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Oct 21, 2010

Attorney Bryan Dench to Present on The Rudiments of Due Process, How to Conduct a Due Process Hearing at the Annual Maine School Management Fall Conference.


Category: Events

 

 

                                        THE RUDIMENTS OF DUE PROCESS

                            HOW TO CONDUCT A DUE PROCESS HEARING

  

Presented at the  

Maine School Management Association

Fall Conference

 

Augusta Civic Center

October 22, 2010 

  

Prepared and Presented by: 

Bryan M. Dench, Esq.

  

Skelton, Taintor & Abbott

95 Main Street

Auburn, ME 04210

(207)784-3200

Website: skeltontaintorabbott.net

 

Introduction

            As governmental entities, School Boards (“Board”) are subject to several constitutional constraints that do not otherwise apply to private employers or private organizations.  Perhaps the most significant of these are a Board’s duty to provide procedural due process when considering personnel actions and student discipline.  A Board’s authority is limited by the Due Process clause of the state and federal constitutions.  The Fourteenth Amendment to the United States Constitution provides that agencies of government may not deprive a person of liberty or property without “due process of law.”

For example, the United States Supreme Court has held that an employee who has a legitimate expectation that he or she will remain employed has a property interest of which he or she cannot be deprived without due process.  See Board of Regents v. Roth, 408 U.S. 564 (1972).  This legitimate expectation can arise from a contract for a fixed period of time or preventing termination without cause.  Or it may be a statute that gives a non-probationary employee a reasonable expectation of continued employment, or even an express right to a hearing before an adverse action.  E.g., 20-A M.R.S.A. § 13201 (teacher employment and non-renewal); 20-A M.R.S.A. § 13202 (dismissal of a non-probationary teacher); 20-A M.R.S.A. § 1052 (superintendent).

            Courts have also held that public disclosure of an adverse employment action may affect an employee’s “liberty” interest when it damages the employee’s reputation to an extent that it harms the employee’s right to be employed elsewhere.  See Codd v. Velger, 97 S. Ct. 882 (1977); Board of Regents v. Roth, 92 S. Ct. 270 (1972).   

            Students have been held to have a right to a free and appropriate public education.  That right is also a protected “property” interest that schools cannot take away without due process of law.  Therefore, expulsion or the long term suspension of a student (i.e., more than 10 days) requires due process.  See Goss v. Lopez, 95 S. Ct. 729 (1975)

            The constitution affords due process to help avoid mistaken or unfair government action.  Consequently, when a Board is considering action that would deprive an employee or student of property or a liberty interest, procedural due process must be provided.  At a minimum, this means the person facing such action must be given a fair opportunity to answer, explain and defend against the charges before the deprivation occurs.

 

            What are the elements of Due Process?

            The fundamental elements of “due process” are notice and an opportunity to be heard.  For example, in Goss v. Lopez,  95 S. Ct. 729 (1975), the United States Supreme Court established the minimum constitutional Due Process requirement in connection with student suspensions for up to 10 days.  The Court held that the student should be afforded three basic procedural rights:

(i)        Oral or written notice of the charges against the student;

 (ii)       An explanation of the evidence if the charges are denied; and

 (iii)      An opportunity to present the student’s version of the incident.

 These basic rights should be afforded students or employees before any disciplinary action is taken that deprives the person of a property or liberty interest.   See also Cleveland Board of Ed. v. Loudermill, 470 U. S. 532, 546, 104 S. Ct. 487 (1985).

            If the action is more serious, such as a long term suspension, non-renewal or dismissal, students and employees are entitled to greater procedural due process which at a minimum generally includes the following:

a.         The Board must advise the person of the charges against him.

 

b.        The Board must inform the person of the nature of the evidence against him or her.  This is normally done by prior to the hearing and will be done in the course of a hearing.  

