2016 IASB Employee Relations Conference

Transcription

1 2016 IASB Employee Relations Conference Communicating Employment Issues with your Board Presenter: Joe Holland, Attorney Holland, Michael, Raiber & Sittig PLC

2 I. THE BOARD WANTS TO KNOW I heard this from a parent, what do you know. Shouldn t this teacher be fired? I think that coach is a problem, why is she or he still here. Can I be a part of hiring - coach, teacher I know that employee has been arrested, what s happening. What are we doing/going to do? What was done about this employee? Why won t you tell me (us) anything? II. WHAT CAN YOU TELL BOARD MEMBERS? What can you tell them? Sometimes not much. Why? III. EMPLOYEES HAVE PRIVACY RIGHTS. A. General rights to have private matters private runs through law. B. Statutory 1. Open Records Law 22.7(11) 22.7 Confidential records. The following public records shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information: 11. a. Personal information in confidential personnel records of government bodies relating to identified or identifiable individuals who are officials, officers, or employees of the government bodies. 1

3 2. Open Meetings Law 21.5(1)(i) 21.5 Closed session. 1. A governmental body may hold a closed session only by affirmative public vote of either two-thirds of the members of the body or all of the members present at the meeting. A governmental body may hold a closed session only to the extent a closed session is necessary for any of the following reasons: i. To evaluate the professional competency of an individual whose appointment, hiring, performance, or discharge is being considered when necessary to prevent needless and irreparable injury to that individual s reputation and that individual requests a closed session. 3. These are in the employee s control not the Board s control. 4. Confidentiality is a blanket rule that applies broadly to all personnel file information. In American Civil Liberties Union Foundation of Iowa, Inc., v. Records Custodian, Atlantic Community School District (2012) the Iowa Supreme Court rejected any balancing test based upon public interest in the matter: Moreover, to suggest that a balancing test should be applied in this case undermines the categorical determination of the legislature and rewrites the statute. It also creates a logical problem. Can it be that discipline in employee A's personnel file may be treated differently than the exact same discipline in employee B's file, based on the degree of public interest? The Court held that the District could not disclose the specific consequences the employees received. 5. Teachers termination hearing is exempt from Open Meetings law (2)(c) Notice of termination request for hearing. 2.c. Within five days of the receipt of the written notice that the superintendent is recommending termination of the contract, the teacher may request, in writing to the secretary of the board, a private hearing with the board. The private hearing shall not be subject to chapter 21 and shall be held no sooner than ten days 2

4 and no later than twenty days following the receipt of the request unless the parties otherwise agree. 6. Administrators - termination hearing is either in closed session or exempt from Open Meetings law Contract with administrators automatic continuation or termination. 2. If the board of directors is considering termination of an administrator s contract, prior to any formal action, the board may arrange to meet in closed session, in accordance with the provisions of section 21.5, with the administrator and the administrator s representative. The board shall review the administrator s evaluation, review the reasons for nonrenewal, and give the administrator an opportunity to respond. 5. The school board may, by majority vote of the membership of the school board, cause the contract of an administrator to be terminated. If the school board determines that it should consider the termination of a nonprobationary administrator s contract, the following procedure shall apply: f. If the administrator appeals to the school board, or if the school board determines on its own motion to review the proposed decision of the administrative law judge, a private hearing shall be held before the school board within five days after the petition for review, or motion for review, has been made or at such other time as the parties agree. The private hearing is not subject to chapter Literally these apply only to meetings and records, but broader principal in protection of employees right to privacy. IV. EMPLOYEES HAVE DUE PROCESS RIGHTS. A. Performance and misconduct have to be assessed fairly. 1. Based on facts, not rumors or gossip 2. Need to be done in an environment where both sides can act and speak freely about the facts. 3. Conclusions and actions in response (consequences) are often not public and generally not for the 3

