ARBITRATION PROCEEDING IN RE: DISCHARGE ARBITRATION OF DR. JULIE BLNKO FROM ST.

PAUL PUBLIC SCHOOLS CLOSING BRIEF OF DR. JULIE BINKO BY: DIANA LONGRIE, ATTORNEY AT LAW

INTRODUCTION

On October 7, 2008 the Superintendent of Schools recommended that Dr. Julie Binko (hereinafter "Binko") be discharged from her employment with the St. Paul Public Schools (hereinafter "SPPS"). During the arbitration, the bulk of the testimony provided in support of SPPS' termination of Binko was a regurgitation of hearsay and administrative rhetoric. After listening to days of testimony, it is evident that Binko's termination centers around SPPS's desired enforcement of a. prescriptive teaching style and restrictive communication mandates. While SPPS is hiding behind the facade of terminating Binko for "inefficiency in teaching" and insubordination, what is being tested in this case is whether SPPS can force tenured teachers to use - irrespective of student academic testing outcomes or a teacher's professional discretion -a mandated teaching style by co-mingling "improvement" with discipline. The fusion of the discipline process and teacher assistant program was used hand-in-hand, though the use of an "improvement plan", to reinforce the threat of termination if Binko did not convert to the mandated teaching style. This is the first arbitration relating to the use of SPPS "improvement plans" to terminate a tenured teacher in the district. (Vol.7, P1439, L8; P1445, L16) It is our position that Binko's proposed termination by SPPS is not in conformance with her contract nor with state law.

EXHIBIT AA

APPENDIX CONTROLLING STATUTES & CONTRACTS

Binko is a tenured teacher, and as such, is subject to the following controlling documents or statutes in this dispute: 1. 2. 3. 4. 5. MN Stat. 122A.41 of the Teacher Tenured Act (hereinafter MN STAT. 122A.41); Public Employment Labor Relations Act of 1971, MN Stat. 179A (hereinafter PELRA); MN Stat. 13.04 of the Minnesota Government Data Practices Act (hereinafter MN STAT. 13.04); Terms and Conditions of Professional Employment - Agreement Between the St. Paul Board of Education and the St. Paul Federation of Teachers (hereinafter referred to as the "Contract"); and Memorandum of Understanding - Discipline between the Board of Education, Independent School District No. 625 and the St. Paul Federation of Teachers Local No. 28 (hereinafter referred to as the "Discipline MOU").

OTHER COLLATERAL DOCUMENTS

Memorandum of Agreement - Career in Education Program executed by Independent School District No. 625 and the St. Paul Federation of Teachers Local No. 28 (hereinafter referred to as the "Improvement Plan MO A") 2. Merriam-Webster's Collegiate Dictionary, 397 (11th ed. 2003) 3. The Executive Summary of the Leadership Profile Assessment conducted by Hazard, Young, Attea & Associates - said assessment was adopted by the Board of Education, Independent School District No. 625 at the school board meeting held September 22, 2009 4. Employer Exhibits: Exhibits referenced herein using the format of: Emp Ex # 5. Binko Exhibits: Exhibits referenced herein using the format of: Binko Ex # 6. Transcripts of hearing: Transcript citations are referenced herein using the format of: Vol#P#L# 7. Career in Educational Booklet http://www.thecenter.spps.org/Career_in_Education.html
LEGAL REFERENCES

1.

v 1. 2. 3. 4. 5. 6. 7. Netzer v. Northern P. R. Co.. 238 Minn. 416, 426 (Minn. 1953) Morev v. School Board of Independent School Dist., 271 Minn. 445, 450 (Minn. 1965) Youngers v. Schafer. 196 Minn. 147, 150 (Minn. 1936) Kroll v. Indep. Sch. Dist. No. 593. 304 N.W.2d 338, 346(Minn. 1981) Ray v. Minneapolis Board of Education. 202 N.W.2d 375, 378 (Minn. 1972) In re Mary Silvestri's Teaching Contract with Independent School Dist. No. 695, 480 N.W.2d 117, 120 (Minn. Ct. App. 1992) Advisory Opinion: 95-028 - Minnesota Department of Administration

8.

MN Admin Rule 8710.2000

BASIS FOR TEACHER DISMISSAL

The proposed termination of Binko is pursuant to MN STAT. 122A.41, Subd. 6 (a) (l) & (3). (Emp Ex 114) - specifically, insubordination and inefficiency in teaching. t
CLAIMS

In response, Binko alleges SPPS has failed to meet their burden of proof to terminate her. Further, she alleges SPPS failed to provide required Tennessen warnings; is in breach of her Contract, including the Discipline MOU; has failed to follow the Improvement Plan MOA; and she is hereby submitting these matters to the arbitrator in support of her challenge of the proposed termination. All other claims Binko may have under Federal, State, County, or local law, including but not limited to, age discrimination; existence of a hostile work environment; FMLA violations; and discrimination based on sexual orientation are expressly withdrawn, without prejudice, and not submitted to arbitration under this proceeding. A determination of civil rights violations is beyond the scope of this proceeding and any such determination at this time exceeds the powers of the arbitrator.
ARBITRATOR'S REVIEW STANDARD

Under MN STAT. 122A.41, Subd. 1( c), an arbitrator's de novo inquiry at a teacher discharge arbitration is to determine if the district meets its burden of proof i.e. does their evidence on the record support the proposed teacher discharge by a preponderance of the evidence: "..... arbitrator shall determine, by a preponderance of the evidence, whether the causes specified in subdivision 6, clause (1), (2), (3), or (4), exist to support the proposed discharge or demotion." Netzer v. Northern P. R. Co., 238 Minn. 416, 426 (Minn. 1953) the trial court

provided an understandable and clear definition of preponderance of the evidence and how to t determine if the burden has been met: ' t -.

"A fair preponderance of the evidence means the greater weight of evidence. That is, to establish a fact by a fair preponderance of the evidence, the evidence must satisfy you that it is more reasonable, more probable, more credible that such fact exists than that the contrary exists. If the evidence is equally balanced on such issue, then the fact has not been established by a fair preponderance of the evidence. If the greater weight of evidence is against such fact, then also that fact has not been established by a fair preponderance of the evidence. But if in any appreciable degree there is greater weight in support of the claim of the party having the burden of proof, then that burden has been sustained and that fact has been established by a fair preponderance of the evidence." In this arbitration, SPPS has not met their burden of proof by a preponderance of the evidence. Binko should be reinstated with the SPPS with back pay, benefits, tenure step, reimbursement of her COBRA payments etc. and attorney fees in defending her position.

TEACHER'S QUALIFICATIONS

Dr. Binko has a Social Studies All license which means she is licensed to teach history, geography, economics, civics. She has a BA in Geography, a Masters in Curriculum and Instruction, and a Doctorate in Ed. Policy specializing in concept curriculum and middle school with experience particularly in instructional and curriculum design. A copy of her complete personnel file, as of May 19, 2008, was provided to Binko by SPPS Human Resources Department is found at Binko Ex 1. / TlMELINE Binko was assigned to teach 7th and 8th graders in the Social studies Department at Hazel Park for the 2006-07 and the 2007-08 school years. Prior to Binko being assigned to

Hazel Park, she had no negative or below standard evaluations in her personnel file. While at

Hazel Park, Binko's first evaluation was October 5, 2006. This performance assessment implemented an evaluation template based upon the Standards of Effective Teaching. Binko was found to "Meet Standards - Solid Performance" in all aspects (8) except for one area, (see Binko Ex 2, p3-9). See attached timeline for the major dates testified to as Attachment 1.

THE TESTIMONY

".....when a teacher's job is at stake, a just concern for fair play would require that the evidence which is calculated to support the charges should be relevant and have probative value. The board should not have to find support for its determination in hearsay or to make deductions from opinions and views relating to technical or theoretical principles." Morey v. School Board of Independent School Dist, 271 Minn. 445, 450 (Minn. 1965). Witness, Dr. Julie Binko, testified that while she was at Humboldt nothing negative about her was filed in her personnel file - the only disciplinary actions filed in her personnel file were those while she worked at Hazel Park Middle School Academy under McDonough. Binko testified when she first came to Hazel Park, fall of 2006, the school didn't have the textbooks and materials required by SPPS curriculum and her asking for these items caused some tension. Binko testified as to the culture she found at Hazel Park when she arrived there included some cliques that tried to pit people against people, that she relayed this information to McDonough (Vol5 PI018 L21; Vol5 P1019 L22) and that the information she gave McDonough ended up in her improvement plan (Vol5 PI020 L7; Vol5 PI023 LI9-22). Binko testified regarding a email she received from Gunderson (Binko Ex 15 P2) which stated that of the 32 teachers placed on improvement plans, 28 were over the age of 40. Binko stated she is 52. Witness, Dr. Marilyn Backer, is employed at the Center for Professional Development and she is hired by SPPS, in part, to coach principals in the evaluation of teachers and develop the district's instructional practice. Baeker identified her notes from her conversation with Coleman McDonough when he called her for coaching assistance. NOTE her focus on "problems" when no reprimands had been given Binko. Also, McDonough gave inaccurate information that Binko was on an informal improvement plan in the past. Emp Ex 1 Backer testified regarding the Teacher Assistance program for Tenured Teachers. Emp Ex 2 Beaker's testimony often implied she observed for longer than for one class period by using words such as "on that day and the previous day" (Vol. 1 P87 LI 2); "at the end of the day" - . (Vol.1 P88 L5).