 

c.         The Board must give the person notice and an opportunity to be heard in their own defense, which is one of the purposes of the hearing.   This should be done informally and at the hearing.   To allow for a meaningful hearing, the notice should include the basic “charge”, the nature of the evidence, and the date, time and place of the hearing.   It is also prudent to inform the party charged of the nature of the proceeding and the other procedural rights afforded to the party.   The party should be given enough information so that he or she can prepare a defense.

 

d.        The Board must not act without “substantial” evidence.  The administration need not prove its case beyond a reasonable doubt, as in a criminal case.  A “preponderance” of the evidence is enough, meaning “more likely than not”.   In order for the Board to act, however, it must be fully convinced and satisfied as to the facts that support its action.

 

e.         The party charged has a right to legal counsel and, in general, to confront and cross-examine witnesses against them.  The right to counsel means the right to have a lawyer help prepare for the hearing and be present to represent you.  The right to confront witnesses is not an absolute right in every single case.  For example, as to student witnesses, the courts have recognized that their interests need to be considered, too.  That is, sometimes, confidentiality concerns or fear of reprisal justifies not requiring student witnesses to testify.  In School Board hearings, neither the administration nor the person who is the subject of the hearing has the power to subpoena a reluctant witness and compel him or her to testify.  Maine case law recognizes that sometimes student witness testimony can be supplied by written affidavit.

 

f.         The party “charged” has a right to an impartial tribunal.  The Board must consider the evidence presented objectively, with an open mind.  Board members cannot expunge all of their awareness of the community and of parties or events involved.  However, if members have received information or formed conclusions beforehand that they feel will make then unable to decide the case impartially, they may need to consider disqualifying themselves.

 

g.         It is important to make a record of the proceedings. This is often done by hiring a court reporter, and sometimes done with a good tape recording system.

 

 

            How to Conduct a Due Process Hearing–Practical Tips

 

            The law permits a Board to hear student discipline or expulsion cases, personnel proceedings and teacher dismissal or non-renewal hearings in executive (closed) session with only the affected parties and the Board present.  1 M.R.S.A. § 405(6) (a) and (b).  If a “person charged or investigated” requests in writing that the proceedings be held in open session, the Board generally has to honor that request.  However, a teacher non-renewal hearing is to be conducted in open sessions only if both parties agree.  20-A M.R.S.A. § 13201.  The motion to enter into executive session must be adopted by three-fifths of the members present and voting. 

            Student Expulsion Hearings- The proper form of the motion to enter into executive session for a student expulsion hearing is:

“I move that we enter an executive session to conduct a hearing and consider the possible expulsion of a student according to 1 M.R.S.A. § 405(6) (b).”

 

The student, his parent(s), and his legal counsel have the right to be present in the executive session, during the hearing and throughout the subsequent deliberations in the executive session if they wish.  They do not have the right to participate in the deliberations, but they can be present.  No one else, including a superintendent or any other representative from the administration, can be present during the Board’s deliberations.  Although the superintendent is the Board’s secretary, the superintendent should not sit with the Board, but with the administration’s legal counsel during the hearing.  No one else should be present during a hearing in executive session except witnesses while they are testifying.

            Teacher Dismissal or Non-Renewal Hearing -- The proper form of the motion to enter into executive session for teacher dismissal hearings is:

“I move that we enter an executive session to conduct a hearing and consider the possible dismissal / nonrenewal of a teacher according to 1 M.R.S.A. § 405(6) (a).”

 

The teacher has the right to be present with his or her legal counsel and (if he or she wishes) union representatives during the hearing and throughout the deliberations in executive sessions if they wish.  They do not have the right to participate in the deliberations, but they can be present.  No one else, including a superintendent or any other representative from the administration, can be present during the Board’s deliberations.  No one else should be present, except witnesses while they are testifying.

