Cuddy & McCarthy, LLP1 SUPERVISION, EVALUATION, & TERMINATION/DISCHARGE OF SCHOOL EMPLOYEES ByRamon Vigil, Esq. Cuddy & McCarthy, LLP NMASBO 2012

Cuddy & McCarthy, LLP2 PERSONNEL ACTION MUST BE Lawful Ethical Practical Ethical Practical Lawful

Cuddy & McCarthy, LLP3 Hiring Process  Application  Interview (What can you ask?)  References / Background Checks  Vacancy Notice & Local Hiring Procedures  Use of Committees  Notification to Applicants

Cuddy & McCarthy, LLP4 Supervision/Evaluations  Purpose: Improvement Support Personnel Decisions  Procedures governed by Statutes, PED Regulations, Local Board Policy, Union Contract  Know Job Descriptions of Employees

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6 Cycle of Supervision  Specify Purpose & Criteria  Train Supervisors/Evaluators  Pre-Conference  Conduct Multiple Observations Formal & Informal Job Observations  Conduct Conferences  Identify Areas for Development & Improvement

Cuddy & McCarthy, LLP7 Cycle of Supervision (Cont.)  Design a Growth Plan or Improvement Plan  Provide Assistance, Guidance & Support  Determine if performance has improved (Sufficient Growth? Development?)  Make employment decision

Cuddy & McCarthy, LLP8 Employee Evaluation Minimums  Multiple Observations – formal & informal at the job site  Confer Before/After Each Observation  Identify Strengths & Areas for Growth  Collaboratively Develop Plan for Improvement  Provide Assistance (individual guidance, workshops, classes, etc.)

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10 Cycle of Supervision  IF THE SUPERVISOR CONSIDERS WORK PERFORMANCE UNSATISFACTORY, NOTICE SHOULD BE GIVEN TO THE EMPLOYEE OF THE POSSIBILITY FOR TERMINATION!!!!!!!!!!!!!!!!!!!!!!!!!

Cuddy & McCarthy, LLP11 Unsatisfactory Work Performance v. Misconduct  Use Cycle of Supervision to identify and address unsatisfactory work performance Document with employee evaluations and employee growth plans  Use Investigation Procedures / Interviews w/ employees for Misconduct Document with memo/letter of reprimand

Cuddy & McCarthy, LLP12 Know the Difference  Tenured v. Non-tenured employees Myth #1: Tenured employee can never be terminated. Myth #2: Non-tenured employee can be terminated for no reason.  Term Contract v. At-Will Contract

Cuddy & McCarthy, LLP13 Termination / Definitions Termination – In the case of a non-certified employee, the act of severing the employment relationship with the employee. In case of certified = non- renewal of contract. Just Cause – reason that is rationally related to an employee’s competence or turpitude or the proper performance of his duties and that is not a violation of the employee’s civil or constitutional rights

Cuddy & McCarthy, LLP14 Discharge / Definition  Discharge – severing the employment relationship with a certified/licensed employee prior to the expiration of the current employment contract.  Licensed School Employees – teachers, school administrators and instructional support providers.

Cuddy & McCarthy, LLP15 Instructional Support Providers  Person employed to support the instructional program, including educational assistant, librarian, school counselor, social worker, school nurse, speech-language pathologist, physical therapist, occupational therapist, recreational therapist, interpreter for the deaf and diagnostician.

Cuddy & McCarthy, LLP16 NM Statutes  Termination; Sections 22-10A-24 and 25 Termination Hearing before the Board of Education Termination Appeal Hearing before an Independent Arbitrator  Notice of Reemployment; Termination Section 22-10A-22 – Certified Instructors only

Cuddy & McCarthy, LLP17 NM Statutes  Section 22-10A-26  Excepted from Termination Provisions Certified School Administrators Non-Certified employee hired to perform primarily district wide management function Teacher hired to fill position of teacher entering military service

Cuddy & McCarthy, LLP18 NM Statutes  Discharge – sections 22-10A-27 and 22-10A-28 Discharge Hearing before the Board of Education Hearing is recorded Appeal to an Independent Arbitrator Decision of Arbitrator may be appealed through the judicial process

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Cuddy & McCarthy, LLP20 Protected Activities / Statutory Defenses to Termination  First Amendment – Freedom of Speech, Association  Union Activity  Religious Activity  Political Activity  Retaliation for EEOC claim, Workers’ Comp., Whistle Blower  Title VII – Race, Color, National Origin, Gender, & Religion

Cuddy & McCarthy, LLP21 Protected Activities / Statutory Defenses to Dismissal (cont.)  Americans w/ Disabilities Act (ADA)  Age Discrimination in Employment Act (ADEA)  NM Human Rights Act, NMSA Section A: All of Title VII plus Ancestry, Sexual Orientation, Gender Identity, Spousal Affiliation, Mental Handicap & Serious Medical Condition

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