CO Code § 22-9-106 (2021)
2021 Colorado Code|Title 22 - Education|Article 9 - Licensed Personnel Evaluations|§ 22-9-106. Local Boards of Education - Duties - Performance Evaluation System - Compliance - Rules - Repeal

  All school districts and boards of cooperative services that employ licensed personnel, as defined in section 22-9-103 (1.5), shall adopt a written system to evaluate the employment performance of school district and board of cooperative services licensed personnel, including all teachers, principals, and administrators, with the exception of licensed personnel employed by a board of cooperative services for a period of six weeks or less. In developing the licensed personnel performance evaluation system and any amendments thereto, the local board and board of cooperative services shall comply with the provisions of subsection (1.5) of this section and shall consult with administrators, principals, and teachers employed within the district or participating districts in a board of cooperative services, parents, and the school district licensed personnel performance evaluation council or the board of cooperative services personnel performance evaluation council created pursuant to section 22-9-107. The performance evaluation system shall address all of the performance standards established by rule of the state board and adopted by the general assembly pursuant to section 22-9-105.5, and shall contain, but need not be limited to, the following information:   The title or position of the evaluator for each licensed personnel position to be evaluated;    The licensed personnel positions to be evaluated, which shall include all licensed personnel, all part-time teachers as defined in section 22-63-103 (6), and all administrators and principals;    The frequency and duration of the evaluations, which shall be on a regular basis and of such frequency and duration as to ensure the collection of a sufficient amount of data from which reliable conclusions and findings may be drawn. At a minimum, the performance evaluation system shall ensure that:   Probationary teachers receive at least two documented observations and one evaluation that results in a written evaluation report pursuant to subsection (3) of this section each academic year. Probationary teachers shall receive the written evaluation report at least two weeks before the last class day of the school year.    Nonprobationary teachers receive at least one observation each year and one evaluation that results in a written evaluation report pursuant to subsection (3) of this section every three years; except that, beginning with the 2012-13 academic year, nonprobationary teachers shall receive a written evaluation report pursuant to subsection (3) of this section each academic year according to the performance standards established by rule of the state board and adopted by the general assembly pursuant to section 22-9-105.5. Nonprobationary teachers shall receive the written evaluation report at least two weeks before the last class day of the school year.    Principals shall receive one evaluation that results in a written evaluation report pursuant to subsection (3) of this section each academic year according to the performance standards established by rule of the state board and adopted by the general assembly pursuant to section 22-9-105.5.    (Deleted by amendment, L. 2010, (SB 10-191), ch. 241, p. 1063, § 7, effective May 20, 2010.)       The purposes of the evaluation, which shall include but need not be limited to:   Providing a basis for the improvement of instruction;    Enhancing the implementation of programs of curriculum;    Providing the measurement of satisfactory performance for individual licensed personnel and serving as documentation for an unsatisfactory performance dismissal proceeding under article 63 of this title;    Serving as a measurement of the professional growth and development of licensed personnel; and    (A) Repealed.         Repealed. (e) (I) Repealed.    The standards set by the local board for effective performance for licensed personnel and the criteria to be used to determine whether the performance of each licensed person meets such standards and other criteria for evaluation for each licensed personnel position evaluated. One of the standards for measuring teacher effectiveness shall be directly related to classroom instruction and shall require that at least fifty percent of the evaluation is determined by the academic growth of the teacher's students. The district accountability committee shall provide input and recommendations concerning the assessment tools used to measure student academic growth as it relates to teacher evaluations. The standards shall include multiple measures of student performance in conjunction with student growth expectations. For the purposes of measuring effectiveness, expectations of student academic growth shall take into consideration diverse factors, including but not limited to special education, student mobility, and classrooms with a student population in which ninety-five percent meet the definition of high-risk student as defined in section 22-7-604.5 (1.5). The performance evaluation system shall also ensure that the standards and criteria are available in writing to all licensed personnel and are communicated and discussed by the person being evaluated and the evaluator prior to and during the course of the evaluation. This subparagraph (II) shall take effect at such time as the performance evaluation system based on quality standards established pursuant to this section and the rules promulgated by the state board pursuant to section 22-9-105.5 has completed the initial phase of implementation and has been implemented statewide. The commissioner shall provide notice of such implementation to the revisor of statutes on or before July 1, 2014, and each July 1 thereafter until statewide implementation occurs.       