            Superintendent Dismissal – The controlling statutes for teacher non-renewals, teacher dismissal, principals, and student expulsion hearings requires that the Board afford them a hearing.[1]  The controlling statute for superintendent dismissals does not expressly require a “hearing” to be held before a Board votes to dismiss a superintendent.[2]  Thus, there is some question about the level of procedural due process that may be required.  If a Board determines that it should dismiss a superintendent, he or she has the right to appeal that decision to the Maine Commissioner of Education for a de novo hearing, which further assures him or her due process of law.  This means that the standard in the case of a superintendent is the basic Loudermill test for a pre-deprivation hearing of notice and an opportunity to be heard.  The hearing need not be elaborate or formal as long as the employee has the opportunity to tell his or her side of the story and explain why termination should not occur.  As the Tenth Circuit Court of Appeals said in one case, “the pretermination hearing is merely the employee’s chance to clarify the most basic misunderstandings or to convince the employer that termination is unwarranted.” Powell v. Mikulecky, 891 F. 2d 1454, 1458 (10th Cir. 1989).

            Nonetheless, the right and prudent thing is to assure superintendents along with teachers, principals, employees and students, a fundamentally fair process at the Board level, whether or not it is actually called a “hearing.”  The Board should err on the side of procedural fairness, since even a requirement of “cause”[3] implies that the procedures a Board follows should be fair and equitable.  

            A Model Procedure for a Due Process Hearing - The procedure for the hearing and decision can be as follows:

a.         Chair/Hearing officer notes for the record that this is an expulsion/non-renewal or dismissal hearing, whatever the case may be, regarding [name the student, teacher, principal, employee or superintendent] and notes for the record who is present.  Make sure no one objects to the convening of the hearing or those in participation. Confirm everyone is ready to proceed, or deal with any procedural objections.  At the discretion of the Chair, the Board’s attorney can also act as a “hearing officer” in the conduct of the hearing.  This can free the Chair from that responsibility so that he or she can give his or her full attention to the evidence and information presented.  On your behalf, the attorney would conduct the hearing and rule on arguments about evidence and legal procedures.  The Board Chair can overrule the attorney, as could the entire Board, if they disagreed with their attorney’s recommendations.

 

b.        Read the charge(s) [unless waived] and ask the student, teacher, principal, employee or superintendent and counsel if they understand the charge(s) and if they received notice of them.  Confirm that they have had an adequate opportunity to prepare a defense.

 

c.         Ask Board members to disclose any prior contacts they wish to mention.  Confirm that all members can impartially hear the charge and make a fair and impartial decision based on the information that they will receive at the hearing.

 

d.        Explain that witnesses will be sworn and called one at a time.  Explain that the legal rules of evidence do not apply:  The Board will receive all relevant evidence and testimony on the charges.  After the Board receives all the evidence, the administration and witnesses will leave the room and the Board will deliberate on whether the evidence has borne out the charges.

 

e.         Conduct the Hearing.  The procedure should be as follows:

 

            1.  Student expulsions: The administration, assisted by counsel, has the burden of presenting evidence to support the recommendation of expulsion and should present its case first.  Witnesses should be sworn to tell the truth.  Witnesses can be cross examined by the student’s lawyer.  The administration must give any written evidence to the student as well as to the Board.

 

-Teacher dismissal or non-renewal: The superintendent, helped by counsel, has the burden of presenting evidence to support his or her dismissal or non-renewal recommendation.  Witnesses should be sworn to tell the truth.  Witnesses can be cross examined by the teacher’s lawyer.

 

 

- Principal dismissal or non-renewal: The superintendent, helped by counsel, has the burden of presenting evidence to support his or her dismissal or non-renewal recommendation.  Witnesses should be sworn to tell the truth.  Witnesses can be cross examined by the employee’s lawyer.                     

             2.  The Board may ask witnesses questions.  Usually this is best done when the parties have finished their questions.  If you want to ask about something but have some doubts whether you should, you can ask for an executive session with counsel to get advice.

 

            3.  The affected person, along with his or her attorneys can address the Board.  They can present their own testimony or the testimony of other witnesses, and present written evidence.  The administration can cross examine the superintendent, teacher or student and their witnesses.  The Board can also ask them questions.

