Common Mistakes School Districts Make in Personnel Matters:
The Seven Deadly (Personnel Action) Sins* for School District Administrators
1. Not knowing and using your district’s performance evaluation system effectively,
and for superintendents and HR supervisors, not making sure your principals and other
evaluators of certified personnel are following your district’s evaluation policy and
Teacher and administrator performance evaluation is governed primarily by KRS
156.557, which provides that the “Kentucky Board of Education shall establish standards for
evaluation and support for improving the performance of all certified school personnel.”
KRS 156.557 (1). Each school district must establish a certified employee evaluation plan in
accordance with administrative regulations found at 704 KAR 3:345, and approved by the
Kentucky Department of Education. 704 KAR 3:345 Section 2. Section 3 requires a written
policy for evaluation. Section 6 requires that all evaluators be trained, tested, and approved by
KDE. Section 7 provides for appeal to a local evaluation appeals panel; Section 9 establishes the
procedures for appeal to the State Evaluation Appeals Panel.
When a teacher contests an unfavorable summative evaluation, or when evaluations and
/or a corrective action plan form the basis of a termination action based upon inefficiency,
incompetency or neglect of duty, the evaluator’s lack of familiarity with the school district’s plan
and failure to follow requirements create defenses for the teacher.
Section 5 (2) of the regulations requires: “The evaluation criteria and process used to
evaluate school personnel shall be explained to and discussed with certified school personnel
no later than the end of the first month of reporting for employment for each school year.” Your
district’s evaluation plan may include language similar to the following taken from a
representative plan: “all certified employees shall receive an evaluation orientation on the
standards, criteria, and evaluation process on which they are to be evaluated no later than the end
of the first month of reporting for employee for each school year.”
Such a conference not only complies with the law, but should ensure that the evaluator is
prepared to follow the plan and may also provide an opportunity to follow-up on unfinished
business from the previous evaluation cycle, such as reviewing recommendations from last
year’s summative, re-focusing a professional growth plan, or addressing a “dangling” corrective
a. Rating inflation: a particular problem when the evaluation process is unhinged
from and will not support or is at odds with a disciplinary action or reasons given for non-
renewal of a non-tenured teacher.
See also, Thompson v. Board of Education of Henderson County, 838 S.W.2w 390
(Ky.1992) (nonrenewal of non-tenured teacher may not be based upon evaluation overturned on
b. Lack of follow-up on areas identified for improvement or correction: “`Formative
evaluation’ means a continuous cycle of collecting evaluation information and interacting and
providing feedback with suggestions regarding the certified employee’s professional growth
and performance.” KRS 156.557 (3)(b)(1).
c. Not using corrective action plans as and when required by plan: “The evaluation
system shall include a plan whereby the person evaluated is given assistance for professional
growth as a teacher or administrator. The system shall also specify the processes to be used
when corrective actions are necessary in relation to the performance of one’s assignment.” KRS
156.557 (3)(c)5. If the local plan specifies that when the teacher receives a “does not meet” on a
summative or formative evaluation a corrective action plan “shall” be written, failing to comply
with that requirement may be a valid defense in an evaluation appeal or to a performance-based
Initiatives by General Assembly and KDE may bring more uniformity to local school
district processes. See information about KDE’s Professional Growth and Effectiveness System
(“PGES”) at Website. Per 5/3/12 entry: “Teacher and Principal Effectiveness Steering
Committee(s) representing KASA, KSBA, KEA, JCTA, CPE, colleges and universities, EPSB,
parents, and individual teachers, principals and superintendents from volunteer districts have
been convened and are meeting quarterly to design the system.”
2. In a termination or other disciplinary action for misconduct, not investigating your
case to be reasonably certain you will have good evidence to support the theory of the facts
upon which you base charges for termination.
Administrative suspensions (suspension with pay) are not subject to challenge as a
disciplinary action under KRS 161.790.
a. Hearsay reports will often not get the job done in a tribunal hearing or on appeal.
Do you have a reliable first-hand witness (or victim) to testify under oath?
“Hearsay evidence may be admissible if it is the type of evidence that reasonable and
prudent persons would rely on in their daily affairs, but it shall not be sufficient in itself to
support an agency’s findings of fact unless it would be admissible over objections in civil
actions.” KRS 13B.090 (1). “However, when the time comes to make a factual determination,
the residuum rule requires the fact-finder to base a decision on only the competent [otherwise
admissible] evidence…. ” Drummond v. Todd County Board of Education, 349 S.W.3d 316, 321
b. Getting the employee’s side of the story, is not only fair, it may help you to be
better prepared for employee’s defenses against charges.
3. Not requesting your board attorney or legal advisor’s input when formulating
charges for termination or other discipline, in light of KRS 161.790.
