SB 191 HR Systems

EDUCATOR EVALUATION PLANNING TOOL

HR System Components

S.B. 191 has implications for employment contracts in terms of mutual consent hiring, priority hiring pool requirements, unpaid leave, limited-term assignment and portability of nonprobationary status. This section includes relevant statute requirements. The Colorado Education Initiative has collected a series of questions commonly raised about implementing specific components of Senate Bill 191, specifically in regards to Mutual Consent, Acquisition and Loss of Nonprobationary Status and Portability.

 DISTRICTS ARE STRONGLY ENCOURAGED TO WORK CLOSELY WITH THEIR LEGAL COUNSEL IN ADDRESSING THESE PROVISIONS to develop strategies.

Mutual Consent
SB10-191 Requirements Available Resources District Examples
For the fair evaluation of a principal based on the demonstrated effectiveness of his or her teachers, the principal needs the ability to select teachers who have demonstrated effectiveness and have demonstrated qualifications and teaching experience that support the instructional practices of his or her school. Therefore, each employment contract is required to contain a provision stating that a teacher may be assigned to a particular school only with the consent of the hiring principal and with input from at least two teachers employed at the school and chosen by the faculty of teachers at the school to represent them in the hiring process, and after a review of the teacher’s demonstrated effectiveness and qualifications, which review demonstrates that the teacher’s qualifications and teaching experience support the instructional practices of his or her school.

CLF Building Strong Instructional Teams Through Mutual Consent StaffingCASB Special Policy Update

  • A July 2010 update explains changes to teacher employment laws with the passage of SB10-191, including contracts, placements and transfers, waivers, nonrenewals and reductions in force.

CLF Advice from Practitioners: A Guide to Implementing S.B. 10-191 Staffing Provisions

Coming Soon: Board policy language from Adams 12, East Grand, Greeley, Ft. Lupton.

Questions to Consider When Implementing Provisions of SB – 191

Below are questions commonly raised about implementing specific components of Senate Bill 191. This information is not intended as legal advice but instead is meant to encourage districts to discuss these issues with their own legal counsel and employee groups as districts move forward with implementation.

MUTUAL CONSENT AND SB-191 -SB-191 requires that each teacher employment contract contain a provision stating that a teacher may be assigned to a particular school only with the consent of the hiring principal and with input from a least two teachers employed at the school who were chosen by the faculty of teachers at the school to represent them in the hiring process. Teachers who fail to obtain a mutual consent placement within two months or two hiring cycles (whichever is longer) will be placed on unpaid leave.

(See The Colorado Education Initiative’s publication “Implementing Colorado Senate Bill 10-191: School District Guidance on Mutual Consent Hiring for Teachers.”)

Mutual consent applies to the transfer of existing teachers. It does not apply to new hires or reductions in force (RIFs).
A provision in the law makes it clear that mutual consent applies to displaced teachers. The extent to which it applies to teachers who are not displaced has been subject to interpretation. Some districts have interpreted the law narrowly to apply only to displaced teachers because they believe the selective use of administrative transfers remains a viable administrative tool. Others have interpreted the law more broadly to prohibit all transfers, including administrative transfers, without mutual consent.
A displaced teacher is a nonprobationary teacher who has lost his or her position due to a drop in enrollment; turnaround; phase-out; reduction in program; or reduction in building, including closure, consolidation or reconstitution. 
SB-191 provides that “any active nonprobationary teacher who was deemed effective during the prior school year and has not secured a mutual consent placement shall be a member of a priority hiring pool, which pool shall ensure the nonprobationary teacher a first opportunity to interview for a reasonable number of available positions for which he or she is qualified in the school district.”
Based on the language above, it appears that the right to participate in a priority hiring pool is only triggered when an effective nonprobationary teacher has failed to obtain a mutual consent position. Even though a displaced teacher is not entitled to participate in a priority hiring pool until after he or she has failed to obtain a mutual consent position, some districts have elected to create priority hiring for their displaced nonprobationary teachers.
The statute requires that active nonprobationary teachers with effective evaluations who do not secure new positions through school-based hiring (mutual consent) be placed in a priority hiring pool and given “a first opportunity to interview for available positions for which he or she is qualified in a school district.” No further requirements are given in the statute.
Districts are required to work with their local teachers association or a committee that is composed of teachers and district staff to develop policies concerning displaced nonprobationary teachers. At a minimum, SB191 requires that when a teacher receives notice of displacement, the district shall immediately provide the teacher with a list of all vacant positions for which he or she is qualified as well as a list of vacancies in any area identified by the district to be of critical need. A displaced teacher shall make his or her application for a vacancy to the school principal.

