School Board as Judge and Jury by KSB School Law

The School Board As Judge g and Juryy Sponsored by the NASB

Kelley Baker, Baker Karen Haase Steve Williams, and Bobby Truhe kbaker@hslegalfirm.com @ g / khaase@hsdlegalfirm.com @ g swilliams@hslegalfirm.com / btruhe@hslegalfirm.com H & S School Law @KarenHaase @BobbyTruhe

Source of Board Authorityy  The Legislature g created school districts and boards of education • They are “creatures of statute • Theyy have considerable discretion, but . . . • They may do only what they are statutorily authorized to do or have implied authority to do

Board Responsibilities p  Adopt policies  Establish curriculum  Engage g g in bargaining g g  In a hearing • Hear evidence • Make decision based on evidence • Issue written findings of fact

In Employment p y Matters  Board members should remain impartial • Nebraska Supreme p Court: the hearing “should be before a tribunal that both possesses some academic expertise and has an apparent impartiality toward the charges.”

In Employment p y Matters  Board members should: • Not investigate • Not express p opinions p • Direct people to the superintendent  Administration initiates the notice  Board responsible for action only: • If the case goes to hearing • Teacher fails to request a hearing

Dealing g with Complaints p  Have a complaint procedure  Require complainants to follow it  Refer them to appropriate pp p person p  Give administrators opportunity to: • Investigate • Respond • Don’t take responsibility for resolving the complaint • Don’t make promises

Hiringg and Firingg

Hiringg Certified Employees p y Board is the statutory employer Board acts on administrative recommendations Board takes action to hire Hiring requires a majority vote of board (4 votes on a 6-member board)

Probationary Teacher Rights Statute and Rule 10

 Evaluated once each semester  Based on classroom observation  Observed for “full instructional period period”  Written list of deficiencies  Concrete C t suggestions ti for f improvement i t  Assistance in overcoming deficiencies  Follow up evaluations and assistance

Probationaryy Teacher Rights g  Notice by April 15  7 calendar days to request a hearing  Hearing within 30 calendar days  Notice of employment-related reasons  Right Ri ht to t be b represented t d  Right g to discuss reasons  Right to question witnesses  Right to present evidence

Board Decision Probationary Teachers

ď&#x192;&#x2DC; Decision D i i by b majority j it off a quorum ď&#x192;&#x2DC; The board mayy amend or nonrenew the contract of a probationary teacher for any reason it deems sufficient if the nonrenewal is in accordance with sections 79-824 to 79-842 and is not for constitutionally impermissible reasons.

Tenured Teachers         

Administrative Obligations Observe staff Evaluate performance Identify deficiencies Make suggestions for improvement P id continued Provide ti d assistance it Improvement (assistance) plan? Respond to complaints Investigate g concerns Give appropriate warnings

Board Decision Tenured Teachers

ď&#x192;&#x2DC; Decision D i i by b majority j it off the th members b of the board ((4 on a 6-member board) ď&#x192;&#x2DC; The board may amend or terminate nonrenew the contract of a tenured teacher for just cause.

Role of Attorneys y

Administration=s Attorneyy  Should be a personnel specialist Works with administration through the year Guides administrators regarding: • The law • Hearing process • Practical experience

Preparing p g For Hearing g  Initial notice of proposed action  Request for hearing  Interview witnesses  Assemble documents  Prepare hearing notice  Set hearing date and time  Hire court reporter

Preparing p g For Hearing g  Secure a hearing officer  Publish notice and agenda  Set up the hearing room  Prepare proposed findings of fact  Consider settlement (throughout)

Board=s Attorneyy  Advises the board Runs the hearing (with the approval of the board) Rules on admissibilityy of evidence Rules on procedural issues and attorneys’ objections Assists the board with preparing findings of fact

What The Employee=s Attorney Looks For

Compliance p With Statutes

Compliance With Policies and Regulations

Evidence of Assistance

Prompt p Identification Of Deficiencies

Inconsistencyy

Contradictoryy Evidence

Lapses p and Delays y

Fairness

Last Minute Complaints

Prompt p Notice of Relevant Communications

Time to Improve p

The Hearingg

The Hearing  Open the meeting  Call the roll  Take customary actions  Introduce the board attorney (hearing officer) who will  Explain the hearing process  Discuss initial matters  Ask for opening statements

The Hearing  Administration’s presentation • Direct Di t examination i ti (testimony) (t ti ) • Cross examination  Teacher’s presentation • Direct examination (testimony) • Cross examination  Rebuttal evidence  Closing arguments  Board deliberation

The School Board As Judge g and Juryy Sponsored by the NASB