 

            4.  When the hearing is complete, the Board should permit the parties to make closing statements to sum up their positions and say what they think the evidence proves (or does not prove).

 

            5.  The Board should cause a record to be made of the hearing. 

 

f.         All parties and witnesses should leave executive session after the hearing, while the Board deliberates, except the affected person and his or her representatives can stay if they wish, but they cannot participate in the deliberations.

 

g.         The Board deliberates in executive session.

 

Note: In the case of student expulsions, it is sometimes best to “bifurcate” the proceeding.  That is, to consider first the question what the Board believes happened and whether the administration has proven the charges.  If not, the case is over.  If so, the Board can permit both sides to present further evidence on the question what action the Board should take.  The administration might want the Board to consider evidence of any previous misconduct, for example, which the Board should not hear before deciding whether any misconduct took place in the present case.  The student might want to be heard in mitigation before the Board acts.  The Board could benefit from that information in deciding what disciplinary action to take.  At the same time, the Board needs to avoid any possible “taint” on the Board’s initial determination about what actually happened from information that might be prejudicial.

 

The Board’s Deliberations: Once the hearing itself is complete, the Board needs to deliberate.  That means consider all the evidence presented and decide the case.  If the Board wishes, it can seek legal advice privately.  The deliberations should be in executive session, but the affected employee or student and his or her attorney have a right to be present (without participating).  The superintendent should not be present while the Board deliberates.

 

The Board can discuss the evidence and the standards that it must apply and can determine whether it can agree on the outcome of the case.  If the Board takes action, it must take the actual vote on the case in public session.  If the Board votes to dismiss or non-renew an employee or school official, it must issue written findings sufficient to inform the party and public of the basis for the Board’s action.  This requires care and advice of legal counsel.  Often the Board’s written decision will be drafted by its lawyer for review and revisions before the Board takes its final vote. 

 

 

Endnotes



[1].Under state education laws, 20-A M.R.S.A. § 1001(9), the Board has the following duty and power in student expulsion cases (emphasis added):

 

9.  Students expelled or suspended.  Following a proper investigation of a student’s behavior and due process proceedings, if found necessary for the peace and usefulness of the school, they shall expel any student:

 

A.  Who is deliberately disobedient or deliberately disorderly;

 

B.  For infractions of violence;

 

C.  Who possesses on school property a firearm as defined in Title 17-A, section 2, subsection 12-A without permission of a school official;

 

D.  Who, with use of any other dangerous weapon as defined in Title 17-A, section 2, subsection 9, paragraph A, intentionally or knowingly causes injury or accompanies use of a weapon with a threat to cause injury; or

 

E.  Who possesses, furnishes or traffics in any scheduled drug as defined in Title 17-A, chapter 45.

 

A student may be readmitted on satisfactory evidence that the behavior that was the cause of the student being expelled will not likely recur.  The school board may authorize the principal to suspend students up to a maximum of 10 days for infractions of school rules.  In addition to other powers and duties under this subsection, the school board may develop a policy requiring a student who is in violation of school substance abuse or possession rules to participate in substance abuse services as provided in section 6606.  [Note that readmission should require a hearing before the school board, and that hearing would also have to be conducted in accordance with the proper procedures outlined in this paper for expulsion].

 

            Under state education laws, 20-A M.R.S.A. § 13201 and 13202, the Board has the following duties and powers with regard to teacher dismissals or nonrenewal (emphasis added):

 

§ 13202.  Teacher dismissal  

            A school board, after investigation, due notice of hearing and hearing thereon, shall dismiss any teacher, although having the requisite certificate, who proves unfit to teach or whose services the board deems unprofitable to the school; and give to that teacher a certificate of dismissal and of the reasons for the dismissal, a copy of which the board shall retain.  That dismissal shall not deprive the teacher of compensation for previous services.

