Request By:
Stephen B. Neal, Executive Director
Jefferson County Teachers Association
Opinion
Opinion By: Albert B. Chandler, III, Attorney General; Jennifer L. Carrico, Assistant Attorney General
Opinion of the Attorney General
The Jefferson County Teachers Association requests an opinion of the Attorney General on the following issues:
1. Could a school superintendent or assistant school superintendent lawfully solicit or consider the comments and opinions of teachers in evaluating the job performance of school principals?
2. Could an evaluation committee established pursuant to KRS 156.557(3)(c) create evaluation plans and procedures that would require a superintendent or an assistant superintendent to consider the comments and suggestions of teachers in evaluating the performance of school principals?
ANALYSIS
Job performance evaluations for certified school personnel are governed by Chapter 156 of the Kentucky Revised Statutes. Section 557 of KRS 156 requires the Kentucky Board of Education to establish statewide standards governing performance evaluations and identifies the performance criteria on which certified personnel should be evaluated. Id. Paragraph 7 of Section 557 provides that:
Local school districts with an enrollment of sixty-five thousand (65,000) or more students shall have an evaluation system but shall be exempt from procedures or processes described in this section as long as the plan meets the standards established by the Kentucky Board of Education for local school district evaluation systems. The local plan shall include an appeals process for employees who believe they were not fairly evaluated.
Id. This paragraph exempts the Jefferson County public school system from the requirements of KRS 156.557. However, that county is required to comply with administrative regulations promulgated by the Kentucky Board of Education establishing minimum performance evaluation standards for certified school personnel.
The Kentucky Board of Education has promulgated a regulation that establishes performance evaluation standards for certified school personnel and guides local school districts in developing their own evaluation systems. 704 KAR 3:345. That regulation requires local school districts to develop performance evaluation plans for school personnel including school principals. Id. An "evaluation committee" for each school district develops the forms and procedures that implement the school district's plan. 704 KAR 3:345. In practical application, the evaluation committee creates the evaluation plan under the direction of the local school district, and the evaluation plan then is approved by the Kentucky Board of Education. Id.
The regulation promulgated by the Kentucky Board of Education does not appear to prohibit superintendents from considering the comments and opinions of faculty when conducting a principal's performance evaluation. Under 704 KAR 3:345, an "evaluation" is defined in part as:
(a) The process of assessing or determining the effectiveness of the performance of the certified employee in a given teaching and learning or leadership and management situation, and based in predetermined criteria, through periodic observation and other documentation including a portfolio, peer review, product or performance; and
Id. (emphasis added). This regulation permits the superintendent to analyze the principal's performance under each criterion using "other documentation. " Id. The term "other documentation" is not defined by the regulation; however, it may be interpreted to encompass the comments and opinions of faculty. Cf. United States v. Ables, 167 F.3d 1021 (1999) cert. denied 119 S. Ct. 2378 (2000) (when interpreting a statute, courts must look first and foremost to the text of the statute); Mc Barron v. S&T Industries, Inc., 771 F.2d 94 (6th Cir. 1985) (courts must initially look to the plain language of the statute to determine the meaning of the enactment).
The comments and opinions of faculty might also effectively be incorporated into the observation process. According to 704 KAR 3:345, observing the employee is a substantial part of the evaluation process. "Observation" is defined in the regulation as "a process of gathering information in the performance of duty, based on predetermined criteria in the district plan." 704 KAR 3:345. This language permits the superintendent to "gather information" to assist in the evaluation. Id. The comments and opinions of faculty might be one component of that information.
In practical application, the information gathered or observed regarding the performance of school principals must be analyzed according to the criteria established in 704 KAR 3:345. The evaluation is conducted using a list of performance criteria "characteristic of effective teaching or administrative practices." Id. The principal's performance is recorded using "specific descriptors or indicators that can be measured or observed and recorded. " Id. In other words, the principal is evaluated strictly on the basis of his or her professional responsibilities that are described in the performance evaluation criteria. For this reason, comments and opinions of faculty may be considered only if they relate specifically to those criteria.
For example, if the criterion on which the principal is evaluated is the principal's "knowledge and understanding of administrative functions," then a faculty member's opinion regarding the principal's interpersonal skills is irrelevant to the evaluation. Similarly, faculty opinions regarding the principal's knowledge or understanding of a particular academic subject cannot be considered if the principal is to be evaluated specifically on the basis of his or her "adherence to the professional code of ethics."
Likewise, faculty members who are not certified performance evaluators but who nevertheless submit comments regarding a principal's job performance cannot be considered official performance "evaluators. " Under 704 KAR 3:345(4)(1)(a), the immediate supervisor of the principal, or the superintendent, is the principal's "primary evaluator. " Id. The regulation also authorizes the use of "additional trained administrative personnel" to "observe and provide information" to the primary evaluator. Id. The regulation requires these persons to be "trained, tested and approved as an evaluator by the Kentucky Department of Education." 704 KAR 3:345(6)(1). Persons trained to conduct performance evaluations receive specific instruction on performance criteria and how to analyze an employee's performance under those specific criteria. Id. Presumably, because the primary evaluator receives extensive training on how to conduct performance evaluations, he or she understands how to consider the comments and opinions of faculty.
This interpretation of 704 KAR 3:345 comports with the interpretation of that regulation by the Kentucky Department of Education, which states:
Nothing in the relevant statute or regulation would prohibit a primary evaluator from conversing with teachers regarding the performance of a principal. At the same time, the primary evaluator should only use information about the performance of the evaluatee that the primary evaluator has seen first hand or is supported with reliable evidence, when making a performance judgment that will be included in the summative evaluation.
Because 704 KAR 3:345 authorizes the evaluator to consider "other information" when conducting the performance evaluation, an evaluation committee may create evaluation plans and procedures that require a superintendent or an assistant superintendent to consider the comments and suggestions of teachers in evaluating the performance of school principals. Section (1) of 704 KAR 3:345 requires local school districts to appoint evaluations committees that "develop evaluation procedures and forms" for performance evaluations. Id. However, the procedures developed by the evaluation committee are subject to approval by the local school district as well as the Kentucky Board of Education. 704 KAR 3:345(2)(3).
CONCLUSION
The process of conducting performance evaluations for Jefferson County school principals is carefully regulated by the Kentucky Board of Education in 704 KAR 3:345. The Board requires that all persons conducting performance evaluations for certified school personnel be trained, tested and certified. Additionally, the Board requires that employees be evaluated on the basis of criteria specifically related to the employee's professional responsibilities. During the evaluation process, superintendents evaluating principals may consider "other documentation" and "gather information" regarding the principal's job performance. According to this formal evaluation process, comments and opinions of faculty regarding the performance of school principals may be considered by the superintendent if those comments and opinions relate specifically to the principal's professional responsibilities.