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January 2,
2011
Welcoming the
New Year and New Legislation Impacting Evaluations
By Sarah A. Geddes, John Gierak
and Barbara Ruga
The Clark Hill
Education Practice Group extends its best wishes to all our clients
for a Happy New Year in 2011! With the new year come new
challenges relating to ongoing Race to the Top reforms.
As you may
know, Senate Bill 1509 was passed as part of the 2010 lame duck
session of the Michigan Legislature. The Bill, which became
Public Act 336 of 2010, addresses both the new teacher and
administrator evaluation requirements. To understand the
impact, a brief history is needed.
The Background
On December
19, 2009, as part of a package of Race to the Top reforms, the
Michigan Legislature added a new Section 1249 to the Michigan Revised
School Code. New section 1249 took effect on January 4, 2010,
when the Governor signed it into law. It mandated, among other
things, annual teacher and administrator evaluations and the
incorporation of student growth criteria as a "significant
factor" within the evaluation process.
In a departure
from the norm, the new School Code provision did not specify that
section 1249 was applicable only upon the expiration of a collective
bargaining agreement. This omission was troubling for many
reasons, including the fact that PERA
requires that changes in a mandatory subject of bargaining be
negotiated, and because the companion new section 1250 (which
required compensation systems based upon performance, including
student growth criteria) contained such language. It thus
appeared that, unlike the so-called "merit pay" mandate of
section 1250, and notwithstanding the PERA
obligation, section 1249 was to be immediately effective on January
4, 2010, the date the Governor signed it.
What is the
impact of the new legislation on educator evaluations?
Teacher Evaluations
Must Comply By September 1, 2011 or Later, if a CBA is in Effect as of January 4, 2010
PA 336
provides additional time to negotiate compliant teacher evaluation systems.
The requirement to incorporate student growth criteria is now
mandated to take effect "not later than September 1,
2011." The Act does not prohibit earlier agreement or the
use of compliant evaluation systems before September 1, 2011.
The Act also does not override the requirements of section 1280(c) or
federal School Improvement Grant requirements that may impose earlier
deadlines for use of a compliant teacher evaluation system.
In addition,
the Bill clarifies that if an existing collective bargaining
agreement was in effect on January 4, 2010 that prohibited changes to
the teacher (or school administrator) evaluation systems, then the
requirements of section 1249 are not applicable until the expiration
of that collective bargaining agreement. For example, if a
district had a multi-year collective bargaining agreement in effect
on January 4, 2010, and the agreement does not expire until after
September 1, 2011, then the later date - contract expiration - is the
date on which compliance with section 1249 is expected.
Further, PA
336 requires the Michigan Department of Education (MDE) to work with employee and employer groups to
adopt at least one recommended model of evaluation. It should
be noted that the model system is not required, only a sample for
consideration.
Principal Evaluation
Reporting Required for 2010-2011
PA 336 draws a
distinction between teacher and principal evaluation systems
and the delayed effectiveness of the revised Section 1249.
Schools must continue to use annual evaluation systems for principals
as "required by the department." Subsection (3) now
mandates that: "At the end of the 2010-2011 school year, a
school district, intermediate school district, or public school
academy shall report the most recently completed or determined
'effectiveness label' from that evaluation for each principal who is
in place for 2010-2011, in a form and manner to be determined by the
department."
We are
informed that the MDE requested the above
language to ensure compliance with the requirements of the State's
grant under the State Fiscal Stabilization Fund (SFSF).
A letter sent to school districts by the MDE
on December 22, 2010 describing the impact of PA 336 confirms
this. When the MDE submitted its
grant application to the United States Department of Education for
stimulus funds, and when districts submitted assurances to the MDE to receive these funds, they agreed that
annual principal evaluations would be reported in 2011. As a
result, the Legislature could not delay all aspects of the new annual
principal evaluation systems to September of 2011.
In its
December 22, 2010 letter to school districts regarding PA 336, MDE explains that, despite the delayed
effectiveness date of the new evaluation requirements in Section
1249, school districts must submit the data they agreed to submit in
their SFSF assurances, namely, reporting an
"educator effectiveness label for all teachers and
administrators, beginning with principals in 2011 and extending to all
educators in 2012." The educator effectiveness label will
be reported to MDE's Center for Educational
Performance and Information (CEPI) through
a data field added to the Registry of Educational Personnel, or
REP. The new data field will allow districts to report the
results of annual principal evaluations for the 2010-2011 school
year at the end-of-year REP data submission. Teacher evaluation
results will be reported at the 2012 end-of-year data submission.
MDE notes that it is aware that districts
may not have had "adequate time to design, bargain, and
implement a new principal evaluation system for the current school
year." In light of this consideration, MDE
is allowing districts to report the results of its "most recent
evaluation" of school principals in CEPI's
REP for 2011. Doing so will comply with Section 1249,
Subsection 3, insofar as that subsection requires districts to
"report the most recently completed or determined 'effectiveness
label' from that evaluation for each principal who is in place for
2010-11, in a form and manner prescribed by the department."
MDE promises more guidance regarding
their data collection activities in the coming weeks. The
December 22, 2010 letter from MDE is
available at this site:
http://www.michigan.gov/documents/mde/Educ_Eval_341211_7.pdf.
If you have
any questions about how PA 336 and the delay in implementing certain
aspects of the new evaluation systems required by Section 1249 affect
your district, please contact your Clark Hill attorney. Also, consider
attending Clark Hill's School Law and Finance Seminar, January 8,
2010. One of the seminar sessions will be devoted to the recent
reforms in educator evaluations and how they impact districts. For
more details regarding the seminar, contact Terry Demers at 248-988-1814.
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