June 18, 2021 Additional Amendments to the Education Law Concerning APPR, Probation and Tenure
KEEPING YOU INFORMED…
On June 11, 2021, we sent a memorandum regarding the amendments to the Education Law concerning annual professional performance reviews (“APPR”), probation and tenure. We are now writing to inform you of another law signed by the Governor that further amends the Education Law concerning these subjects.
This memorandum addresses both Amendments[1] as well as the June 14, 2021 guidance from the New York State Education Department (“SED”) (revised on June 16, 2021) concerning the implementation of the changes.[2]
APPR Suspension
The Amendments provide that, for the 2020-2021 school year (only), school districts and BOCES will not “be required to” complete an APPR evaluation for any teacher or principal.[3] The Amendments explicitly provide that State funding will not be withheld from any district or BOCES for not conducting the evaluations.
Are Districts and BOCES Required to Perform APPR Evaluations If They Are “Able?”
SED’s guidance indicates that the Amendments “eliminate the requirement” for districts and BOCES to “complete teacher and principal evaluations for the 2020-2021 school year, but do not prohibit evaluations from being completed where [a district or BOCES] is able to do so.” The guidance goes on, though, to state that “[t]o the extent that [districts or BOCES] are able to complete all or part of an educator’s evaluation, [SED] expects that such scores and ratings will be reported.”
Unfortunately, SED’s guidance does not define what it means for a district or BOCES to be “able” to perform APPR evaluations. Moreover, the text of the Amendments themselves (which, unlike SED’s guidance, are law) do not say anything about a District’s “ability.” The law now simply provides that districts and BOCES are not “required” to complete APPR evaluations.
Therefore, we do not believe that a court would require a district or BOCES to demonstrate that it is “unable” to conduct evaluations prior to suspending APPR. Conversely, districts and BOCES may continue with APPR evaluations if they are “able” and choose to do so, particularly in light of SED’s guidance. Any scores and ratings that are calculated should be reported.
Must Districts and BOCES Bargain About Suspending APPR?
The Legislature’s (most recent) language also creates ambiguity as to whether a district or BOCES must bargain with their teachers’ and administrators’ unions prior to discontinuing APPR evaluations for the 2020-2021 school year. While the Public Employment Relations Board (“PERB”) has obviously not yet ruled on this issue, it is our opinion that there is no obligation to bargain prior to suspending the implementation of APPR for the year, regardless of whether your APPR procedures are contained in a collective bargaining agreement (“CBA”) or a memorandum of agreement. However, upon request, school districts and BOCES must still negotiate about the impact, if any, of this change (e.g., the suspension of APPR evaluations may affect employees’ eligibility for step movement, promotional positions and/or differentials). Conversely, school districts and BOCES may also demand impact bargaining (e.g., regarding an alternative method to assess performance).
Further, school districts and BOCES must still follow any evaluation procedures provided in a CBA that are unrelated to the APPR statute. Therefore, the evaluation procedures for employees who were not otherwise covered by APPR requirements remain unchanged, as do any evaluation procedures that school districts and BOCES have in place for classroom teachers and building principals that are in addition to those required by State law.
Shortened Probationary Periods Based on a Prior Award of Tenure
for Classroom Teachers Appointed During the 2020-2021 School Year
Ordinarily, teachers and administrators are appointed for a four-year probationary period. However, teachers’ probationary periods can, in some circumstances, be shorter if they: (1) receive “Jarema” credit for regular substitute service prior to being appointed; or (2) previously were awarded tenure.[4]
The Amendments change the requirements for teachers appointed during the 2020-2021 school year, who previously were granted tenure, to obtain a shortened, three-year probationary period:
| Requirements for a Shortened Probationary Period Based on a Prior Award of Tenure | All Teachers, Except Those Appointed During the 2020-2021 School Year (No Changes to Current Law) | Teachers Appointed During the 2020-2021 School Year |
Teacher May Not Have Been Terminated from the Prior Position (No Changes to Current Law) | Teachers must not have been terminated pursuant to Education Law § 3020-a or § 3020-b. | Teacher must not have been terminated pursuant to Education Law § 3020-a or § 3020-b. |
Previous APPR Rating (Only applicable to “Classroom Teachers”[5])
| School Districts: Teachers must have received an APPR rating in their final year of service in their previous position. | School Districts: Teachers must have received an APPR rating in their previous position in 2017-2018 or 2018-2019. |
| BOCES: Teachers must have received an APPR rating of “effective” or “highly effective” in their final year of service in their previous position. | BOCES: Teachers must have received an APPR rating of “effective” or “highly effective” in their previous position in 2017-2018 or 2018-2019. |
APPR Requirements for Obtaining Tenure
for Classroom Teachers and Building Principals
To be eligible to receive tenure, classroom teachers and building principals must achieve certain APPR ratings. In addition, except when a teacher or administrator acquires tenure by estoppel, teachers and administrators must receive an affirmative recommendation from the superintendent to be granted tenure.
