Law & Courts

Denver Schools Struggle With ‘Mutual Consent’

By Charlie Brennan, Education News Colorado — May 23, 2011 9 min read

Denver Public Schools and its teachers union could need help from the courts to settle a dispute over how long veteran teachers who have lost their jobs—those educators with more than three years of experience and satisfactory evaluations—must continue to be paid.

The conflict centers on implementation of the “mutual consent” provision of Colorado’s landmark educator effectiveness law, otherwise known as Senate Bill 191, signed into law by former Gov. Bill Ritter almost exactly one year ago.

Attention to the law has focused largely on its requirement that at least 50 percent of a teacher or principal’s performance evaluation be tied to student progress on exams, which doesn’t go into effect for several years.

But the law also enacts mutual consent, which states teachers with at least three years experience who lose their jobs can no longer be assigned to another school without the approval of the teacher and the new school’s principal.

And, the new law says, if a mutually agreeable place cannot be found for such teachers within 12 months or two hiring cycles, whichever is longer, they’re to go on unpaid leave.

Contrast that with the state’s previous law, which essentially required districts to continue paying such teachers indefinitely.

DPS and its union are now haggling over definitions such as “hiring cycle” as they debate when the paychecks stop for some 20 teachers who lost their jobs last May and still haven’t found new places.

Defining ‘Hiring Cycles’

At the heart of the Denver conflict is disagreement over the proper definition of “hiring cycle.”

DPS’ view is that the district has two hiring cycles per year—one in the spring and one in the fall. The Denver Classroom Teachers Association, on the other hand, claims that there is only one cycle each year.

Under the DPS interpretation, the district would be on the hook to pay an unassigned teacher for no more than 12 months.

But the DCTA argues that teacher should be on the district payroll through the end of the hiring cycle during which he or sure was reduced—plus another 12 months—before being forced to take unpaid leave.

“At this point, the correct interpretation is highly dependent on the definition of hiring cycles,” said DCTA President Henry Roman.

Because the issue is the subject of ongoing discussions between the two sides, DPS officials would say little publicly about it.

“We understand that the mutual-consent provision in last year’s legislation took effect when the bill was signed into law last May,” said district spokesman Michael Vaughn, “and we are working on a plan to address implementation of that provision in our district.”

The dispute is moving to the forefront because on Friday it will have been 12 months since Ritter signed Senate Bill 191 into law on May 20, 2010.

According to the DCTA, about 20 DPS teachers lost their jobs last May and have not found a new post through mutual-consent placement.

Vaughn puts the number at 22 and says specific hiring fairs for unassigned non-probationary teachers were held in spring and fall of 2010, then again this spring.

Bill’s Sponsor Disagrees

DPS and the union had reached a tentative agreement on some aspects of the mutual-consent issues that was scheduled for school board approval on April 28.

But the document was pulled from the board’s agenda days before the meeting.

Answering the question of how much longer those 22 teachers must be paid will play directly on those teachers’ fate—but it likely also will dictate how DPS handles every similarly situated teacher going forward.

“We know that there is only one hiring cycle in DPS, and it begins more or less in January and it continues through the end of August,” Roman said.

“If the district’s interpretation is applied this school year, then you would have some teachers who would be impacted by that decision by the end of this year.”

Roman said the two parties may be forced to turn to the courts, seeking a declaratory judgment to resolve their differences.

“This should be an easy thing to resolve in my mind. But that’s not where we are, right now,” he said. “It could be an ongoing issue for several months. If no decision is made, then we have to find someone to help us with that.”

However, the prime sponsor of Senate Bill 191, state Sen. Mike Johnston, D-Denver, disagrees with the DCTA reading of the law.

He said that in the drafting of the bill, it was never contemplated that unassigned teachers would be paid for more than one year.

Teacher Placement—Then and Now

Before Senate Bill 10-191 was signed into law
• Non-probationary teachers—those with more than three years’ experience—who received satisfactory evaluations were essentially guaranteed jobs provided they weren’t convicted of a felony or other grounds for dismissal spelled out in law.
• If non-probationary teachers lost their positions through program changes or enrollment declines, they could be assigned elsewhere in the district through “direct” or “forced” placement, meaning the teacher and the new principal did not have to consent to the placement.
After Senate Bill 10-191 was signed May 2010
• Non-probationary teachers who lose their jobs can only be placed at another school within their district through “mutual consent.” This means both the teacher and the principal at their new school, with input from at least two teachers at that school, must agree to the placement.
• If a non-probationary teacher can’t secure a mutual-consent assignment at a district school after 12 months or two hiring cycles, whichever is longer, the teacher then goes on unpaid leave.
• The bill does not define the length of a hiring cycle.

Source: Education News Colorado

‘Effective Immediately’

The bill’s language, “twelve months or two hiring cycles, whichever is longer,” Johnston said, was intended as protection for teachers in districts which might claim as many as four or five hiring cycles in one calendar year, as he said some do.

“This way, you would have two chances, at least, but those two chances are in the course of one calendar year,” he said. “You have a one-year grace period.”

The language in question now, Johnston said, was carefully negotiated, with union input, during the 2010 legislative session.

“I would just say that in my conversations with the stakeholders during the passage of 191, I felt quite clear that we all understood this to be happening over the course of one year,” he said. “I don’t think there was a great deal of confusion about it. That one year was meant as an outside boundary.”

