Describes the role of Vermont School Boards in conducting hearings and identifies likely issues that may arise.

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, 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 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.

6. Public Hearings / Quasi Judicial
Hearings Contrasted
Public 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

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 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