Baeker testified regarding the survey given to Binko's class as one of the ways SPPS was going to look for an improvement. (Vol.1 P97 L23) (Emp Ex 19). Survey proposed as a measurement tool in the Improvement Plan process to gain information from the students on what is or is not working for them, (p 4 ,5) On cross-examination, Baeker acknowledged she was contacted by Coleman McDonough before Binko's informal improvement plan commenced, (compare to her telephone conversation notes indicating Binko was on an informal plan in the past) Witness, Mr. Coleman McDonough, is employed by SPPS as the current Principal of Hazel Park Middle School Academy and was Binko's immediate supervisor. McDonough testified that he did not know the date for Emp Ex 40. McDonough testified that Binko told the students in her class what they were going to do that day rather than what they were going to learn that day and he felt that that incorrectly communicate student expectations. (Vol2 P323 LI-25) McDonough testified he had never "personally" spoken to Michelle Bierman, one of Binko's coaches (Vol 2 P327 LI 9) However this does not mean he did not communicate with her since SPPS provided email exchanges between the two. When asked about the specifics of his observations in the classroom, McDonough testified he could not recall the detail at all and conceded that could be other ways to interpret statements, actions. (Vol2 P402, P403, P404) McDonough testified he made a change in how "we do business" at Hazel Park when he arrived there and that he began working on his initiative Fall of 2007 (Vol2 P445 LI0-16) This is the same time he placed Binko on an improvement plan and he had just commenced the change over from focusing on "teaching" to "learning". Mary Beth Blegan testified that "it is the responsibility of us as teachers , no matter what level we are at, to see the students where they are." (Vol 2 P510 L8) Michelle Bierman testified that she provided Binko with inference materials, that there was no animosity in the emails from Binko and she assumed from the tone and content of the emails that Binko was getting the support as legally required under the contract. (Vol 2 P481 L 1-25) Jeff Rahman testified that he didn't know Binko was participating in an observation and that is why she didn't complete the final POP with the Department. Suzanne Kelly testified that she assumed those evaluating Binko had assessed the lesson plan as well as the delivery of the lesson plan (Vol4 P632 LI 1-19) Suzanne Kelly testified that the information provided from McDonough, Quinlan, Baeker and Stachel indicated the fact that progressive discipline had occurred, that there was oral feedback, written feedback, opportunities for improvement and improvement plan, and then so forth on up the process (Vol4 P648 L2-24) This is the first indication from SPPS testimony that the improvement plan is indeed a quasi-disciplinary process, a if not disciplinary process.
LEGAL DISCUSSION

Binko has four distinct arguments in this matter, in this order: ' 1. 2. 3. 4. SPPS did not follow state law in providing a Tennessen warning to Binko when the y should have and that any data obtained illegally can not be retained, used or disseminated by SPPS. SPPS overstepped their authority by their failure to abide by the terms and conditions of her contract. SPPS has not met their burden of proof in proposing her discharge from the district. SPPS has co-opted the teacher's business agent, making union representation ineffective.

TENNESSEN WARNING

Binko contends McDonough, as an employee of SPPS, did not provide her with Tennessen warnings as required by law prior to asking her to supply private data which he then collected, retained, disseminated, and used as personnel data to recommend her discharge. If the arbitrator determines Tennessen warnings were not given as required, MN Stat. 1305, subd.4 limits the use of the private information by SPPS. The instances of importance are as follows: The parties do not dispute that no Tennessen warning was given to Binko at the beginning of the "Get to Know You" meeting McDonough had with Binko on February 27, 2007. Binko testified that she was not given a Tennessen warning at the beginning of the March 15, 2007 meeting (Vol5 PI023 LI6-22) Binko testified that she was not given a Tennessen warning at the beginning of the November 1, 2006 meeting (Vol6 P1207 LI) Binko testified that she was not given a Tennessen warning at the beginning of the May 9, 2008 meeting, that her union representative was there, that they refused to give Binko a copy of the summation at the time of the meeting (Vol 5P1010L3-11; VolSPlOll LI-15) McDonough testified that at the meeting of May 9, 2008 he did not give Binko a Tennessen warning because it wasn't needed for a post observation meeting and only disciplinary meetings needed a Tennessen warning.(Vol 3 P614 L3-9)

Binko testified that she was not given a Tennessen warning at the beginning of the August 14, 2008 meeting with Stachel (Vol6 P1217 L22) Emp Ex 40 - McDonough continued to publish private data he collected from Binko ^

The Minnesota Government Data Practices Act ("Act") mandates all data collected, created, received, maintained or disseminated by a public body must be accessible to the public unless expressly classified by law as nonpublic or protected nonpublic or with respect to data on individuals, as private or confidential.. MN Stat. 13.03, subd. 1. Binko concern in this case is with regard to private data SPPS collected on her and then disseminated or used illegally. SPPS does not dispute that they are subject to the Act and that they must provide Tennessen warnings as required under MN Stat. 13.04 subd. 2: "An individual asked to supply private or confidential data concerning the individual shall be informed of: (a) the purpose and intended use of the requested data within the collecting state agency, political subdivision, or statewide system; (b) whether the individual may refuse or is legally required to supply the requested data; (c) any known consequence arising from supplying or refusing to supply private or confidential data; and (d) the identity of other persons or entities authorized by state or federal law to receive the data." "Private data on the individual" means data which is made by statute or federal law applicable to the data: (a) not public; and (b) accessible to the individual subject of that data. MN Stat.13.02 subd. 12. Under MN Stat.13.02 subd. 3, "confidential data on the individual"

8 means data which is made not public by statute or federal law applicable to the data and is inaccessible to the individual subject of that data. In this matter, private data was obtained on Binko from Binko without SPPS providing a Tennessen warning as required under MN Stat. 13.04subd. 2. In Binko's case, when was SPPS required to provide a Tennessen warning? It is established in case law that information obtained from an employee within the course and scope of their employment, which is not about them as an individual, is not private or confidential data requiring a Tennessen warning. Edina Educ. Ass'n v.

BoardofEduc., 562 N.W.2d 306, 311 (Minn. Ct App. 1997) In Edina Educ. Ass'n the teacher compiled a "log of interactions" of the school district's involvement with a certain parent following the parenf s charges of discrimination and complaint with the MN Department of Education. The teacher then discussed this log of interactions with the district's attorney. Subsequent to the district's investigation into the parent complaint, they issued a letter of deficiency to the teacher which the teacher grieved and later sued. Among other things, the teacher alleged the district violated the Act by not giving her a Tennessen warning when she was meeting with the district's attorney to discuss the log of interactions. The appellate court found that the school district's obtaining and discussing the teacher's log of interactions was not attempting to collect private or confidential information about a particular teacher but was gathering facts about an incident, involving the parent, within the course and scope of the teacher's employment. The information gathered by the school district was not data on the teacher as an individual. *- 9

On the other hand, all public employee personnel data are private unless designated otherwise by the Act. Annandale Advocate v. Annandale, 435 N.W.2d 24, 27 (Minn. 1989) and MN Stat. 13.43. Consequently, personnel data collected by a supervisor pertaining to an employee's hobby preferences, an employee's future retirement plans, an employee's performance evaluations prior to final disciplinary actions, an employee's response to an improvement plan, and an employee's statements of their personal feelings of stress as a result of the work environment is private. SPPS not only elicited Binko to disclose this private <* information pertaining to her as an individual, without providing the required Tennessen warning, they proceeded to collect, create, receive, maintain, disseminate and use this private information for their own purposes. _ -

It is quite evident from the testimony of all witnesses that SPPS was lax and inconsistent in following any district policy for providing a Tennessen warning to Binko ' before various "meetings", investigations, post-observation talks and etc. In applying the holding of In Edina Educ. Ass'n, the definition of private information on an individual, and the exceptions under MN Stat. 13.43, it is evident that McDonough and Stachel failed to provide Binko with a Tennessen warning prior to asking Binko to supply private data on herself on numerous occasions. Once McDonough obtained the private (personnel) data from Binko, who could he give it to? Minnesota Rules Part 1205.0400, subpart 2, provides that access to private data within a government entity is limited to those "whose work assignments reasonably require access." From the testimony provided at the hearing, Backer's only work assignment was to mentor McDonough and to facilitate the Teacher Assistance program. (Voll P80 L6-9) Her work assignment did not reasonably require access to private data

10 on Binko. Likewise the work assignment of the instructional coaches did not reasonably require access to private data on Binko. They were there to help with what Binko was

doing in her instructional practice at that point in time and had no reason to be provided additional private or personnel data by McDonough through emails and on-on conversations. This is consistent with Advisory Opinion:95-028 - Minnesota Department of Administration. t Without the proper Tennessen warning given to the public employee, what is the consequence for the employer? Under MN Stat. 1305, subd.4, limitations of the use of the private information is limited if a required Tennessen warning is not provided, specifically:

"Private or confidential data on an individual shall not be collected, stored, used, or disseminated by government entities for any purposes other than those stated to the individual at the time of collection in accordance with section 13.04, except as provided in this subdivision. (a) Data collected prior to August 1, 1975.... (b) Private or confidential data may be used and disseminated to individuals or entities specifically authorized access to that data by state, local, or federal law enacted or promulgated after the collection of the data. (c) Private or confidential data may be used and disseminated to individuals or entities subsequent to the collection of the data when the responsible authority maintaining the data has requested approval for a new or different use .... (d) Private data may be used by and disseminated to any person or entity if the individual subject or subjects of the data have given their informed consent....."

11

None of the exceptions apply to Binko's case. The end result being that pursuant to Section 13.05, subdivision 4, McDonough may not lawfully retain or disseminate wrongfully collected data. Binko contends this outcome is supported by the holding in Advisory Opinion:95-028 - Minnesota Department of Administration. During the meeting of February 27, 2007, shortly after McDonough arrived a Hazel Park, he had his "Get to Know You" meeting with Binko, no Tennessen warning was given. Looking at Emp Ex 27, McDonough's questionnaire specifically asks: "Tell me 3-5 things (not your resume) about yourself." This open-ended question, that excludes items found on a resume, invites the employee Binko to supply private or confidential information about herself. Without knowing the potential implications to her and the

impact certain disclosures might have on her future at Hazel Park, Binko answered by ( stating in writing: "If I could retire today, I would and move to Montana."

In his testimony, McDonough states that a Tennessen warning is only required if it is a disciplinary matter. Consequently, he did not give a Tennessen warning to Binko before her post observation meetings either. However, it should be noted that from the topics discussed at the November 1, 2007 meeting, a reprimand was issued. Similarly, Stachel did not give Binko a Tennessen warning because the "meeting" was only about the recommendation of discharge based upon inefficiency in teaching. Stachel did not testify that Binko engaged in conduct at the meeting of August 14, 2008 that would have caused Binko to be charged with a new charge for 4 termination - that of insubordination. Keep in mind, before this time, Binko had a satisfactory performance review and no disciplinary actions in her personnel file. No one seriously expects that the Administrators of SPPS who testified in this hearing are going to break rank from each other to disclose the District's insider game

12

plan of using improvement plan process as a quasi-disciplinary tool. However, McDonough's testimony of how he viewed Binko's responses to his questionnaire supports the theory that SPPS used Binko's answers to advance their own objectives -1.) to mandate a prescriptive teaching style 2.) trim tenured teachers from the ranks and 3.) cut costs. Binko contends there is a silent acceptance and acknowledgment that the improvement plan process under the Improvement Plan MOA is a quasi-disciplinary tool. Robert Gunderson stated that the union tries to be involved in every improvement plan.

