David J. Braun is an attorney with Miller, Tracy, Braun, Funk & Miller, Ltd. in Champaign and has presented at IASB meetings on numerous legal topics.
Teacher evaluations are the key to success under the Illinois Education Reform Act (SB7) — and there is simply no substitute for proper and thorough evaluation. While evaluation used to be a purely administrative function that rarely came before the board except during discipline or dismissal proceedings, evaluations have now become a necessary part of the operation of a school district for a board of education.
It is likely that the board will suddenly become much more familiar with evaluations, both because the law requires board input in changes to the evaluation tool, and also because the evaluation will now become critical to many more of the staffing decisions administration must make. If evaluation is not thoroughly completed and reviewed at the beginning of the year, the board may be powerless to RIF (to cut costs) at the end of the year.
Review of new RIF rules
In addition to many other changes, SB7 changes the way reductions in force (RIFs) are conducted. RIFs (otherwise known as lay-offs, or a reduction in the number of total employees or programs) are no longer done in reverse-seniority order, where the least senior employees would be RIF’d first. Under SB7, teachers with lower evaluation scores will be placed into a grouping that will require them to be RIF’d before better performing teachers. The groupings have default requirements defined by law:
Grouping 1 : Each teacher not in contractual continued service who has not received a performance evaluation rating.
Grouping 2 : Each teacher with a Needs Improvement or Unsatisfactory performance evaluation rating on either of the teacher’s last two performance evaluations.
Grouping 3 : Each teacher with a performance evaluation rating of at least Satisfactory or Proficient on both of the teacher’s last two performance evaluation ratings, if two ratings are available, or on the teacher’s last performance evaluation rating, if only one rating is available, unless the teacher qualifies for placement into Grouping 4.
Grouping 4 : Each teacher whose last two performance evaluation ratings are Excellent and each teacher with two Excellent performance evaluation ratings out of the teacher’s last three performance evaluation ratings with a third rating of Satisfactory or Proficient.
Grouping 2 teachers must be removed before Grouping 3 teachers, and Grouping 3 teachers before Grouping 4. Grouping 1 teachers are honorably reduced (RIF’d) at the board’s discretion. Unfortunately, the law does not necessarily contemplate what happens when the district does not have “perfect” evaluations already in place.
Missing or defective evaluations
Typically a board member only reviews evaluations in either a disciplinary or dismissal outcome for an employee. However, the new law imposes stiff penalties on districts where evaluations are not carefully and fully documented. When a district has evaluations that do not clearly direct how an employee must perform to get better, the district will have a great deal of difficulty RIFing employees.
Notice and an opportunity to “get better” are important to be fair to employees. While the law does not require any particular type of notice, the most reliable way of avoiding the cost and risk of a lawsuit is to give an employee ample warning that he or she is likely to be out of a job if performance is not improved.
While boards do not often get involved in the evaluation itself, the law now requires the board to appoint members to a committee to change the evaluation. Moreover, the board will not be able to cost-effectively lay people off if it suffers litigation because employees feel it is “unfair” that they do not know why they ended up in one grouping instead of another.
For this reason, it is critical that the board clearly communicates early in the year what it expects to have the power to do at the end of the year so that administration may assure that evaluations are being thoroughly conducted to meet those goals.
But what if the district already lacks evaluations? Many questions have come up, such as:
• What happens when an employee is missing an evaluation?
• What if there are no evaluations?
• What if there are only a handful of evaluations?
• What if there are just a few employees missing some (but not all) evaluations?
The question is further complicated when the majority of employees have a particular evaluation rating (such as Satisfactory which might land them into Grouping 3, which will cause them to be reduced in seniority order) and just one employee missing evaluation ratings is rated outside the majority (by a rating such as Excellent or Needs Improvement).
An employee who is RIF’d may argue he or she was not treated fairly, or worse, was discriminated against because of age, gender, religion, race or other protected class.
The board must ensure evaluations are being performed thoroughly during the year, or the board will be powerless even to conduct RIFs at the end of the year. Creative solutions, unfortunately, are all fraught with significant danger:
Re-defining Grouping 1
The law defines Grouping 1 as consisting of non-tenured teachers who have no performance evaluation ratings, and then gives districts discretion in dismissal of those teachers. But what if a district chooses not to evaluate teachers in Grouping 1 so that they may have the discretion to dismiss them?
