Employment and Labor Issues for Special Education Educators MAASE Winter Institute 2014 3rd Midwinter Legal Conference February 3rd & 4th, 2014 Employment and Labor Issues for Special Education Educators Barbara A. Ruga Clark Hill PLC (616) 608-1105 bruga@clarkhill.com

PERA: THE DOMINANT LAW “It is well established that PERA is the dominant law regulating public employee labor relations in Michigan.” Wayne County, 22 MPER 65 (2009), citing Rockwell v Crestwood School Dist, 393 Mich 616, 629, (1975). ©2014 Clark Hill PLC

PERA: THE BASICS The Michigan Public Employment Relations Act, MCL 423.201 et seq. (PERA). Defines the obligation to bargain; defines prohibited subjects. Protects unionized employees from employer intimidation or discrimination. Establishes Right To Work, eliminates agency shop clauses, prohibits union intimidation and harassment about union membership and sets fines for same. Limits the public school employer’s ability to help the union collect dues. Prohibits strikes and imposes fines for same. ©2014 Clark Hill PLC

NO OBLIGATION TO AGREE OR CONCEDE Good faith bargaining. “[T]o bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . . but this obligation does not compel either party to agree to a proposal or require the making of a concession.” MCL 423.215(1). ©2014 Clark Hill PLC 4

SINCERE DESIRE TO REACH AGREEMENT An Imprecise Standard. “In assessing whether a party has fulfilled its bargaining obligation, [MERC] ha[s] always been mindful of the language of Section 15, which states that agreement or concessions cannot be compelled. To determine whether a party has bargained in good faith, [MERC] examine[s] the totality of the circumstances to decide whether a party has approached the bargaining process with an open mind and a sincere desire to reach an agreement. Grand Rapids Public Museum, 17 MPER 58 (2004) (internal citations omitted). “Totality of Circumstances.” ©2014 Clark Hill PLC

IMPACT OF REFORM ON SUBJECTS OF BARGAINING Wages, Hours, Terms and Conditions of Employment (aka “Time, Power and Money”) are Mandatory Subjects. Permissive Subjects may be bargained and once included in the contract must be negotiated out or not continued upon contract expiration (e.g., appointment of teachers to curriculum committees). Prohibited Subjects, defined within section 15(3) of PERA. ©2014 Clark Hill PLC

IMPACT OF REFORM ON SUBJECTS OF BARGAINING Wages, Hours, Terms and Conditions of Employment (aka “Time, Power and Money”) are Mandatory Subjects. Permissive Subjects may be bargained and once included in the contract must be negotiated out or not continued upon contract expiration (e.g., appointment of teachers to curriculum committees). Prohibited Subjects, defined within section 15(3) of PERA. ©2014 Clark Hill PLC

“THE PROHIBITEDS” 1994 PA 112 & 2011 PA 103 8

THE 1994 PROHIBITEDS Section 15(3)(a) – Determination of insurance policyholder. Section 15(3)(b) – Establishment of the starting day of the school year. Section 15(3)(c) – Composition of school improvement committees. Section 15(3)(d) – Decision to provide open enrollment opportunities. Section 15(3)(e) – Decision to organize and operate public school academies. Section 15(3)(f) – Decision to contract for non-instructional support services. Section 15(3)(g) – Use of volunteers to provide services in school. Section 15(3)(h) – Use of experimental or pilot programs and the use of technology to deliver educational programs and services. Section 15(3)(i) – Reimbursement or recovery of monetary penalty (for striking). ©2014 Clark Hill PLC 9

THE 2011 PROHIBITEDS Section 15(3)(j) – teacher placement. Section 15(3)(k) – teacher layoff and recall. Section 15(3)(l) – teacher evaluation. Section 15(3)(m) – discipline or discharge. Section 15(3)(n) – classroom observations. Section 15(3)(o) – performance-based compensation. Section 15(3)(p) – parental notification of ineffective teacher. ©2014 Clark Hill PLC 10

SCOPE OF PROHIBITEDS Some are narrowly defined as the statute does not list “the impact on the individual employee or the bargaining unit” and some do specify that the impact is also a prohibited subject. Use of volunteers does not include the impact of that use. Subcontracting of non-instructional support personnel does include the impact of that use. ©2014 Clark Hill PLC 11

