FEBRUARY 2020
TEXAS ASSOCIATION OF SCHOOL PERSONNEL ADMINISTRATORS
TASPAHR Connection Your HR Quarterly Newsletter
Conducting Investigations of Alleged Misconduct 10 Suggestions to Help Protect Your Students, Employees, District, and Yourself
Table of Contents TASPA Staff, Executive Board & Committees
04
President’s Message
06
TASPA President Rick Rodriguez
Calendar of Events
07
2020 TASPA Events
Conducting Investigations of Alleged Misconduct
08
10 Suggestions to help protect your students, employees, district and yourself
Get to Know Your TASPA Board
12
Featuring Board Members Kimberly Rich, Ben Muir, & Al Rodriguez
Are You OK?
14
Understanding the districts rights and responsibilities regarding employee fitness for duty and reasonable accommodations
Ethical Decision Making in Texas Schools
16
Framework for ethical decision making helped a Texas school district change its thinking about professional ethics
Ending the Employee Relationship
18
The options for ending or changing the employment relationship
2019 in Review A look back at 2019 accomplishments
20
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Staff & Executive Board TASPA STAFF Dr. Lolly Guerra, Executive Director Chandelle Crane, Marketing & Communications Manager
TASPA EXECUTIVE BOARD Rick Rodriguez, President, Lubbock ISD Martha Carrasco, President-Elect, Canutillo ISD Max Flores, First Vice President, La Vernia ISD Al Rodriguez, Second Vice President, Elgin ISD Kimberly Rich, Secretary, Dickinson ISD Johjania Najera, Immediate Past President, Keller ISD
TASPA DISTRICT REPRESENTATIVES Ben Muir, District I, Northside ISD Dr. Tyrone Sylvester, District II, Goose Creek CISD Dr. Tamey Williams-Hill, District III, Del Valle ISD Bernadette Gerace, District IV, Prosper ISD Christie Volmer, District V, Hereford ISD Craig Lahrman, District VI, Ysleta ISD
TASPA Committees TASPA LEGISLATIVE COMMITTEE Sharon Fuery, District I, Southside ISD Dr. Casey O’Pry, District II, Clear Creek ISD Joe Palmer, District III, Temple ISD Philo Waters, District IV, Eagle Mountain-Saginaw ISD Phil Guerra, District V, Dumas ISD Bobbie Russell Garza, District VI, Ysleta ISD
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TASPA Committees TASPA NOMINATIONS COMMITTEE Melissa Aguero-Ramirez, District I, Region One ESC Barbara Ponder, District II, Barbers Hill ISD Michele Gilmore, District III, Burnet CISD Dr. Loraine Marazzano, District IV, Grand Prairie ISD Paul Kimbrough, District V, Canyon ISD Staci Ashley, District VI, Ector County ISD
TASPA SCHOLARSHIP COMMITTEE Charity Salinas, District I, Southside ISD Kelly Gabrisch, District II, Humble ISD Krista Marx, District III, Elgin ISD Emilio Duran, District IV, Mesquite ISD Paige TeBeest, District V, Amarillo ISD Cindy Donnelly, District VI, El Paso ISD
TASPA CONFERENCE COMMITTEE **Includes President, President-Elect & District Representatives Melissa Aguero-Ramirez, District I, Region One ESC Leah Tunnell, District II, Friendswood ISD Koren LeClair, District III, Eanes ISD Sandy Garza, District IV, Keller ISD Tori Adams (Para Rep), District IV, Keller ISD Chris Tatum District V, Amarillo ISD Rosa Ramos, District VI, El Paso ISD
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President’s Message our path of sharpening our craft of knowledge in human resources. We have a strong organization with a lot of heart and I would like to begin by challenging us to commit to meeting at least five new colleagues over the next 12 months. To those of us who have been members of TASPA for years, I challenge you to be the person who makes our new members feel welcomed and valued. We are in an exciting time as an organization. Under Dr. Guerra’s leadership, TASPA continues to be a force to be reckoned with and one which is asked for input by our legislators and TEA. Do not get me wrong, we do not always wait to be asked for feedback, we will continue to provide it whether they ask or not!
G
reetings TASPA members! I hope your holidays were filled with opportunities to create great memories with family and with rest and relaxation. I am excited to serve as your TASPA President for the 2020 school year! I would like to thank Johjania Najera, Keller ISD, for her leadership and guidance over the past year and to thank Dr. Sundie Dahlkamp for her patience and support. I know they both have been key to the success and influence of our great organization. I have full confidence they will continue to give their support to TASPA. After serving on the executive board for several years, I can see how much time and energy goes into the success of our conferences and events. I have learned two important traits during my service. First, I am going to have to be on time to the meetings and second, be smart enough to know when to get out of the way of our outstanding staff so as not to impede progress! I am honored to follow in the footsteps of the leaders who have provided guidance for our organization in the past; each of our past presidents brought their unique vision and a variety of strengths. I suppose I am no different in my hope to bring new ideas for ways to continue improving our organization. I know it seems impossible to improve TASPA from our current status, but I hope you will support me as you have supported those presidents who have come before me. I hope when you look back on 2020 you remember a year full of laughter, fellowship, and making better friendships within our organization while continuing along
I would like to leave you with the words I heard at a conference: “There is never a right time to do the wrong thing and never a wrong time to do the right thing.” These are wise words to remember as we wade into our termination/nonrenewal season as well as our next-year hiring season.