Placement of a teacher into Grouping 1 may subject the district to the argument that it did not comply with the law requiring annual evaluation for non-tenured teachers. Further, the proposed solution does not address the open issue of what to do with tenured teachers missing evaluations.
Only proper and well-supported evaluations will allow the district to comply with the law and reduce the likelihood of a lawsuit by providing the employees with the fairness they seek. Every level of district operation must ensure such evaluations are being conducted if the board wants to have the ability to RIF at the end of the year.
Re-defining Grouping 4
Grouping 4 includes teachers with evaluation ratings of Excellent on two of their last three evaluations. The law permits a district to change the definition of Grouping 4. In fact, the law requires joint committee discussion of the definition of Grouping 4.
But even though the law requires this discussion, pre-determining the outcome of an evaluation to “avoid litigation” (that is, dishonestly evaluating employees) likely subjects the district to process challenge, because the district’s process does not comply with the law’s requirements of honest and thorough evaluation. Moreover, employees who are RIF’d under the system will argue it is not only illegal, but unfair because they were not offered the opportunity to “outperform” their peers.
Re-defining Grouping 3
Grouping 3 is defined by inclusion of each teacher with a Satisfactory or Proficient on their last performance evaluation or last two performance evaluations. [105 ILCS 5/24-12(b)]. It appears that Grouping 3 is the “default” grouping if there is a rating, but what if the district’s evaluation plan establishes a maximum evaluation (ill advised) frequency?
In other words, what if the district’s contract or evaluation plan prevents the district from evaluating a teacher more frequently than the legal minimum of once every other year for tenured teachers? If the district’s procedures and policies make more frequent evaluation against the rules, then only a discussion with the union and the joint committee can fix that issue of whether or not the district is “grandfathered.”
(A “grandfathered” district is one that has a collective bargaining agreement currently in effect that is in conflict with the law and was signed before January 1, 2011. “Grandfathering” is very limited and complicated under SB7, so specific advice should be sought on the extent to which a district is grandfathered.)
Moreover, pre-determining the outcome of evaluations to place employees into this grouping will likely expose the district to a lawsuit for failure to strictly comply with evaluation law.
The only legal and fair solution
A district with evaluation defects such as those described above must discuss the issue with the union and an SB7-required joint committee made up of an equal representation of board-selected members and union- or teacher-selected members. Be aware that these are not the same entity.
The joint committee must reach agreement on RIF process changes by February 1 of any year to impact RIFs for that year. This actually should be done as early as possible.
Even after February 1 of any given year, the joint committee may have to be an ongoing part of the discussion regarding RIFs. It is critical that the district have agreement from both the union and the joint committee for purpose of avoiding political fall-out and toxic distrust in bargaining.
However, the district should not be deluded into believing that agreement with the union or joint committee will “cure” the defect and prevent legal challenge. Without case law to interpret what is required when a defect has occurred prior to implementation of the law, the district is at the mercy of the courts when a challenge is brought, potentially by anyone who is reduced, regardless of the grouping definition or rules.
Evaluations completed — now what?
You have done the work, you have agreed with your joint committee, and you are ready to begin your RIFs.
The law requires that, not later than 75 calendar days prior to the conclusion of any school year, the district produce a sequence of honorable dismissal list. The list is a sort of “groupings” list, which defines employees by grouping depending on their evaluations. A teacher with two evaluation ratings of Needs Improvement may end up in Grouping 2, but a teacher with two Satisfactory evaluation ratings and an Excellent evaluation rating will be placed into Grouping 3.
This list is critical to conducting RIFs, because Grouping 2 teachers will be the first teachers reduced (unless the board has Grouping 1 teachers it elects to reduce), before reducing Grouping 3 teachers and finally Grouping 4 teachers.
Because the list is likely to cause some discomfort for employees who are not accustomed to being ranked based on their evaluations, and because it is possible that not everyone will be placed appropriately, it is advisable to send the list to the union as early as possible.
After the list has been confirmed, the next step is for the district to assess what reductions in force will be necessary, if it has not already done so. After determining what programs may be reduced or what staffing requirements must be met, the district should review the list to determine which employees in the qualification category to be reduced are located in the grouping to be reduced. Notices must be delivered by or before 45 calendar days before the end of the year, although earlier notice may be required by contract or policy.