SB-191 also provides that when a principal recommends appointment of a nonprobationary teacher applicant to a vacant position, “the nonprobationary teacher shall be transferred to that position.” 

The mutual consent provision of SB-191 appears to imply that a building principal has the authority to make a final hiring decision relating to the transfer of a teacher. However, some believe that this is inconsistent with another Colorado statute and a line of cases that provide that school boards, not principals, have exclusive hiring power and that such power cannot otherwise be delegated.
The mutual consent provision of SB-191 appears to imply that a building principal has the authority to make a final hiring decision relating to the transfer of a teacher. However, some believe that this is inconsistent with another Colorado statute and a line of cases that provide that school boards, not principals, have exclusive hiring power and that such power cannot otherwise be delegated. 
The teachers provide input: the principal makes the decision.
This situation is particularly relevant in small school districts where there may be only one section of a grade and there is nowhere to place a teacher for a year. In this case it may be possible to treat the situation as a RIF and to follow the district’s RIF procedures instead. 
According to the relevant section of SB-191, “If a nonprobationary teacher is unable to secure a mutual consent assignment at a school of the school district after 12 months or two hiring cycles, whichever is longer, the school district shall place the teacher on unpaid leave until such time as the teacher is able to secure an assignment.”
The statute does not define “hiring cycle.” Some districts have identified two hiring cycles in a year; other districts have identified only one. This is a matter of local interpretation and HR practice.
According to the relevant section of SB191, “Nothing in this section shall limit the ability of a school district to place a teacher in a 12-month or other limited-term assignment, substitute assignment or instructional support role during the period in which the teacher is attempting to secure an assignment through school-based hiring.” The statute does not address the rate of pay the teacher would be entitled to under such circumstances.
The prevailing interpretation currently is that the TECDA hearing procedures do not apply when a teacher is placed on unpaid administrative leave after failing to obtain a mutual consent assignment. However, a lawsuit was filed in January 2014 asserting that placing a teacher on unpaid leave constitutes constructive discharge and that the discharge of a nonprobationary teacher without due process violates the law. A bill was also filed seeking to prevent placing a teacher on unpaid leave without due process if he or she obtained nonprobationary status before 2010.
The statute does not expressly limit the period of time or provide for any circumstance other than obtaining a mutual consent position in that district which would end the unpaid leave. This condition has raised as yet unresolved questions about what should happen if the teacher obtains teacher employment elsewhere. 
The relevant section of SB191 provides when “the teacher secures an assignment at a school of the school district while place on unpaid leave, the school district shall reinstate the teacher’s salary and benefits at the level they would have been if the teacher had not been placed on unpaid leave.” This language seems to imply that the person is not entitled to continue to receive benefits during the period of unpaid leave. The issue of whether the unpaid leave constitutes a COBRA-qualifying event should be addressed with legal counsel.
Some believe the language is ambiguous in this regard. Bringing someone back who has not worked for the district for several years at a rate of pay that gives credit for that absence raises some equity issues and may conflict with other district leave policies. This issue has not yet been clarified legislatively or through the courts. 

pdf_16x16  For the complete list of the SB- 191 Implementation Provision Questions, download the PDF.

Acquisition and Loss of Nonprobationary Status

Questions to Consider When Implementing Provisions of SB – 191

Below are questions commonly raised about implementing specific components of Senate Bill 191. This information is not intended as legal advice but instead is meant to encourage districts to discuss these issues with their own legal counsel and employee groups as districts move forward with implementation.

ACQUISITION AND LOSS OF NONPROBATIONARY STATUS - SB-191 changed the manner in which nonprobationary status is acquired and lost.

To acquire nonprobationary status, a probationary teacher must demonstrate three consecutive years of effectiveness.
No, an evaluation of partially effective is not an effective evaluation and will not count toward the acquisition of nonprobationary status.
The teacher remains a probationary employee and subject to nonrenewal.
No, a district can retain a probationary teacher as long as it desires.
That teacher will be deemed to be re-employed for the succeeding school year. However, his or her status as a probationary or nonprobationary teacher will be based on whether the teacher has three consecutive years of effective evaluations. A teacher no longer automatically acquires nonprobationary status as a result of being retained for a fourth consecutive year.
SB-191 deleted the part of the statute that required a remediation period be provided to a teacher receiving an unsatisfactory evaluation rating. A probationary teacher with a less-than-effective evaluation rating need not be given a period of remediation prior to nonrenewal.
SB-191 did not change that part of the law which says a probationary teacher can be nonrenewed for any reason deemed sufficient by the superintendent. However, if that effective evaluation is the third such evaluation in three consecutive years, that teacher has obtained nonprobationary status and cannot be nonrenewed.
There is no statutory or regulatory provision for a probationary teacher to appeal a less-than-effective evaluation. However local policies or negotiated agreements may address the issue.
A teacher loses nonprobationary status after two consecutive years of demonstrated ineffectiveness.
The statute and regulations provide that a nonprobationary teacher who objects to a second consecutive evaluation rating of partially effective or ineffective has a right to appeal that rating.

