Second Regular Session

Sixty-first General Assembly

LLS NO. 98­0213.01 JAP HOUSE BILL 98­1146

STATE OF COLORADO

BY REPRESENTATIVE Allen.

ENGROSSED

EDUCATION

A BILL FOR AN ACT

CONCERNING AN EXPEDITED DISMISSAL PROCEDURE FOR PUBLIC SCHOOL TEACHERS WHOSE PERFORMANCE REMAINS UNSATISFACTORY FOLLOWING COMPLETION OF INTENSIVE REMEDIATION.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.)

Allows a school district to provide a one­year intensive remediation period for any teacher whose performance is deemed to be unsatisfactory. Specifies the requirements for intensive remediation, including but not limited to the schedule for documented observations and evaluations that result in written evaluation reports.

Establishes an expedited dismissal procedure for teachers whose performance remains unsatisfactory after completion of intensive remediation. Specifies the requirements of the expedited dismissal procedure, including but not limited to:

! Time frames under which the procedure is completed in 39 days;

! Limitation of suspension compensation to 39 days;

! Procedures for appointment of an administrative law judge to act as the hearing officer;

! Limitation of the issues to be decided at the hearing; and

! Provisions for and limitations on appeal.

Makes conforming amendments.


Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  22­9­106 (3.5) and (4.5), Colorado Revised Statutes, are amended to read:

22­9­106.  Local boards of education ­ duties. (3.5) (a)  A teacher whose performance is deemed to be unsatisfactory pursuant to paragraph (e) of subsection (1) of this section shall be given notice of deficiencies. A remediation plan to correct said deficiencies shall be developed by the district or the board of cooperative services and the teacher. THE DISTRICT OR BOARD OF COOPERATIVE SERVICES SHALL DETERMINE WHETHER TO IMPLEMENT A REMEDIATION PLAN WITH THE TEACHER TO CORRECT SAID DEFICIENCIES, AS PROVIDED IN PARAGRAPH (b) OF THIS SUBSECTION (3.5), OR WHETHER TO PROCEED IMMEDIATELY WITH DISMISSAL PROCEDURES AS PROVIDED IN PARAGRAPH (c) OF THIS SUBSECTION (3.5).

(b)  IF THE DISTRICT OR BOARD OF COOPERATIVE SERVICES CHOOSES TO PROCEED WITH A REMEDIATION PLAN, THE DISTRICT OR BOARD OF COOPERATIVE SERVICES SHALL DEVELOP A REMEDIATION PLAN WITH THE TEACHER TO CORRECT THE DEFICIENCIES IDENTIFIED IN THE TEACHER=S EVALUATION. The teacher shall be given a reasonable period of time A MINIMUM OF ONE SCHOOL YEAR for remediation of the deficiencies and shall receive a statement of the resources and assistance available for the purposes of correcting the performance or the deficiencies. DURING THE PERIOD OF REMEDIATION, THE TEACHER SHALL RECEIVE A DOCUMENTED OBSERVATION EVERY TWO WEEKS AND AN EVALUATION THAT RESULTS IN A WRITTEN EVALUATION REPORT PURSUANT TO SUBSECTION (3) OF THIS SECTION EVERY FORTY­FIVE DAYS. THE WRITTEN EVALUATION REPORT SHALL CLEARLY IDENTIFY THE TEACHER=S PROGRESS OR LACK OF PROGRESS IN THE SPECIFIC AREAS AND REQUIREMENTS OF THE REMEDIATION PLAN. IF, AT THE CONCLUSION OF THE REMEDIATION PERIOD, THE FINAL WRITTEN EVALUATION REPORT SHOWS THE TEACHER IS PERFORMING SATISFACTORILY, NO FURTHER ACTION SHALL BE TAKEN CONCERNING THE ORIGINAL PERFORMANCE EVALUATION. IF THE FINAL WRITTEN EVALUATION REPORT SHOWS THE TEACHER IS STILL NOT PERFORMING SATISFACTORILY, THE EVALUATOR SHALL EITHER MAKE ADDITIONAL RECOMMENDATIONS FOR IMPROVEMENT OR MAY RECOMMEND THE DISMISSAL OF THE TEACHER ON THE GROUNDS OF UNSATISFACTORY PERFORMANCE, AS PROVIDED IN SECTION 22­63­301. DISMISSAL OF A TEACHER WHO HAS RECEIVED A ONE­YEAR REMEDIATION PERIOD AS SPECIFIED IN THIS PARAGRAPH (b) MAY BE EXPEDITED ACCORDING TO THE PROCEDURES PROVIDED IN SECTION 22­63­303.

