2007hearings by vsba

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									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

The District has a lot at stake:
    District reputation and public trust
    You want to make good decisions
    Your opportunity to find the facts


But you do have personal legal
protection:
    Most districts have Errors & Omissions Insurance
    Perhaps you should have Employment Practice
    Liability Coverage
What do we mean by “Hearing?”
 Public Hearings                  Quasi Judicial Hearings
                                  (Due Process Hearings)
   Board as legislative body        Board as “judge”
   Gather                           Take evidence
   information/opinion              Decide a case
   Inform its policy-making         Examples:
   role                               Teacher/Administrator
   Examples                           Termination, Grievance,
      Building projects,              Student discipline
      budgets, district policy.
Public Hearings / Quasi Judicial
      Hearings Contrasted
Public Hearings         Quasi-Judicial
                        Hearings/Due Process
 Sometime contentious
                         Typically for:
 Purpose: give the         Grievance
 public its say            Student discipline
                           Teacher/Administrator
                           Termination
 Take in information
                         Trial-like process to
                         find facts and decide
 A decision may not      case
 necessarily follow
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.

                                        Usually Informal
                                           Board Chair presides
                                           Anticipate practical
                                           issues
                                               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?

When required by law or agreement:
 The Constitution
 Statutory Rights
 Agreement: usually collective bargaining
 agreement.
What is a Quasi-Judicial Hearing?

 A hearing in a contested case. Normally:

  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

                    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

Notice and Opportunity for Hearing
 Before deprivation of rights
 Scope of hearing appropriate to nature of
 case
These rights cannot be reduced by
statute or agreement
 They may be supplemented
Student Discipline

 Suspension or
 expulsion from school
 for 10 or more days
 entitles student to due
 process hearing

 Student rights also
 provided by 16 VSA
 §1162 and State
 Board Rules
Termination of Employment

                  “Tenured” public
                  employees entitled to
                  pre-termination
                  hearings
                    “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
 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

Maintain unbiased hearing role

When are you told too much

When a Board member should recuse?
    Preparing for the Hearing
Someone must think through the issues
and develop a plan
Consider retaining counsel
   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

Anticipate and plan for hearing logistics
   Number of people
   Room organization
     Floor plan
     Privacy interests
     Ingress/egress options
   Microphones
   Protocol – time limits if many people attend
 Media relations
 Administrator’s Hearing Role

Organize the process

“Prosecutor” or witness for prosecutor

Unrelated administrator to assist Board?

Who will write the decision?
   Preparing for the Hearing

Warn the meeting

Provide enough advance general context
to Board, but not so much as to bias
independent decision making
     Preparing for the Hearing

Who will conduct hearing for Administration?
  Principal or Superintendent
  Counsel
Who will give notice:
  Charge or charges
  Time
  date and
  place of hearing
  Right to legal representation
Notice of possible penalties
   Role of the School Board

Perform the quasi-judicial role:

   Find the facts

   Draw conclusions and decide what, if any,
   action is merited
       Role of Board Chair
Preside over hearing
Manage meeting
Liaison between Board and counsel
Rules on procedure and evidence
 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?
Open meeting law - 1 VSA §313 (a)(4)

Teachers - 16 VSA §1752 (b) and (g)

Protection of Board and employees in
damage suits - 16 VSA 1756

Principals/Tech Center Directors - 16 VSA §
243 (c) and (d)
       Hearing Mechanics

Chair convenes hearing
Confidentiality reminder
Introduce participants
Maintain record of hearing
Explain reason for hearing
Present evidence
       Hearing Mechanics

Pose questions – don’t make
statements

Keep it relevant

Remain neutral and nonjudgmental

Maintain impartiality
       Hearing Mechanics

Opportunity to cross-examine

Hear recommendation of administration

Board deliberation

Make decision
 Communicate in writing within 5 days
Rules of Evidence
       and
 Burden of Proof
The Rules of Evidence do not apply


 Board Chair has flexibility

 Rules may provide a useful comparison.

 Rulings under Roberts
   Possible appeal of ruling of chair
   Has the Burden of Proof Been
            analyzed?
What elements of fact need be proven?

 Is there some evidence on each fact


Is the Board persuaded? Does the Board
believe the evidence

 What consequences should flow
   Exercise board discretion
 Board’s Role in Deliberations

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

								
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