Unsatisfactory rating
An unsatisfactory rating is necessary for the non-retention of a temporary professional employe and any temporary professional employe whose work has been certified as satisfactory "during the last four (4) months of the third year of service" [See 24 PS § 11-1108(b)(2)] becomes a professional employe. The courts have determined that any temporary professional employe who is not rated unsatisfactory during the last four month of service of the probationary period and who is given a contract for the following year becomes a professional employe. [The absence of a rating indicates satisfactory performance and is tantamount to a satisfactory rating. See Elias v. Board of School Directors of Windber Area, Wagner v. Board of School Directors of Windber Area, 421 Pa. 260, 218 A.2d 739 (1966); Tyler v. Jefferson County-DuBois Area Vocational Technical School, 467 Pa 595, 359 A.2d 761(1976)]
Two consecutive unsatisfactory ratings are necessary to dismiss a professional employe on the grounds of incompetency or unsatisfactory teaching performance. See 24 PS § 11-1123. Unsatisfactory ratings are discussed in the regulations made by the Pennsylvania Department of Education in 22 PA Code § 351.26:
(a) Two consecutive unsatisfactory ratings of a professional employe shall be necessary to dismiss on the grounds of incompetency. This requirement insures that dismissal is not based on the first instance of unsatisfactory performance, but that dismissal follows notice and an opportunity for the professional employee to improve.
(b) The intermediate unit director or district superintendent shall approve and sign the rating form when an unsatisfactory rating is recorded.
(c) Whenever an unsatisfactory rating is given, it shall be supported by anecdotal records. The records shall include specific evidence likely to be important in the event of dismissal.
In Board of Education of the School District of Philadelphia v. Kushner, 109 Pa. Commw. 120, 530 A.2d 541 (1987), Commonwealth Court noted that the regulations of the Pennsylvania Department of Education do not define "unsatisfactory rating." In Kushner, Commonwealth Court stated:
The relevant regulations made by the Department of Education (Department) appear at 22 Pa. Code § 351.22 and § 351.26. Regulation 351.22, which is entitled "Additional standards for use of the DEBE-333" (the rating form), while discussing how ratings should be completed, does not deal specifically with unsatisfactory ratings.
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We have construed this regulation to require "only that unsatisfactory ratings be approved and signed by the district superintendent or intermediate unit director and be supported by anecdotal records. There is no requirement in 22 Pa. Code § 351.26 that unsatisfactory ratings contain numerical scores." Hamburg v. North Penn School District, 86 Pa. Commonwealth Ct. 371, 375, 484 A.2d 867, 869 (1984). Accordingly, under Hamburg, the failure to include numerical scores on the teacher's unsatisfactory ratings could not properly form a basis for the Secretary's reversal.
530 A.2d at 543-544. Appeals concerning a dismissal on the basis unsatisfactory rating for a temporary professional employe to the court of common pleas and then to Commonwealth Court. Appeals concerning a dismissal on the basis of unsatisfactory rating for a professional employe go to the Secretary of Education and then to Commonwealth Court.
School Code 24 PS §§ 11-1108 and 11-1123
Regulations of the State Board of Education 22 PA Code §§ 351.26
Basic Education Circular BEC 24 PS Section 11-1123 and its attachment, Employe Rating Form, 24 PS Section 11-1123.