Local policies and or bargaining agreements may address the ability to appeal or grieve the first such evaluation.

Colorado regulations provide detailed requirements about the appeal process. [ADD LINK] Section 5.04 of the rule requires the following, at a minimum: (1) the teacher is permitted one appeal; (2) the appeal is to the superintendent; (3) the teacher must file the appeal within 15 days of receiving the evaluation rating at issue; (4) the appeal must be concluded no later than 45 days following the teacher’s receipt of that rating; and (5) the superintendent’s determination and rationale (which shall be in writing) constitute the final determination regarding the performance rating and loss or retention of nonprobationary status.
The grounds for the appeal are limited to the following: (1) the evaluator did not adhere to the requirements of statute and rule, and the failure had a material impact on the final performance rating; or (2) the data relied upon were inaccurately attributed to the teacher. The burden is on the teacher to demonstrate one or both of these grounds, and the grounds for the appeal must be provided in a written document at the time of the appeal.

Additional grounds for appeal may be provided by local policies or bargaining agreements.

Districts are permitted to develop an appeal process that is appropriate to the size and location of the school district. Each school district that adopts the State Model Evaluation System may choose either of the following two options: (1) to use the model appeal process that incorporates the use of a review panel; or (2) to develop its own distinctive process that adheres to the requirements of section 5.04 of the rules.
A teacher who loses nonprobationary status becomes a probationary teacher and is subject to nonrenewal.
The statute does not require the nonrenewal of a teacher who loses nonprobationary status.
Because a teacher must receive notice by June 1 that the board has acted to nonrenew his or her employment, there are challenges related to the timely completion of the process. For example, student growth data may not be available until the following fall. Also, it is unclear whether the appeal process must be completed before a board can act to nonrenew the teacher.

pdf_16x16  For the complete list of the SB- 191 Implementation Provision Questions, download the PDF.

Priority Hiring Pool
SB10-191 Requirements Available Resources Districts Examples
Any active nonprobationary teacher who was deemed effective during the prior school year and has not secured a mutual consent placement is required to be a member of a priority hiring pool, which priority hiring pool shall ensure the nonprobationary teacher a first opportunity to interview for a reasonable number of available positions for which he or she is qualified in the school district.When a determination is made that a nonprobationary teacher’s services are no longer required the nonprobationary teacher shall be notified of his or her removal from the school. School districts are required to work with their local teachers association to develop policies for the local school board to adopt. If no teacher association exists in the school district, the school district is required to create an eight-person committee consisting of four school district members and four teachers, which committee shall develop such policies.Upon notice to the nonprobationary teacher, the school district must immediately provide the nonprobationary teacher with a list of all vacant positions for which he or she is qualified, as well as a list of vacancies in any area identified by the school district to be an area of critical need. An application for a vacancy shall be made to the principal of a listed school, with a copy of the application provided by the nonprobationary teacher to the school district. When a principal recommends appointment of a nonprobationary teacher applicant to a vacant position, the nonprobationary teacher shall be transferred to that position.

 
Unpaid Leave
SB10-191 Requirements Available Resources Districts Examples
If a nonprobationary teacher is unable to secure a mutual consent assignment in a school of the school district after twelve months or two hiring cycles, whichever period is longer, the school district shall place the teacher on unpaid leave until such time as the teacher is able to secure an assignment. If the teacher secures an assignment at a school of the school district while placed on unpaid leave, the school district shall reinstate the teacher’s salary and benefits at the level they would have been if the teacher had not been placed on unpaid leave.

CEI Advice from Practitioners: A Guide to Implementing S.B. 10-191 Staffing Provisions  
Limited-Term Assignment
SB10-191 Requirements Available Resources Districts Examples
Nothing in this section shall limit the ability of a school district to place a teacher in a twelve-month assignment or other limited-term assignments, including, but not limited to, a teaching assignment, substitute assignment, or instructional support role during the period in which the teacher is attempting to secure an assignment through school-based hiring. Such an assignment shall not constitute an assignment through school-based hiring and shall not be deemed to interrupt the period in which the teacher is required to secure an assignment through school-based hiring before the district shall place the teacher on unpaid leave.

CEI Advice from Practitioners: A Guide to Implementing S.B. 10-191 Staffing Provisions  
Application of Mutual Consent
SB10-191 Requirements Available Resources Districts Examples
Mutual consent, priority hiring pool, limited-term assignment all apply to any teacher who is displaced as a result of drop in enrollment; turnaround; phase-out; reduction in program; or reduction in building, including closure, consolidation, or reconstitution.