(c)  IF THE DISTRICT OR BOARD OF COOPERATIVE SERVICES CHOOSES TO PROCEED IMMEDIATELY TO DISMISSAL OF THE TEACHER WITHOUT PROVIDING A REMEDIATION PERIOD, SUCH DISMISSAL SHALL PROCEED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 22­63­302.

(4.5)  Any certificated personnel whose performance evaluation includes a remediation plan shall be given an opportunity to improve his performance through the implementation of the plan. If the next performance evaluation shows that the certificated personnel is now performing satisfactorily, no further action shall be taken concerning the original performance evaluation. If such evaluation shows the certificated personnel is still not performing satisfactorily, the evaluator shall either make additional recommendations for improvement or may recommend the dismissal of such certificated personnel in accordance with the provisions of article 63 of this title.

SECTION 2.  Part 3 of article 63 of title 22, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read:

22­63­303.  Expedited procedure for dismissal ­ judicial review. (1)  A TEACHER SHALL BE DISMISSED IN THE MANNER PRESCRIBED BY THIS SECTION IF THE TEACHER HAS COMPLETED A REMEDIATION PERIOD PURSUANT TO SECTION 22­9­106 (3.5) (b) AND CONTINUED TO PERFORM UNSATISFACTORILY, BASED ON THE FINAL WRITTEN EVALUATION REPORT PREPARED PURSUANT TO SECTION 22­9­106 (3).

(2)  THE CHIEF ADMINISTRATIVE OFFICER OF THE EMPLOYING SCHOOL DISTRICT MAY RECOMMEND THAT THE BOARD DISMISS A TEACHER BASED ON UNSATISFACTORY PERFORMANCE AS DEMONSTRATED BY PERFORMANCE EVALUATIONS CONDUCTED PRIOR TO, DURING, AND UPON COMPLETION OF THE REMEDIATION PERIOD. WITHIN TWENTY­FOUR HOURS AFTER THE BOARD MEETING AT WHICH THE RECOMMENDATION IS MADE, THE TEACHER SHALL RECEIVE A WRITTEN NOTICE OF INTENT TO DISMISS. SUCH NOTICE SHALL INCLUDE AN EXPLANATION OF THE SPECIFIC REASONS FOR DISMISSAL, COPIES OF THE PERFORMANCE EVALUATIONS ON WHICH THE RECOMMENDATION IS BASED, AND ANY OTHER SUPPORTING DOCUMENTARY MATERIALS RELATED TO THE TEACHER=S PERFORMANCE THAT THE CHIEF ADMINISTRATIVE OFFICER INTENDS TO RELY UPON IN THE EVENT THE TEACHER REQUESTS A HEARING. ADDITIONAL EXHIBITS IN SUPPORT OF THE CHIEF ADMINISTRATIVE OFFICER'S PRIMA FACIE CASE MAY NOT BE ADDED AT A LATER DATE. THE NOTICE AND ACCOMPANYING MATERIALS SHALL BE SENT BY CERTIFIED MAIL TO THE TEACHER AT THE TEACHER=S ADDRESS LAST KNOWN TO THE SECRETARY OF THE BOARD. THE NOTICE SHALL ADVISE THE TEACHER OF HIS OR HER RIGHTS AND THE PROCEDURES UNDER THIS SECTION.