“There is never a right time to do the wrong thing and never a wrong time to do the right thing.” I hope most of you who already know me know I like to have fun. This year, Sam Glenn spoke at our Fall TASPA Support Conference. He said, “You’ll never look back on your life and wished you had laughed less.” So as you return to your thousand emails, phone messages and incident reports, let us not get so buried in those things we deal with which are unpleasant and make time to laugh with each other. Thank you for all you do and I look forward to serving and laughing with you over the year as your friend, colleague, and your president. Best wishes!
Rick
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Calendar of Events For more information, please visit our webiste at taspa.org or call 512-494-9353.
DATE
EVENT
LOCATION
March 4, 2020
Certification Fundamentals
Marble Falls ISD
March 25, 2020
Certification Fundamentals
Goose Creek CISD
April 1, 2020
Personnel Skills for Supervisors of Non-Exempt Staff
Boerne ISD
April 22, 2020
Certification Fundamentals
Georgetown ISD
April 29, 2020
Personnel Skills for Supervisors of Non-Exempt Staff
Goose Creek ISD
May 7, 2020
Certification Fundamentals
San Elizario ISD
May 13, 2020
Personnel Skills for Supervisors of Non-Exempt Staff
Red Oak ISD
June 9, 2020
Documentation Workshop
Red Oak ISD
June 10, 2020
TASPA Documentation Basics
El Paso ISD
June 17, 2020
Personnel Skills for Supervisors of Non-Exempt Staff
Georgetown ISD
July 15, 2020
Summer Law Conference
Austin Rennaisance Hotel
July 15-17, 2020
TASPA Summer Conference
Austin Rennaisance Hotel
July 22, 2020
Documentation Workshop
Irving ISD
August 19, 2020
Documentation Workshop
Irving ISD
October 5-6, 2020
Fall Support Staff Conference
Embassy Suites, San Marcos
October 20, 2020
Certification Fundamentals
Red Oak ISD
December 9, 2020
ED-311 Personnel Law Conference
Austin Rennaisance Hotel
December 9-11, 2020
TASPA Winter Conference
Austin Rennaisance Hotel
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Conducting Investigations of Alleged Misconduct
10 Suggestions to Help Protect Your Students, Employees, District, and Yourself
Abraham F. Barker, Shareholder
More frequently, it seems school district administrators are being asked to conduct investigations into alleged misconduct that was previously the responsibility of law enforcement and protective services. As this trend develops, administrators are faced with high expectations to quickly reach correct conclusions but are not always provided with sufficient information, tools, and support to do so. The below suggestions are intended to help the investigator and the district reach their goal of determining the truth behind the claims, but they are not a substitute for specific legal advice. All investigations are different, and it is recommended that administrators contact their legal counsel with questions
concerning the particulars of the issue they are facing. 1. The Formula for a Successful Investigation is in Place Long Before a Complaint is First Made If you wait to determine how to initiate and conduct an investigation until the complaint is made, you will likely feel behind, rushed, and uncertain of the steps to take. This could lead to missing key evidence or witnesses, and result in conclusions that may be difficult to defend. Its important to realize that investigations can be carried out pursuant to several different district policies, including: DIA (Employee Welfare/Harassment and
Discrimination); FFH (Student Welfare/ Harassment and Discrimination); DGBA (Personnel/Employee Complaints and Grievances); FNG (Student Rights and Responsibilities); and FFI (Freedom from Bullying). For each of the different types of investigations, there should be a plan in place concerning who will be responsible for overseeing the investigation and who the investigator(s) will be. It is also a good idea to decide for which types of claims, such as those brought against administrators or board members, you want outside legal counsel to conduct the investigation. Counsel can often help provide a stronger sense of impartiality and help insulate the district from liability and disclosure of specific information discovered during the investigation.
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3. Who may (or must) conduct the investigation; 4. Definitions of prohibited conduct; 5. Hearing and appeal processes; and 6. Reporting or notice requirements. It is also critical that administrators, whether they are running the investigation, conducting the investigation, or acting in supporting roles, understand these policies and the need to follow them or document why they were not or could not be followed precisely. 3. Get as Much Initial Information from the Complainant as Possible
For the purposes of this article, we will assume a Title IX claim alleging an improper teacher-student relationship has been filed, as these claims generally are the most comprehensive encountered by districts and, unfortunately, appear to be on the rise. Successful investigation of these claims starts with designating a Title IX Coordinator (who will oversee the investigation and assign investigators) and publicizing the identity of that individual (or individuals, depending on the size of your district) so that internal responsibilities are clearly defined, and a claimant or interested party will know where to start. 2. Make Sure Board Policies are Complete and Understood A district’s Board Policies should dictate’ the following: 1. Whether complaints should or must be in writing; 2. Timelines for investigations;
Often, the investigation will commence with the Complainant making an allegation of misconduct. In these instances, it is important to get as much information as you can from the Complainant during that initial meeting. Ask that the Complainant put their allegations in writing. If the Complainant declines or cannot write down the allegations, ask them to acknowledge and initial the investigator’s notes of the interview. Get the Complainant to open up by taking the complaint seriously, being sensitive to what may be difficult allegations to relate, and stating that the investigation will be conducted fairly and objectively. Before letting the Complainant leave, make sure that all of the conduct has been described, that the time, date, and location of the conduct has been provided, and that the Complainant has advised as to potential witnesses and evidence, such as texts and photographic images. 4. Do Not Promise Confidentiality During the process of interviews, do not promise that information will be kept strictly confidential. Instead, explain that information will be kept as private as possible, but that the nature of investigating allegations of misconduct requires that some information be shared in order to reach a valid conclusion as to what occurred. It is prudent to tell the witnesses that they should keep the substance of their interviews confidential until completion of the investigation in order to preserve the integrity of the process.