(Vol7 PI423 LI-25) However, this apparently common practice does not square with the Discipline MOU, which states under Section 3: "When disciplinary action above the level of oral reprimand, pursuant to this Article, is anticipated, or an investigation preceding possible disciplinary action is undertaken, a meeting will be scheduled ......The teacher shall be provided written or oral notice of such meeting, and shall be entitled to Union representation." The Improvement Plan MOA is silent as to union representation of a teacher placed on an improvement plan. Gunderson reinforced during his testimony that the business agents do not get involved in the day-to-day meetings between administrators and teachers. If the improvement plan process was purely designed to improvement and enhance teaching performance or strategies in the classroom, it follows that the union would have no interest in the business being conducted between educational professionals. In reality, Binko contends the Union is interested in the improvement plan process because they are fully aware that it is indeed a quasi-disciplinary process. Therefore, as a quasi-disciplinary process, a teacher should be given their Tennessen warning because of

13

the high probability that any private data collected from the employee as to themselves as individuals could be used subsequently in a disciplinary proceeding. Based upon the requirement that a Tennessen Warning must be given before any investigation into disciplinary action begins, Binko also challenges whether SPPS can disseminated to other agencies, such as the Board of Teaching, the evaluations in her case since the improvement plan process is being implemented as a quasi-disciplinary

process.

C TR TU I SU ON AC AL S ES

There is no dispute that the Contract provides the terms and conditions of employment for Binko with SPPS (Art.l Contract). As such, the Contract clearly sets forth that it has been entered into between the Board of Education of Independent School District No. 625, Saint Paul, MN and the St. Paul Federation of Teachers Local No. 28, AFT pursuant to and in compliance with the PELRA. Further, Article 16 - Duration, Section 2 of the Contract states: "This Agreement constitutes the full and complete Agreement between the Board and the Federation, as the exclusive representative of the teachers. The provisions herein relating to terms and conditions of employment supersede any and all prior Agreements, resolutions, practices, School District policies, rules or regulations concerning terms and conditions of employment which are inconsistent with these provisions." Consequently, there are several provisions within the Contract relied upon by Binko: Article 5 - Teacher Rights, Section 1 "Nothing contained in this agreement shall be construed to limit, impair or affect the right of any teacher to the expression or communication of a view, complaint or opinion on any matter related to terms and conditions of employment or their betterment so long as the same is not designed to and does not interfere with or circumvent the full performance of the duties of employment or the rights of the Federation." Article 15 - Grievance Procedure Article 16 - Finality, Section 3 "All matters relating to the current contract term whether or not referred to in this Agreement, shall not be open for negotiation during the term of this Agreement except as stated in this Agreement."

14 Article 16 - Matters Not Covered, Section 5 "With regard to matters not covered by this Agreement which are terms and conditions of employment for teachers, the Board shall make no changes which are inconsistent with or in violation of any terms or this Agreement or provisions of PELRA." Article 16 - Experimental Programs, Section 7 ".. .contract may be amended to allow unique and innovative programs and provides the flexibility with which to try new methods to improve student achievement. .. .experimental programs will normally conform to the terms of the teacher labor agreement governing compensation, benefits and other working conditions. Exceptions may be allowed.. .with agreement.. .When it is determined that an exception to the terms of the labor agreement is warranted, the

district and union will grant waivers.. .specific to the program and will not modify the remaining provisions of this agreement......" There is no dispute that the Contract is in force and binding upon both Binko and SPPS during the time period subject to this case. Likewise, there is no dispute that the Discipline MOU on page 71 is in force and binding upon the parties. Although the Discipline MOU is not titled a "contract" it contains enabling language, references the Contract, binds the parties for two years and contains grievance language within its four corners. The Discipline MOU clearly states it is "by and between the Board of Education, Independent School District No. 625 (hereinafter "Employer") and the St. Paul Federation of Teachers Local No. 28 as the exclusive representative for teachers in the St. Paul Public Schools... .entered into for the sole and exclusive purpose of establishing, for a specified and limited period of time, the teacher discipline procedure.... for the duration of the 2007-2009 Labor Agreement.. ..actions commenced during the life of the 2007-2009 Labor Agreement will be considered subject to this process and will be completed under its provisions.... Section 2 Subd. 2: Discharge actions are governed by requirements of MN Stat. 122A.41..." Business agent, Robert Gunderson stated that the standards of effective teaching were part of the contract and something that the St. Paul Federation of Teachers and the St. Paul Schools worked together to agree that the standards of effective teaching would be something the

15 teachers would follow. He further indicated that the web site reference given on page 74 of Emp Ex Contract PI-8 7 incorporates those standards into the Improvement Plan MO A by t reference. Because the Career in Educational Booklet referenced and incorporated within the Improvement Plan MO A was not attached to Emp Ex Contract PI-87, it is included with our collateral documentation for ease and convenience of the arbitrator. Baeker said the

Improvement Plan MOA was a contract. McDonough said the Improvement Plan MOA was a contract. However, who is it a contract with and who is bound by it? The Improvement Plan MOA is written very differently. It is a document that establishes the Career in Education Program - an understanding to set up a Career in Education Board ("CEB"); the duties and responsibility of the CEB; the development of the standards of effective teaching as a framework for discussion and assessment; creation of the Teacher Assistance Program; and creating positions in the Career in Education Program. Within the Improvement Plan MOA there is no language incorporating its terms and conditions into the Contract. There is no enabling language. The Improvement Plan MOA makes no mention of the Teacher Tenure Statute as the Contract and the Discipline MOU do. There is no express representation agreed to by the Union, on behalf of the teachers, that the Standards of Effective Teaching are to be used as a quasi-disciplinary tool or that the MN Stat. 122A.41 "inefficiency in teaching" is equated to not successfully navigating the improvement plan framework established by CEB. There is no language within the Improvement Plan MOA that satisfies the requirement under PELRA that all contracts must include a grievance procedure providing for compulsory binding arbitration of grievances. MN Stat. 179A.20, Subd. 4. Conversely, given that the Improvement Plan MOA has been in existence in some form or another since at least September 2006 (see the revision date on the front cover of the Career

16 in Educational Booklet) them is no language within the Contract memorializing the practice of utilizing the Improvement Plan MOA as a process to terminate a tenured teacher. We also have no verification that the Improvement Plan MOA was implement in the form of an ordinance or resolution as required. MN Stat. 179A.20, Subd. 5.

"It is a well settled rule that in construing an instrument it must be considered as an entirety and that all the language used therein must be given force and effect if that can be done. "When reasonably possible a contract should be so construed as to give it effect rather than to nullify it." 2 Dunnell, Minn. Dig. (2 ed. & Supps. 1932, 1934) 1822, and cases under note 32. "The intention of the parties is to be gathered, not from isolated clauses, but from the instrument as a whole. The court will take an instrument by its four corners in order to ascertain its meaning. So far as reasonably possible a contract is to be so construed as to give effect to every word and phrase, and harmonize all its parts." Id. 1823, and cases cited under notes." Youngers v. Schafer. 196 Minn. 147, 150 (Minn. 1936) Looking at the above-referenced clauses from the Contract, if there is no incorporating language in the improvement MOA, no grievance procedure or the existence of a waiver for the Teacher Assistance program, it can be argued that the teachers have not agreed with SPPS that an improvement plan can be used as a quasi-disciplinary tool or that not successfully navigating the improvement plan framework established by CEB equates to the "inefficiency in teaching" ofMNStat. 122A.41.
PROGRESSIVE DISCIPLINE

The Discipline MOU calls for progressive discipline. Binko contends that the first time she was charged with insubordination is after she met with Stachel. Insubordination was never part of the charges made by McDonough in his recommendation for discharge. Under Section 2 v of the Discipline MOU, it specifically states: "Discipline will usually be applied progressively for sequential offences, using the following steps: a. Oral reprimand b. Written reprimand c. Suspension without pay

17 d. Discharge T~ Binko also contends that McDonough repeatedly used the same incidents in his discipline of her. Notably, from Attachment 1:

Nov. 1, 2007 Nov. 6, 2007 12,

Emp Ex 49 Meeting to discuss progress on an Emp Ex 14 Emp Ex 53 50 51

informal improvement plan

Letter of written directive regarding November 1, 2007 meeting. Letter of written reprimand for the Nov. 1, 2007 meeting which a written directive had already been issued. Letter regarding professional expectations and requirements - all issues were addressed in previous correspondence dated Nov. 6 & Nov. 12. Regurgitation and duplication._____
CHARGES AND CAUSES FOR DISCHARGE FRAMEWORK FOR ANALYSIS

Meeting regarding Improvement Plan. During meeting, notes indicate Dr. Binko to be given a written directive for attitude (rustling papers and roll eyes). Union Representative present. 5 days lapse in time. References Nov. 1 meeting - action taken 11 days lapse in time. References Nov. 1 meeting again - action taken second time (duplication) 11 days lapse in time. References Nov. 1 meeting again - action taken third time (duplication)

SPPS has provided in Emp Ex 114 the Charges and Causes for Discharge in this matter. One question is whether the SPPS has proven its charges against Binko by a preponderance of the evidence that she has engaged in inefficiency of teaching and insubordination. Secondly, if SPPS meets their burden, the next question is whether Binko's conduct warrants immediate discharge or whether is it remediable. To consider this question the following factors must be considered: the severity of the conduct; the teacher's record; whether the conduct resulted in harm and whether a warning would have made a difference. Kroll v. Indep. Sch. Dist. No. 593, 304 N.W.2d 338, 346(Minn. 1981).

18
INSUBORDINATION

Insubordination and Inefficiency of teaching are two separate legal bases for discharge. MN STAT. 122A.41, Subd. 6 (a)(l) as opposed to MN STAT. 122A.41, Subd. 6 (a)(3). Insubordination is a "constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority." Ray v. Minneapolis Board of Education, 202 N.W.2d 375, 378 (Minn. 1972) quoting Shockley v. Board of Education. 51 Del. 537, 541, 149 A. 2d 331, 334, rev'd on other grounds, 52 Del. 237, 155 A. 2d 323 (1959).