UNLAWFUL TO INSIST ON BARGAINING OF PROHIBITED SUBJECTS Calhoun Intermediate Ed Ass’n, MERC Case No. CU12 B-009 (decided August 24, 2012). "The union violated its duty to bargain in good faith by unlawfully insisting as a condition of agreement on a contract that the employer agree to include provisions on prohibited topics in the contract ....” The “union violated its duty to bargain in good faith, and obstructed and impeded the bargaining process by continuing to make proposals dealing with non-mandatory subjects after the employer unequivocally refused to bargain over the proposals." ©2014 Clark Hill PLC

IMPACT PROHIBITEDS Section 15(3)(f) – decision to contract for non-instructional support services. Section 15(3)(h) – use of experimental or pilot programs and the use of technology to deliver educational programs and services. Section 15(3)(j) – teacher placement. Section 15(3)(k) – teacher layoff and recall. Section 15(3)(l) – teacher evaluation. Section 15(3)(m) – discipline or discharge. Section 15(3)(n) – classroom observations. Section 15(3)(o) – performance-based compensation. ©2014 Clark Hill PLC

IMPACT OF PROHIBITEDS Pontiac School District, MERC Case Nos. C11 K-197 and CU12 D- 019 (decided Sept. 27, 2013). Employer acted within its authority under Section 15(3)(j) when it unilaterally reassigned a teacher without bargaining with the union. The union violated its duty to bargain in good faith by processing a grievance concerning that reassignment to arbitration over the employer’s objections. ALJ recommended that the MERC order the union to reimburse the employer for the costs, including attorney fees, that it incurred while defending itself in the arbitration proceedings regarding the reassignment of the teacher. Both Calhoun ISD and Pontiac School District are ALJ decisions being appealed to MERC. ©2014 Clark Hill PLC 14

Common Issues Still Subject to Bargaining Class size – limits upon, “weighting”, or additional compensation related to mainstreamed special education students Additional compensation for IEP meetings requiring attendance outside the regular school day Additional compensation for record maintenance and submission, such as Medicaid reimbursement Work schedules and related compensation to provide needed services over entire summer vacation period ©2014 Clark Hill PLC

Duty To Bargain Over Subcontracting of OT/PT Services Occupational and Physical Therapists provide “instructional support services”; therefore, the subcontracting of these services is not a prohibited subject of bargaining, but rather is subject to collective bargaining. Pontiac School District v Pontiac Education Association, 295 Mich App 147 (2012), lv to appeal denied.. ©2014 Clark Hill PLC 16

Role of Special Ed Management in Contract Negotiations Necessary to consult, at minimum Keep us from adding more bad language from your perspective! Help bargaining team understand role of law, rules and regulations, etc E.g. Nov 2013 Solicitor General Report about early childhood programs and service requirements throughout the summer Help team to respond to numerous issues seeking “parity” ©2014 Clark Hill PLC

HOW HAVE REFORMS AFFECTED SPECIAL ED? Double Standard Dichotomy between certificated teachers & all others in your professional bargaining units Some have just cause protection against dismissal; others subject to lesser standard of “arbitrary or capricious” When read your CBA, distinguish between provisions that relate to “teachers” versus “ancillary staff” Do not assume you have the same “managerial latitude” with “ancillary staff” Infrequently, “new rules” apply to all. ©2014 Clark Hill PLC

TEACHER & ADMINISTRATOR EVALUATION REFORMS

EVALUATIONS: TWO DIFFERENT WORLDS One system based on statutory requirements – applicable to teachers Another system based on CBA – applicable to “ancillary staff” ©2014 Clark Hill PLC

Important Dates Source – MDE Website - Modified School Year Tool Type % of evaluation based on student growth & achievement data Reporting Requirement 2011-2012 Locally determined Educator Evaluation Systems Significant part* Effectiveness labels in June REP collection 2012-2013 2013-2014 Governor’s Council Evaluation Tool  25% 2014-2015 40% 25?? 2015-2016 50% 25?? ©2014 Clark Hill PLC 21

What Is Required 2013-2014 Comply with MRSC section 1249(2) with respect to teachers Comply with MRSC section 1249(3) with respect to administrators Each of the referenced subsections of 1249 begins with the phrase “Beginning with the 2013-2014 school year, …” and then new requirements are listed ©2014 Clark Hill PLC 22

