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
Public Hearings / Quasi Judicial Hearings Contrasted
Public Hearings
Sometime contentious
Purpose: give the public its say
Take in information
A decision may not necessarily follow
Quasi-Judicial Hearings/Due Process
Typically for:GrievanceStudent disciplineTeacher/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.
Usually InformalBoard Chair presidesAnticipate practical issues
Announced ground rulesLength of meeting
Time limitsOrder & fairness
Require that speakers identify themselvesSign up sheet?Consider alternating sides
Will you answer questions?
Presenter
Presentation Notes
Public Hearings: 16 V.S.A. § 554��West's Vermont Statutes Annotated Currentness � Title Sixteen. Education � Part 1. Administration � Chapter 9. School Districts � Subchapter 4. Other Provisions� § 554. School board meetings; majority vote, quorum, Robert's Rules, public participation���(a) A majority of the members of the board shall constitute a quorum. Notwithstanding 1 V.S.A. § 172, the concurrence of a majority of members present at a school board meeting shall be necessary and sufficient for board action.���(b) A school board meeting shall be conducted in accordance with the Vermont open meeting law. Robert's Rules of Order shall govern the conduct of school board meetings. 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, and if requested to do so shall give reasons for its action in writing.
When Is A Quasi-Judicial Hearing Conducted?
When required by law or agreement:The ConstitutionStatutory RightsAgreement: 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 determinedEvidence is presentedCross examinationDecision Possible appeal or other review
Presenter
Presentation Notes
3 V.S.A. § 801 (2) "Contested case" means a proceeding, including but not restricted to rate-making and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing
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 HearingBefore deprivation of rightsScope of hearing appropriate to nature of case
These rights cannot be reduced by statute or agreement
They may be supplemented
Presenter
Presentation Notes
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). An essential principle of due process is that a deprivation of life, liberty, or property “be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). We have described “the root requirement” of the Due Process Clause as being “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” “The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.” Id. at 456.
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
Presenter
Presentation Notes
Goss v. Lopez, 419 U.S. 565 (1975). “Having chosen to extend the right to an education to people of appellees' class generally, Ohio may not withdraw that right on grounds of misconduct absent, fundamentally fair procedures to determine whether the misconduct has occurred.” Arnett v. Kennedy, supra, at 164, 94 S.Ct. at 1649 (Powell, J., concurring), 171, 94 S.Ct. 1652 (White, J., concurring and dissenting), 206, 94 S.Ct. 1670 (Marshall, J., dissenting). “[T]he total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary.”
Termination of Employment
“Tenured” public employees entitled to pre-termination hearings
“tenured” where statute or contract recognizes a continuing right to employmentNot 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 agreementsPrincipals/Tech Centers Directors – 16 VSA § 243Superintendents – 16 VSA § 241Other 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?
Presenter
Presentation Notes
12 V.S.A. § 61��West's Vermont Statutes Annotated Currentness � Title Twelve. Court Procedure � Part 1. General Provisions � Chapter 3. Disqualification of Judges, Jurors, and Attorneys� § 61. Disqualification for interest� ��(a) A justice of the supreme court, judge, juror or other person shall not act in a judicial capacity in or as trier of a cause or matter in which he has been retained or acted as an attorney or counsel, or is interested in the event of such cause or matter, or is related to either party, if a natural person, within the fourth degree of consanguinity or affinity, or if a corporation, to any officer, director, trustee, or agent thereof within such degree; nor shall he be permitted to appear as attorney or counsel in a cause in which he has acted in such capacity or as trier; but he shall not be disqualified from so acting in a cause or matter in which a railroad corporation is a party by reason of being a taxpayer in a town which owns stock in such railroad corporation.���(b) A justice of the supreme court, or a judge shall not be disqualified from acting in a judicial capacity in a cause in which a county, town, village or school district is a party or interested, by reason of being a taxpayer or resident in such corporation.���(c) A superior judge, or justice of the supreme court shall not be disqualified to act in his official capacity in any matter in which a municipality, a life, fire or accident insurance company is a party in interest by reason of being a resident or taxpayer in such municipality or a policy holder in such insurance company.���(d) Membership in a domestic mutual fire insurance corporation shall not disqualify a district judge to take jurisdiction of a cause wherein such corporation is a party.���(e) A petit juror shall be disqualified from sitting as such in a case where a municipality is a party, if such juror is a resident or taxpayer of such municipality.���(f) A juror who is a policy holder in any cooperative or mutual insurance company shall not by reason thereof be disqualified as a juror in a cause where such cooperative or mutual insurance company is a party, or is interested in the outcome thereof by reason of being an insurer of any of the parties in such cause.���1965, No. 194, § 10; 1973, Adj. Sess., No. 249, § 13.� In re State Aid Highway No. 1, Peru, 133 Vt. 4 (1974). “Mrs. Garland, was, of course, disqualified to act under 12 V.S.A. s 61, as was the chairman if his contributions, or feelings generally, were sufficient to give him an interest in the event. We have recently strongly emphasized the necessity for impartiality and the avoidance of even the appearance*10 of partiality, in our judicial process. Aronstam v. Cashman, 132 Vt. -, 325 A.2d 361 (1974).”
Preparing for the HearingSomeone must think through the issues and develop a planConsider retaining counsel
Decide on separate attorneys - Board and AdministrationLegal advice in advance onlyAttorney(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 logisticsNumber of peopleRoom organization
Floor plan Privacy interestsIngress/egress options
MicrophonesProtocol – 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 SuperintendentCounsel
Who will give notice:Charge or chargesTimedate 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 hearingManage meetingLiaison between Board and counselRules on procedure and evidence
Robert’s Rules ModifiedGreat deal of flexibility in running hearings of all kinds Testimony can be limited by the Board chair
Hearing Conducted inOpen 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)
Presenter
Presentation Notes
1 V.S.A. § 313 (a) Contracts, labor relations agreements with employees, arbitration, mediation, grievances, civil actions, or prosecutions by the state, where premature general public knowledge would clearly place the state, municipality, other public body, or person involved at a substantial disadvantage;�(4) A disciplinary or dismissal action against a public officer or employee; but nothing in this subsection shall be construed to impair the right of such officer or employee to a public hearing if formal charges are brought Teacher discipline 16 V.S.A. § 1752 “Hearings shall be in executive session, unless the teacher making an appeal requests or agrees in writing that they be open to the public.” “We agree with plaintiffs that the [collective bargaining] contract cannot override the provisions of the Public Records Act, and the confidentiality provision was not a ground for denying plaintiffs access to the records.” Trombley v. Bellows Falls Union High School Dist. No. 27, 160 Vt. 101, 624 A.2d 857, 82 Ed. Law Rep. 869 (1993).�
Hearing Mechanics
Chair convenes hearingConfidentiality reminderIntroduce participantsMaintain record of hearingExplain reason for hearingPresent 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 decisionCommunicate in writing within 5 days
Rules of Evidenceand
Burden of Proof
Presenter
Presentation Notes
Vermont Supreme Court reviewing school Board disciplinary determination: “we determine only “ ‘whether there is any competent evidence to justify the adjudication.” Rouleau v. Williamstown School Bd., 179 Vt. 576, 892 A.2d 223, 206 Ed. Law Rep. 965, 2005 VT 131
The Rules of Evidence do not apply
Board Chair has flexibility
Rules may provide a useful comparison.
Rulings under RobertsPossible 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 flowExercise board discretion
Board’s Role in Deliberations
Fact finder & judgeWho’s presentRole of administrative recommendationsTaking final actionConfidentialityWho writes the decision