Therefore, an order must be 1.) "reasonable" and 2.) given by and with proper authority. Looking at the Charges and Causes for Discharge, one is hard pressed to determine / exactly what "order" Binko has intentionally refused to obey in a constant and continual manner. SPPS has never claimed that Binko has refused to teach the district approved curriculum. SPPS simply does not like Binko's teaching style because it doesn't follow the prescriptive teaching style they wish to mandate. SPPS is using the "improvement plan" process as an implementation tool to achieve teacher compliance in following the prescriptive teaching style the district wants. The question then is: Does SPPS have the proper authority to mandate a prescriptive teaching style and is that mandate "reasonable". In In re Mary Silvestri's Teaching Contract with Independent School Dist. No. 695 the Board passed a resolution which, in part, required the teacher to submit to an examination by a physician chosen from a list provided by the school board as part of her reinstatement requirements. Silvestri asserted the reinstatement statute did not require her to submit to a medical examination. The Board then proceeded to terminate her employment for

19 insubordination. The court determined that since the statute for reinstatement did not require medical examination for a teacher's reinstatement, only for a suspension, the Board did not have the proper authority to require an examination. Consequently, Silvestri's refusal to submit to ! the medical assessment could not be considered insubordination. In re Mary Silvestri's Teaching Contract with Independent School Dist. No. 695, 480 N.W.2d 117, 120 (Minn. Ct. App. 1992) t hi Binko's case, we contend that neither the Principal nor SPPS have the authority to

supercede the teacher's professional discretion in the classroom and/or to require a teacher to follow a set, prescribed teaching style. Without that authority, they can not require a teacher to adhere to a mandated prescriptive teaching style as a condition of employment. Consequently, a teacher's refusal to adhere to a such an order requiring a mandated prescriptive teaching style can not be considered insubordination. During the arbitration, Binko was asked the question, where in the contract does it indicate that she as a teacher has the right to exercise teacher discretion in the classroom. While Binko pointed to several provisions within the Contract, the right is ultimately traced back to PELRA and the definitions. Under PELRA a teacher is a Professional Employee (179A.03 Subd. 13). A teacher's terms and conditions of their contract is defined by contract and PELRA. The Contract's definition of "terms and conditions of employment" parallels that found in MJvf Stat. 179A.03 Subd. 19: "Terms and conditions of employment" means the hours of employment, the compensation therefore including fringe benefits except retirement contributions or benefits other than employer payment of, or contributions to, premiums for group insurance coverage of retired employees or severance pay, and the employer's personnel policies affecting the working

20

conditions of the employees. Educational policies are excluded from work conditions. Minneapolis Federation of Teachers v. Minneapolis Special School Dist., 258 N.W.2d 802, 804 (Minn. 1977) Implicit in a teacher being a "professional" under PELRA is their ability to exercise teacher discretion in the classroom. Little purpose would be served by setting forth the definition of a professional employee, such as a teacher, only to have the negotiation process between

management and labor to abrogate the ability of a teacher to exercise the discretion they are afforded by operation of law? Consequently, Binko asserts that SPPS can not mandate a prescriptive teaching style be implemented by it's teachers as a condition of employment, unless the teachers, through their union have expressly agreed. We see no express evidence of any contractually binding agreement to that end. We are not asking the arbitrator to determine whose teaching style or method is better but to uphold the right of a teacher to exercise professional discretion in the classroom when they are teaching the district's curriculum and following the mandates of MN standards.
INEFFICIENCY IN TEACHING vs. INEFFECTIVE TEACHING

While SPPS would have us to believe that "inefficiency" under MN STAT. 122A.41, Subd. 6(3) and failure to strictly follow the district's Standards of Effective Teaching (emphasis added) are one and the same, they are not. fc. One who is efficient may or may not be effective. Conversely, one who may be effective / may not be efficient. "Efficient... la: producing a decided, decisive, or desired effect <an ~ policy>...... syn EFFECTIVE, EFFECTUAL, EFFICIENT, EFFICACIOUS means producing or capable of producing a result. EFFECTIVE stresses the actual production of or the power to produce an effect <an effective rebuttal>. EFFECTUAL suggests the accomplishment of a desired result esp. as viewed after the fact <the measure to stop the pilfering

21 proved effectual>. EFFICIENT suggest an acting or a potential for action or use in such a way as to avoid loss or waste of energy in effecting, producing, or functioning <an efficient small car>..." Merriam-Webster's Collegiate Dictionary 397 (llth ed. 2003). "MN STAT. 122A.41, Subd. 6(3 ) Inefficiency in teaching or in the management of a school" by its plain meaning can be read to provide for the dismissal of an education professional for either 1.) inefficient teaching as a teacher or 2.) inefficient management as a

principal - with either the teaching or the management being the action to be conducted hi * such a way as to avoid the loss of resources or to avoid a waste of energy, i.e. Did the method used maximize one's time, money, resources and etc. Procrastinating, not completing reports, not handing grades in on time, not teaching for the full period, covering material that was not part of the curriculum, these are examples of inefficiency. "Effective", on the other hand, focuses on the result accomplished by the action. i.e. Did the method used, produce the desired result? It is clearly evident from the testimony that the goal set by McDonough for Hazel Park was to improve reading skills, through the use of discipline literacy, to close the achievement gap. Moreover, in all of their testimony, SPPS administrators could not tell us if the achievement gap for Binko's students had improved or worsened over time. Truly objective standards for assessment of a teacher's performance were absent. Relying on subjective evaluation methods to assess a teacher's classroom performance has the potential of leading to unfair, non-uniform treatment. SPPS of course will claim their evaluation method was objective and fair. However, the assessment was based on if Binko was using the teaching style they wanted rather than if her teaching style accomplished the goal of lessening the achievement gap. SPPS's dictating that one teaching style as compared to a differing teaching style is itself a subjective criteria -especially in light of the fact that while "research" on the theoretical level may support their personal preferences, the evidence on the

22 practical level of St. Paul student achievement is lacking. SPPS relies on their own subjective impressions and underlying presumptions about how the classroom should be taught and how to detect "authentic' learning in students. Despite Beaker testifying that there is no test for authentic learning. SPPS has, in Binko's case, allowed no leeway for teacher discretion to use the teaching style and

method that best promotes student achievement given the teaching situation, the socieconomic conditions. No at SPPS talks about the fact that approximately only 14% of the students in Binko's class met standards at the beginning of the year as opposed to approximately 33% of the 8th grade at Hazel Park students met standards at the beginning of the year (Binko Ex 10) In their testimony, it was evident that the Standards of Effective Teaching were being used as an assessment tool to evaluate if the teacher was following the idealized prescriptive teaching style theoretically "designed" to achieve the administrator's goal of "authentic learning" - a higher level skill for those students who have mastered reading, comprehension organizational process. On the other hand, McDonough, as Principal, set the goal for Hazel Park teachers to improve reading ability, narrow the achievement gap and improve test scores for meeting standards. McDonough did not evaluate Binko's performance in achieving the goal he set for the school but rather went along to get along with his superiors in their desire to evaluate Binko's performance on theory and aspirational techniques rather then teaching strategies that work in the v practical real life setting of an urban classroom where students are grades behind in their ability to do the basics. Whether an evaluation system focuses on the process of teaching such as teaching style, methods and techniques or on student learning (the product of the process) Binko

23 asserts there must be a demonstrable correlation between the criteria chosen to define efficient teaching or effective teaching performance. To not do so invites subjectivity, unfairness and administrative mischief in the workplace. Obviously, some criteria is very important while others are trivial or irrelevant. SPPS with all of their focusing of how Binko

greeted her students before class vs. after class started would lead us to believe this is a highly critical criteria of performance. Several of the exhibits include comments on how she said goodbye - apparently that was done in and acceptable manner. Semantics appeared to be a priority with no correlation to teaching. Often the words Binko used in her classroom were under fire - yet at the hearing, no one had a good explanation to demand what they wanted of her. McDonough's and Backer's testimony regarding the justification for requiring Binko to ask her immigration question in the form of "How" vs "Why" is a good example. As is McDonough's testimony truing to explain the rational for Binko not to tell her students, when setting the daily classroom expectations, what they will do vs what they will learn. SPPS did not like that Binko assigned points to the

various component of a project and then told the students what the process was for writing a report - yet they wanted her to model what the student were to do using their idealized phrasing of how to phrase the same concept but with different words. How did any of this trivial nit-picking have any real correlation with the students' progress at the end of the year? SPPS could not tell us that. When asked, none of the witness for SPPS could articulate the performance scores for the student at the beginning of the year or at the end of the year. They ignored the ethnic diversity of the student body and talked about the "research" behind the "science" of teaching in a generalized way - not addressing specific research regarding modifying different teaching styles for urban students or how the prescriptive

24 teaching style required by SPPS is the best match for the Hazel Park student body. Much can be learned by looking at the statistics for this particular class. Following is a compilation of data found in Binko Ex 9 and 10: Attachment 2 The statistics that Binko has provided in her chart, Attachment 2, shows that at

the end of the year, half of the class (50%) received a "C" or better. While this may not sound amazing it is when one stops to think that in this class of 28 students, approximately 89% of the students at the beginning of the year did not meet standards. If you look at the percentage of students who achieved a "D" or better, the pass rate for her students is 82%. While a person can look at statistics in many different ways, it should be noted that 58% of those children who started the school year designated as not meeting the standards at any level, earned a "C" or better in Binko's class. This is the same classroom the "evaluations" describe as having a teacher out of touch, unfriendly, not making learning authentic, having confusion of purpose and giving the students too much "busy work". Binko's work has produced achievement. What has SPPS's mandated, prescriptive teaching style produced? Looking at the performance outcomes and the behavioral statistics, Binko's students are fairing better than the statistical averages for Hazel Park as an educational facility. Imagine how easy it would be to find inefficiency in teaching in favor of SPPS if this were a case where the teacher: v

Did not show up to work; Did not follow the established district curriculum; Did not submit reports and grades; Did not prepare lesson plans; Did not talk with students in a manner consistent with their cultural environment; Did not encourage students with academic potential to a request transfer to a more challenging class; Did not maintain a safe learning environment by removing aggressive students from the 25

classroom; Was physically abusive to students; Was screaming at students; Did not interact appropriately with supervisors during their observations of her classroom; Did not go to meetings with supervisors; Did not follow through with commitments to supervisors;

 Did not allow supervisors into the classroom for observation; Did not attend staff and department meetings as required; Did not take classes for continuing, professional development; and Had inappropriate sexual contact with students. ,

However, SPPS offered no objective, measurable evidence that Binko's students were not learning. There was no comparison of the students' achievement levels at the end of the school year as compared to the beginning of the school year. Instead, SPPS simply objected to questions asking for documentation of the students' failed achievement by stating that there are no tests given for achievement in social studies. This answer side steps the obvious: SPPS testimony firmly established Hazel Park was designated as a DL school where reading is taught as a part of all subjects and McDonough established narrowing the reading achievement gap as the school's top goal. Binko's students' reading and comprehension could have been tested and should have been. However, SPPS conducted student "assessment" through limited observations by administrators. Administrators, through their testimony, clearly demonstrated that their assessments were colored by subjectivity, a preconceived idea of how the "science" of teaching operates and a mental check list of "problems" to look for rather than judging performance upon how a teacher's classroom strategy and course work developed from student performance data and how it aligned with state standards. Despite Administrators, during the hearing, referring to teaching as a "science", it really isn't a science in the true sense. Those trained in the sciences know that one of the main principles upon which scientific method is based is that of reproducibility. SPPS has not shown