But what if the district is “grandfathered”? The law does not exempt a district from producing a groupings list, even if it is still permitted to RIF under the old “seniority” laws. The district should produce a groupings list, even if the list will not be used this year.
After the list is produced but before the board takes action on RIFs, the union must be notified of the RIFs.
Under SB7, the joint committee must reach agreement on process changes by February 1 of any year of RIFs for the change to affect that year’s RIFs. However, nothing in SB7 has removed or changed the requirement to bargain. The question, therefore, is whether or not the union, which is not the same as the joint committee, may make a change that affects the RIF process after February 1. Because the law is not clear, the safest way to handle these questions is to have the bargaining meetings when the union requests them, but to be exceedingly careful, avoiding changes to the process agreed to by the joint committee.
Recall option
Recall questions are already becoming an issue. “Recall” happens when a position becomes available after a RIF, and the employee who was RIF’d has a right to that position. Recall is a right of a RIF’d employee.
Prior to SB7, there was no right to recall for a non-tenured teacher. In fact, under old law, there was only a “nonrenewal” for a non-tenured teacher, meaning that there was no distinction between a “dismissal for cause” and a RIF.
Under new law, all teachers must be grouped, including non-tenured teachers. Therefore, there are now two methods to remove a non-tenured teacher: by dismissing the teacher based on performance (although no cause must be shown in the notice dismissing a non-tenured teacher not in his or her final year of non-tenured service), or by dismissing the teacher “honorably,” also known as a RIF.
At this time, it remains an open question whether or not a district with unclear or nonexistent contractual language defining recall will be considered “grandfathered.” Because contractual language is a fact question, we are without any court cases to explain how the court will apply the law. However, it is always safest, if a district wants to ensure a non-tenured teacher may not return, to evaluate that teacher specifically addressing his or her weaknesses, and then dismiss the employee.
Conclusion: diligence
As we near the year mark following the signing of the Illinois Education Reform Act (SB7) on June 13, 2011, we are beginning to get a sense of the effects of the new SB7 requirements.
Even though school districts have new mandates from law (which tell us “what” to do), we have yet to see regulations (the rules that tell us “how” to do it) or case law (telling us what it all “means”).
Because the law was created by many different interested groups, effective and legal solutions require careful analysis and cooperation — working with unions, statewide organizations and interested bodies, such as members of the Illinois Statewide School Management Alliance partners and the Illinois State Board of Education, as well as lawyers and advisors is critical to the successful, and cost effective, compliance with the law. Only by working together will we all be able to assure that we understand the results of our actions before we take them.
Ultimately, every teacher, staff member, board member, school service member and property tax payer in Illinois is directly affected by the changes in SB7. With so much of the state directly impacted by this legislation, answers will come with time.
In the meantime, safety exists in slow progress, careful consideration, forthright communication and honest evaluation.
RIF/evaluation checklist
Employers must make sure they address the following issues by the appropriate deadlines. The following list is a summary of the major duties and deadlines. A district should always check its own contracts and policies for additional practices and deadlines, and should consult its own attorney for fact-specific advice.
Duty / Deadline
Meet with RIF joint committee / Before December 1, 2011, and, if necessary, in subsequent years by dates in contract
Reach agreements with joint committee to change RIF procedure /Before February 1 of any year in which there will be a RIF
Create and provide sequence of honorable reduction list to union / Before 75 calendar days prior to the end of the school year
Change teachers falling into Grouping 1 to another Grouping by completing an evaluation / Before 45 calendar days prior to the end of the school year
Create and provide qualifications list to union / Before May 10
Conduct necessary RIFs / Before 45 calendar days prior to the end of the school year unless contract or policy provides a different time-frame
Alter evaluation with four categories: Excellent, Proficient, Needs Improvement, Unsatisfactory / Before September 1, 2012
Change evaluation plan to one that incorporates student growth data by meeting with PERA joint committee / Within 180 days of first meeting of Evaluation Joint Committee and before PERA deadline
September 1; 2012 – At least 300 Chicago schools and any school receiving a Federal School Improvement Grant; 2013 – All remaining Chicago schools; 2015 – Lowest performing 20% of schools; 2016 – All other schools