5. For All Interviews, Consider the Following Regardless of the party being questioned (Complainant, Accused, Third-Party Witness), consider taking the following steps during interviews: 1. Thank them for their participation and cooperation; 2. Discuss confidentiality and their sharing of information with others; 3. Address the nature of the investigation, including that the matter is serious, the district has an obligation to investigate, and there will be no conclusions drawn until all the facts are gathered and analyzed; 4. Explain the purpose of the interview is to obtain an accurate understanding of what happened, and to identify all evidence and witnesses who may help reach that understanding; 5. Ask open-ended questions to allow elaboration; 6. Advise that attempts to retaliate against any party to the investigation or providing false information will not be tolerated and engaging in such behavior may result in discipline up to and including termination; 7. Pay attention to speech patterns, body language, and non-verbal cues to help determine truthfulness; and 8. Take notes or record (if taking notes by hand, remember they can be subject to disclosure—so be careful to not overshare personal opinions in the notes). 6. Questions for the Complainant When interviewing the Complainant, consider asking the questions or types of questions below. 1. What happened? Get specifics. Discuss confidentiality and their sharing of information with others; 2. When and where did this take place, and how long did it last? 3. How often did it happen and is it still going on? 4. Where did this occur? 5. Did anyone else see this happen? 6. How did you respond? 7. What, if anything, did the accused say? 8. What is your relationship to the accused? 9. Have you reported this or told anyone about this previously? If so, who? How often did it happen and is it still going on?
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1. Do you know anyone else that may have information about this incident? 2. Have you sought medical treatment or counseling?What is your relationship to the accused? 3. Are there any related notes or physical evidence? Is it still going on? 4. How do you want this situation resolved? have information about this incident? Where did this occur? 7. Questions for the Complainant 8. Often, the Accused is interviewed last and can be the most sensitive of the interviews conducted. Resist the temptation to form an opinion before this crucial interview. Pay attention to credibility clues and consider whether there has been any similar allegations or discipline. Resist bias based on personal dislike, unrelated job performance or issues outside of work, tendency to either believe or not believe an accuser, males versus females, or the perceived veracity of younger versus older individuals. Similar to questions for the Complainant, there are specific questions you may wish to ask the Accused as well. 1. What happened? 2. If the Accused denies allegations: why would someone make this up; where were you when the alleged incident occurred; do you have anyone to corroborate your whereabouts? 3. What is your connection to the Complainant? 4. Tell me everything that was said during the incident. 5. Are there notes, documents, texts, or emails that support your account of what happened? 6. Who else would know about this incident? 7. Have you personally spoken with anyone else about this incident (who, when, and what was said)?What is your relationship to the accused? 8. If there was physical conduct, can you demonstrate what happened? 8. Follow all Leads Each witness interviewed should be asked if they know of anyone who might be a witness or have knowledge of the incident, and everyone named should be interviewed as well. Follow all of the rabbit trails to conclusion where you can. Effort must be made to speak with everyone that the Complainant or Accused lists as a potential witness, especially if it is alleged they were present or have some other type of first-hand knowledge—such as seeing texts or emails. Keep records of your attempts to contact these individuals, and if they refuse to meet or participate, make sure that is reflected as well. 9. A Complete Report Must be Made At the conclusion of the investigation, a complete report must be made. The report should contain the following:
1. 2. 3. 4.
The initial complaint or notes of the complaint; All notes from all interviews; All witness statements; All physical evidence (emails, documents, texts, medical reports); 5. The investigator’s thorough discussion and analysis of all the evidence and information collected; 6. The investigator’s conclusions based on that discussion and analysis; and 7. Recommendations of the investigator. 10. Only Share What You Must and Take Action if Needed 11. The Complainant is entitled to results of the investigation but not necessarily the entire report or investigative file. The Complainant should be provided with a written summary of the findings and the conclusions of the investigation. If it is determined that the allegations of misconduct are true, appropriate disciplinary action should be taken, and any required reports to SBEC and other agencies should be made. The Complainant generally is not entitled to know what, if any, specific actions were taken. Investigations into misconduct are all different, and each presents unique challenges for the district and administrators. Complete discussions involving the comprehensive steps to take during investigations, including how to engage and work with law enforcement, how to handle sensitive evidence, how to interact with student witnesses and parents, and how to ferret out “consensual” teacher-student relationships with reluctant witnesses can be addressed in training sessions specifically designed to a district’s interests or needs. If interested in such a program, districts are encouraged to speak with their legal counsel of choice. Any questions concerning these materials can be addressed to abarker@edlaw.com.