26 that their prescriptive teaching style produces the results they desire to narrow the achievement gap, much less, that the desired results are reproducable if every SPPS teacher follows the prescriptive teaching style they are demanding of Binko. Teachers must retain their ability to exercise discretion in the classroom not just because they are a "professional" as defined under

PELRA but because teaching is part art and part science While the vast bodies of research on learning and teaching strategies may provide generalites on trends, correlations and theory, once in the actual classroom environment, the teacher must make decisions on how to best teach their students, respond to student misbehavior, incorporate materials or implement assessment techniques - be it a classroom at Hazel Park Academy or a classroom at Mounds Park Academy. One size does not fit all. Given the totality of the evidence presented, SPPS fails to meet the burden of proof required. Much of the evidence is unreliable in that it is hearsay, subject to bias, or is the reiteration of unsubstantiated claims. In the "Binko Summation" McDonough faults Binko for her response "I did not realize I was responsible for student learning. I am responsible to facilitate learning within the curriculum." While SPPS claims a teacher is responsible for students to learn, SPPS testimony also asserts that the district's philosophy is for students to be responsible for their own learning by use of rubrics as self-assessment tool. Contrast this to page 68 of the Contract - Statement of Intent - Time and Teacher Workload - "In the past, students were solely responsible for academic achievement...Today, schools share responsibility for student achievement." Isn't Binko's statement of more consistent with the Letter of Intent than McDonough's? SPPS objects to Binko teaching her students how to do research, look up facts, list facts, create timelines, write paragraphs incorporating facts and completing projects even though these skills are required under the MN standards. Further, Dr,. Binko is expected to

27 evaluated her students' progress and to provide the students with tools to measure their project completion. However, the Management faults her with using the time honored method of student assessment - grading based upon points.

CH GES AN C SES F DI CH GE - M E LKEL T AR D AU OR S AR OR I Y HAN N ? OT

Even if the arbitrator is not persuaded that efficient instructional practice and effective instructional practice are two separate instructional issues in the classroom and they are simply one and the same, the district still must show by a preponderance of the evidence that the charges against Binko are more likely than not. SPPS concludes in their summary of the Charges and Causes for Discharge that "Overall, Binko's performance deficiencies amount to inefficiency in teaching and insubordination and warrant discharge..." Emp Ex 114. We have already discussed the charge of insubordination heretofor and believe SPPS has not met their burden with regard to insubordination nor have they followed the progressive discipline required under the contract provisions of the Discipline MOU. Several inadequacies in SPPS's discharge process became very evident as the testimony unfolded. Once the proposed discharge started moving up through the chain of command, no one pulled Binko's personnel file to review her past history with the district, her academic credentials or even her listing of recent continuing education programs she had completed. Once McDonough made the determination, everyone else just "lined up" and gave his recommendation to discharge Binko the rubber stamp for better or for worse. McDonough's superiors only reviewed the letters McDonough gave them to review along with the post observation evaluations containing oftentimes inaccurate statements, misleading comments, subjective impressions and observations made by McDonough to promote the prescriptive teaching style, "a new way of doing business", he wanted implemented.. The materials passed

28 along in support of McDonough's recommendation to discharge Binko were being viewed in a vacuum - disconnected from the reality of the classroom, the soci-economic environment of the

children and the tested, measured achievement of the students. McDonough's superiors did no further inquiry - there was no asking of questions to validate the process such as 1.) Can I see Binko's personnel file 2.) Is there any empirical documentation that the students were not learning 3.) What was the frequency of mentoring and was the feedback constructive, positive and frequent 4.) What experience does this new principal have in doing this type of evaluation and mentoring? 5.) Why is there an issue with instructional practice today when there has been none with this tenured teacher in the past? Is the District to ask these questions to protect a teacher from potentially biased, slanted or poorly administered improvement plan? Or is it the Union that is to engage in these questions in behalf of the teacher? The Improvement Plan MO A states very clearly under improvement plans or being placed on one is not grieve-able through the grievance process. Further, there is no grievance process in place for the outcome of the evaluation. As a quasi-disciplinary process, the improvement plan process violates the requirements under PELRA whereby a grievance procedure must be in place. This is especially important since once the evaluation leaves the principal's hands and is passed along to his superiors to rubber stamp, there is no meaningful opportunity to change the content of the evaluation and the conclusions it draws. From the testimony, it is evident that the charges were just a condensing of the McDonough's impressions passed progressively through the process and nothing more. Merely, generalities made to support a recommendation to discharge Binko. With that said, we briefly offer, in addition to everything that has been stated thus, our analysis of SPPS's charges supporting their proposed termination of Binko:

29 Effective Instructional Practice: 1. Lesson plans lack some or all of the expected components.

 lesson plans according to the template provided and provided plans for all required components. While these components were suggested in the template, Ms. Stachel confirmed on August 14 that they are not required as "the only required instructional initiatives are Principals of Learning (POL) and Disciplinary Literacy (DL)." Binko testified that she used the lesson plan templates provided to her by McDonough and emailed them to his as required. Further, she testified that during the process she seldom received a response from McDonough that he read the lesson plans or had feedback to give her on their content. (Vol5 PI059 L2-24) N Binko testified after a long time she received one email from McDonough regarding her lesson plan - after he observed her class. (Vol5 PI060 L2-9) In a last memo McDonough removed the requirement of submitted lesson plans from the improvement plan with no other suggestion as to how he would monitor the improvement plan. 2. McDonough could not provide much of any detail when asked what was missing from the lessons plans. Binko provided lesson plans as required.

Lessons lack some or all of the elements of effective instruction and result in minimal increased student achievement over time. McDonough admitted, he did not read lesson plans before making his periodic evaluations.. McDonough's feedback on lesson plans and instructional strategies being used was minimal and provided no direction for what was needed and how and when this should be accomplished.

Binko testified as to her understanding of "embedded instruction" and how she used it in the classroom to do reading. (Vol 5 P937 L7-21; Vol 5 P938 LI-25) Binko also described how the instructional method of "prompting" was similar to the instructional methods of "bubbles" and "questioning" and the use of discretion to choose an instructional strategy that is pointed on a specific goal. (Vol 5 P939 L12-25; Vol 5 P940 LI-12) Binko testified that one of the discipline literacy strategies is the use of pictures to activate knowledge and enhance learning through visual learning. (Vol 5 P945

30 L2-14) She also describe a project on natural resources and how it was made "relevant" to the students. (Vol 5 P948 LI-12; Vol 5 P947 L 2-10). 3. Binko makes limited use of student work to assess the effectiveness of lessons and/or new plans.

 McDonough acknowledges Binko's guiding questions and student work displayed in class room. Binko's classroom was used as a model for display of student work during a professional development activity at Hazel Park. * Binko maintained a work wall through the DL process 4. Binko demonstrates limited content knowledge or student learning and makes few connections to other subject areas or to diverse groups. Baeker testified that Binko does have content knowledge Binko described in great detail what some students called the "Taco John" project and how this lesson was made relevant to the students. Engagement refers to the students investing them selves in the experience of learning and immersing themselves in the learning experience - enjoying the process and being involved with learning. The students were engaged. Questioning and Discussion: 1. Binkos's questions are often lower order and elicit limited student response. Binko use embedded questioning and DL strategies for small group discussions. Students were required to record information and critical thinking questions from their small group discussion and present their thoughts to the group. We already discussed the semantics issue of "How" vs. "Why" 2. Binko consistently involves few students in the discussion. The evaluators observed on the days when the lesson plan was not involving this aspect of the classroom program. Maintaining Students in Learning: 1. Binko provides limited or no links between new information and prior student knowledge and experience. Binko used student work sampling to determine that in mid-October less than 5% of

31 the student could create a simple inference. Dr. Baeker observed that by the end of the year that most students would attempt an inference "even though their guess lacked depth." 2. Binko's activities and assignments are often "busy work." See discussion on "busy work" elsewhere.

 Baeker testified busy work and authentic learning are not clearly defined or tested. A. "Busy work" is by definition, is something to keep kids busy.. .there is some fact finding, some fact gathering around concepts.. There isn't a specific definition of how much time there is, but as you watch teaching, you will find there is an inordinate amount of worksheets.. .So is there a definition? Definitely not, but do we know it when we see it? Q. So this idea of authentic learning , sounds like that's really the aspirational goal of the educational system. A. It should be ******* Q. But there's no test for it [authentic learning]? A. No.. No one complained about Binko using too many worksheets 3. Cut and paste rhetoric continually used over and over in evaluations based on the general theme established early in the process by Baeker and McDonough Binko makes limited or no accommodation for her student's diverse backgrounds and learning style. over 30 accommodations for special education students I used in the classroom. These were not documented on my initial evaluation in October.

Binko described working with the special ed student and the caseworker. McDonough admitted never to ask to see accommodation Binko used. Environment of Respect and Rapport: 1. Relationships with students are negative or disrespectful or inequitable. Video Binko showed at hearing shows students receptive, not resistant, behaving. Baeker testified that Binko had a stern tone in the classroom. This was claimed to minimize Binko's ability to communicate she cared about the students or to build relationships. This conclusion is inconsistent with the film footage showing the

32 students in Binko's classroom. Binko testified the evaluators often came to her class after the bell rang but that on one occasion when Baeker came prior to the bell ringing, Baeker told Binko that greeting students at the door, engaging them in conversation about their grades on assignments and encouraging students to get ready for class was not a substitute and was unacceptable and not good enough. (Vol 5 P983 LI0-18)

 SPPS Administrators find fault with how Binko greeted her students after the bell for class had rang and the reinforcement of her expectation that classroom work begins when the bell is done ringing.. SPPS has not found fault with Binko's tardy referrals or rale set to start the class promptly "on the bell". Some students not liking this rale may call a teacher "mean" in a survey to get back at a teacher. While Baeker and SPPS tell Binko that greeting the students at the door wasn't appropriate and not good x enough, they offer no reason why or how it is "inappropriate". 2. Binko creates a negative classroom climate with evidence of low expectations or bias. Emp Ex 107 says "good expectations" observed in class Binko described one of her students, whose test scores partially met MN standards, that Binko felt could excel if transferred to a challenge class. Binko's determination was based upon her observations and experience. There was a differing philosophies at Hazel Park regarding transferring students with mediocre scores to advanced classes. There were other students at the beginning of the school year that had similar transfer requests, unrelated to Binko's teaching. Binko testified how she placed the students for their group projects and that the seating chart was changed after every project to provide a different learning opportunity for the student when they work on the next portion of the class curriculum. One moment SPPS claims that Binko has low expectations for her students and the next moment they claim she is being "too hard on them" by expecting so much. i.e. bring class work to class, completing the assignment, having completed note cards for a project, showing their work and not just the answer.