Teacher Evaluations THE REQUIREMENTS AS OF THE BEGINNING OF 2013-2014 Annual evaluations of all teachers “Multiple” observations – at least of tenured teachers “One or more” “At least two” “Approximately three” IDP for all probationary teachers each year (38.83a) IDP for tenured teachers rated ME or Ineffective (38.93) Formative IDP for struggling teachers shall provide not more than 180 calendar days to demonstrate progress Final year-end performance evaluation which rates progress toward IDP goals, where applicable Effectiveness ratings – I, ME, E or HE ©2014 Clark Hill PLC 23

2013-2014 – New Requirements – Teachers – 1249(2)(a)(i)(ii) 25% based on student growth and assessment – 2(a)(i) Per section 1249, must use the student growth tool required under legislation to be enacted by the legislature following the MCEE Report    Three years of student growth and assessment data, if available, and if not, all student growth data that is available – (2)(a)(ii) ©2014 Clark Hill PLC 24

Exemption from Student Growth MAY currently allow for exemption from student growth data “…for a particular pupil…” upon the recommendation of the evaluator and with superintendent approval – 380.1249(2)(g) MCEE Report recommended students be excluded unless they have attended school for at least 90% of the school year State collect student attendance data nothing yet in current bill drafts ©2014 Clark Hill PLC 25

New: 2013-2014 Mid-Year Progress Report (MYPR) – 380.1249(2)(b) For teachers in first year of probation in 2013-14, and all teachers (probationary or tenured) who at end of 2012-2013 received a rating of ME or Ineffective, then a MYPR shall be – A supplemental tool used to gauge a teacher’s improvement in performance Shall be based at least in part on student achievement Shall be aligned with the IDP At the MYPR – Develop goals designed to improve effectiveness and identify recommended training Develop written plan for remainder of year, in consultation with teacher, designed to help teacher improve year-end rating MYPR does NOT take place of final year end performance evaluation No specific time denoted except “mid-year” No specific format required, but note necessary component ©2014 Clark Hill PLC 26

New: 2013-2014 – Classroom Observations – 1249(2)(c) Manner of observation being conducted “shall be” prescribed within the District’s evaluation tool Observation “shall include” (1) a review of the lesson plan and (2) of the State curriculum standard being used in the lesson being observed and (3) pupil engagement in the lesson Does not have to be for entire class period Multiple observations, unless T has received E or HE in most recent two years What is “multiple?” – probably “at least two” ©2014 Clark Hill PLC 27

New: 2013-2014 – Goal-Setting – 2(a)(iii) The annual performance evaluation at the end of 2013-2014 “shall include” – Specific performance goals that will assist teacher in improving effectiveness, including any recommended training to assist in achieving these goals Goals developed in consultation with the teacher For 2013-2014 first year probationary teachers and teachers rated ME or Ineffective 2013-2014, the year end performance evaluation “shall include” development of an IDP for the following school year (2014-2015) to improve teacher’s effectiveness IDP developed in consultation with the teacher Note – Timing of IDP is different from current practice Note - Suggestions for improvement not limited to struggling teachers; Consistent with MCEE Report that everyone should be on an improvement plan ©2014 Clark Hill PLC 28

2013-2014 – Other Requirements Use State tool () – use 4 ratings Assignment of a mentor or coach to first year probationary teachers and teachers rated ME or I is encouraged by section 1249 Remember, MRSC § 380.1526 – “For the first three years of his or her employment in classroom teaching, …assigned to 1 or more master teachers, retired college professors or retired master teachers…as mentors…” Also, per § 1526, intensive professional development induction into teaching, based on a professional development plan, which includes classroom management and instructional delivery ©2014 Clark Hill PLC 29

2013-2014 – Standards for Termination If rated Ineffective for three consecutive years, shall dismiss, but not required to wait three years – 1249(2)(h) MCEE Report – two Must provide for appeal of I rating to Superintendent if requested within 20 calendar days of receipt of I rating – 1249(2)(j) If rated HE three consecutive years, may move to biennial evaluations, unless T regresses in quality, in which case every year evaluation must resume – 1249(2)(i) ©2014 Clark Hill PLC 30

WHAT IS COMING?* STUDENT GROWTH COMPONENT Extend time frames 25% 14-15; 25% 15-16 and 25% 16-17; 50% 17-18 POSSIBLE reduction of 50% to 45% State based measures where available or local assessment MDE to issue list of acceptable assessments by March 1, 2014 Not more than 10% of component can be based upon school-level measures *Based on most recent bill draft ©2014 Clark Hill PLC