The methods of evaluation, which shall include, but shall not be limited to, direct observations by the evaluator and a process of systematic data-gathering. (1.5)   A local board or board of cooperative services may adopt the state model performance evaluation system established by the rules promulgated by the state board pursuant to section 22-9-105.5 or may develop its own local licensed personnel evaluation system that complies with the requirements established pursuant to this section and the rules promulgated by the state board. If a school district or board of cooperative services develops its own local licensed personnel evaluation system, the local board or board of cooperative services or any interested party may submit to the department, or the department may solicit and collect, data related to said personnel evaluation system for review by the department.    The department shall monitor school districts' and boards of cooperative services' implementation of the requirements for local licensed personnel evaluation systems. If, upon initial review by the department, the data submitted or collected pursuant to paragraph (a) of this subsection (1.5) indicates that a school district or board of cooperative services is unable to implement a local licensed personnel evaluation system that meets the objectives of this article, the department shall conduct a more thorough review of the school district's or board of cooperative services' processes and procedures for said evaluation system to ensure that it is professionally sound; results in fair, adequate, and credible evaluations; satisfies the quality standards established by rule of the state board in a manner that is appropriate to the size, demographics, and location of the local board or board of cooperative services; and is consistent with the goals, objectives, and intent of this article.      Pursuant to section 22-11-206 (4)(b), if the department has reason to believe that a local licensed personnel evaluation system developed by a local board or board of cooperative services is not in substantial compliance with one or more of the applicable statutory or regulatory requirements of this article, the department shall notify the local board or board of cooperative services that it has ninety days after the date of the notice to bring its local licensed personnel evaluation system into compliance. The department shall work collaboratively with the school district or board of cooperative services during the ninety-day period to bring the local licensed personnel evaluation system into compliance with the applicable statutory or regulatory requirements. (c) (I) Pursuant to section 22-11-206 (4)(b), if the department has reason to believe that a local licensed personnel evaluation system developed by a local board or board of cooperative services is not in substantial compliance with one or more of the applicable statutory or regulatory requirements of this article, the department shall notify the local board or board of cooperative services that it has ninety days after the date of the notice to bring its local licensed personnel evaluation system into compliance. The department shall work collaboratively with the school district or board of cooperative services during the ninety-day period to bring the local licensed personnel evaluation system into compliance with the applicable statutory or regulatory requirements.    If, at the end of the ninety-day period, the department finds that the local licensed personnel evaluation system is not substantially in compliance with the applicable statutory or regulatory requirements, the department shall determine the appropriate remedies to correct the identified areas of noncompliance, including but not limited to:   Extending the time frame for compliance;    Imposing interventions specified in article 11 of this title; or    As a last resort, requiring the school district or board of cooperative services to implement some or all of the state model system. A school district or board of cooperative services shall only be required to implement those aspects of the state model system that are deemed necessary to bring the local licensed personnel evaluation system into compliance.       If the department determines that the noncompliance is substantial enough to call into question the validity of the educator evaluation ratings, the department may take appropriate action that may include invalidating the school district's or board of cooperative services' educator ratings for the evaluation cycles in question. If the department determines that the noncompliance requires invalidating the school district's or board of cooperative services' educator ratings:   A teacher who received a rating of effective or highly effective shall retain that rating; and    A teacher who received a rating of partially effective or ineffective shall receive a “no score” rating for the year in question. However, if in the following academic year, the department determines that the school district's or board of cooperative services' local licensed personnel evaluation system is compliant with the requirements of this article and the teacher receives a performance evaluation rating of ineffective or partially effective, this rating shall have the consequence of a second consecutive ineffective rating.          