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Get To Know Your TASPA Board KIMBERLY RICH TASPA SECRETARY
Kimbery Rich is the 2020 TASPA Secretary. She has been the Human Resources Executive Director of Dickinson ISD for the past 5 years. During her twenty four years in public education, she has served as a junior high special education teacher, a high school english teacher, a middle school instructional technology specialist, an intermediate special education teacher/ARD facilitator, CTE Director, assessment and accountability director, alternative school administrator, grant manager (federal, state, and competitive), and executive director of human resources. “As I reflect on my experiences, I have always been dedicated to providing the best for my students. As my career takes me further from direct contact with students, I have never lost sight of putting student needs first. I aspire to establish a school culture and education program conducive to student learning and socialization. I seek to promote staff professional growth and development, as well as teamwork and cooperation. I utilize campus, district, parent and community resources and relationships to ensure students remain academically focused, disciplined and receive appropriate attention to meet their needs.” Kim’s thoughts on the biggest challenges facing HR Administers: 1. Recruitment and retention of qualified teachers (teacher shortage/burnout; certification requirements, etc.) 2. Social Media/Media and Ethical Behavior/Conduct – employees post everything and think no one will know 3. Generational Issues (work/life balance, retirement thought, TRS/insurance) Her advice for those new to HR: “Form RELATIONSHIPS! Relationships are at the core of everything HR. Relationships with Board Members, peers (in district and HR peers in other districts), teachers, principals, community and civic organizations. The list goes on and on – TASPA, TASA, GCASPA, BABES, etc. You must care about all employees/people. You must be willing to make personal sacrifices and do whatever it takes to do the job comprehensively and meet the needs of multiple people all while being passionate!”
BEN MUIR TASPA DISTRICT I REPRESENTATIVE
We welcome Ben Muir as the District I Represetnative. He is the Director of Elementary Human Resources at Northside ISD. Mr. Muir was born and raised in Iowa and did his student teaching in San Antonio and never left. He received his B.A. from the University of Northern Iowa and his M.A. from the University of Texas @ San Antonio. He is currently in his 25th year in education. He has been a teacher, assistant principal and an elementary principal before moving into his current position at HR in Northside ISD. On a personal note, he has two children. His son is currently a junior at The University of Iowa... Go Hawks! His daughter is a junior in high school. “I think the biggest challenges today that HR Administrators face is the various roles that we play on a day to day basis. The job is constantly changing and the better you are at adapting, the better you will be in your work.” “My advice to those who are new to HR is to locate others in neighboring districts to collaborate with. There are so many great, knowledgeable people out there willing to share, sometimes you just need to find them.”
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AL RODRIGUEZ TASPA SECOND VICE-PRESIDENT
Al Rodriguez serves as the TASPA Second Vice-President. He is the Assistant Superintendent of Human Capital & Public Information in Elgin ISD. Mr.. Rodriguez is a Professional Human Capital Leader in Education (pHCLE) and Registered Texas School Business Administrator (RTSBA) who currently serves the Elgin Independent School District as the Assistant Superintendent of Human Capital & Public Information. His career in Public Education spans 20 years, includes all grade levels K-12, District Administration, Campus leadership, and Classroom experience. He has previously served as an Executive Director, Director, Principal, Assistant Principal, Teacher and Substitute Teacher. Mr. Rodriguez also served with the Texas Education Agency as a Grant Reviewer and committee member for various initiatives as well as a Texas School Improvement Initiative Participant helping to audit Texas school districts. Additionally, he worked with the the Stupski Foundation’s Knowledge and Assessment Team assessing systems and processes in large urban districts nationwide while a member of The University of Texas at Austin’s Cooperative Superintendency / Educational Administration Program. Mr. Rodriguez is a native Texan. He graduated from A.N. McCallum High School in Austin before attending Texas Tech University where he received his Bachelor of Science degree in Biology and enrolled in the Post-Baccalaureate program to become a certified Teacher. While teaching he attended Southwest Texas State University (now Texas State) where he received his Master of Education degree in Educational Administration. Later, he attended the University of Texas at Austin to work on his Doctorate. He is an active member both of the Texas Association of School Personnel Administrators (TASPA) and the Texas Association of School Business Officials (TASBO). He is married to Jenny, a 1st Grade Bilingual Teacher, and together they have two active boys, Alfred and Joaquin. Al’s thoughts on the Biggest Challenges facing school HR Administrators today: “The recruiting landscape is changing not only because the pipeline into education is narrowing but also because the education system as a whole is changing. Privatization of educational services will require public school systems to recruit different venues. Technological advances will require different professional skill sets for future educators. Think about it, no longer can Universities assume their students will be seeking a traditional education. They find themselves forced to open up alternative programs, online programs and I believe will soon be forced to open up many more micro credentialing programs. Today you can get an entire education online for free without ever leaving your living room. This will change our schools, personnel and systems drastically. We will need to be both flexible and open minded to this change. The utilization of technology to reach a wider audience will be mandatory. The capability to educate remotely will be necessary. The ability to “socialize” our employees to acceptable, and new norms of professional / ethical conduct and practice will be vital. I don’t foresee a future with kids in rows of desks intently paying attention to the teacher. It’s not even like that now in most high functioning classrooms. We need to recruit for the change.” Al’s advice for those that are new to HR: “Get a mentor. Get two or three. Don’t be afraid to ask questions and know that you don’t have to reinvent the wheel. TASPA is a great place to seek advice and ask questions of your colleagues. Chances are if the person you ask hasn’t done it, they know someone who has.”
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Are You Okay?