5 Board. B. Too much information can disqualify Board members from participating when appropriate proceedings to terminate teachers and administrators. 2. Hearings under Board policies employee appeals to Board. C. Due process requires a fair and impartial decision maker. Too much information (prejudice) can disqualify a Board member from participating. IASB LICENSED EMPLOYEE CONTRACT TERMINATION PROCEDURES MANUAL Board Impartiality - teacher termination hearings The board makes the decision whether to accept the superintendent s recommendation. The board sits like a judge or jury and must be an impartial decision maker. To be considered impartial, the board cannot be involved in the investigation, recommendation or presentation of the recommendation, and no board member can be biased or have a personal interest in the termination of the teacher s continuing contract. A charge that can arise in teacher termination proceedings is that the teacher was denied due process because the teacher was not afforded the benefit of an impartial decision maker. The charge of partiality requires that actual, rather than potential, bias be shown. Mere familiarity with persons or situations involved is not sufficient to support a finding of actual bias. Because of the potential for a claim of partiality, it is essential that the board not initiate the termination process or be directly involved in teacher discipline or evaluations. While not always possible, it is best if board members first learn of the reasons for the potential termination when the superintendent s recommendation is made, and hear for the first time the specific evidence during the private hearing. When that happens, it is clear the board members made their decision based only on the evidence presented at the private hearing and not upon facts they learned before the termination proceedings began. The worst case 4

6 scenario arises, and actual bias can potentially be established, if a board instigates the termination proceedings, investigates the superintendent s recommendation, calls upon their personal knowledge to analyze or add to the evidence presented, or has a personal or financial stake in the termination. Complete lack of knowledge about the teacher is not required, but each board member has the obligation to step aside and not participate in the private hearing if he or she has personal knowledge or feelings concerning the teacher that prevent the board member from considering the evidence in a fair and impartial manner. It is helpful for the board s attorney to review this standard with the board before the termination hearing begins, and to make a record that each board member believes he or she can keep an open mind no matter what they previously heard or read regarding the teacher. In rare circumstances, when a majority of the board members has an interest or bias that precludes them from sitting as an impartial decision maker, the board, in conjunction with the board s attorney, should consider whether a neutral hearing officer should be appointed to conduct the private hearing and then, assemble the findings of fact and give conclusions of law on which the board can make a decision. The hearing officer, if designated, should be a person with some experience with elementary and secondary education and with a legal or legally oriented background, such as an active or retired attorney, judge, or possibly a disinterested school administrator. If this option is taken, the findings of fact and conclusions of law should be advisory only. The board should not delegate the ultimate responsibility for continuing or terminating the teacher s contract. Board Impartiality - administrator termination hearings At the private review hearing, the board sits as a neutral and impartial decision-making body and reviews the ALJ hearing record. * * * In reviewing the ALJ s proposed decision, the board may revisit the entire ALJ hearing record and make its own findings of fact and conclusions of law. Because its review is de novo, the board may also resolve a credibility dispute between or among witnesses. * * * Within five days after the private review hearing, the 5

7 board must meet to determine whether to terminate the administrator or superintendent s contract. Iowa Code (5)(f). The board can go into a closed session if it is requested by the administrator or superintendent, and if it is necessary to avoid needless and irreparable injury to the administrator or superintendent s reputation. Iowa Code 21.5(i). The parties may agree to submit proposed findings of fact and conclusions of law to assist the board in this task. These findings of fact, exceptions and conclusions of law, in addition to the ALJ hearing record, are the record of the private review hearing. The findings of fact, conclusions of law and exceptions taken to them are exempt from the public records law. Iowa Code (5)(h). The board s deliberations constitute a continuation of the private hearing, and are exempt from Iowa s open meeting s law. Iowa Code (5)(h). * * * The board is required to act fairly and impartially in reviewing the ALJ hearing record and the ALJ s proposed decision. It is recommended that the board consider having an attorney other than the attorney who prepared the board s position at the ALJ hearing and private review hearing assist the board with its deliberations and to help the board prepare its findings of fact and conclusions of law. An additional attorney will add some expense to the termination proceedings, but will reduce the chances of a successful charge of partiality. V. EMPLOYEES MAY HAVE CONTRACTUAL RIGHTS OR UNDER BOARD POLICIES A. To process complaints through a formal grievance process. B. To have items removed from their personnel file (sometimes after one year with no further issues). C. Right to appeal decisions to Board. VI. ADMINISTRATION HAS RIGHTS. A. Be free from undue intervention of Board members in personnel matters. Board Policy 6

