Home » 2014 Issues » October 01, 2014 » EDU-27-14-00015-E Termination Decisions for Probationary Teachers Based on Annual Professional Performance Reviews (APPR)
EDU-27-14-00015-E Termination Decisions for Probationary Teachers Based on Annual Professional Performance Reviews (APPR)
10/1/14 N.Y. St. Reg. EDU-27-14-00015-E
NEW YORK STATE REGISTER
VOLUME XXXVI, ISSUE 39
October 01, 2014
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
EMERGENCY RULE MAKING
I.D No. EDU-27-14-00015-E
Filing No. 818
Filing Date. Sept. 16, 2014
Effective Date. Sept. 22, 2014
Termination Decisions for Probationary Teachers Based on Annual Professional Performance Reviews (APPR)
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Specific reasons underlying the finding of necessity:
Because the Board of Regents meets at scheduled intervals, the earliest the proposed amendment could be presented for regular (non-emergency) adoption, after publication in the State Register and expiration of the 45-day public comment period provided for in State Administrative Procedure Act (SAPA) section 202(1) and (5) for revised rule makings, is the September 2014 Regents meeting. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed amendment, if adopted at the September 2014 meeting, would be October 1, 2014, the date a Notice of Adoption would be published in the State Register. Therefore, emergency action to adopt the proposed rule is necessary now for the preservation of the general welfare in order to ensure that school districts and boards of cooperative educational services are notified of the clarifying definition of performance for termination decisions made based on APPR results for the 2013-2014 school year and thereafter and to ensure that the emergency rule adopted at the June Regents meeting remains continuously in effect until it can be adopted as a permanent rule.
Subject:
Termination Decisions for Probationary Teachers Based on Annual Professional Performance Reviews (APPR).
Purpose:
To define performance for purposes of termination decisions for probationary teachers related to APPRs.
Text of emergency rule:
1. Subdivision (d) of section 30-2.1 of the Rules of the Board of Regents is amended effective September 22, 2014, to read as follows:
(d) Annual professional performance reviews of classroom teachers and building principals conducted pursuant to this Subpart shall be a significant factor for employment decisions, including but not limited to, promotion, retention, tenure determinations, termination and supplemental compensation, in accordance with Education Law section 3012-c(1). Nothing herein shall be construed to affect the statutory right of a school district or BOCES to terminate a probationary teacher or principal for statutorily and constitutionally permissible reasons other than the performance of the teacher or principal in the classroom or school, including but not limited to misconduct. For purposes of this subdivision, section 30-2.11(c) of this Subpart, and Education Law section 3012-c(1) and (5)(b), performance shall mean a teacher’s or principal’s overall composite rating pursuant to an annual professional performance review conducted under this Subpart.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-27-14-00015-EP, Issue of July 9, 2014. The emergency rule will expire November 14, 2014.
Text of rule and any required statements and analyses may be obtained from:
Kirti Goswami, State Education Department, Office of Counsel, State Education Building Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@mail.nysed.gov
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law section 101 charges the Department with the general management and supervision of the educational work of the State and establishes the Regents as head of the Department.
Education Law section 207 grants general rule-making authority to the Regents to carry into effect State educational laws and policies.
Education Law section 215 authorizes the Commissioner to require reports from schools under State educational supervision.
Education Law section 305(1) authorizes the Commissioner to enforce laws relating to the State educational system and execute Regents educational policies. Section 305(2) provides the Commissioner with general supervision over schools and authority to advise and guide school district officers in their duties and the general management of their schools.
Education Law section 3012-c, as added by Chapter 103 of the Laws of 2010 and amended by Chapter 21 of the Laws of 2012, establishes requirements for the conduct of annual professional performance reviews (APPR) of classroom teachers and building principals employed by school districts and boards of cooperative educational services (BOCES).
2. LEGISLATIVE OBJECTIVES:
The proposed rule is consistent with the above authority vested in the Regents and Commissioner to carry into effect State educational laws and policies, and is necessary to clarify what constitutes “performance” for purposes of termination decisions related to the APPR.