Understanding the Districts Rights and Responsibilities Regarding Employee Fitness for Duty and Reasonable Accommodations
Shellie Hoffman Crow, Associate Attorney
S
chool district employees play a crucial role in facilitating the education and development of students, so it is important to ensure their fitness for the job, while making reasonable attempts to make accommodations for eligible employees. Guidance on employees with disabilities comes from federal law and court decisions, as well as the Equal Employment Commission (EEOC) and the Department of Labor. The Americans with Disabilities Act (ADA) applies protections to a “qualified individual” with a “disability.” Under the ADA, a “qualified individual” is one who, with or without reasonable accommodation, can perform the essential functions of the position that the individual holds or seeks employment in, and meets the legitimate skill, experience, education, or other requirements of the position they hold or seek. The Act defines an individual as having a disability when the person has a physical or mental impairment that substantially limits one or more major life activities, or a record of such an impairment, or is regarded as having such an impairment. According to the ADA, the question of whether an individual’s impairment is a
disability should not demand extensive analysis, and the definition of disability should be construed broadly. Major life activities are those activities that are important to most people’s daily lives including, but not limited to caring for oneself, performing manual tasks, walking, breathing, working, hearing , seeing, speaking, eating, reading, concentrating, sleeping, thinking, communicating, standing, lifting, and bending. An impairment that constitutes a disability may be any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the body systems (e.g. neurological, reproductive, digestive, skin) or any mental or psychological disorder. A mental impairment is defined under the ADA as any mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Common examples include major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and posttraumatic stress disorder), schizophrenia, and personality disorders. Additionally, an impairment that is “episodic” or “in remission” qualifies as a disability if it would substantially limit the major life activity when active.
An employee may also have a disability under the ADA if they have a record of an impairment (i.e., such as being in recovery from a physical or mental illness) or are regarded as having an impairment. Impairment can also be substantially limiting because of medication taken or due to mitigating measures used for the impairment. Examples of medication or mitigating measures include the use of a prosthesis, high medication levels impacting memory and motor function, as well secondary effects of a particular medication. With the exception of glasses and contacts, the employer should assesses the level of “substantial limitation”, while disregarding the positive effects of mitigating measure. For example, rather than focusing on how the employee can hear with a hearing aid, the employer should ask how the employee would hear without a hearing aid. Once it is determined that an employee has a disability, the employee may require certain accommodations in order to effectively perform the essential functions of his or her job. Determining the necessary and appropriate accommodations must be accomplished through an interactive process. The federal regulations provide that the interactive process is meant to identify the employee’s functional limitations and the potential reasonable accommodation or accommodations that may be needed (29 CFR 1630.2(o) and 1630.9). The three areas where reasonable accommodations may be implemented are: 1. Changes to the job application process; 2. Modifications to the work environment – including how the job is performed – so that a qualified individual with a disability can perform the essential functions of the position; and 3. Changes so that the employee with a disability can enjoy equal benefits and privileges of employment.
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The interactive process involves a series of steps requiring action from both the employer and the employee. Typically, the employee must first request an accommodation. However, if the employer is aware that the employee has a disability and therefore the need for an accommodation, the employee does not have to make a request for the accommodation. Normally, the employee needing an accommodation because of a disability has the responsibility of informing his or her employer, but it is important to understand that the employee does not need to use any specific, legal language for it to constitute a request for an accommodation. According to the EEOC, an employee need only indicate that he or she is seeking an adjustment or change in working conditions or duties because of a reason related to a medical condition. Once this notice is received, however, due to a concern that a supervisor’s awareness of an employee’s disability creates heightened potential for disability discrimination claims, an employee’s immediate supervisor is not the best person to engage in an interactive process with the employee. Accordingly, when a supervisor is approached by an employee related to a medical condition, they should refer the employee to the Administration or the appropriate person in Human Resources in an effort to centralize the handling of the interactive process. While a request does not have to be in writing, an employer may ask that an employee fill out a form to confirm the request or follow up with the employee in writing, confirming the request. Additionally, an employer is not required to meet in person with the employee and may engage in the interactive process by telephone, letters and email, but ultimately, when an accommodation is requested, an employer has the duty to engage in the interactive process with the employee. (EEOC v. LHC Group Inc., 773 F.3d 688 (5th Cir. 2014)). Moreover, if an accommodation is requested and the disability or the need for an accommodation is not obvious, an employer may ask for reasonable documentation about the individual’s disability and functional limitations, but an employer cannot ask for the entire medical file or for unrelated information. An employer can, however, ask the employee to sign a limited consent of release allowing the employer to engage with the employee’s doctor about the requested accommodation(s) and related condition. The employer may also request documentation of the impairment and information providing a description of the impairment (including the nature, severity and duration), activity or activities limited by the impairment (such as specific essential job functions), extent to which the impairment limits the employee’s ability to perform the activity or activities, as well as suggested assistance to provide employee. Throughout the process, it is important for the employer to consider the employee’s job description and required duties, in addition to the information provided by the employee. The employer may require that the employee go to the health professional of the employer’s choice if the individual provides insufficient information, or if the medical documentation is inconsistent with the employee’s apparent abilities, but the employer should explain how the information is insufficient, and allow the employee time to provide missing or clarifying information. Per EEOC guidelines, the employer’s response to a reasonable accommodation request must be “expeditious,” but the time taken will depend on whether the employer has complete
control over possible modifications or whether the employer must order equipment. The employer cannot simply refuse to provide a reasonable accommodation without offering other suggestions or at least expressing a willingness to continue discussions of possible accommodation. Additionally, an employee’s failure to cooperate or to engage in the interactive process may extinguish any discrimination claim. Also, an employer is obligated only to provide an effective accommodation, not necessarily the specific accommodation the employee wants. The employer may opt for a less expensive or simpler accommodation, so long as it is effective. An employee is free to refuse an accommodation that is offered, but if he or she cannot perform the essential functions of the job without that effective accommodation, the employee will not be considered “qualified” (and thus protected) under the ADA. The ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless doing so would cause undue hardship. In assessing the reasonableness of an accommodation, the employer may consider the nature and cost of the accommodation, the overall financial resources involved in providing the reasonable accommodation, adverse effects on other employees, effects on expenses and resources or the impact of the accommodation on operations, the number, type, and location of employer’s facilities, the type of operations of the covered entity, including the composition, structure, and functions of the workforce and the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. Common accommodation requests include unpaid leave, job restructuring and re-assignment, providing an assistant, working from home, medication monitoring, modified work schedule, and shift changes. These accommodation requests do not always have to be granted, depending on whether doing so would cause undue hardship to the employer. In the spirit of the interactive process, however, it is important for an employer who denies an accommodation on the grounds of undue hardship to at least attempt to find a different effective accommodation for the employee. Finally, it is important to note that the ADA prohibits the release of medical information. Disclosing to others the fact that someone is receiving accommodations under the ADA may be “medical information” that should not be disclosed. However, the employer can inform an immediate supervisor of an employee who is receiving accommodations that employee has a disability that needs to be accommodated. As an employer, it is important to keep in mind that ADA reasonable accommodations are normally employeeinitiated, and after such a request, the employer must engage in the proper information gathering and discussion of the accommodation(s) with the employee to ensure the accommodation is effective and feasible for both the employee and employer, and that the accommodation will enable to employee to perform the essential functions of their position. Upon implementation of the reasonable and effective accommodation, the employer should continue to monitor the effectiveness to ensure compliance with the necessary laws and regulations. Shellie Hoffman Crow is an Associate Attorney with Walsh Gallegos Treviño & Kyle , P.C. She can be reached at scrow@wabsa.com.
