By Kevin Lungwitz
What is the MOST important reason to document? I recently asked this question to a large group of attendees at the TEPSA Summer Conference. Considering I am an employment lawyer, some might have tried to give me the darkest, most cynical answers, like, “It covers my [behind] if I get sued!” or, “So I can fire a teacher!” While these answers are not totally wrong, they are not correct. No one in the group got it right. Do you know what the right answer is? Take some guesses before reading on.
What is the Most Important Reason to Document?
.tnemevorpmi ffatS. I typed it backwards since our peripheral vision is prone to peeking. Every piece of staff feedback you create should be designed to make staff better at their jobs. At its very core, your job is to help your employees get better at theirs. Every other purpose of documentation, such as those shouted at me by the group above, is secondary. I will go one step further to argue if you are using documentation primarily to cover yourself or to fire a teacher, it could have the reverse effect. More on this below.
Performance Documentation
The question, “What is the most important reason to document,” is a little tricky, because I am really talking about performance documentation: How does this teacher perform in the classroom? Is the librarian meeting goals? Is your assistant principal on track to have all the walk-throughs and evaluations completed on time? Is the custodian running late again?
Always ask yourself two questions:
- What is this employee doing right?
- How can this employee improve and grow?
Then write it down. That is the heart of all performance documentation. It is not punitive. Performance documentation is a running assessment of an employee’s performance, both good and marginal, throughout the school year. The annual evaluation is usually the capstone of this running assessment.
As mentioned above, if you pepper performance documentation with threats of negative employment action, [“Failure to improve could result in more serious action, including but not limited to termination”] it will have lost its effectiveness. If the teacher is recommended for nonrenewal, it will look as though it was a fait accompli, or as we say around here, a done deal. It will undercut your efforts to help the employee improve. “My client never had a chance to succeed because the administration decided to nonrenew him months ago,” the teacher’s lawyer will say, perhaps correctly.
If you have given to a marginal employee, timely earnest feedback and steady reflection, coupled with strategies for improvement—and the employee fails to improve—your professional documentation will speak for itself. If you stay focused on employee improvement instead of jumping ahead to potential punishment, you will have done your job. It will be up to HR, the superintendent, the school lawyer and the board to take it from there.
Types of Performance Documentation
Back to performance documentation: Year-round, cumulative documentation comes in all shapes and sizes: It can be a note to the file, an email, a memo, a summary of conference, or a walk-through form. Documentation by any other name is still documentation. The pinnacle of employee documentation is the annual evaluation. Don’t forget about support staff. Districts require that these employees be evaluated every year. [See policy DN local.] Campus administrators are governed by T-PESS or other evaluation instruments developed by the district. [See policy DNB legal and local.]
In T-TESS districts, you study the district’s appraisal calendar and make sure you and your staff follow it to the letter. Cumulative documentation must be shared with a teacher within 10 workdays of the appraiser’s knowledge of the event being documented. [See policy DNA legal and local.] This is proof that improvement is the most important reason for performance documentation. It is never a gotcha game. The substance of a disputed evaluation is hard to challenge, but it is easy to overturn one when the calendar or rules were not followed.
In non-T-TESS districts, you should still review policy DNA legal and local and make sure your administration is adhering to the rules and calendar of teacher evaluations.
One-Bad-Act Documentation
In addition to performance documentation, “one-bad-act” documentation captures the outlier, the aberration, the act or allegation that may be serious enough to result in an investigation. It might also result in administrative leave, a report to law enforcement, CPS and/or TEA, and it might lead to termination or nonrenewal. One-bad-act documentation will look different than performance documentation. It will likely be more legalistic with new directives and employee consequences. Its primary purpose, unlike performance documentation, might not be employee improvement.
The gravitational pull of these allegations usually draws in people beyond your campus. Depending on the school district and the allegation, you will probably have assistance in creating one-bad-act documentation. In fact, it might come directly from the superintendent’s office or HR, with the assistance from the school lawyer.
Conclusion
While staff improvement is the most important reason to document, the group answers at the beginning of this article weren’t entirely wrong, just a little blunt. Reconsider the secondary reasons to document suggested by the group: 1. It’s your job. If you don’t do it, they will get someone else who will. So, yes, cover your backside and document. 2. It could shore up a negative employment action. If an employee is dismissed for performance reasons, but there is no documentation, it may look like the district fired the employee for a different, undisclosed reason.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
TEPSA News, September/October 2024, Vol 81, No 5
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