3. NEEDS AND BENEFITS:
The purpose of the proposed rule is to clarify that the references to “performance” of the teacher or principal in the classroom or school for purposes of Education Law § 3012-c(1) and (5)(b) and section 30-2.1(d) and 30-2.11(c) of the Rules of the Board of Regents are references to the teacher’s or principal’s performance on the APPR, as measured by the teacher’s or principal’s overall composite rating. Accordingly, where a board of education has not yet completed an APPR for a probationary teacher or principal, it may terminate the probationary teacher for any statutorily and constitutionally permissible reasons. Those reasons may include the quality of the instruction or services provided by the probationary teacher or principal based on evidence other than the composite APPR rating. Once it has completed an annual professional performance review, the board of education must consider the APPR rating as a significant factor to retain or terminate the employee, unless the employee is being terminated for statutorily and constitutionally permissible reasons other than the teacher’s or principal’s composite APPR rating, such as misconduct, insubordination, time and attendance issues and the like.
4. COSTS:
(a) Costs to State government: none.
(b) Costs to local government: none.
(c) Costs to private regulated parties: none.
(d) Costs to regulating agency for implementation and continued administration of this rule: none.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment does not impose any additional program, service, duty or responsibility upon any county, city, town, village, school district, fire district or other special district.
6. PAPERWORK:
The proposed amendment does not impose any paperwork requirements on regulated parties.
7. DUPLICATION:
The rule does not duplicate existing State or Federal requirements.
8. ALTERNATIVES:
The rule has been carefully drafted to address the concerns raised by the public to clarify what constitutes performance for purposes of termination decisions relating to the APPR. Since Education Law § 3012-c applies equally to all school districts and BOCES throughout the State, it was not possible to establish different compliance and reporting requirements for regulated parties.
9. FEDERAL STANDARDS:
There are no applicable Federal standards concerning the APPR for classroom teachers and building principals as established in Education Law section 3012-c.
10. COMPLIANCE SCHEDULE:
The proposed amendment will become effective on its stated effective date. No further time is needed to comply.
Regulatory Flexibility Analysis
(a) Small businesses:
The purpose of the proposed rule is to clarify that the references to “performance” of the teacher or principal in the classroom or school for purposes of Education Law § 3012-c(1) and (5)(b) and section 30-2.1(d) and 30-2.11(c) of the Rules of the Board of Regents are references to the teacher’s or principal’s performance on the APPR, as measured by the teacher’s or principal’s overall composite rating. Accordingly, where a board of education has not yet completed an APPR for a probationary teacher or principal, it may terminate the probationary teacher for any statutorily and constitutionally permissible reasons. Those reasons may include the quality of the instruction or services provided by the probationary teacher or principal based on evidence other than the composite APPR rating. Once it has completed an annual professional performance review, the board of education must consider the APPR rating as a significant factor to retain or terminate the employee, unless the employee is being terminated for statutorily and constitutionally permissible reasons other than the teacher’s or principal’s composite APPR rating, such as misconduct, insubordination, time and attendance issues and the like.
The proposed rule does not impose any reporting, recordkeeping or other compliance requirements, and will not have an adverse economic impact, on small business. Because it is evident from the nature of the amendment that it does not affect small businesses, no further steps were needed to ascertain that fact and one were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
(b) Local governments:
1. EFFECT OF RULE:
The rule applies to all school districts and boards of cooperative educational services (“BOCES”) in the State.
2. COMPLIANCE REQUIREMENTS:
The purpose of the proposed rule is to clarify that the references to “performance” of the teacher or principal in the classroom or school for purposes of Education Law § 3012-c(1) and (5)(b) and section 30-2.1(d) and 30-2.11(c) of the Rules of the Board of Regents are references to the teacher’s or principal’s performance on the APPR, as measured by the teacher’s or principal’s overall composite rating. Accordingly, where a board of education has not yet completed an APPR for a probationary teacher or principal, it may terminate the probationary teacher for any statutorily and constitutionally permissible reasons. Those reasons may include the quality of the instruction or services provided by the probationary teacher or principal based on evidence other than the composite APPR rating. Once it has completed an annual professional performance review, the board of education must consider the APPR rating as a significant factor to retain or terminate the employee, unless the employee is being terminated for statutorily and constitutionally permissible reasons other than the teacher’s or principal’s composite APPR rating, such as misconduct, insubordination, time and attendance issues and the like.
3. PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional professional services requirements on school districts or BOCES.
4. COMPLIANCE COSTS:
The proposed amendment does not impose any compliance costs on school districts and BOCES, beyond those imposed by Education Law § 3012-c.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The rule does not impose any additional technological requirements on school districts or BOCES. Economic feasibility is addressed above under Compliance Costs.
6. MINIMIZING ADVERSE IMPACT:
The rule has been carefully drafted to address the concerns raised by the public to clarify what constitutes performance for purposes of the APPR and termination decisions. Since Education Law § 3012-c applies equally to all school districts and BOCES throughout the State, it was not possible to establish different compliance and reporting requirements.
7. LOCAL GOVERNMENT PARTICIPATION:
Copies of the proposed amendment have been provided to District Superintendents with the request that they distribute them to school districts within their supervisory districts for review and comment. Copies were also provided for review and comment to the chief school officers of the five big city school districts.
During the public comment period, the Department will also be seeking comments on the proposed amendment from representatives of teachers, principals, superintendents of schools, school boards, school districts and board of cooperative educational services officials, and other interested parties.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed amendment applies to all school districts and boards of cooperative educational services (BOCES) in the State, including those located in the 44 rural counties with fewer than 200,000 inhabitants and the 71 towns and urban counties with a population density of 150 square miles or less.
2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The purpose of the proposed rule is to clarify that the references to “performance” of the teacher or principal in the classroom or school for purposes of Education Law § 3012-c(1) and (5)(b) and section 30-2.1(d) and section 30-2.11(c) of the Rules of the Board of Regents are references to the teacher’s or principal’s performance on the APPR, as measured by the teacher’s or principal’s overall composite rating. Accordingly, where a board of education has not yet completed an APPR for a probationary teacher or principal, it may terminate the probationary teacher for any statutorily and constitutionally permissible reasons. Those reasons may include the quality of the instruction or services provided by the probationary teacher or principal based on evidence other than the composite APPR rating. Once it has completed an annual professional performance review, the board of education must consider the APPR rating as a significant factor to retain or terminate the employee, unless the employee is being terminated for statutorily and constitutionally permissible reasons other than the teacher’s or principal’s composite APPR rating, such as misconduct, insubordination, time and attendance issues and the like.
3. COSTS:
The proposed amendment does not impose any additional costs on a school district or BOCES.
4. MINIMIZING ADVERSE IMPACT:
The rule has been carefully drafted to address the concerns received by the public relating to what constitutes performance for APPR purposes and termination decisions. Since Education Law § 3012-c applies to all school districts and BOCES throughout the State, it was not possible to establish different compliance and reporting requirements for regulated parties in rural areas.
5. RURAL AREA PARTICIPATION:
Comments on the proposed amendment were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas.
Job Impact Statement
The purpose of the proposed rule is to clarify that the references to “performance” of the teacher or principal in the classroom or school for purposes of Education Law § 3012-c(1) and(5)(b) section 30-2.1(d) and 30-2.11(c) of the Rules of the Board of Regents are references to the teacher’s or principal’s performance on the APPR, as measured by the teacher’s or principal’s overall composite rating. Accordingly, where a board of education has not yet completed an APPR for a probationary teacher or principal, it may terminate the probationary teacher for any statutorily and constitutionally permissible reasons. Those reasons may include the quality of the instruction or services provided by the probationary teacher or principal based on evidence other than the composite APPR rating. Once it has completed an annual professional performance review, the board of education must consider the APPR rating as a significant factor to retain or terminate the employee, unless the employee is being terminated for statutorily and constitutionally permissible reasons other than the teacher’s or principal’s composite APPR rating, such as misconduct, insubordination, time and attendance issues and the like.
The proposed rule will have no impact on the number of jobs or employment opportunities in New York State, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
Assessment of Public Comment
The agency received no public comment since publication of the last assessment of public comment.
