1	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
2	"Richard Cassidy" 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?” Quasi Judicial Hearings (Due Process Hearings) Board as “judge” Take evidence Decide a case Examples: Teacher/Administrator Termination, Grievance, Student discipline Public Hearings Board as legislative body Gather information/opinion Inform its policy-making role Examples Building projects, budgets, district policy.
6	Public Hearings / Quasi Judicial Hearings Contrasted Quasi-Judicial Hearings/Due Process Typically for: Grievance Student discipline Teacher/Administrator Termination Trial-like process to find facts and decide case Public Hearings Sometime contentious Purpose: give the public its say Take in information A decision may not necessarily follow
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 14^th 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 Evidence and Burden 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