The Amendments change the rules for classroom teachers and building principals to be eligible to be granted tenure:
| Requirement to be Eligible to be Granted Tenure | All Classroom Teachers and Building Principals, Except Those Appointed During the 2017-2018 through 2020-2021 School Years (No Changes to Current Law) | All Classroom Teachers and Building Principals Appointed During the 2017-2018, 2018-2019 and 2019-2020 School Years | All Classroom Teachers and Building Principals Appointed During the 2020-2021 School Year |
| “Effective” or “Highly Effective” Ratings | Classroom teachers and building principals must have received an APPR rating of “effective” or “highly effective” in at least three of the four preceding years. | Classroom teachers and building principals must have received an APPR rating of “effective” or “highly effective” in at least one of the four preceding years. | Classroom teachers and building principals must have received an APPR rating of “effective” or “highly effective” in at least two of the four preceding years |
| “Ineffective” Ratings | Classroom teachers and building principals must not have received an “ineffective” rating in the final year of their probationary period. | Classroom teachers and building principals must not have received an “ineffective” rating in the final year of their probationary period or during the most recent school year where an APPR rating was received. | Classroom teachers and building principals must not have received an “ineffective” rating in the final year of their probationary period or during the most recent school year where an APPR rating was received. |
| Superintendent’s Recommendation | Except when a teacher or administrator acquires tenure by estoppel, the Superintendent’s recommendation is required. | Except when a teacher or administrator acquires tenure by estoppel, the Superintendent’s recommendation is required. | Except when a teacher or administrator acquires tenure by estoppel, the Superintendent’s recommendation is required. |
| The employee would have been, in the Superintendent’s discretion, qualified for tenure based upon performance, notwithstanding that the 2019-2020 and 2020-2021 APPR was not completed and received. | The employee would have been, in the Superintendent’s discretion, qualified for tenure based upon performance, notwithstanding that the 2020-2021 APPR was not completed and received. |
If you have any questions regarding the Amendments or the impact of the changes on your evaluation or tenure-granting procedures, please contact Adam S. Ross (asr@lambbarnosky.com) or one of our other attorneys at 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
[1] This includes the changes we reported on in our June 11, 2021 memorandum (Chapter 112 of the Laws of 2021) and the changes made by the most recent law (Chapter 147 of the Laws of 2021).
[2] The June 14, 2021 (REVISED June 16, 2021) guidance memorandum is available at: 2020-21 School Year Annual Professional Performance Review (APPR) Update (REVISED June 16, 2021) (nysed.gov).
[3] Chapter 112 had amended Education Law § 3012-d to prohibit school districts and BOCES from completing an APPR evaluation. However, Chapter 147 further revised the statute and, instead of prohibiting school districts and BOCES from completing evaluations, the law now provides only that school districts and BOCES will not “be required to” complete evaluations.
[4] Pursuant to amendments to the Education Law adopted in October 2019, administrators appointed on or after July 1, 2020 are entitled to a shortened probationary period if they were previously granted tenure in an administrative tenure area. Unlike classroom teachers, however, there is no requirement that the administrators received an APPR rating.
[5] The term “classroom teacher” is to be distinguished from teachers generally. With certain exceptions, SED defines a “classroom teacher” as a teacher in the “classroom teaching service” who is “a teacher of record.”
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