The general assembly finds that, for purposes of section 17 of article IX of the state constitution, the review of local licensed personnel evaluation systems as provided for in this subsection (1.5) is an important component of an accountable program to meet state academic standards and, therefore, may be funded from moneys in the state education fund created in section 17 (4) of article IX of the state constitution.          In implementing such evaluation system and procedures, the school district or board of cooperative services shall conduct all evaluations so as to observe the legal and constitutional rights of licensed personnel, and no evaluation information shall be gathered by electronic devices without the consent of the licensed personnel. No informality in any evaluation or in the manner of making or recording any evaluation shall invalidate such evaluation. (2.5)   Repealed.      The council shall actively participate with the local board in developing written standards for evaluation that clearly specify performance standards and the quality standards and the criteria to be used to determine whether the performance of each licensed person meets such standards pursuant to paragraph (e) of subsection (1) of this section. Except as provided in subparagraph (II) of this paragraph (b), this paragraph (b) takes effect at such time as the performance evaluation system based on quality standards established pursuant to this section and the rules promulgated by the state board pursuant to section 22-9-105.5 has completed the initial phase of implementation and has been implemented statewide. The commissioner shall provide notice of such implementation to the revisor of statutes on or before July 1, 2014, and each July 1 thereafter until statewide implementation occurs. (b) (I) The council shall actively participate with the local board in developing written standards for evaluation that clearly specify performance standards and the quality standards and the criteria to be used to determine whether the performance of each licensed person meets such standards pursuant to paragraph (e) of subsection (1) of this section. Except as provided in subparagraph (II) of this paragraph (b), this paragraph (b) takes effect at such time as the performance evaluation system based on quality standards established pursuant to this section and the rules promulgated by the state board pursuant to section 22-9-105.5 has completed the initial phase of implementation and has been implemented statewide. The commissioner shall provide notice of such implementation to the revisor of statutes on or before July 1, 2014, and each July 1 thereafter until statewide implementation occurs.    Repealed.       Notwithstanding any provision of paragraph (e) of subsection (1) of this section or subsection (7) of this section to the contrary:   A local board may use the results of the state assessments administered pursuant to section 22-7-1006.3 in the 2014-15 school year only as baseline data for measuring student academic growth in the 2015-16 school year and school years thereafter; and    A local board may use the results of state assessments administered pursuant to section 22-7-1006.3 as a measure of student academic growth for evaluations prepared for the school year in which the assessments are administered only if the local board receives the results by the date by which probationary teachers and nonprobationary teachers must receive the written evaluation report as provided in paragraph (c) of subsection (1) of this section. If a local board does not receive the results of state assessments in time to use them in the written evaluation report prepared for the school year in which the assessments are administered, the local board shall use the results of the state assessments as measures of student academic growth for educator evaluations and professional development in the school year following the school year in which the assessments are administered. In any year in which a local board does not receive the state assessment results by the deadline for the written evaluation reports, the local board must use alternate measures of student academic growth, including the results of local assessments if available.          An evaluation report shall be issued upon the completion of an evaluation made pursuant to this section and shall:   Be in writing;    Contain a written improvement plan, that shall be specific as to what improvements, if any, are needed in the performance of the licensed personnel and shall clearly set forth recommendations for improvements, including recommendations for additional education and training during the teacher's or the principal's license renewal process;    Be specific as to the strengths and weaknesses in the performance of the individual being evaluated;    Specifically identify when a direct observation was made;    Identify data sources;    Be discussed and be signed by the evaluator and the person being evaluated, each to receive a copy of the report. The signature on the report of any person shall not be construed to indicate agreement with the information contained in the report. If the person being evaluated disagrees with any of the conclusions or recommendations made in the evaluation report, the person may attach any written explanation or other relevant documentation that the person deems necessary.    Be reviewed by a supervisor of the evaluator, whose signature shall also appear on said report. (3.2)   In addition to the items specified in subsection (3) of this section, the evaluation of a teacher may include any peer, parent, or student input obtained from standardized surveys.    