Last year, Governor Kasich’s wide-ranging budget bill (HB153) included a major reformation of the way teachers and principals are evaluated, and by the time the bill was signed into law, educators were able to claim some measure of victory by having language included requiring a local board of education to collaborate with the educators on the evaluation process.  As this has begun to be enacted, however, the Ohio Department of Education has engaged their attorneys in a process of re-interpreting the law, and they are now claiming that the creation and adoption of a teacher evaluation policy is not subject to collective bargaining and can instead be imposed by the board of education.

The opening paragraph of the statute currently reads as follows:

3319.111 Evaluating teachers on limited contracts.
(A) Not later than July 1, 2013, the board of education of each school district, in consultation with teachers employed by the board, shall adopt a standards-based teacher evaluation policy that conforms with the framework for evaluation of teachers developed under section 3319.112 of the Revised Code. The policy shall become operative at the expiration of any collective bargaining agreement covering teachers employed by the board that is in effect on the effective date of this section and shall be included in any renewal or extension of such an agreement.

This statute is again up for discussion in Senate Bill 316 (now headed to the House).  At issue with ODE and other school board attorneys is the use of the phrase in consultation with in the first sentence.  As you’ll see in the communications below, the attorneys don’t believe the phrase mandates that the evaluation policy be mandated in collective bargaining.  And while their opinions use the later reference to bargaining to explain the intentional use of language in this statute, the attorneys conveniently ignore the last sentence in its entirety as it specifies that the new policy would be included in a renewed or extended collective bargaining agreement.  Including the policy in future collective bargaining agreements clearly points out the statutes intent that the evaluation policy is an item subject to collective bargaining.

A quick search of Ohio Revised Code reveals the use of “consultation” 349 unique times and, in fact, HB153 used the phrase “consultation with” 127 times, with 33 NEW introductions into legislation.  It is used in a wide variety of manners, with some distinctly being an informal agreement, while other uses imply a formal partnership between two entities.  One example can be found in conjunction with the  Governor’s JobsOhio operations “The director of budget and management, in consultation with the director of commerce, may, without need for any other approval, negotiate terms of any documents…”   Another interesting use of the phrase would also impact the state leadership’s authority, “The auditor shall make the selection and determination in consultation with the governor and the speaker and minority leader of the house of representatives and president and minority leader of the senate.” If you continue to scour the full Ohio Revised Code you can find the many varying uses of the phrase.

With unique evaluation policies already beginning to take shape in school districts around Ohio, it’s obvious that not all boards of education believe “in consultation with teachers” has any binding meaning and or that teachers should be involved in the final decisions about the evaluation process.  And the Ohio Department of Education is in full agreement.

First, from a school board’s attorney in response to an ongoing process of negotiations.

…it is your opinion that House Bill 153 (hereinafter, ”H.B. 153″) does not include language which supersedes the collective bargaining laws, and with the repeal of Senate Bill 5, evaluation requirements are still mandatory subjects of bargaining. I respectfully disagree.

Consequently, there are two main requirements for boards of education. First, each board of education must adopt a standards-based, teacher evaluation policy that conforms to the requirements set forth by the Ohio Department of Education. This policy must be made “in consultation with the teachers employed by the board.” Revised Code §3319.111 does not state that the Board must negotiate the evaluation policy with a teachers’ union, only that the Board must consult with the teachers regarding the evaluation policy. Consultation does not mean mandatory bargaining. Had the General Assembly intended it as such, it could have easily stated so; it did not. The committee work [the school district] is doing with its teachers in developing the Board’s evaluation policy meets this “consultation” requirement set forth in the statute.

Second, and more importantly, the clear, unambiguous language of R.C. §3319.111 provides that the evaluation policy adopted by the Board, in consultation with its teachers, must become operative at the expiration of any collective bargaining agreement, or extension thereof.  From this, it is clear that the statute supersedes the collective bargaining laws because of the mandatory “shall” language used in the statute, coupled with the fact that the statute contemplates the existence of current collective bargaining agreements, and mandates the implementation of the required evaluation policy after the expiration of the current collective bargaining agreement.

Therefore, since the Board is working in consultation with its teachers in developing its teacher evaluation policy to meet the new requirements in R.C. §3319.111 due to H.B. 153, once the Board finalizes its teacher evaluation policy it does not need to bargain the new teacher evaluation policy, and it does not need to have the policy reviewed for tentative agreement as part of the negotiations process.

Now this from a separate attorney detailing his conversations with individuals from the Ohio Department of Education regarding discussions in a different school district.

I did receive a call yesterday from attorney Jessica Spears of ODE, saying that the [teachers' union] complained that the [local board of education] was going to “approve a new evaluation process without consultation with teachers.” I told her that the BOE isn’t about to do so, that the process of developing a new process is still in its infancy and certainly will include, as the statute says, “consultation with teachers.” She reiterated ODE’s view that the statute does not require bargaining because it uses the word “consult.” In any event, it appears that pending SB 316 will remove any doubt by taking the issue away from the bargaining table before long. For that reason it would be inappropriate for the BOE to enter into any [memorandum of understanding] or [memorandum of agreement] about the issue with the [teachers' union] at this time.

