Transcript The Role of the Board in Hearings

Running Effective School
Board Hearings
Presented By:
Vermont School Boards Association
With:
Richard Cassidy, Attorney at Law
South Burlington School Board Chair
December 12, 2007
Richard Cassidy, Attorney at Law
Hoff, Curtis, Pacht, Cassidy, Frame,
Somers & Katims, P.C.
The Role of the School
Board in Hearings
Board Hearings Matter
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The District has a lot at stake:
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District reputation and public trust
You want to make good decisions
Your opportunity to find the facts
But you do have personal legal
protection:
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Most districts have Errors & Omissions Insurance
Perhaps you should have Employment Practice
Liability Coverage
What do we mean by “Hearing?”
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Public Hearings
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Board as legislative body
Gather
information/opinion
Inform its policy-making
role
Examples
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Building projects,
budgets, district policy.
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Quasi Judicial Hearings
(Due Process Hearings)
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Board as “judge”
Take evidence
Decide a case
Examples:
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Teacher/Administrator
Termination, Grievance,
Student discipline
Public Hearings / Quasi Judicial
Hearings Contrasted
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Public Hearings
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Quasi-Judicial
Hearings/Due Process
Sometime contentious
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Purpose: give the
public its say
Typically for:
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Take in information
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A decision may not
necessarily follow
Grievance
Student discipline
Teacher/Administrator
Termination
Trial-like process to
find facts and decide
case
Public Hearings: “A school board shall afford a reasonable
opportunity to any person in the school district to appear and express views in
regard to any matter considered by the school board…” 16 V.S.A. §554.
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Usually Informal
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Board Chair presides
Anticipate practical
issues
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Announced ground rules
Length of meeting
 Time limits
Order & fairness
 Require that speakers
identify themselves
 Sign up sheet?
 Consider alternating
sides
Will you answer questions?
When Is A Quasi-Judicial Hearing
Conducted?
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When required by law or agreement:
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The Constitution
Statutory Rights
Agreement: usually collective bargaining
agreement.
What is a Quasi-Judicial Hearing?
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A hearing in a contested case. Normally:
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Parties whose rights, duties or privileges are
to be determined
Evidence is presented
Cross examination
Decision
Possible appeal or other review
Constitutional Concept of Due Process
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14th amendment to
the United States
Constitution:
“No state shall
deprive any person
of life, liberty, or
property without
due
process of law”
Essence of Due Process
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Notice and Opportunity for Hearing
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Before deprivation of rights
Scope of hearing appropriate to nature of
case
These rights cannot be reduced by
statute or agreement
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They may be supplemented
Student Discipline
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Suspension or
expulsion from school
for 10 or more days
entitles student to due
process hearing
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Student rights also
provided by 16 VSA
§1162 and State
Board Rules
Termination of Employment
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“Tenured” public
employees entitled to
pre-termination
hearings
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“tenured” where statute
or contract recognizes a
continuing right to
employment
Not to temporary or
probationary or at will
employees
Statutory and Contractual Rights may
Extend Additional Rights to
Employees
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Teachers - 16 VSA § 1752 and applicable
collective bargaining agreements
Principals/Tech Centers Directors – 16 VSA
§ 243
Superintendents – 16 VSA § 241
Other employees - per employment contract
or collective bargaining agreement
What Does and What Should the
Board Know in Advance
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Maintain unbiased hearing role
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When are you told too much
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When a Board member should recuse?
Preparing for the Hearing
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Someone must think through the issues
and develop a plan
Consider retaining counsel
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Decide on separate attorneys - Board and
Administration
Legal advice in advance only
Attorney(s) attend hearing or not
If counsel will not “prosecute” the
hearing, the administration must do so.
Preparing for the Hearing
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Anticipate and plan for hearing logistics
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Number of people
Room organization
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Floor plan
Privacy interests
Ingress/egress options
Microphones
Protocol – time limits if many people attend
Media relations
Administrator’s Hearing Role
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Organize the process
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“Prosecutor” or witness for prosecutor
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Unrelated administrator to assist Board?
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Who will write the decision?
Preparing for the Hearing
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Warn the meeting
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Provide enough advance general context
to Board, but not so much as to bias
independent decision making
Preparing for the Hearing
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Who will conduct hearing for Administration?
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Who will give notice:
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Principal or Superintendent
Counsel
Charge or charges
Time
date and
place of hearing
Right to legal representation
Notice of possible penalties
Role of the School Board
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Perform the quasi-judicial role:
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Find the facts
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Draw conclusions and decide what, if any,
action is merited
Role of Board Chair
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Preside over hearing
Manage meeting
Liaison between Board and counsel
Rules on procedure and evidence
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Robert’s Rules Modified
Great deal of flexibility in running
hearings of all kinds
Testimony can be limited by the Board
chair
Hearing Conducted in
Open or Executive Session?
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Open meeting law - 1 VSA §313 (a)(4)
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Teachers - 16 VSA §1752 (b) and (g)
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Protection of Board and employees in
damage suits - 16 VSA 1756
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Principals/Tech Center Directors - 16 VSA §
243 (c) and (d)
Hearing Mechanics
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Chair convenes hearing
Confidentiality reminder
Introduce participants
Maintain record of hearing
Explain reason for hearing
Present evidence
Hearing Mechanics
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Pose questions – don’t make
statements
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Keep it relevant
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Remain neutral and nonjudgmental
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Maintain impartiality
Hearing Mechanics
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Opportunity to cross-examine
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Hear recommendation of administration
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Board deliberation
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Make decision
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Communicate in writing within 5 days
Rules of Evidence
and
Burden of Proof
The Rules of Evidence do not apply
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Board Chair has flexibility
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Rules may provide a useful comparison.
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Rulings under Roberts
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Possible appeal of ruling of chair
Has the Burden of Proof Been
analyzed?
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What elements of fact need be proven?
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Is there some evidence on each fact
Is the Board persuaded? Does the Board
believe the evidence
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What consequences should flow
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Exercise board discretion
Board’s Role in Deliberations
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Fact finder & judge
Who’s present
Role of administrative recommendations
Taking final action
Confidentiality
Who writes the decision
For More Information Contact:
Vermont School Boards Association
www.vtvsba.org
800-244-8722