Appeals Process

Why?

The purpose of the internal appeal process, and the annual professional performance review process in its entirety, is to foster and nurture growth of the professional staff in order to maintain a highly qualified and effective work force. It is hoped that the evaluative practice is one of collaboration and cooperation between teacher and administrator.

The more formal appeals process exists for situations when this practice breaks down. It provides an opportunity to appeal a procedural error.

Who?

Any bargaining unit member receiving an overall “ineffective” rating can appeal the decision in writing no later than fifteen (15) school days after the date when the bargaining unit member receives their annual professional performance review. Ratings of “developing”, “highly effective” or “effective” cannot be appealed.

What?

Pursuant to Education Law §3012-d, a teacher may only challenge the following in an appeal to the Board of Cooperative Educational Services (BOCES):

• the substance of the annual professional performance review; which shall include the following:

  • in the instance of a teacher rated “ineffective” on the Student Performance category, but rated “highly effective” on the Observation category based on an anomaly, as determined locally.

• the BOCES’ adherence to the standards and methodologies required for such reviews, pursuant to Education Law §3012-d

• the adherence to the regulations of the Commissioner

• compliance with any locally negotiated procedures applicable to annual professional performance reviews or improvement plans

• the BOCES’ issuance and/or implementation of the terms of the teacher improvement plan under Education Law §3012-d.

Because the APPR process in its entirety is a cooperative and collaborative process involving both the bargaining unit member and the authoring administrator, substantive components of the evaluation rubric are NOT appealable.

During the course of the year, a draft APPR rubric will be available to both bargaining unit member and the authoring administrator. It is expected that the bargaining unit member not wait until the end of the process to clarify information with the authoring administrator if they believe misunderstandings exist.

The process will be timely and expeditious in accordance with Education Law §3012-d.

How?

START: Informal Conference with the Authoring Administrator

A qualifying bargaining unit member wishing to appeal their APPR must begin by requesting an informal meeting within fifteen (15) school days of the receipt of their final APPR. Requesting this informal meeting via email is an excellent way of documenting the process. The administrator will make every effort to schedule and hold this meeting within five (5) school days of receipt of the request.

This conference is intended to allow the authoring administrator and the bargaining unit member to discuss the evaluation procedure and the member’s concerns.

It is hoped that disagreements and confusions might be resolved through this process without a more formal appeals process. The bargaining unit member has the option of inviting an Association representative to be present, but no paperwork is required for this step. The conference shall be an informal meeting wherein the authoring administrator and the employee are able to discuss the evaluation and the areas of dispute. It is recommended that both parties take notes.

If the bargaining unit member is not satisfied with this stage, he/she may proceed to the more formal grievance stages.

Stage 1: Formal Written Appeal to Authoring Administrator

The first stage shall be initiated by the unit member by filing the APPR Appeals Form in the Frontline/ MyLearningPlan system with the authoring administrator within five (5) school days after the completion of the informal conference.

The authoring administrator will respond in writing within five (5) school days after the written appeal has been filed. This response will include an explanation with some detail as to why the appeal was denied or upheld.

When filing an appeal, the bargaining unit member must submit a detailed description of the precise point(s) of disagreement over his or her APPR or the issuance and/or implementation of the terms of his or her improvement plan, along with any and all additional documents or written materials that he or she believes are relevant to the resolution of the appeal.

A copy of the performance review and/or issuance/implementation of the terms of TIP being challenged must also be submitted with the appeal. Any such additional information not submitted at the time the appeal is filed shall not be considered in the deliberations related to the resolution of the appeal.

Stage 2: Appeal to the Superintendent

If the bargaining unit member is unsatisfied with the administrative response to the appeal, he/she may file an appeal with the District Superintendent.

Within five (5) school days of receipt of the written response to the Stage 1 appeal, the bargaining unit member’s submission to the Superintendent must include the following:

• The initial APPR Appeals Form

• Any and all supportive documents that were submitted with the Stage 1 application

• A copy of the administrative response that resulted from Stage 1

• A typed cover statement outlining the concerns that warrant continue appeal.

The Association President is copied on this appeal in its entirety.

The Superintendent will respond within ten (1o) school days from the receipt of said appeal. This response will either be a formal written determination, or a request for a face-to-face conference with the bargaining unit member and their Association representative. If a conference is requested, it may also include, at the discretion of the Superintendent, the authoring administrator and will produce a written response no later than five (5) additional days from the receipt of said appeal.

The ultimate Superintendent’s determination, either in immediate written response, or in written response subsequent to a conference, may be

• to deny the appeal;

• to sustain the appeal and grant the remedy sought;

• or sustain the appeal and modify the remedy.

The bargaining unit member initiating the appeal, the Association President and the authoring administrator shall each receive a copy of the Superintendent’s ultimate response as well as any and all additional information submitted with the response.

Also…

• All timelines shall be adhered to unless extended by mutual, documented agreement.

• A bargaining unit member may not file multiple appeals regarding the same performance review or teacher improvement plan. All grounds for appeal must be raised with specificity within one appeal. Any grounds not raised at the time the appeal is filed shall be deemed null and void.

• Except for procedural appeals for failure to follow timelines, the bargaining unit member has the burden of proof to demonstrate a clear and legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

• With the exception of grievances based on failure to follow the procedural steps of this appeals process, the Superintendent’s decision shall be final and binding and not subject to the contractual grievance procedure.

• Education Law §3012 has always required that APPR constitute a “significant factor” in employment decisions, including but not limited to tenure determinations and termination of probationary teachers. It does not require that the APPR be the sole or determinative factor in tenure or termination decisions, merely that the APPR be considered in making such determinations.

• Prior to completion of the APPR in the first year of the probationary term, a probationary teacher may be summarily dismissed for constitutionally and statutorily permissible reasons (include but are not limited to: misconduct, insubordination, time and attendance issues, or conduct inappropriate for a teaching professional) other than classroom performance without regard to the APPR.

• The BOCES may make a tenure determination or termination decision during an APPR appeal for statutorily and constitutionally permissible reasons including the performance that is subject of the appeal.

• If the termination determination is based solely upon performance and rating that is the subject of a pending rating appeal, the BOCES must await completion of the appeal process before making that determination.

• During the pendency of an appeal, the BOCES shall have the right to create a JUUL to prevent tenure by estoppel for an appealing probationary teacher.