Selecting the appropriate statutory grounds for disciplinary action may make the case
easier to prove. Immoral character or conduct unbecoming a teacher, KRS 161.790 (1)(b), and
physical or mental disability, KRS 161.790 (1)(c) do not require a “written record of teacher
Charges based upon insubordination brought pursuant to KRS 161.790 (1) (a) and for
inefficiency, incompetency and neglect of duty brought pursuant to KRS 161.790 (1) (d) are
required by KRS 161.790 (2) to be “supported by a written record of teacher performance by the
superintendent, principal, or other supervisory personnel of the district…. ” Id. This
requirement as to a charge of insubordination cannot be satisfied solely by statutes, ordinances,
regulations, local board policies or teacher contracts, “but must be specific to the individual
teacher and the circumstances leading up to the charge.” James v. Sevre-Duszinska, 173
S.W.3d 250, 258-59 (Ky.App.2005).
The content and timing of such notice may be crucial if it later may be relied upon as the
“prior written record.” When a teacher is in trouble, and a supervisor or other superior is
considering recommendation for possible termination, why not write the notice so that it:
1. Identifies the problem;
2. Warns the teacher of the potential repercussions if the problem persists; and
3. Allows time for the teacher to attempt to remediate the problem.
In Blackburn v. Board of Education of Breckinridge County, 564 S.W.2d 35, 37 (Ky.App.1978),
the appeals court held that when the charges are “inefficiency, incompetency, or neglect of duty,
… the written statement identifying the problem must have been previously provided to the
teacher. It is clear that some opportunity for the teacher to correct the problem should be
permitted.” In Sevre-Duszinska, the court applied the same analysis to a charge of
insubordination. Had the teacher been given written notification that her continued absence from
school without leave was insubordination that could lead to termination, “[s]uch a notification
would clearly have met the `written notice of teacher performance’ requirement, because she
would have been informed that her continued absence without leave could lead to her
termination.” Id. at 258.
4. Imposing termination in for a first-time or objectively low level offense, when a
disciplinary suspension would be much harder for the teacher to oppose.
Fankhauser v Cobb, 163 S.W.3d 389 (Ky.2005) recognized the authority of the tribunal
to modify a sanction imposed on a teacher. Attempt to constrict tribunal authority by SB 132 in
2012 General Assembly will undoubtedly be made again, but in the meantime, the better practice
may be to impose the penalty that “fits the crime.”
5. Disciplinary transfers and reassignments to wear out the employee deemed to be a
problem (usually) ultimately cheats students.
HB 168, passed by the 2012 General Assembly, amends KRS 160.380 to prohibit certain
disciplinary transfers. The added subsection (3) provides:
“No superintendent shall assign a certified or classified staff person to an alternative
education program as part of any disciplinary action taken pursuant to KRS 161.790 or KRS
161.011 or as part of a corrective action plan established pursuant to the local district evaluation
Subsection (1)(a) defines such a program:
“`Alternative education program’ means a program that exists to meet the needs of
students that cannot be addressed in a traditional classroom setting but through the assignment of
students to alternative classrooms, centers, or campuses that are designed to remediate academic
performance, improve behavior, or provide an enhance learning experience. Alternative
education programs do not include career or technical centers or departments.”
6. Using the suggestion that you might not have to report a resignation under threat of
termination to the EPSB as leverage to extract a resignation.
KRS 161.120(2)(a) requires a superintendent to report to the EPSB the name and
pertinent information of any certified employee “whose contract is terminated or not renewed,
for cause except failure to meet local standards for quality of teaching performance prior to the
employee gaining tenure; who resigns from, or otherwise leaves, a position under threat of
contract termination, or nonrenewal, for cause; who is convicted in a criminal prosecution; or
who otherwise may have engaged in any actions or conduct while employed in the school district
that might reasonably be expected to warrant consideration for action against the certificate….”
7. Notice of nonrenewal followed by letter of reasonable assurance of continued
This may very well be legitimate when the assurance is given in good faith, but is there
any justification for a doing so when the superintendent knows the nonrenewed teacher is not
going to be called back or rehired at his or her former school because the nonrenewal was based
upon the principal’s recommendation and there is reason to believe other schools in the district
will not hire the teacher? If the teacher believes the reasonable assurance, he or she may defer
seeking other employment until most vacancies are filled.
JoEllen S. McComb
BROOKS, MCCOMB & FIELDS, LLP
1204 Winchester Road, Suite 100
Lexington, KY 40505
Traditional, as in Dante’s Divine Comedy: lust, gluttony, greed, sloth, wrath, envy and pride. From the Bible,
1. Haughty eyes, or a proud look;
2. A lying tongue;
3. Hands that shed innocent blood;
4. A heart that devises wicked schemes;
5. Feet that are quick to run into evil or mischief;
6. A false witness who pours out lies;
7. A man who stirs up dissention among brothers.