8 The administrators of the District shall be responsible for implementing and enforcing the policies of the Board, overseeing the employees, monitoring educational issues confronting the District and informing the Board about District operations. Each administrator shall be responsible for fully participating in the management of the District by investigating, analyzing and expressing their views on issues. The Superintendent of the School District shall be the head administrator and the executive officer of the Board of Directors, and shall be directly responsible to the Board for the execution of the District s policies, for the faithful and efficient observance of the District s rules by all employees throughout the system, and for the enforcement of all provisions of the law relating to the operation of the schools. B. Right (and obligation) to honor and enforce employees rights of privacy and due process. VII. BOARD HAS RIGHTS. A. To know that concerns/complaints are investigated and that appropriate action taken. The Board is not the public and has rights the public does not, but... B. To respond to public inquiries with what members know, and why that information may be limited. C. To present concerns to administrators. CODE OF ETHICS FOR SCHOOL BOARD MEMBERS (Excerpted from the IASB School Board Members Handbook) IN MY RELATIONSHIP WITH SUPERINTENDENT AND STAFF 1. I will function, in meeting the legal responsibility that is mine, as a part of a legislative, policy-forming body, not as an administrative officer. 2. I will recognize that it is my responsibility, together with that of my fellow board members, to see that the schools are properly run not to run them myself. 3. I will expect the schools to be administered by the best-trained technical and professional people it is 7

9 possible to procure. 4. I will recognize the superintendent as executive officer of the board. 5. I will work through the administrative employees of the board, not over or around them. 6. I will expect the superintendent to keep the school board adequately informed through oral and written reports. 7. I will vote to employ personnel only after the recommendation of the superintendent has been received. 8. I will insist that contracts be equally binding on the employee and the school board. 9. I will give the superintendent power commensurate with the position s responsibility. 10. I will give the superintendent friendly counsel and advice. 11. I will present any personal criticism of employees to the superintendent. 12. I will refer complaints to the proper administrative officer. VIII. PUBLIC HAS RIGHTS. A. To generally know what s going on in the District in best interest of students, families, community. In the Atlantic case the Court expressed the reasons for the Open Records Law: The [Open Records Law] allows public examination of government records to ensure the government's activities are more transparent to the public it represents. In construing the Act, we have said its purpose is to remedy unnecessary secrecy in conducting the public's business. The opening section of the Open Meetings Law states a similar principle behind that law: This chapter seeks to assure, through a requirement of 8

10 open meetings of governmental bodies, that the basis and rationale of governmental decisions, as well as those decisions themselves, are easily accessible to the people. B. To know how money is spent if the outcome involves a financial settlement. C. No right to know the details of confidential personnel matters. The Atlantic case makes that clear. D. Even the public has varied opinions about how a Board (and Administrators) should proceed in disclosing the details of personnel matters. IX. THESE RIGHTS COLLIDE A. Community member wants to very publicly air complaint dissatisfaction with employee at Board meetings. B. Board member wants to see personnel files to investigate staff member. C. Board member wants to advocate for hiring, discipline, firing of an employee. X. INCREASING INTEREST BY BOARD MEMBERS IN DIRECT MANAGEMENT A. Some Board members see their role as hands on, day to day management. B. They want to be involved early and often in personnel matters. C. They do not appropriately value the efforts of staff to manage employment matters. D. Good training - good policies Board culture helps Board members understand policy making and general management role. XI. WHAT CAN BOARD MEMBERS BE TOLD? A. The situation is being investigated and addressed. 9

11 B. That further action may be pending. C. Appropriate investigation has been done and consequences imposed and remedial action has been implemented. C. The employee has been terminated. There is an exception to confidentiality in 22.7(11)(a)(5) and this information is not confidential. The fact that the individual was discharged as the result of a final disciplinary action upon the exhaustion of all applicable contractual, legal, and statutory remedies. This is one more indicator of the Legislature s intent to keep personnel matters confidential until final. XII. CONCLUSION Balance the rights involved, let the Board know the administrators are acting, remind them that may be the ultimate decision makers and need to be impartial if that happens, let them know when the situation has been addressed and concluded. 10

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