 45 days of receiving HO’s findings of fact and
recommendation, board members must adopt a written
order to retain or dismiss. If the board orders dismissal even
though HO recommended otherwise, the board’s conclusion
and reasoning must be in the written order
 In order for any board member to vote on a Section 24-16.5
dismissal, the board member must be “PERA-trained”
 The process for a board member to become “PERA-trained”
has not yet been established, but ideally this training would
be incorporated into the more general school board
member training required by SB 7

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Optional alternative evaluative dismissal process
for PERA evaluations (Section 24-16.5)

Judicial review
◦ Directly to appellate court within 35 days
from the decision
◦ If the HO recommended dismissal, and the
board affirmed, the decision can only be
reversed if it is found to be arbitrary,
capricious, an abuse of discretion, or not in
accordance with law.
◦ If instituted by teacher, costs must be paid by
the teacher
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Part 51 Rules revisions


23 Ill. Admin. Code 51 revisions in progress to address among other things:
◦ Discovery and hearing scheduling conferences
◦ The teacher’s initial answer and affirmative defenses to the bill of particulars/charges and
specifications and the updating of that information after pre-hearing discovery
◦ Provision for written interrogatories and requests for production of documents (discovery
depositions are prohibited)
◦ Requirement that each party initially disclose to the other party (and then update the disclosure no
later than 10 calendar days prior the hearing): (1) the names and addresses of persons who may be
called as witnesses at the hearing; and (2) a summary of the facts or opinions each witness will
testify to, and all other documents and materials, including information maintained electronically,
relevant to its own as well as the other party’s case
◦ The conduct of the hearing, including without limitation the meaning of the term “day” with respect
to the limitation on each party’s presentation of their respective case
◦ The right of each party to be represented by counsel
◦ The authority of the hearing officer to issue subpoenas and subpoenas duces tecum
◦ The length of post-hearing briefs; and
◦ The form, length and content of hearing officers’ decision
Expect public comment period in Spring 2012
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Further Information on Hearing
Officer Training


As noted earlier, must be completed before
Sept 2012.
Collaborative brainstorming session planned
for February 2012 at ISBE V-tel
◦ Email [email protected] if you are interested in
participating or have suggestions for training
(subject line “brainstorming session”)
◦ Details will be emailed to you

More on a training module will be
forthcoming after the brainstorming session
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Related Point: Certificate Actions

“Incompetence” (a cause for revocation,
suspension or required professional
development, in Section 21B-75): includes
without limitation, two or more school
terms of service for which the certificate
holder has received an unsatisfactory rating
on a performance evaluation conducted
pursuant to Article 24A of the School Code
[105 ILCS 5/Art. 24A] within a period of
seven school terms of service.
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Thank you for attending!
Questions or Comments?
Jessica Riddick [email protected]
Darren Reisberg [email protected]
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