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Ethical Decision Making in Texas Schools Framework for ethical decision making helped a Texas school district change its thinking about professional ethics
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n his first few years on the job, the superintendent of one fast-growing, high-performing Texas school district found his staff in a spiral he felt an imperative to reverse. “Our problem was that during that time, we had four inappropriate student-teacher relationships,” the superintendent said. In his first few years on the job, the superintendent of one fast-growing, high-performing Texas school district found his staff in a spiral he felt an imperative to reverse. “Our problem was that during that time, we had four inappropriate student-teacher relationships,” the superintendent said. After each incident, he wrote a letter to parents and other members of the school community. “We would start off our communication writing, “‘The safety of your student is paramount in our organization. We regret to inform you that we’ve had this allegation of an inappropriate student-teacher relationship,’” he recounted. But by the fourth letter, that message was troubling him. “You know, once you write that two times, and three times, and four times...,” he trailed off.
“Our problem was that during that time, we had four inappropriate studentteacher relationships,” the superintendent said. “Were [we] not willing to do something about it?” he asked. “As a leader, I couldn’t live with myself unless we did. If someone questioned me later I needed to point back and say, ‘Look, we had this training.’ I wanted to be able to say we made an honest effort at this.” He enlisted a team — including his HR leadership — to investigate different opportunities for districtwide training in professional ethics. “We found out about the work ETS is doing with the ProEthica® program. It’s not a one shot. It’s something that’s ongoing. It has a greater potential for success if it’s something we’re constantly coming back to.” One of the things the superintendent appreciates about the ProEthica program is its broad applicability to a
full range of potential ethical issues. With implementation, he has seen districtwide professional ethics learning “open the eyes of all sorts of educators to the different ways in which we’re vulnerable that we don’t think about — even myself, with several degrees in education and a number of years of administrative experience. That’s the power that I see.” While the adoption of the ProEthica program was prompted by a hot-button issue, “as we get into this, it is way more than that.” CODE OF CONDUCT vs. CODE OF ETHICS
If a district’s thinking about ethics is focused on “a hot-button topic,” it’s probably thinking in terms of “the code of conduct, not a code of ethics,” the superintendent stressed. “I would encourage them all the more to look at doing work in educator ethics overall.” The tool has been particularly helpful when stressing the importance of a “documentation trail” to emerging principals. “As a school leader, most things that we deal with are not fireable issues.
17 | February 2020
Some things are very black and white, but most things are going to end up in a reprimand of some kind,” rather than in termination. New principals are often torn between documenting a reprimand and maintaining trust with a teacher. “You’ve still got to work with the teacher, and you still need them to trust that you’re going to be there for them when they need you,” he explained. The ProEthica program framework has helped him describe how “patterns of behavior occur” and to project who can be hurt by these patterns. “If an ethical violation occurs once, and I decide that I’m just going to talk through it with the person but not document it, and then I’ve got a second violation — I’ve got a whole other ethical situation to deal with.” The understanding the ProEthica program provides has given the principal “more confidence” in his ability “to help people understand why we have to do the things we have to do — the bigger picture, the ramifications down the road,” he reflected. “It has helped me have good conversations with people when they are making bad choices, and to help them understand the magnitude of what it is that they’ve done in a different context.” The district’s human resources director, who was part of the decision to bring in the ProEthica program believes the approach district leaders took implementing the districtwide training helped it get a positive reception. “I like how our superintendent emphasized the importance of it to our leadership team,” he said. Moreover, he approved how the district’s director of instruction and leadership development “got other departments involved, so it didn’t feel like a quote, unquote ‘curriculum department thing’, or a quote, unquote ‘human resources thing.’ It just feels like it’s all of us. We’re all moving in the same direction. I think that was effective.” The relatable nature of the ProEthica program’s video scenarios, combined with the districtwide implementation, gave him the impression that everyone in the district had “a common experience” and from that, gained a common language for talking about professional ethics. “I think that’s the power behind it — that everybody has experienced the same thing. And now, you have a foundation. It did a very good job in terms of making you always look through a lens of ‘Is this ethical?’ If the goal was to get everybody on the same page, looking through the same lens, then it did its job. I think we are, as a district, better equipped to address problems now.” Training in professional ethics and a new understanding of how vulnerable educators are to risk have helped this Texas school district learn how to prevent and minimize risks when confronted with an ethical dilemma. It “really helps us to operate within the gray, gives us guidance, helps us mitigate those risks,” the district’s director of instruction and leadership development observed during the district’s webinar on its ethics training. “We are acting in the public interest every single day, and we have to be aware of where we fit and what we’re talking about.”