(3)  IF THE TEACHER OBJECTS TO THE GROUNDS GIVEN FOR THE DISMISSAL, THE TEACHER MAY FILE WITH THE CHIEF ADMINISTRATIVE OFFICER A WRITTEN NOTICE OF OBJECTION AND A REQUEST FOR A HEARING. THE WRITTEN NOTICE SHALL BE FILED WITHIN THREE DAYS AFTER RECEIPT BY THE TEACHER OF THE NOTICE OF DISMISSAL. IF THE TEACHER FAILS TO FILE THE WRITTEN NOTICE WITHIN SAID TIME, SUCH FAILURE SHALL BE DEEMED TO BE A WAIVER OF THE RIGHT TO A HEARING AND THE DISMISSAL SHALL BE FINAL; EXCEPT THAT THE BOARD MAY GRANT A HEARING UPON A DETERMINATION THAT THE FAILURE TO FILE WRITTEN NOTICE FOR A HEARING WAS DUE TO GOOD CAUSE. THE WRITTEN NOTICE AND REQUEST FOR A HEARING SHALL INCLUDE ANY DOCUMENTS THAT THE TEACHER INTENDS TO RELY UPON AT THE HEARING. ADDITIONAL WITNESSES AND EXHIBITS IN SUPPORT OF THE TEACHER=S OBJECTION MAY NOT BE ADDED AT A LATER DATE. IF THE TEACHER FILES A WRITTEN NOTICE OF OBJECTION, HE OR SHE SHALL CONTINUE TO RECEIVE REGULAR COMPENSATION FROM THE TIME THE TEACHER IS SUSPENDED UNTIL A DECISION IS RENDERED BY THE BOARD PURSUANT TO SUBSECTION (9) OF THIS SECTION, BUT IN NO EVENT BEYOND THIRTY­NINE DAYS.

(4) (a)  IF THE TEACHER REQUESTS A HEARING, THE SCHOOL DISTRICT SHALL REQUEST ASSIGNMENT OF AN ADMINISTRATIVE LAW JUDGE BY THE DEPARTMENT OF PERSONNEL TO ACT AS A HEARING OFFICER IN CONDUCTING THE HEARING. THE ADMINISTRATIVE LAW JUDGE SHALL BE ASSIGNED NO LATER THAN THREE DAYS FOLLOWING RECEIPT BY THE CHIEF ADMINISTRATIVE OFFICER OF THE TEACHER'S WRITTEN NOTICE OF OBJECTION.

(b)  THE SCHOOL DISTRICT SHALL PAY THE COST OF THE HEARING OFFICER.

(5)  WITHIN THREE DAYS AFTER ASSIGNMENT OF THE HEARING OFFICER, THE HEARING OFFICER SHALL GIVE THE TEACHER AND THE CHIEF ADMINISTRATIVE OFFICER AT LEAST FIVE DAYS' WRITTEN NOTICE OF THE DATE FOR THE HEARING, INCLUDING THE TIME AND THE PLACE THEREFOR, BUT IN NO EVENT SHALL THE HEARING COMMENCE MORE THAN TEN DAYS AFTER ASSIGNMENT OF THE HEARING OFFICER.

(6) (a)  HEARINGS HELD PURSUANT TO THIS SECTION SHALL BE OPEN TO THE PUBLIC UNLESS EITHER THE TEACHER OR THE CHIEF ADMINISTRATIVE OFFICER REQUESTS A PRIVATE HEARING BEFORE THE HEARING OFFICER, BUT THE HEARING OFFICER SHALL NOT ADOPT FINDINGS OF FACT OR RECOMMENDATIONS IN ANY PRIVATE HEARING. THE PROCEDURES FOR THE CONDUCT OF THE HEARING SHALL BE INFORMAL, AND RULES OF EVIDENCE SHALL NOT BE STRICTLY APPLIED EXCEPT AS NECESSITATED IN THE OPINION OF THE HEARING OFFICER; EXCEPT THAT THE HEARING OFFICER SHALL APPLY THE COLORADO RULES OF EVIDENCE CONCERNING EXCLUSION OF HEARSAY.