There is a secondary, even more basic controversy concerning mutual consent placement; that is, when does the law take effect?

Again, Johnston said there should be no confusion.

“It was effective immediately. It did go into place last May when it was signed,” he said.

Other key components of the bill, most notably the development of performance evaluation systems, are being phased in and will not be fully implemented until 2014-15.

But Johnston said, “It was very clear that the mutual consent language was effective immediately.”

Task Force Appointed

For some, though, it’s not clear enough.

“This is a dispute over whether that provision is applicable now, or whether it’s only applicable after the full weight of the law kicks in, when educators will be held accountable for 50 percent of student achievement,” said Mark Stevens, spokesman for the Colorado Department of Education. “You’re not going to get us to weigh in on the legal issues.”

The Colorado Legacy Foundation is a privately-funded nonprofit providing support to implement the law, at the state level and in partnership with some local districts.

In an e-mail, foundation spokeswoman Heather Fox also chose not to tackle the DPS-DCTA conflict.

“CLF is not taking a position on when districts should implement mutual consent, but is simply working with those who want to think through how they will implement them,” she said.

The state’s largest school district also is punting on the question, for now.

Kerrie Dallman, president of the Jefferson County Teachers Association, said mutual consent was not part of the union-district negotiations, which concluded Thursday,

“We’re not implementing mutual consent this hiring season because the district doesn’t believe it goes into effect yet,” she said. “One of the things we agreed to was to establish a task force to look at the very issue you are asking me about. We’ll be beginning that work just this summer.”

As for the DPS conflict, Dallman added: “Personally, I think it was foolish of Denver to implement at this time, when everyone in the state is trying to figure it out. But, then again, Denver is always a leader and not always in a good way.”

Other Districts Implementing Mutual Consent

But DPS is not alone in implementing mutual-consent hiring this year.

Harrison School District 2, south of Colorado Springs, is among those implementing mutual consent as Johnston describes it outlined in Senate Bill 191.

Still, Superintendent Mike Miles said, “It’s not as big an issue for us because we have rarely moved a teacher without the principal’s acceptance—and, by rarely, I mean a handful of teachers in five years.”

Miles said he agrees “The intent of the bill is one year.” However, he added, with a defined hiring cycle running from the beginning of April to the end of July, Harrison is actually giving affected teachers 15 months’ grace, rather than 12, because that is the duration of its two defined hiring cycles.

Douglas County Public Schools also is implementing mutual consent hiring.

Brenda Smith, president of the Douglas County Federation of Teachers, was traveling Monday and unavailable for comment.

But federation spokesman George Merritt said the Douglas County district was defining its hiring cycle as running from March into June—and that therefore, unassigned teachers would continue to be paid for “closer to about 16 months.”

Douglas County’s union is an affiliate of the American Federation of Teachers or AFT, which supported the educator effectiveness law.

Most Colorado teachers’ unions are National Education Association affiliates and part of the Colorado Education Association, which opposed Senate Bill 191.

Union Calls Implementation ‘Premature’

On Monday, the CEA released a statement declaring DPS’ implementation of mutual consent “was premature, since the procedures for obtaining mutual consent have not been clearly spelled out in SB-191 and have not been bargained with DCTA.”

“We are concerned at this point that other school districts in Colorado such as the Harrison School District in Colorado Springs may be following the lead of DPS,” the statement read, and it cited the need for “clear direction from the legislature or the courts” on resolving the issue.

But in at least one Colorado district, the subject of mutual consent placement is old hat.

“Mapleton Public Schools has had mutual consent in its agreement with the Mapleton Education Association for at least the past eight years,” spokeswoman Whei Wong said via e-mail. “Teachers are part of the interview and decision-making teams.”

Mutual-consent hiring may represent a more significant shift for DPS than other districts.

An analysis by Education News Colorado in March 2010 showed that over a three-year period, DPS led the state by a wide margin in the “forced” or “direct” placement of teachers, with 377.

Douglas County had the second-highest number, with 97 direct placements.

Negotiations Continue

Even before passage of Senate Bill 191, DPS Superintendent Tom Boasberg had announced a limit to the direct placement of teachers in the district’s lowest-performing and highest-poverty schools.

District data had shown that direct-placement teachers were being disproportionately placed in Title I schools—those where at least half of the students qualify for federally subsidized lunches, an indicator of poverty.

In early 2010, DPS data showed that while about 65 percent of DPS schools were Title I schools subject to receiving direct placements, those schools were nevertheless receiving about 75 percent of those teachers.

Direct placement may become a thing of the past with the educator effectiveness law. But the implementation of mutual consent, at least in Denver, is not proving to be as simple as some might have hoped.

“I think a lot about the unintended consequences of public policy,” said Roman, with the DCTA. “They say this, and they say that, and what does it all really mean? The idea sounds nice, but how do you make it in practice so that it is fair for everyone?”

Negotiations continue between DPS and the DCTA on mutual consent, he said, though it is uncertain how, and when, the issue will be resolved.

From EdNews Colorado

“I think this is going to be an ongoing conversation,” Roman predicted. “But I am always hopeful. I am always hopeful, to the end.”

Republished with permission from Education News Colorado. Copyright © 2011 Public Education & Business Coalition. For more information, visit
A version of this article appeared in the June 08, 2011 edition of Education Week as Denver Schools Struggle With ‘Mutual Consent’


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