Bias? SPPS has not shown that Binko has exhibited bias. Only one child in the Attachment 2 is Caucasian, many are special education, many are ELL, the class is made up of primarily Asian, Af. American and Latino. Looking at the grade distribution, there is no patter of any one particular student group being treated differently than any other whether you look at achievement level, attendance level, ethnic background or soci-economic background. On thing that is evident is that the only 3 students with test scores, at the beginning of the year, to meet standards have a high absence rate for the school year at Hazel Park as a whole. Not just Binko's classes - all classes. They are disengaged from the school in general.

33 survey information was to be used as feedback purposes -- not teacher evaluation purposes. Binko testified to specific concerns she had regarding a student who was recruiting Hazel Park students into gang activity through harassment or intimidation. She reported this behavior but received little support from administration. 3. Sometimes the standards of conduct are unclear and/or not followed.

 Binko posted below the line behavior and group work operations in her room. Binko testified she establishes student expectations early in the year and that the students know that class starts on the bell - not 5 minutes into the bell. x Binko described how she greeted and/or interacted with the students during the 5 minutes before class starts i.e. "social time". Binko's students know this expectation is consistently enforced and that they will be marked tardy if not in their seat and ready to go "on the bell". (Vol 5 P980 L 11-25; Vol 5 P981 LI25; Vol 5 P 982 LI-25; Vol 5 P983 LI-25; Vol 5 P984 LI-16; Vol5 P1004 L1925; Vol5P1005 LI-25) Students signed "contract" that they know expectations of conduct. Environment for Learning: 1. Binko fails to clearly communicate standards for student work and to provide tools to assess them. There were rubrics posted for students Binko explained her grading rubric (Vol 5 P950 L 1-25; Vol 5 P951 LI-25; Vol 5 P952 LI-14, 25; Vol 5 P953 L16-25; Vol 5 P954 L 1-16) that an "N" is used district wide Binko testified how her embedded instruction included the teaching of reading, learning facts and main ideas along with organizing the materials in a sequential manner so they can learn to "basically write a report." That for the students, it can be a long process to move up along the reading comprehension scale since you can't do the higher order thinking if you can't read for content, comprehend what you are reading, or don't have the knowledge needed to go to the next step. Grades, points structure changed through the year to place more emphasis on the new items to learn by assigning more points to these items. Students were told how points were assigned. The Administrators complained that points were used for assessment.

SPPS has not claimed that Binko's grading of her students was improper or

34 inadequate. SPPS has not claimed that Binko's grading/scoring rubric for measuring student success was improper or inadequate. While SPPS did claim that 50% students did not complete projects, Binko presented to Nancy Stachel a copy of the Final Marks for her students for Social Studies, third quarter, showing that two students failed to hand in their project (column 1 AAP). Binko testified that no one asked to see her rubrics for the students or for her grading. McDonough confirmed that he never, asked or saw them. Managing Classroom Procedures:

1.

Below standard performance.

'

Baeker testified as to the October 11, 2007 observation and her notes at Emp Ex 6. Disliked the focus on obtaining facts, listing them and writing a paragraph for each item. Notes confirm the Teacher instruction & students' study was on minerals & natural resources - Not market economy as Baeker testified. Baeker testified as to the October 12, 2007 observation and her notes at Emp Ex 5. Page 2 of notes include listing of standards written on black board. Page 2 of notes shows teacher's question regarding minerals. Page 3 of notes list the guiding questions for the natural resources lesson plan. While Teacher instruction, guiding questions, & student's study are on minerals & natural resources - Evaluator asks off topic questions during evaluation for assessment purposes i.e. asking about "market economy" which wasn't the topic of study. This evaluator mistake was continued onto the evaluation summary. Emp Ex 8. Baeker testified regarding Binko's response.- see Emp Ex 13 - regarding her opinion that Binko was "living by some old paradigm" - an opinion based only upon assumption and not direct communication with Binko. Binko's 5 page statement (Emp Ex 13) was written shortly after the observation of October 11 & 12 and she had it stapled to her evaluation - it is a contemporaneous response to statements contained within the evaluation and she asks the arbitrator to read it thoroughly as it provides important specifics left out by the observers. Baeker testified as to the December 13, 2007 observation and her notes at Emp Ex 17. See page 7 where Backer's notes indicate Binko was modeling: i.e. portion of notes regarding explanation of an acceptable timeline (one of the standards students must master) and then a comparison with a second drawing that is not a good timeline. These notes are contrary to her testimony where Baeker claimed she observed no modeling or direct instruction. Baeker faults Binko for the students not being able to answer how historical immigration events they are researching today affect their life. Baeker does not know why the students could not answer- perhaps the students thought it was a "stupid" question because they would not have been born; maybe they thought the observer was looking for only one right answer; maybe she asked it in a confusing manner; maybe the students didn't trust Baeker because she is

35 busy taking notes about what was going on in the classroom and writing down what they are saying. Binko testified she brought student projects with her to the Nov 1, 2007 post observation meeting to show McDonough and Backer how the students were responding to Binko's instructional method that was observed in the classroom. They rebuffed her. (Vol 5 P 946 LI6-19) These are the papers Binko rustled. Backer testified as to Binko's behavior at the November 1, 2007 meeting was dismissive and defensive. (Vol.1 P80 L22). Backer gave a demonstration of paper rustling. Did not say what the papers were.

t Binko testified that one way she determines if students are "getting it" is by comparing their MCA-II scores when they start the school year to the student's daily grades and final class grades. (Vol5 P975 LI7-25) Binko's daily grading rubric and the final class grading rubric are based upon what the students are required to learn to meet MN standards. Neither Baeker or McDonough asked to see work samples or grading rubrics. Binko's grading rubrics were available for each assignment and went beyond the basic rubric posted in class and included standards, content and critical thinking related to the guiding questions. Baeker testified about her questioning students re: market economy when her notes, the lesson plan and McDonough all indicate that the students were learning about natural resources at that point of their instruction. SPPS presented no empirical evidence that Binko's teaching style is not appropriate for an inter-city classroom in a school with documented history of a diverse ethnic student population, elevated behavior problems, below standard test results, and social economic pressures.

Throughout this process, Binko received inconstant messages at all levels. One such example is that the observation evaluations state that Binko does not interact with her students to move them forward in their academics. However, Baeker then testifies that sometimes the student couldn't answer the Why questions asked by Binko so she would prompt them to help them along to get the answer. (Vo. 1 PI 12 PI) However - here is another inconsistency - the evaluations and testimony state Binko is not asking the "Why" questions yet they find fault with how she helps the students to answer the "Why" questions she poses to them. You can't have it both ways. 2. Students are often inconsistently engaged in their work or are off task. Went on days that the student had free day or at the end of a project

36 Binko testified that the Quinlan observation was the final project day when no instruction was going on and was a "free day". (Vol 5 P948 L7; Vol 5 P 949 L14;Vol5P1007L9-25) Binko testified regarding p 2 & 3 of Binko Ex 10 regarding the student behavioral statistics where Hazel Park had a high rate of behavior referrals to the office and a high rate of suspensions and dismissals of students. (Vol5 P962 L 1-25) The Student Handbook, Binko Ex 12provides the behavior expectations and the discipline guidelines for students. She described a 2006 fight between 2 girls that ended in assault charges (Vol5 P999 LI-25) Student intoxication (Vol 5 PI000 L22) throwing a book (Vol5 PI001 LI2-25; Vol5 PI002 LI-25; Vol5 P 1003 L6-12)

Professional Growth / Service to the Profession: 1. Binko ignores or minimizes feedback from colleagues and supervisors. Binko testified that McDonough provided no feedback on her teaching outside of the post-observation meetings, no mentorship, no systematic review/interaction between formal observations, no positive reinforcement, no positive encouragement. Binko further testified that no one, who was a part of the evaluation process, reviewed her grading rubric, reviewed her accommodations for special education students, reviewed student work product, discussed her use of strategies developed by the Social studies department team in her classroom or discussed her interventions to teach the various student stratifications in her classroom. (Vol 5 P977 L 3-25; Vol 5 P978 LI-21; Vol5 P997 L2-15; Vol5 P998 Ll5) Binko participates in professional development only if required and then at minimal level. 3. Minutes - Binko Ex 7, 8, 9, 10 Binko worked with the department on the PLC, however did not complete a PDP with the group. Binko' s work with other teachers is ineffective. Minutes- Binko Ex 7, 8, 9, 10 No measurement given by SPPS to support this Binko testified as to her involvement in the Social Studies Department PDP (Binko Ex 7). She explained the SMART goals and the SCIP goal McDonough selected as the top goal all departments were to address - that of closing the achievement gap in reading. (Vol 5 P916 L 1325; Vol5 P917 LI-17) Binko has difficulty working with administrators and teaching staff.

2.

4.

37 Meetings- Binko Ex 7, 8, 9, 10 Binko described her involvement in developing the inference test (Vol 5P919L11-22; Vol 5 P922 L 15Vol 5 P 925 L21) with her colleagues in the Social Studies Department and that because she was having an observation she did not participate in the analysis of the baseline for the writing of the PDF. (Vol 5 P927 LI; Vol 5 P986 7-25; Vol5 P988 L 6-222; Vol 5 P989 L19-25; Vol 5 P 990 L 12-25; Vol5 P 995 L3-25; Vol5 P ). Binko described how she collaborated with Mr. Jameson when he joined the team because they both taught a large number of the same students. (Vol 5 P959 L 1-25; Vol 5 P987 L4-24; Vol 5 P989 Ll-8)

5.

Communication is often uncooperative, rude, and offensive despite directives to be cooperative and professional in communications. Computer lab shortages. Are the emails really "rude" when equipment and software issues present for 4 months and the Principal has done nothing to rectify? Ms. Quinlan stated Binko e-mails were terse, but not offensive or rude. Binko elaborated on the minutes she had in her possession from the team meetings (Binko Ex 7 & 8) and that, to the best of her knowledge, a complete set of minutes were kept in a book at the school in the professional development room. SPPS provided no minutes from the various meetings to show Binko was absent without an excuse, disruptive or non-collaborative

Scorned SPPS Attempts to Improve Her Performance: 1. Binko defensive and reactive - did not acknowledge any need for improvement or make discernable efforts to improve. Binko acknowledged Kronenberg's model of behavior is a useful management tool but that she did not know much about it when she entered school - wanted a mediation with the Assistant principal to understand the protocols. Binko testified that she told Baeker that she, Binko, was not a "sage on the stage" implying that she wasn't the expert but a "guide on the side". Binko testified that she was not proficient in DL when she came to Hazel Park because her previous school did not use DL. She went to classes sponsored by SPPS to learn DL techniques and then used many of those techniques in her class -including the use of pictures when she was teaching the lesson plan on AIDS and Africa. She describe how she used a political cartoon as well.