(b)  AT ANY HEARING, THE CHIEF ADMINISTRATIVE OFFICER AND THE TEACHER SHALL HAVE THE RIGHT TO APPEAR IN PERSON WITH OR WITHOUT COUNSEL, TO BE HEARD, TO PRESENT ALL DOCUMENTARY EVIDENCE BEARING UPON THE TEACHER=S LEVEL OF PERFORMANCE, INCLUDING AFFIDAVITS OF PERSONS HAVING DIRECT, PERSONAL KNOWLEDGE OF THE TEACHER'S PERFORMANCE, AND TO CROSS­EXAMINE ANY WITNESSES. THE ONLY ISSUES FOR DETERMINATION ARE WHETHER THE EMPLOYING SCHOOL DISTRICT COMPLIED WITH THE REMEDIATION REQUIREMENTS SPECIFIED IN SECTION 22­9­106 (3.5) AND WHETHER THE TEACHER CONTINUED TO PERFORM UNSATISFACTORILY AFTER REMEDIATION. IN ADDITION TO THE CHIEF ADMINISTRATIVE OFFICER AND THE TEACHER, ONLY THE PERSON OR PERSONS WHO EVALUATED THE TEACHER DURING THE PERIOD OF REMEDIATION MAY TESTIFY AT THE HEARING. BY ENTERING AN APPEARANCE ON BEHALF OF THE TEACHER OR THE CHIEF ADMINISTRATIVE OFFICER, COUNSEL AGREES TO BE PREPARED TO COMMENCE THE HEARING WITHIN THE TIME LIMITATIONS OF THIS SECTION AND TO PROCEED EXPEDITIOUSLY ONCE THE HEARING HAS BEGUN. ALL SCHOOL DISTRICT RECORDS PERTAINING TO THE TEACHER SHALL BE MADE AVAILABLE FOR THE USE OF THE HEARING OFFICER AND THE TEACHER.

(c)  AN AUDIOTAPED RECORD SHALL BE MADE OF THE HEARING, AND, IF THE TEACHER FILES AN ACTION FOR REVIEW PURSUANT TO THE PROVISIONS OF SUBSECTION (10) OF THIS SECTION, THE TEACHER AND THE SCHOOL DISTRICT SHALL SHARE EQUALLY IN THE COST OF TRANSCRIBING THE RECORD; EXCEPT THAT THE PARTY THAT PREVAILS AT THE APPELLATE LEVEL SHALL RECEIVE REIMBURSEMENT FROM THE NONPREVAILING PARTY AS PROVIDED IN SUBSECTION (10) OF THIS SECTION.

(d)  ANY HEARING HELD PURSUANT TO THE PROVISIONS OF THIS SECTION SHALL BE COMPLETED WITHIN TWO DAYS AFTER ITS COMMENCEMENT AND MAY NOT BE CONTINUED EXCEPT ON A SHOWING OF GOOD CAUSE.

(7)  AT A HEARING HELD PURSUANT TO THIS SECTION, THE CHIEF ADMINISTRATIVE OFFICER SHALL HAVE THE BURDEN OF PROVING THAT:

(a)  THE RECOMMENDATION FOR THE DISMISSAL OF THE TEACHER WAS FOR UNSATISFACTORY PERFORMANCE;

(b)  THE TEACHER=S PERFORMANCE CONTINUED TO BE UNSATISFACTORY AFTER COMPLETION OF THE REMEDIATION PERIOD;

(c)  THE SCHOOL DISTRICT FOLLOWED THE REMEDIATION REQUIREMENTS SPECIFIED IN SECTION 22­9­106 (3.5) (b); AND

(d)  THE DISMISSAL WAS MADE IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION.

