Teacher Improvement Plan [TIP] permitted in the absence of an unsatisfactory performance evaluation under certain circumstances
Decisions of the Commissioner of Education, Decision No. 16,510
A school psychologist, [P] was given a “counseling letter” as a result of alleged professional deficiencies and provided with a draft “Teacher Improvement Plan” [TIP]. Following discussions concerning the plan, a final TIP was agreed to and signed by the high school principal, the middle school principal and P.
P then filed an appeal with the Commissioner of Education alleging that although he was not rated “unsatisfactory,” the school district implemented a TIP for him without his consent and that he was not consulted in developing the TIP. Such actions, P argued were in violation of 8 NYCRR §100.2(o) of the Commissioner’s Regulations. P asked the Commissioner to direct the district to withdraw the TIP.
The district, on the other hand, contended that although P's TIP was not implemented as a result of an unsatisfactory rating pursuant to §100.2(o), §100.2(o) does not preclude the promulgation of a TIP in the absence of an unsatisfactory evaluation under appropriate circumstances. The district also claimed that P was consulted in developing the challenged TIP.
Addressing the merits of P’s appeal, the Commissioner said that a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief, citing 8 NYCRR §275.10.
§100.2(o) of the Commissioner’s regulations requires an annual evaluation of certain teachers, including pupil personnel service providers such as “school psychologists.” At the time P’s TIP was promulgated §100.2(o) provided as follows:
Teacher improvement. The plan shall describe how the school district or BOCES addresses the performance of teachers whose performance is evaluated as unsatisfactory, and shall require the development of a teacher improvement plan for teachers so evaluated, which shall be developed by the district ... in consultation with such teacher.
The Commissioner ruled that although §100.2(o) requires a school district to issue a TIP in the event the educator receives an unsatisfactory evaluation, nothing in §100.2(o), or any other statute or regulation, specifically bars the promulgation of a TIP where professional deficiencies are noted by means other than an evaluation. Accordingly, said the Commissioner, P failed to demonstrate that §100.2(o)'s requirement that a TIP be developed for an educator receiving an unsatisfactory evaluation precludes the use of a TIP in other circumstances.
The Commissioner also determined that P’s claim that he was not consulted in the development of the TIP was not supported in the record.
P also contended that a decision to promulgate a TIP outside of the parameters set forth in §100.2(o) is subject to collective bargaining.
The Commissioner dismissed this aspect of the appeal explaining that Article 14 of the Civil Service Law vests exclusive jurisdiction over complaints involving collective bargaining in the Public Employment Relations Board [PERB] and, therefor, he “lack jurisdiction" to address the collective bargaining allegations raised by P in this appeal.
The decision is posted on the Internet at:http://www.counsel.nysed.gov/Decisions/volume53/documents/d16510.pdf