MORE CRYSTAL BALL GAZING Balance of evaluation to be based on Instructional Practice - If 45% student growth, then 55% practice. Up to 20% using locally approved criteria Use one of 4 piloted tools OR satisfy rigorous criteria to use local tool or a modified commercial tool. MAY clarify that “multiple” means at least two observations (just like old law) of which at least one is unannounced. ©2014 Clark Hill PLC

2013-2014 Administrator Evaluation Requirements – 1249(3) Administrators “regularly involved in instructional matters” – 25% of student growth The aggregate student growth and assessment data used in teacher annual year-end evaluations in which administrator works or entire district, if central office Remainder of evaluation must assess: Proficiency in using teacher evaluation tool including a random sampling Progress on school improvement plan Student attendance in school or district (central) Student, parent and teacher feedback Four effectiveness ratings as with teachers. Improvement plan if not effective, designed to help administrator improve on next year’s evaluation. Same three year rule for mandated dismissal if rated Ineffective NOTE: Three years only applies if use the same tool each of three years (No similar provision applicable to teachers; one is proposed, however) ©2014 Clark Hill PLC 33

WHAT’S COMING New section 1249B Same % student growth component Same definition of student growth Practice component required 80% based on approved rubrics 3 approved: Marzano, Reeves Leadership, MASA Recommendations for rater training every 3 years Up to 20% locally approved criteria Same effectiveness ratings as teachers Mandated dismissal after 3 years of Ineffective, could dismiss earlier If HE for 3 years, biennial evaluation allowed 34 ©2014 Clark Hill PLC

What To Do Now? Update system to incorporate new 2013-2014 requirements (e.g. MYPR) Update administrative regulations to incorporate same Work with local legislators Now is the time to influence them as they are working on this project right now Continue training of principals and evaluators Consider filing tenure charges in 2013-2014 and 2014-2015 if student growth remains at 25% each year. Snyder appointees now make up majority of STC. Caution about changing tools until legislation passed ©2014 Clark Hill PLC 35

Evaluating Non-Teaching Professionals Read the CBA Use negotiated form, if any If no form negotiated, do reserved management rights list “right to evaluate?” Follow old negotiated process or negotiate new procedure, etc Some units willing to apply same evaluation rules Best to establish rubrics relevant to job Soon-to-be approved vendors have some tools available for non-teacher job classifications. ©2014 Clark Hill PLC

Greater Opportunities Did you know an employee may claim retaliation for “whistle-blowing” on violations of IDEA or FERPA or similar laws retaliation for advocating on behalf of disabled students retaliation for filing a claim with the MDE or OCR Importance of following protocol, providing opportunities for due process, consult with your HR before making adverse employment decisions when employee has engaged in “protected conduct” ©2014 Clark Hill PLC

Employee Disability Claims This may feel counter-intuitive… Employer is obligated to reasonably accommodate provided no undue hardship not discriminate based on disability provide equal opportunity to disabled applicants Employer NOT obligated to alter essential functions of any job relax job-related qualitative or quantitative standards provided consistently applied tolerate or excuse poor performance, withhold disciplinary action, alter an evaluation rating or give an evaluation rating that is undeserved NOT AN EMPLOYEE “MANIFESTATION DETERMINATION REVIEW” in same sense as with your students! ©2014 Clark Hill PLC

Emerging Trends Increased accountability & monitoring increases employee anxiety and some acting out Fear about mandated growth goals Uncertainty about fairness of measurements and layoffs Increased resort to the “court of public opinion” to air personnel disputes Increasing use of “old school” pressure tactics to achieve desired outcomes ©2014 Clark Hill PLC

Suggested Responses Clarity of management expectations, criteria, process and consistent application. Clarity of explanation of assessments and where appropriate use exception provision discussed above; hopefully, 25% weight for three years will also help. Be selective about cases in which rely on student growth measures to make high stakes decisions. Act methodically and look at entire situation before making a decision. Revert to “old school” practices that enhance employee morale. ©2014 Clark Hill PLC

Your Questions? ©2014 Clark Hill PLC 41

Thank You! Note: This document is not intended to give legal advice in any specific situation. It is comprised of general information. School employers facing specific issues should seek the assistance of an attorney. Barbara A. Ruga bruga@clarkhill.com (616) 608-1105 ©2014 Clark Hill PLC 42

Please Do Not Re-Distribute Without Permission. Thank you. Copyright 2014 Clark Hill Please Do Not Re-Distribute Without Permission. Thank you. ©2014 Clark Hill PLC 43