(8)  THE HEARING OFFICER SHALL REVIEW THE EVIDENCE AND ANY TESTIMONY AND MAKE WRITTEN FINDINGS OF FACT THEREON. THE HEARING OFFICER SHALL RECOMMEND EITHER THAT THE TEACHER BE DISMISSED OR THE TEACHER BE RETAINED. A RECOMMENDATION TO RETAIN A TEACHER SHALL NOT INCLUDE ANY CONDITIONS ON RETENTION. THE FINDINGS OF FACT AND THE RECOMMENDATION SHALL BE ISSUED BY THE HEARING OFFICER NOT LATER THAN TEN DAYS AFTER THE CONCLUSION OF THE HEARING AND SHALL BE FORWARDED TO THE TEACHER AND TO THE BOARD.

(9)  THE BOARD SHALL REVIEW THE HEARING OFFICER'S FINDINGS OF FACT AND RECOMMENDATION, AND IT SHALL ENTER ITS WRITTEN ORDER WITHIN TEN DAYS AFTER THE DATE OF THE HEARING OFFICER'S FINDINGS AND RECOMMENDATION. THE BOARD SHALL TAKE ACTION EITHER TO DISMISS OR RETAIN THE TEACHER; EXCEPT THAT, IF THE BOARD DISMISSES THE TEACHER OVER THE HEARING OFFICER'S RECOMMENDATION OF RETENTION, THE BOARD SHALL INCLUDE IN ITS WRITTEN ORDER A STATEMENT OF THE REASONS FOR ITS CONCLUSION, WHICH MUST BE SUPPORTED BY THE HEARING OFFICER=S FINDINGS OF FACT. THE SECRETARY OF THE BOARD SHALL CAUSE A COPY OF SAID ORDER TO BE GIVEN IMMEDIATELY TO THE TEACHER AND A COPY TO BE ENTERED INTO THE TEACHER'S LOCAL FILE.

(10) (a)  IF THE BOARD DISMISSES THE TEACHER PURSUANT TO THE PROVISIONS OF SUBSECTION (9) OF THIS SECTION, THE TEACHER MAY FILE AN ACTION FOR REVIEW IN THE COURT OF APPEALS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 22­63­302 (10); EXCEPT THAT ANY SUCH APPEAL SHALL BE FILED WITHIN TEN DAYS AFTER THE WRITTEN ORDER OF DISMISSAL MADE BY THE BOARD. THE SOLE ISSUE ON APPEAL OF A DISMISSAL PURSUANT TO THIS SECTION SHALL BE WHETHER THE FINDINGS OF FACT MADE BY THE HEARING OFFICER AND RELIED UPON BY THE BOARD SUPPORT THE BOARD=S CONCLUSION TO DISMISS THE TEACHER FOR UNSATISFACTORY PERFORMANCE OR WHETHER THE BOARD ACTED ARBITRARILY AND CAPRICIOUSLY IN DISMISSING THE TEACHER.

(b)  THE COSTS OF APPEAL INCURRED BY BOTH THE TEACHER AND THE SCHOOL DISTRICT, INCLUDING THE COSTS OF THE TRANSCRIPT AND ATTORNEY FEES, SHALL BE PAID IN WHOLE BY THE PARTY WHO DOES NOT PREVAIL ON APPEAL. THE COURT SHALL ENTER A JUDGEMENT FOR SUCH COSTS, INCLUDING ATTORNEY FEES, AGAINST THE PARTY WHO DOES NOT PREVAIL AT THE CONCLUSION OF THE APPEAL.

SECTION 3.  22­63­302 (1), Colorado Revised Statutes, is amended to read:

22­63­302.  Procedure for dismissal ­ judicial review. (1)  Except as otherwise provided in subsection (11) of this section AND IN SECTION 22­63­303, a teacher shall be dismissed in the manner prescribed by subsections (2) to (10) of this section.

SECTION 4.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.