In addition to the items specified in subsection (3) of this section, each principal's evaluation shall include input from the teachers employed in the principal's school and may include input from the students enrolled in the school and their parents. Each school district shall specify the manner in which input from teachers and from students and parents, if any, is collected but shall ensure that the information collected remains anonymous and confidential. (3.3) Each principal or administrator who is responsible for evaluating licensed personnel shall keep records and documentation for each evaluation conducted. Each principal and administrator who is responsible for evaluating licensed personnel shall be evaluated as to how well he or she complies with this section and with the school district's evaluation system. (3.5)   Repealed.      A teacher or principal whose performance is deemed to be ineffective pursuant to paragraph (e) of subsection (1) of this section shall receive written notice that his or her performance evaluation shows a rating of ineffective, a copy of the documentation relied upon in measuring his or her performance, and identification of deficiencies. (b) (I) A teacher or principal whose performance is deemed to be ineffective pursuant to paragraph (e) of subsection (1) of this section shall receive written notice that his or her performance evaluation shows a rating of ineffective, a copy of the documentation relied upon in measuring his or her performance, and identification of deficiencies.    Repealed.    This paragraph (b) shall take effect at such time as the performance evaluation system based on quality standards established pursuant to this section and the rules promulgated by the state board pursuant to section 22-9-105.5 has completed the initial phase of implementation and has been implemented statewide. The commissioner shall provide notice of such implementation to the revisor of statutes on or before July 1, 2014, and each July 1 thereafter until statewide implementation occurs.    Repealed.                  Except as provided in paragraph (b) of this subsection (4), no person shall be responsible for the evaluation of licensed personnel unless the person has a principal or administrator license issued pursuant to article 60.5 of this title or is a designee of a person with a principal or administrator license and has received education and training in evaluation skills approved by the department of education that will enable him or her to make fair, professional, and credible evaluations of the personnel whom he or she is responsible for evaluating. No person shall be issued a principal or administrator license or have a principal or administrator license renewed unless the state board determines that such person has received education and training approved by the department of education.    A local board of education shall have the authority to evaluate the performance of the superintendent of the school district. The responsibility for conducting the performance evaluation of the superintendent shall rest exclusively with the local board of education. (4.3) Notwithstanding any provision of this section to the contrary, a person who is employed in multiple roles simultaneously may receive a single evaluation that takes into account the person's performance of his or her responsibilities in each role. The person's supervisor shall conduct the evaluation or, if the person is employed as a school district superintendent, the local board of education shall conduct the person's evaluation. (4.5)   Repealed.    Any person whose performance evaluation includes a remediation plan shall be given an opportunity to improve his or her effectiveness through the implementation of the plan. If the next performance evaluation shows that the person is performing effectively, no further action shall be taken concerning the original performance evaluation. If the evaluation shows the person is still not performing effectively, he or she shall receive written notice that his or her performance evaluation shows a rating of ineffective, a copy of the documentation relied upon in measuring the person's performance, and identification of deficiencies. Each school district shall ensure that a nonprobationary teacher who objects to a rating of ineffectiveness has an opportunity to appeal that rating, in accordance with a fair and transparent process developed, where applicable, through collective bargaining. At a minimum, the appeal process provided shall allow a nonprobationary teacher to appeal the rating of ineffectiveness to the superintendent of the school district and shall place the burden upon the nonprobationary teacher to demonstrate that a rating of effectiveness was appropriate. The appeal process shall take no longer than ninety days, and the nonprobationary teacher shall not be subject to a possible loss of nonprobationary status until after a final determination regarding the rating of ineffectiveness is made. For a person who receives a performance rating of ineffective, the evaluator shall either make additional recommendations for improvement or may recommend the dismissal of the person, which dismissal shall be in accordance with the provisions of article 63 of this title if the person is a teacher. This paragraph (b) shall take effect at such time as the performance evaluation system based on quality standards established pursuant to this section and the rules promulgated by the state board pursuant to section 22-9-105.5 has completed the initial phase of implementation and has been implemented statewide. The commissioner shall provide notice of such implementation to the revisor of statutes on or before July 1, 2014, and each July 1 thereafter until statewide implementation occurs.          