Helping educators to better understand the ethical risks they can encounter every day in the classroom is an important way to raise awarness of issues before they occur. Helping educators to better understand the ethical risks they can encounter every day in the classroom is an important way to raise awareness of issues before they occur. One such tool being used by schools across the United States is The ProEthica® Program, a series of research-based modules designed to help teachers and school leaders to think through ethical dilemmas and situations before they occur. Click here to learn more about The ProEthica Program.
Copyright © 2020 by Educational Testing. All rights reserved. ETS, the ETS logo, MEASURING THE POWER OF LEARNING and PROETHICA are registered trademarks of Educational Testing Service (ETS). 452459659
18 | HR Connection
Ending the Employment Relationship
Leandra Ortiz, Associate Attorney
I
t’s that time of year! Time to review and consider renewing and possibly ending the employment relationship. The process for terminating an employee relationship depends on the type of contract that an employee possesses. School District employees are generally employed under two main types of contracts: Probationary or Chapter 21 Term Contracts. Each of these offer its own set of protections to an employee and place different restrictions on the School District employer. When considering termination or non-renewal, employers should first look to the type of contract.
When considering termination or nonrenewal, employers should first look to the type of contract.
PROBATIONARY CONTRACT The Board may terminate a probationary contract at the end of the contract period if in the Board’s judgment such termination will serve the best interests of the District. The process for terminating an employee who is on a probationary contract at the end of the year is generally initiated by the campus principal. The Superintendent then recommends the termination of an employee’s probationary contract to the school board at a properly posted and recognized board meeting. The Board must then take action on the recommendation the Board and should consider stating the reason for termination as the “best interests of the district”. This board action needs to take place with enough time to properly act on the recommendation and to give notice of its action to the employee by the statutory deadline; which requires that an employee be given written notice
of the termination of their probationary contract not later than the tenth day before the last day of instruction. If the Board fails to give notice of its decision terminate a probationary • Esiminttoevenis doles audaeped que contract the sim timefaceperibus prescribed, the desentwithin volentibus Board must employ the employee for olupti berferis dolupti onserru the• Vfollowing school year in theptintest same labo. Nam ipsam, occis aditinu llaccum capacity under a probationary contract nonsequatur (if the person has been employed under a probationary contract for less than • Quis intio. Et as nisquossi dem que three consecutive school years) or a conserrum cus, con eum laut continuing or term contract (if the person has employedmagnis under nesequi a probationary • Rbeen estio eostiatibus contract for three volorerum facererconsecutive umquia atiatschool doluptia years. The should also cones autnotification esciunt ommolorporem aut quia sequaepel molorwith sim a copy of provide the educator Board policy DFAB (Legal). The • Volupta epudam sitatem quisquosam employee may contest the action using eaqui quias aliquamet quatem que cus the Board’s local policy, DGBA (Legal and Local) although the Board’s decision • It est, optus. Ducitat quae oditem to terminate a probationary contract at sincimet moloria aligeni aturis dendi theoccatis end ofimolore the contract is final and dolorroperiod eost auditas is not appealable under the provisions of perferspid ea amus rectis adi Chapter 21 of the Texas Education Code.
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19 | February 2020
CHAPTER 21 – TERM CONTRACTS
them and provides a point of reference if performance of duties later becomes an issue.
2. There are two distinct steps that must occur prior to 2. Document – It is important to document performance the termination or non-renewal of a Chapter 21 – Term deficiencies and instances of bad behavior. There are Contract at the end of the contract term. First, there must many ways to document the performance of an employee be a proposal to non-renew the contract followed by the such as directives, notes in the file, observations, memos, subsequent act of terminating or non-renewing the contract. and plans for improvement and expectations. In particular Proposing to non-renew a one-year contract involves the it is important to give honest evaluations that accurately Superintendent making a recommendation to the Board at a lay out any deficiencies in performance and to give recognized meeting where the applicable grounds for nondetails in the comments. These evaluations may provide renewal from district policy DFBB (Local) are identified. documentation that will be needed in the future and give valuable feedback to employees for how they may make The interactive process involves a series of steps requiring improvements. The Superintendent may also have to provide supporting documentation when recommending the non-renewal. The 3. Make Smart Decisions - Make smart decisions about Texas Education Code also requires that before making extending multi-year contracts or renewing probationary a decision not to renew a term contract, the Board shall and term contracts, especially when there are doubts consider the most recent evaluations if the evaluations are about employing the educator in the future. This issue is relevant to the reason for the Board’s action. The Board especially important to consider because inaction at the should take action to propose non-renewal and allow enough end of a contract term can automatically renew a contract time to give the legally required employee notice of the under a different type of contract that can be harder to non-renew later. Board’s action before the statutory deadline. The grounds for non-renewal, a copy of the local policy DFBB (Local), 4. Reporting Requirements - Make sure to report as well notice of the opportunity to request a hearing should inappropriate relationships or behaviors with students. all be included in the Notice of Proposed Non-renewal. The This is a stringent reporting requirement which may statutory deadline for both terminating an employee on a indicate after an investigation that the employee may no probationary contract at the end of the term and proposing “Faceptati omnim volupti ullorumeni rem. “Volupti ullorumeni rem. Utlonger ventur,be eligible forfaceptati omnim volupti ullorumeni rem. hire with the district. to a one-year contract, is the same. No lateriumquam, than Ut non-renew ventur, consequam iumquam, si dolorer consequam si dolorer itatur.” Ut ventur, consequam iumquam, si dolorer the tenth day ut before the last day of instruction, the employee itatur res etur omnietur.” itatur etur, ut omnietur. 