38 Binko testified she brought a recorder to one meeting and it was visible. She also stated that she was not aware of any district policy prohibiting or governing the use of a visible recorder during meetings or conversations during work hours. Binko further testified that upon being told by McDonough not to record conversations or meetings with a recorder that she never did it again. McDonough stated he was not aware of her ever doing it again. 2. Binko uncooperative in carrying out informal or formal improvement plan -specifically: a.) failed to attend workshops that might assist her to improve teaching performance Binko testified to the approximately 80 hours or more of non-directed contentbased professional development though the History in the Schools grant. She also completed the middle school technology initiative with 11 hours and the DL

training with 23 hours. Binko was also awarded a Gilder-Lehrman fellowship that is awarded to outstanding Social Studies teachers for summer institutes for indepth historical study. Binko provided a transcript (Binko Ex 6). b.) failed to work with school's coach despite given directive to do so. Binko testified that she began working with Ms. Goodnow on DL lessons in the first two weeks of school and that she felt they had a good working relationship. Binko invited Ms. Goodnow to several activities in her room and provided her with a written plan and some supporting resources. Ms. Goodnow was in Binko's room several times in the fall. McDonough's Emp Ex 49 confirms Binko had conversations and 3 observations with "Jodi" (Ms. Goodnow). Emp Ex 106 shows meetings with Ms. Goodnow Exp Ex 91. Mary Beth Blegen responded to an email for which she does not show up as an addressee. Mary Beth Blegen was bcc'd on McDonough's February 15, 2008 email. Who else was? It is after this point that the coaches returned none of Binko's emails asking to sent up observation times. McDonough did not recommend Binko be discharged on the basis of insubordination. As the recommendation for discharge moved forward, it was after Binko's meeting with Nancy Stachel that the charge of insubordination was added. Much of SPPS documentation is inconsistent on whether Binko was or was not insubordinate. Email evidence from McDonough

39 indicated Binko being proactive in working with a coach and then there are comments that she refuses support from the building coach. Testimony was also conflicting on this point in that who refused to coach or be coached? Who failed to facilitate the coaching in a neutral nonthreatening manner? Who actually pulled out of coaching? The coach or the one to be coached? Emp Ex 17 page 3 - comments indicate Binko at first did not engage in collaborating with other colleagues and that she then did. There was inconsistent testimony regarding this as t well. However, the minutes of the meetings indicate that Binko did participate and collaborate

with her colleagues. Jeff Rahman, in his testimony, made broad statements about Binko not doing certain things collaboratively, but then when asked if he was aware of certain circumstances that would supercede Binko participating in the manner he expected - he said "no". One common word that was used during the hearing by SPPS was the word "impression" An "impression is not fact. It is telling when the business representative said "I did not evaluate or observe anything, however, from the evaluation I would say Ms. Binko did not want to change." In addition to "impressions", so much of what SPPS claims is "documentation" to support their proposed termination of Binko is personal interpretation. Two good examples come to mind. Exp Ex 91 is an email from McDonough to others where he clearly is passing along what he claims Binko said - it is either his recollection or his interpretation of what she said. Although he placed quotations around the phrase to give it more credibility, Binko stated that that was not what she said and McDonough took her words out of context. The result is misunderstanding and the perpetration of inaccurate information. Another example of how personal interpretation can produce misunderstanding and the perpetration of inaccurate

40 information is Exp Ex This highlights the fallacy of making decisions on evaluations that are possibly the product of biased, subjective observations made to appear "accurate" but, in reality, are only the impression of the evaluator. '

Best Practices would include an evaluation completed after, and accompanied by, ontrack mentoring, frequent monitoring and benchmarking of student achievement over time . Further, while SPPS used a student survey as an assessment tool, the survey was not

conducted again at the end of the year as set forth in the improvement plan. Without the before and after student survey results, the inclusion of the results to demonstrate a poor studentteacher relationship is suspect. Further, neither Baeker or McDonough could answer questions regarding the specifics as to the frequency of responses per individual survey or any correlation between the survey answer(s) of any particular student and their achievement level, they scholastic enthusiasm, or other soci-economic factors that could have a bearing on the response(s). Binko maintains that if SPPS is indeed concerned about improving instructional performance and not simply using the improvement plan process as a quasi-disciplinary tool, to force tenured teachers to implement a prescriptive teaching style mandated by the district, they would follow state law. We have already discussed how the Improvement Plan MOA is not in conformance with PELRA as one example of not complying with state law. During the time of Binko's improvement plan, MN Stat. 122A.41, subd 5 required the school district to establish a peer review process for nonprobationary teachers. MN STAT. 122A.41 Subd. 5. Peer review for continuing contract teachers. A school board and an exclusive representative of the teachers in the district must

41 develop a peer review process for nonprobationary teachers through joint agreement. The Improvement MO A, in Section 5 states: "Note: A goal of the Career in Development Program is that Peer Assistance and Review will be integrated into the Improvement Plan process at some future date." This implies that the Teacher Assistance Program is not one and the same as the peer review process since peer review is still pending. It should be noted that MN Stat. 122A.41, subd 5 was revised and additional language added during the 2009 session by MN CHAPTER 96-H.F.No. 2

"Sec. 24. Minnesota Statutes 2008, section 122A.41, subdivision 5, is amended to read: Subd. 5. Peer review coaching for continuing contract teachers. A school board and an exclusive representative of the teachers in the district must develop a peer review process for nonprobationary teachers through joint agreement. The process may include having trained observers serve as peer coaches or having teachers participate in professional learning communities^ EFFECTIVE DATE. This section is effective for the 2009-2010 school year and later." The revisions were approved by the Governor on May 16, 2009. Additionally, MN Stat. 122A.413 provides a framework for a district to develop an educational improvement plan for the purpose of qualifying for the alternative teacher professional pay system under section 122A.414. The purpose in referencing this statute is not to debate whether SPPS is or is not participating in the alternative teacher professional pay system. Rather it is to highlight that if a school district is interested in developing an "educational improvement plan", they don't need to re-invent the wheel: " MN Stat. 122A.413 EDUCATIONAL IMPROVEMENT PLAN. Subdivision 1. Qualifying plan. A district or intermediate school district may develop an educational improvement plan for the purpose of qualifying for the alternative teacher

42 professional pay system under section 122A.414. The plan must include measures for improving school district, intermediate school district, school site, teacher, and individual student performance. Subd. 2. Plan components. The educational improvement plan must be approved by the school board and have at least these elements: (1) assessment and evaluation tools to measure student performance and progress; (2) performance goals and benchmarks for improvement; (3) measures of student attendance and completion rates; (4) a rigorous research and practice-based professional development system, based on national and state standards of effective teaching practice and consistent with section 122A.60, that is aligned with educational improvement and designed to achieve ongoing and school wide progress and

growth in teaching practice; (5) measures of student, family, and community involvement and satisfaction; (6) a data system about students and their academic progress that provides parents and the public with understandable information; (7) a teacher induction and mentoring program for probationary teachers that provides continuous learning and sustained teacher support; and (8) substantial participation by the exclusive representative of the teachers in developing the plan Subd. 3. School site accountability. A district or intermediate school district that develops a plan under subdivisions 1 and 2 must ensure that each school site develops a board-approved educational improvement plan that is aligned with the district educational improvement plan under subdivision 2 and developed with the exclusive representative of the teachers. While a site plan must be consistent with the district educational improvement plan, it may establish performance goals and benchmarks that meet or exceed those of the district." The State not only mandates what achievement levels our students must obtain but also has delineated the benchmarks they believe must be included in an educational improvement plan. Benchmarking help to ensure measurability, accountably, reliability and objectivity. All of the things that are missing in SPPS' quasi-disciplinary process that was used to support

43 McDonough's recommendation to discharge Binko. As an aside, it should be noted that under MN Admin Rule 8710.2000 STANDARDS OF EFFECTIVE PRACTICE FOR TEACHERS sets forth that the standards of effective practice required for new licensure applicants is not effective until September 1, 2010.
IMPROVEMENT PLAN PROCESS NOT FOLLOWED WAS IMPROVEMENT PLAN ON-TRACK?

Under the Section 5, Subd.l of the Improvement Plan MO A, there are many things which the Principal would be expected to be engaged in. While each improvement plan is individually designed for the teacher and the circumstances, there are certain expectations. One, the

process is to be collaborative. Through out much of the process Binko complained in her submissions to her personnel file in response to evaluation, that the process was not collaborative. What would the first step be in initiating a collaborative process? On page 13 of the Career in Educational Booklet it specifically states in the directions that both the teacher and the principal will complete their own separate evaluations. Nowhere in all of SPPS's documentation do they show that Binko was given an opportunity to do this. This is the first instance of not being "on track". It is evident from the testimony from both parties that Binko was sat down and given the results and told what she had to do. The environment established by McDonough was not collaborative. The fact that the union representative was at the post observation meeting set the tone of "discipline" rather than collegiality. Baeker testified that at the first post observation meeting the union representative was taking the notes of the discussion at the meeting and that it was Binko's responsibility to go through them with him. (Voll PI64 LI6-24) The Teacher Assistance Program does not include the union representative as a member of a member of the instructional team with whom the

44 teacher is to work with. The Teacher Assistance Program references the Principal as the one who is to work with the teacher - not the union representative. Why would the union representative have the role of going through the notes when that is the role of the principal? McDonough's failure to modify his demeanor and coaching techniques as the instructional leader contributed to the failure of the process. Baeker testified SPPS was going to provide to Binko, as a measurement standard, the * actual scripting of the questions to be used in the lessons and the student responses to better measure the level of "deeper" authentic learning of her students in the lessons. (Vol.1 P70 LI 1). This was never done. Again, not on track.