The school district or board of cooperative services licensed personnel performance evaluation system, processes, and procedures must be in accord with the rules adopted by the state board. The system shall be developed after consultation with the school district or board of cooperative services licensed personnel performance evaluation council created pursuant to section 22-9-107 with regard to the planning, development, adoption, and implementation of such system, and said council shall conduct a continuous evaluation of said system.    Pursuant to subsection (1.5) of this section, the department shall approve any school district's or board of cooperative services' local licensed personnel performance evaluation system and related processes and procedures to determine whether such system, processes, and procedures are consistent with this article.    Every principal shall be evaluated using multiple fair, transparent, timely, rigorous, and valid methods. The recommendations developed pursuant to this subsection (7) shall require that at least fifty percent of the evaluation is determined by the academic growth of the students enrolled in the principal's school. For principals, the quality standards shall include, but need not be limited to:   Achievement and academic growth for those students enrolled in the principal's school, as measured by the Colorado growth model set forth in section 22-11-202;    The number and percentage of licensed personnel in the principal's school who are rated as effective or highly effective; and    The number and percentage of licensed personnel in the principal's school who are rated as ineffective but are improving in effectiveness.       On or before August 1, 2014, each local board of education shall develop, in collaboration with a local teachers association or, if none exists, with teachers from the district, an incentive system, the purpose of which shall be to encourage effective teachers in high-performing schools to move to jobs in schools that have low performance ratings.      Notwithstanding any provision of this article 9 or any provision of state board rule that implements this article 9 to the contrary, for the 2020-21 school year, evaluation ratings for licensed personnel must not include consideration of student academic growth measures or other student performance measures.    This subsection (9) is repealed, effective July 1, 2022.        History. Source: L. 84: Entire article added, p. 587, § 1, effective May 14. L. 90: IP(1), (1)(b) to (1)(e), (3)(b), and (4) amended and (2.5), (3.5), and (4.5) added, p. 1128, § 3, effective May 31; (4.5) amended, p. 1846, § 38, effective July 1. L. 92: IP(1), (1)(d), (2), (2.5), (3.5), (5), and (6) amended, p. 472, § 6, effective April 29. L. 98: (1), (2.5), (3), (4), and (4.5) amended and (3.2) and (3.3) added, p. 286, §§ 4, 5, effective July 1. L. 2000: IP(1), (1)(a), (1)(b), (1)(d)(III), (1)(d)(IV), (1)(d)(V), (1)(e), (2), (2.5), (3)(b), (3.3), (4), and (5) amended, p. 1851, § 46, effective August 2. L. 2001: (4) amended, p. 52, § 1, effective August 8. L. 2004: (6) amended, p. 1285, § 16, effective May 28. L. 2006: (1)(c), (3)(b), (3.2), (3.5), and (4.5) amended, p. 1241, § 6, effective May 26. L. 2010: IP(1), (1)(c), (1)(d)(V), (1)(e), (2.5), (3.3), (3.5), (4)(a), and (4.5) amended and (7) and (8) added,(SB 10-191), ch. 241, p. 1063, § 7, effective May 20. L. 2013: IP(1), (5), and (6) amended and (1.5) added,(HB 13-1257), ch. 237, p. 1151, § 1, effective May 17. L. 2014: (2.5)(b) amended,(SB 14-165), ch. 161, p. 569, § 1, effective May 9. L. 2015: (2.5)(b)(II)(A) amended and (2.5)(c) added,(HB 15-1323), ch. 204, p. 717, § 10, effective May 20; (4.3) added,(HB 15-1321), ch. 217, p. 799, § 8, effective May 22. L. 2016: (3.5)(b)(IV) repealed,(SB 16-189), ch. 210, p. 762, § 35, effective June 6. L. 2021: (9) added,(HB 21-1161), ch. 10, p. 58, § 2, effective March 16.    Editor's note:      The revisor of statutes received the notices referred to in former subsections (1)(d)(V)(A), (1)(e)(I), (2.5)(a), (3.5)(a), and (4.5)(a) that caused the repeal of those provisions, effective June 27, 2013. (1) (a) The revisor of statutes received the notices referred to in former subsections (1)(d)(V)(A), (1)(e)(I), (2.5)(a), (3.5)(a), and (4.5)(a) that caused the repeal of those provisions, effective June 27, 2013.    The revisor of statutes received the notices referred to in subsections (1)(d)(V)(B), (1)(e)(II), (2.5)(b), (3.5)(b), and (4.5)(b) that allowed those provisions to become effective June 27, 2013.       Subsection (3.5)(b)(IV) provided for the repeal of subsection (3.5)(b)(II), effective February 15, 2013. (SeeL. 2010, p. 1063.)      Subsection (2.5)(b)(II)(B) provided for the repeal of subsection (2.5)(b)(II), effective July 1, 2015. (SeeL. 2014, p. 569.) (3) (a) Subsection (2.5)(b)(II)(B) provided for the repeal of subsection (2.5)(b)(II), effective July 1, 2015. (SeeL. 2014, p. 569.)    Subsection (2.5)(b)(II)(A) was amended in HB 15-1323. Those amendments were superseded by the repeal of subsection (2.5)(b)(II), effective July 1, 2015. For the amendments to subsection (2.5)(b)(II)(A) in effect from May 20, 2015, to July 1, 2015, see chapter 204, Session Laws of Colorado 2015. (See.L. 2015, p. 717.)        ANNOTATION   Independent private cause of action not created by this act since § 22-9-104 provides a remedy to redress a statutory violation of this section. Axtell v. Park Sch. Dist. R-3, 962 P.2d 319 (Colo. App. 1998).   Nor does act create a contract by law. Axtell v. Park Sch. Dist. R-3, 962 P.2d 319 (Colo. App. 1998).   No implied contractual right under school district's evaluation policy if there is a clear disclaimer of any contractual rights in the employee manual or handbook. Axtell v. Park Sch. Dist. R-3, 962 P.2d 319 (Colo. App. 1998).