CEI Advice from Practitioners: A Guide to Implementing S.B. 10-191 Staffing Provisions
CASB Special Policy Update: A March 2011 update explains the impact the bill has on reductions in force (RIF) and licensed personnel evaluations.
 
Portability
SB10-191 Requirements Available Resources Districts Examples
Beginning with the 2014-15 school year, a nonprobationary teacher, except for a nonprobationary teacher who has had two consecutive performance evaluations with an ineffective rating, who is employed by a school district and is subsequently hired by a different school district may provide to the hiring school district evidence of his or her student academic growth data and performance evaluations for the prior two years for the purposes of retaining nonprobationary status. If, upon providing such data, the nonprobationary teacher can show two consecutive performance evaluations with effectiveness ratings in good standing, he or she shall be granted nonprobationary status in the hiring school district.

   

Questions to Consider When Implementing Provisions of SB – 191

Below are questions commonly raised about implementing specific components of Senate Bill 191. This information is not intended as legal advice but instead is meant to encourage districts to discuss these issues with their own legal counsel and employee groups as districts move forward with implementation.

PORTABILITY - SB-191 defines “portability” as the ability of a teacher to take his or her nonprobationary status from one school district to another. Portability is based on the assumption that statewide evaluation standards will create evaluations that are consistent across the state and that the status attained from those evaluations should be recognized across districts.

According to the statute, portability on nonprobationary status begins with the 2014-2015 school year.

The statute also says that nonprobationary status is not recognized unless the teacher can provide two consecutive evaluations of effectiveness in good standing (and two years of student academic growth data).

Nonprobationary teachers won’t have two evaluations based on effectiveness until spring 2015.

The statute says portability applies to a teacher “who is employed by a school district and is subsequently hired by a different school district.” So the answer would appear to be no.
According to the statute, the teacher must provide “two consecutive performance evaluations with an effectiveness rating in good standing” and also “provide evidence of his or her student academic growth data and performance evaluations for the prior two years.”
Portability does not occur automatically. The statute says that a teacher “may” seek nonprobationary status and puts the burden on the teacher to request and to demonstrate eligibility for nonprobationary status. If he or she does not do so, then the status of the teacher in the new hiring district is probationary.
The statute does not address this point. Districts are encouraged to address this through policy language. Districts should make it clear through such policies that a teacher seeking recognition of nonprobationary status do so either during the hiring process or within a short, defined period of time after hire.
Because an applicant was nonprobationary in a prior district and may be eligible for portability does not guarantee that applicant a position. The applicant is still subject to standard HR pre-hire processes, including reference and background checks.
An attorney for the State of Colorado has issued an opinion that a school district cannot by policy or otherwise abrogate the eligibility for nonprobationary status by conditioning employment on an involuntary waiver of that status.

However, other legal experts have expressed concern that limiting the ability of a district to define the nature of its positions and the status of its employees repeals the constitutional and statutory nondelegable duties of local boards with respect to hiring.

Some educators believe that the assumption on which portability is based is flawed, that there are still challenges to obtain inter-rater reliability with respect to evaluations and that each district is implementing the 50 percent growth component of the evaluation differently.

In light of these concerns, some districts may be willing to take a strong position and not recognize portability, or, alternatively, list all positions open to outside applicants as probationary. Other districts may seek a middle ground and allow a nonprobationary teacher who brings the requisite proof of effective evaluations and student growth from his or her prior district to obtain nonprobationary status in the new district after one year if the teacher is effective in that first year.

pdf_16x16  For the complete list of the SB- 191 Implementation Provision Questions, download the PDF.

 The information in this toolkit was compiled from educators in the field, with the help of Mike Gradoz and Allen Taggart.

As Director of Initiatives, Mike Gradoz works closely with Districts and BOCES in supporting the implementation of the state’s system of evaluation and support for licensed personnel as outlined in Senate Bill 10-191. He provides support in the implementation of the Colorado Academic Standards and other initiatives at The Colorado Education Initiative.To contact Mike Gradoz, email him at mgradoz@coloradoedinitiative.org or at 720-491-8912.

Allen Taggart has been an education lawyer for more than 25 years. He is currently consulting with The Colorado Education Initiative on special projects and prior to his work with CEI, Taggart was a partner for more than 20 years at the education law firm of Caplan and Earnest. For the last four years, Taggart was the in-house General Counsel and Executive Director of Employee Relations for Jeffco Public Schools. Taggart retired from Jeffco Public schools in 2013.

Facebook Twitter LinkedIn Share on Google+
Back to Top