The student survey was never administered a second time as required under the improvement plan. McDonough, rather than facilitating positive relationships, between Binko and others who were actively engaged in her improvement plan, he purposely engaged in activities designed to alienate them from Binko through gossiping about his recollection of verbal statements by Binko or passing along Binko's email statements communicated only to him. (EmpEx21). Binko was not cc'd on McDonough's email so she would be aware of the comments alleged to be hers or the impression being created by McDonough sending this email to Management and her coach(es). In Emp Ex 28, McDonough addresses "underground" communications. This is consistent with his memorandum outlining the requirement for positive or neutral communications. However, in Emp Ex 21, McDonough violates his own directive that communications must to be positive or neutral. McDonough has expressed in his email a very negative opinion of Binko that is clearly not lost on the intended recipients of his

45 communication. It is unprofessional and unethical for a supervisor to be engaged in this type of activity - especially during an improvement plan process. In his "Binko Summation", McDonough holds it against Binko that the Center for Academic Excellence pulled the content coach because it was communicated that Binko was attempting to create a "us verse them" atmosphere. Given at least two documented incidents* of McDonough put Binko in a false light by communicating to others negatively about Binko t (contrary to his own directive) it is possible that the pulling of the content coach, in part, was triggered not so much by Binko's alleged actions but by McDonough's "underground"

communications about Binko to others. McDonough's email (Emp Ex 28) exemplifies his attitude and pits people against people. The unanswered question: "How many other "Underground" communications (emails, telephone conversations, water-cooler whisperings) did McDonough engage in without Binko's awareness? *Emp Ex 1: Baeker notes that McDonough stated to her that Binko had past discipline problems - in actuality, there were no discipline problems in Binko's personnel file; Emp Ex 28: McDonough email. As the testimony unfolded, it was clear that all of McDonough's lax oversight and inattentiveness to mentoring Binko or positively facilitating the process over time amounts to his not being on-track. There was little if any constructive lesson or lesson plan feedback. One template given Binko wants lesson plans that focused on the "student will do..." and should be more detailed. Another lesson plan template focuses on the " teacher will do..." and be more simple. Then to make matters worse, McDonough simply said don't hand in any more lesson plans with out giving any other idea on how to measure the advanced organization of a lesson. McDonough was aware of 4 months of technology problems of not having adequate

46 software or hardware to support Binko's classroom. Yet, he did nothing to facilitate getting the issue resolved. Instead, he let Binko's frustration build and then uses her emails against her to document how "rude" her tone was. (Incidentally, at the hearing, SPPS did not have the IT guy testify as to his feelings regarding the tone of Binko's emails to him and SPPS could not definitively say why or how the emails were "rude"). Not ensuring the teacher on an improvement plan has the tools she needs to do her job is certainly and indication of not being 9 on-track. McDonough produced no notes indicating his conducting frequent mini- observations,

mentoring sessions or etc. with Binko as would be best practices. Lastly, it is very evident that there was a lack of positive reinforcement through out the process. A teacher does not operate in a vacuum. There is the science of teaching on a theoretical level and then there is the practicality of teaching in the day to day world. Hazel Park is an urban school with a culturally diverse student body challenged by significant socieconomic stressors and behavior problems where less than 45% of its 7th graders meet the MCA-II standards in reading. (Binko Ex 10). In an improvement plan designed to have assessment only three (3) times during the course of an entire school year and where those assessments are only for an hour or two, how much can really be determined? While SPPS continually portrays Binko as an authoritarian in the classroom, they have provided no indication that it has created a harm to the students. Conversely, a certain amount of authoritarianism in an urban classroom may be what is needed to keep Hazel Park students on task and focused. Watching the students and their reaction to Binko during the short video demonstrates a lack of tension, anxiety, or animosity in the relationship her students have with her. A relationship is built by many things - not just how one says "Hello". SPPS made claims

47 that Binko didn't have a relationship with her students nor was aware of their scholastic needs, personalities, names, or academic abilities. Binko's compassionate and knowledgeable testimony about her students demonstrated quite the opposite. She even used her insight in setting up the student work groups so that students would have the opportunity of working cooperatively with other students than just their friends.
REMEDIATION

t While we do not believe SPPS has met their burden of proof, in the event the arbitrator determines otherwise, we ask: Is outright termination the appropriate action?

The process for contesting teacher discharge actions has changed over the years. Previously, proposed teacher discharge cases went before the school board and then the teacher could appeal their decision to the district court. Today, in a teacher discharge case, a teacher has the choice between a hearing before the school board or an arbitrator. Most proposed discharge cases go to an arbitrator who reviews the matter de novo and who's decision is final and binding on the parties subject to sections 572.18 to 572.26. MN Stat. 121 A.41, subd. 13 (e). Consequently there is very little current case law to rely on to determine if out-right termination is the appropriate action to be taken if a tenured teacher has engaged in objectionable conduct. One case that Binko suggests provides guidance in this matter is Kroll v. Indep. Sch. Dist. No. 593. 304 N.W.2d 338, 346 (Minn. 1981). Granted, this case is prior to the statutory change providing for a hearing before an arbitrator and involves a tenured teacher not in a district of a first class city. However, Kroll provides a framework from which to complete an analysis. In Kroll, a tenured teacher of 23 years, was terminated for discipline methods unbecoming a teacher which resulted in her immediate removal. The court noted that the purpose of the tenure statute is to avoid discharge of teachers who have demonstrated their fitness over the years. Id. at

48 345. With this philosophy in mind, the court felt a more remedial approach was called for rather than out-right termination. Binko suggests this approach is consistent with the general principles of progressive discipline contained within the Discipline MOU. To distinguished between conduct where a danger in having the teacher remain in the classroom or whether the teacher's conduct is remedial, the court proposed a four step test: 1. Consider the prior record of the teacher.

t 2. whole. 3. Did the conduct result in actual harm or threatened harm - an absence of harm should be considered in determining whether conduct is remediable. 4. Consider whether the conduct... could have been corrected had the teacher been warned by superiors.. Id. at 345, 346. If the improvement plan process is not a quasi-disciplinary action then Binko should be reinstated and allowed to continue on an improvement plan for a second year as contemplated under the Improvement Plan MOA. If the improvement plan process is a quasi-disciplinary the SPPS teachers are not aware of this and Binko should be reinstated so that she may proceed with under the progressive disciplinary procedure because no reprimands as to her not following the prescriptive teaching style have been issued. The charge of insubordination has not properly followed the process for progressive discipline and should not be an out right basis for termination.
v

Consider the severity of the conduct in light of the teacher's record as a

REI STATEMEN ANDRECO Y O DAM ES T BE M WHO N T VER F AG O ADE LE

Unless the parties agree otherwise, the arbitrator can not fashion a remedy somewhere between the two positions of the parties. MN Stat.122A.41 Subd. 13(c ) There is no such agreement by the parities in this matter. SPPS argues for the arbitrator to determine Binko shall

49 be discharged. Binko argues for the arbitrator to reinstate Binko to employment as a teacher with SPPS and for SPPS to pay certain sums to make her whole under MN Stat.122A.41 Subd. 12 and for the charges to be expunged from her personnel records. MN Stat.122A.41

Subd. 11 i Lost Wages Upon reinstatement, Dr. Binko is entitled to her lost SPPS wages minus any income received during the pendency of the matter. Binko has been receiving unemployment benefits * since April 2009 and Binko's receipt of these benefits was uncontested by SPPS (Binko Ex 4; Vol 5 P898 L8). Upon reinstatement and payment of back pay, those sums received from unemployment benefits should be deducted. Longevity Step Binko explained that she was at Step 14, Lane 14, as for her longevity step and referenced page 52 of the Contract. This is as of her suspension without pay on October 7, 2008. (Emp Ex 118) If SPPS had followed the "Below Standard" compensation required under the Teacher Assistance Program, Section 5 to the Improvement Plan MO A, Binko would have maintained her lane for the year without a raise. Binko's longevity step of 14 was as of the 20072008 school year. Since then, the 2008-2009 school year has lapsed during the pendency of this proceeding and we are halfway through the 2009-2010 school year. Upon returning to work, Binko should be reinstated at Step 16, Lane 14. Health Insurance Coverage >.

SPPS, for purposes of health insurance coverage, treated Binko as "terminated" and discontinued her coverage in October 2008. (Vol 5 P911 L7). Binko has been paying $669.01 per month for COBRA benefits since November 2008. (Binko Ex 5 P5; Vol 5 P910 L9). Additionally, Binko testified that the co-pays she currently pays under COBRA are different

50

from when she had under the district medical plan. (Binko Ex 5 P8; Vol 5 P910 L13). Upon reinstatement, Binko should be reimbursed for all payments she has made to maintain her COBRA coverage, and all payments for prescriptions, medical care, dental care or other covered services that she has paid out-of-pocket due to the discontinuation of coverage by SPPS health and dental policies. Other Benefits .

Each school year, SPPS pays a $600.00 match into a teacher' deferred compensation account. But for this discharge action by SPPS, Binko would have received a $600.00 match from SPPS for the 2008-2009 school year and the 2009-2010 school year. Therefore, upon reinstatement Binko should receive $1,200 as and for the lost deferred compensation match from the district. As for the Teacher Retirement Fund, Binko has received no contributions since May 2008. Upon Binko's reinstatement, all missed contributions and years of service calculations - as called for under contract and state law - should be ordered restored to bring the account balance and vesting status current. Expungement In all cases where the final decision is in favor of the teacher, the charge or charges must be physically expunged from the records. MN Stat.122A.41 Subd. 11 Attorney Fees hi this matter, it is evident that Binko was not receiving the adequate defense by her * union representation in defending against her proposed discharge from SPPS. hi order to properly present her case before the arbitrator, Binko found it was necessary to hire a private attorney. Binko asks that she be reimbursed for the costs expended to purchase a copy of the complete transcript of the hearing and her private attorney fees. But for the actions of SPPS, and

51 the failure to act by the St. Paul Federation of Teachers Local No. 28 and her union representative, Robert Gunderson, Binko would not have had to expend said sums. Gunderson was present at the meeting with Binko and Stachel. At that time, he had an opportunity to represent significant issues on behalf of Binko, namely:

1. McDonough disclosing private data on Binko to people who did not have a right to access as part of their job duties or communicating his negative opinions about Binko to others without her knowledge and in opposition to his policy regarding "underground" communications 2. That the improvement plan process was not complete and that McDonough was not ontrack in providing support and monitoring the improvement plan as he was required under the Improvement Plan MOA 3. That SPPS management was not living up to their agreement with the Union under the Improvement MOA that if a teacher was found to be "Below Standard" that the next step was to determine if Binko was to lose a step advancement or longevity stipend - not termination. The fact that Gunderson testified at the hearing that McDonough should be on-track is an indication that he was aware of the issue and chose to sit silent rather then adequately defend and represent Binko's interests. Shortly after this meeting, upon Binko receiving the formal charges, the union granted her request for private legal representation after she requested the same with her reasons for wanting a private attorney.
CONCLUSION

\ Binko asks that the arbitrator find in her favor based upon all of the aforementioned and that she be reinstated. 52