So what does the attorney mean by “pending SB 316 will remove any doubt by taking the issue away from the bargaining table?

That second sentence in 3319.111 was struck (as shown below) in the version of SB316 passed by the Senate Education committee:

Sec. 3319.111
(A) Not later than July 1, 2013, the board of education of each school district, in consultation with teachers employed by the board, shall adopt a standards-based teacher evaluation policy that conforms with the framework for evaluation of teachers developed under section 3319.112 of the Revised Code. The policy shall become operative at the expiration of any collective bargaining agreement covering teachers employed by the board that is in effect on the effective date of this section and shall be included in any renewal or extension of such an agreement.

And it was replaced with a single sentence at the very end of the statute that leaves no doubt that the evaluation of teachers will in no way be subject to collective bargaining by the teachers’ association:

(I) Notwithstanding any provision to the contrary in Chapter 4117. of the Revised Code, the requirements of this section prevail over any conflicting provisions of a collective bargaining agreement entered into on or after September 29, 2011.

That change was actually in the original version of Senate Bill 316 as submitted by Governor Kasich’s office in his latest attempt to eliminate collective bargaining in Ohio.  The Governor still has it out for teachers and now he doesn’t believe the over 100,000 educators in the state should be involved in the construction of a performance-based evaluation process that could effectively transform their profession — if there was any incentive to include the experts on teaching in the process.

[UPDATED] For clarification, these two paragraphs of SB316 are virtually identical to the Senate Bill 5 version of ORC 3319.111, most notably the second paragraph exempting the evaluation policy from collective bargaining.  Ohioans voted to repeal Senate Bill 5 by a wide margin last November by a wide margin.

But it’s not too late to change this yet.  Senate Bill 316 will be entering the House this week and House Education Committee Chair Gerald Stebelton has already set a Friday, May 18 deadline for submitting amendments.  The voices of all educators and parents needs to be heard on this as we need to express the need for educators to necessarily be involved in the creation of evaluation policies.  The process should be amended to require that the adoption of evaluation polices be subject to collective bargaining agreements in order to ensure that realistic and productive polices that are based in sound educational practices are implemented consistently across Ohio.

The House Education Committee will hear the bill this week:

  • Tue, May 15; 5:00 p.m.; Room 313
  • Wed, May 16; 5:00 p.m.; Room 313
  • Thu, May 17; 10:00 a.m.; Room 313

Contact the members of the House Education Committee immediately:

Name Phone
Gerald L. Stebelton, (R), Chair 614.466.8100
Mike Dovilla, (R), Vice Chair 614.466.4895
Clayton R. Luckie, (D), Ranking Minority Member 614.466.1607
Nan A. Baker, (R) 614.466.0961
Andrew Brenner, (R) 614.644.6711
Jim Butler, (R) 614.644.6008
Timothy Derickson, (R) 614.644.5094
Bill Hayes, (R) 614.466.2500
Matt Huffman, (R) 614.466.9624
Casey Kozlowski, (R) 614.466.1405
Ron Maag, (R) 614.644.6023
Craig Newbold, (R) 614.466.8022
Kristina Roegner, (R) 614.466.1177
Ryan Smith, (R) 614.466.1366
Andy Thompson, (R) 614.644.8728
Nickie J. Antonio, (D) 614.466.5921
Ted Celeste, (D) 614.644.6005
Denise Driehaus, (D) 614.466.5786
Teresa Fedor, (D) 614.644.6017
Ronald V. Gerberry, (D) 614.466.6107
Bill Patmon, (D) 614.466.7954
Debbie Phillips, (D) 614.466.2158
Dan Ramos, (D) 614.466.5141

In an election year, every vote counts.

Evangelize!
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  • duckmonkeyman

    I can’t wait till some ex-football jock who taught basket weaving evaluates an AP Calculus teacher. ODE has been decimated by Kasich’s hatchet. They are a mess as an organization. The administration of the inane Resident Teacher program is a study in useless edu-speak and mindless paper work. Putting the Jack Boot of the GOP on teachers and saying “shut up and teach” will simply result in chaos, anger, and backlash. Too bad the public is so ignorant. Kasich is destroying schools with his personal vendetta.

  • Brianholmes19

    We should evaluate our govenour and fellow law makers also

  • Xx

    Absofuckinglutely.

  • namvetted68

    This just goes to show that if you pay your crony  lawyer, he/she will say whatever you want.

    Alberto Gonzales is a perfect example from way back during the Bush reign when he ignored the Geneva Conventions and legal precedent in order to justify torture for the CIA, etc.

    Also, too, most present-day education administrators are abject amateurs when it comes to evaluating anything beyond where to eat  lunch or what is appropriate clothing to wear to work.

  • Mr. Brown

     Yes. The real problem is that administrators are not qualified to evaluate teachers. Simply going through a checklist is not enough.

  • Dmoore2222

    Apparently Kasich isn’t satisfied with the beating he took over SB5. He has to pick another fight in hopes of getting even. At least some in his party are trying to appear reasonable with this. But Johnny just can’t resist one more attempt to punish teachers which is only gonna result in an even worse pounding for his party in November. Keep digging, Johnny. And make the whole wide and deep so it swallows all of y’uns.

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