5. Train – It is imperative to res train campus and other must receive notice of the board action takenHarit, and sent. this notice Ihillupta sequamadministrators quid quo ex on proper nonrenewal and termination Harit, sent. Ihillupta sequamtoquid quoIf exthe employee ex eate procedures estibus and the basics Sequam ofquid employment quo ex ex eate contract etum quisquid must be hand delivered them. is etum not quisquid ellacerum ex eate etum quisquid ellacerum estibus the notice nonsequassit utatur, ute ditrelationships. harunt es aut ellacerum estibus nonsequassit utatur, ute present when delivery is attempted, may be mailed nonsequassit utatur, dit harunt es aut mail and undandi quunte ped quo doluptiat dit harunt es aut undandi volorum quunte to their address byute certified or express mustvolorum be undandi volorum quunte ped.the tenth day beforeidthe ea volore earumqui. ped quo doluptiat ea volore earumqui. As you consider the appropriate steps toidtake during your postmarked on or before last day of review of employment contracts, it is important to be frank instruction. with the employee; the employee may be willing to resign. If reassignment is an attractive solution, it may be permitted If the employee desires a hearing after receiving notice of the by the terms of the contract or district policy. It is important proposed nonrenewal, the employee shall notify the Board to be aware that an employee who is reassigned can only in writing not later than the 15th day after 1) the date the go to another position that is within the same professional employee receives hand delivery of the notice of proposed capacity as designated in the contract. Look to the duties of nonrenewal; or 2) the date the notice is delivered to the the positions as well as their salaries and skills required to employee’s address of record with the District, if the notice determine professional capacity. is mailed by prepaid certified mail or delivered by express delivery service. These considerations make it vital to have good The Board shall then provide for a hearing to be held not later than the 15th day after receiving written notice from the employee requesting a hearing unless the parties agree in writing to a different date. If the employee fails to request a hearing, the Board shall take the appropriate action and notify the employee in writing of that action not later than the 30th day after the date the notice of proposed nonrenewal was sent. There are five issues that can be addressed to help end problematic employment relationships: 1. Set Clear Expectations – At the beginning of the school year expectations should be set out to the employee in their job descriptions. Each year the District should ensure that job descriptions are accurate and up to date, which gives notice to the employee what is expected to
communication between campus administration and district HR personnel and of course, to have good documentation in support of any decision that is ultimately made.
Leandra Ortiz is an Associate Attorney with Walsh Gallegos Treviño & Kyle , P.C. She can be reached at lortiz@wabsa.com.
20 | HR Connection
2019
In Review
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21 | February 2020
Ximusantis et laboreriae simet esequate dunt oditem. Te odiscilia debisci picabo. Nam, consend aeptur alitibusa Blam re exernam a dolorum que cores ventios doluptas est omni int paria denitem We are happy to report that TASPA had a very successful and productive 2019. TASPAviderfero staff presented 33 workshops te enet volest, nonsendis et throughout the State, held 3 major conferences, and held a regional mini-conference atearumquisqui South Padreconsed Islandquia with Region One dolupta spicil ESC. In total, there were close to 3000 participants during the year at TASPA’s variousipsum professional development activities. estorep tatibus andaerum ipsunda In addition, for the 24th consecutive year, TASPA was recognized by AASPA as the best large affiliate its Arch eperumqui solorep with udaeperro quatS. exerum Brown Award. in et, sitam es venitasit dolupta tiaerna temolupitium utemperum quas aped.s, sed During the 2019 Winter conference TASPA presented the following awards: maximus ad qui doluptatem es at.
Dr. Mary Hopkins Personnel Administrator of the Year Award Kim Alvarez, Alvin ISD TASPA Distinguished Service Award Dr. Sundie Dahlkamp, Pearland ISD TASPA Honorary Membership -In Memoriam- Tony McCarthy, Borger ISD
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Honorary Membership Nancy Cowley, TASPA Program Director (retired)
Coreped eos eostrundam, qui omni cusci non exeruptate delendi res re volorpore il maionestiis sitiur reste volor We want to recognize our law partners, who provide TASPA with an enormous amountnobitat of support throughout the year. We similibus sitaecumquos dis quamus sunto truly value the legal workshops, webinars, presentations, and partnerships with the firms that are always willing to provide veriorem laut quo imil eum soluptas assistance to us. The law partners are: reperumque volore doloriosa
• • • • • •
Eichelbaum, Wardell, Hansen, Powell & Munoz, P.C. Walsh, Gallegos, Trevino, Russo & Kyle, P.C Foster, LLP Abernathy, Roeder, Boyd, & Hullett, LLP Rogers, Morris & Grover, LLP Escamilla and Poneck, LLP
TASPA staff is truly grateful for the support of all our members and sponsors. We are particularly appreciative of ESS, Frontline Education, iteachTEXAS, PowerSchool, and Texas Teachers without whose support the conferences would not be possible. We look forward to a productive and successful 2020!
