Request By:
Mr. Donald Johnson
President
Somerset Chapter
American Association of
University Professors
Somerset Community College
Somerset, Kentucky 42501
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General as to the legality of an evaluation made of a teacher in a state community college by one or more of his peers and made with anonymity. You refer to OAG 79-348 in which we remarked in passing that we questioned the fairness and value of an anonymous evaluation of a teacher made by a student.
First, we would point out that evaluation procedures for college teachers are not covered by any state or federal statute. There are a number of state and federal court decisions which mention the evaluation of college teachers and the indication is that it is customary for evaluations, made by a teacher's peers, be made and reported confidentially to the college administrators with the identity of the evaluators known to the administrators. Evaluations may be made by specially appointed teams or committees which make a joint report or by individual department heads or peers who report their personal evaluation. In either case the administrators of the college know who is making the evaluation. An evaluation of a college teacher's performance and professional proficiency is not a popularity contest by secret ballot. The qualifications and the knowledge the evaluator has of the subject person being evaluated is as weighty as is the conclusion reached by the evaluator. In order to foster evaluations made by identified evaluators the courts have recognized a qualified immunity from liability for evaluations made in good faith.
Lieberman v. Gant, 474 F.Supp. 848, 876 (1979).
In the case of
United States v. University of Maryland, U.S.D.C. Md. 438 F.Supp. 742, 744-745 (1977) the Court, in discussing evaluation said the following:
"The underlying structure of faculty evaluation for promotion and tenure at UMBC and at universities generally is contained in he concept of 'peer evaluation.' Simply put, that concept requires that the evaluation of an individual candidate be conducted, in the first instance, by the members of the candidate's department who are experts in the candidate's field and who can observe the candidate's performance at close range. The University Administration's role in the process is to review the procedures to ensure that basic safeguards have been observed (i.e., that the Review Committee is composed of those senior in rank to the candidate; that the decision is based on substantial reasons; that the candidate has received notification of the decisions and reasoning behind the decisions and has had an opportunity to respond; that a grievance, if any, has been properly processed); and to ensure that the substantive promotion and tenure standards of the University are being followed."
We believe that as a matter of fairness, and possibly of due process, a college administration in deciding matters of employment, salary, or tenure, should consider evaluations made only by a known qualified person. The evaluations may be made confidentially but not anonymously. The administration must bear the responsibility for the actions it takes based on the evaluations it receives and it must, therefore, know the identity and the qualifications of the evaluators.
We have recognized that evaluators have a right of privacy in their evaluations which exempts them from mandatory disclosure under the Kentucky Open Records Law, KRS 61.870-61.884 [OAG 77-394 and 79-128]. A college administration can at its discretion keep evaluation reports secret or can make them available to the subject only or to the public at large. In any event, we believe that the identity of the evaluator should be a part of the evaluation.