Board Hearings MatterThe District has a lot at stake: District reputation and public trust You want to make good decisions Your opportunity to find the factsBut you do have personal legalprotection: 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 ContrastedPublic 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 reasonableopportunity to any person in the school district to appear and express views inregard 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 ProcessNotice and Opportunity for Hearing Before deprivation of rights Scope of hearing appropriate to nature of caseThese rights cannot be reduced bystatute 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 AdvanceMaintain unbiased hearing roleWhen are you told too muchWhen a Board member should recuse?
Preparing for the HearingSomeone must think through the issuesand develop a planConsider retaining counsel Decide on separate attorneys - Board and Administration Legal advice in advance only Attorney(s) attend hearing or notIf counsel will not “prosecute” thehearing, the administration must do so.
Preparing for the HearingAnticipate 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 RoleOrganize the process“Prosecutor” or witness for prosecutorUnrelated administrator to assist Board?Who will write the decision?
Preparing for the HearingWarn the meetingProvide enough advance general contextto Board, but not so much as to biasindependent decision making
Preparing for the HearingWho will conduct hearing for Administration? Principal or Superintendent CounselWho will give notice: Charge or charges Time date and place of hearing Right to legal representationNotice of possible penalties
Role of the School BoardPerform the quasi-judicial role: Find the facts Draw conclusions and decide what, if any, action is merited
Role of Board ChairPreside over hearingManage meetingLiaison between Board and counselRules on procedure and evidence Robert’s Rules ModifiedGreat deal of flexibility in runninghearings of all kindsTestimony can be limited by the Boardchair
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 indamage suits - 16 VSA 1756Principals/Tech Center Directors - 16 VSA §243 (c) and (d)
Hearing MechanicsChair convenes hearingConfidentiality reminderIntroduce participantsMaintain record of hearingExplain reason for hearingPresent evidence
Hearing MechanicsPose questions – don’t makestatementsKeep it relevantRemain neutral and nonjudgmentalMaintain impartiality
Hearing MechanicsOpportunity to cross-examineHear recommendation of administrationBoard deliberationMake decision Communicate in writing within 5 days
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 factIs the Board persuaded? Does the Boardbelieve the evidence What consequences should flow Exercise board discretion
Board’s Role in DeliberationsFact finder & judgeWho’s presentRole of administrative recommendationsTaking final actionConfidentialityWho writes the decision
For More Information Contact:Vermont School Boards Association www.vtvsba.org 800-244-8722