Running Effective School Board Hearings

1. Running EffectiveSchool Board Hearings Presented By: Vermont School Boards Association With: Richard Cassidy, Attorney at Law South Burlington School Board Chair December 12, 2007

2. Richard Cassidy, Attorney at Law Hoff, Curtis, Pacht, Cassidy, Frame, Somers & Katims, P.C.

3. The Role of the School Board in Hearings

4. 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

5. What do we mean by “Hearing?” Public Hearings Board as legislative body Gather information/opinion Inform its policy-making role Examples Building projects, budgets, district policy. Quasi Judicial Hearings (Due Process Hearings) Board as “judge” Take evidence Decide a case Examples: Teacher/Administrator Termination, Grievance, Student discipline

6. 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: Grievance Student discipline Teacher/Administrator Termination Trial-like process to find facts and decide case Public Hearings / Quasi Judicial Hearings Contrasted

7. 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?

8. When Is A Quasi-Judicial Hearing Conducted? • When required by law or agreement: • The Constitution • Statutory Rights • Agreement: usually collective bargaining agreement.

9. 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

10. 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”

11. 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

12. 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

13. 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

14. 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

15. 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?

16. 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.

17. 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

18. Administrator’s Hearing Role • Organize the process • “Prosecutor” or witness for prosecutor • Unrelated administrator to assist Board? • Who will write the decision?

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

20. 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

21. Role of the School Board • Perform the quasi-judicial role: • Find the facts • Draw conclusions and decide what, if any, action is merited

22. 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

23. 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)

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

25. Hearing Mechanics • Pose questions – don’t make statements • Keep it relevant • Remain neutral and nonjudgmental • Maintain impartiality

26. Hearing Mechanics • Opportunity to cross-examine • Hear recommendation of administration • Board deliberation • Make decision • Communicate in writing within 5 days

27. Rules of EvidenceandBurden of Proof

28. 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

29. 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

30. Board’s Role in Deliberations • Fact finder & judge • Who’s present • Role of administrative recommendations • Taking final action • Confidentiality • Who writes the decision

31. For More Information Contact: Vermont School Boards Association www.vtvsba.org 800-244-8722