 

§ 13201. Nomination and election of teachers;  teacher contracts

 

            The superintendent shall nominate all teachers, subject to such regulations governing salaries and the qualifications of teachers as the school board shall make.  Upon the approval of nominations, by the school board, the superintendent may employ teachers so nominated and approved for such terms as the superintendent may deem proper, subject to the approval of the school board.  *   *   *  

 

            After a probationary period not to exceed 2 years, subsequent contracts of duly certified teachers shall be for not less than 2 years.  Unless a duly certified teacher receives written notice to the contrary at least 6 months before the terminal date of the contract, the contract shall be extended automatically for one year and similarly in subsequent years.  The right to an extension for a longer period of time through a new contract is specifically reserved to the contracting parties.

 

            Just cause for dismissal or nonrenewal shall be a negotiable item in accordance with the procedure set forth in Title 26, chapter 9-A,  for teachers who have served beyond the probationary period.

 

            After a probationary period of 2 years, any teacher, who receives notice in accordance with this section that his or her contract is not going to be renewed, may during the 15 days following such notification request a hearing with the school board.  The teacher may request reasons.  The hearing shall be private except by mutual consent and except that either or both parties may be represented by counsel.  That hearing must be granted within 30 days of the receipt of the teacher's request.

 

Under state education laws, 20-A M.R.S.A. § 13303 and 13304, the Board has the following duties and powers with regard to principal dismissals or nonrenewal (emphasis added):

 

§ 13303. Contract renewal

            1. Notice.   A school board shall provide notice of the renewal or nonrenewal of a principal's employment contract as follows.

                       

A. Notwithstanding any contract provision to the contrary and no later than March 1st of the year the contract expires, the school board shall notify a principal who has been employed by the board for more than 2 years of its decision to renew the principal's contract for a period not to exceed 3 years or not to renew the principal's contract.  Notice of a principal's nonrenewal of contract must be in writing.  Upon written request, the school board shall provide a written statement of the reasons for nonrenewal to a principal.

 

B. Notwithstanding any contract provision to the contrary and no later than April 1st of the year the contract expires, the school board shall notify a principal who has been employed by the board for 2 years or less of its decision to renew the principal's contract for a period not to exceed 3 years or not to renew the principal's contract.  Notice of nonrenewal of a principal's contract must be in writing.

 

            2. Failure to give notice.   If the board fails to notify the principal in accordance with subsection 1, the following provisions apply.

 

*   *   *  

           

            3. Hearing.   Within 15 days of receipt of notice of nonrenewal of a contract by a principal who has been employed for more than 2 years, the principal may request in writing a hearing with the school board on the decision not to renew the contract.  The board shall hold the hearing within 30 days of receipt of the principal's request and either or both parties may be represented by counsel.

 

            4. Meeting.   Within 15 days of receipt of notice of nonrenewal of a contract by a principal who has been employed for 2 years or less, the principal may request in writing a meeting with the school board to discuss contract renewal issues.  The board shall hold the meeting within 30 days of receipt of the principal's request and either or both parties may be represented by counsel.

 

§ 13304. Dismissal

            In accordance with this section, a school board may dismiss a principal before the expiration of the contract term.

 

            1. Requirements.   The principal may be dismissed only:

 

A. After consideration of a recommendation of the superintendent;

 

B. For cause;

 

C. After due notice and investigation; 

 

D. After a hearing before the school board, if requested;  and

 

E. By a majority vote of the school board.

 

            2. Salary.   Upon dismissal, the principal's salary ceases.

 

[2].Under state education laws, 20-A M.R.S.A. § 1052, the Board has the following duties and powers regarding the discharge of a superintendent:

 

§ 1052 Discharge

 

            A school board may discharge a superintendent before the expiration of the contract term.

 

            1.  Requirements.  The superintendent may be discharged only:

 

A.  For cause;

 

B.  After due notice and investigation; and

 

C.  By a majority vote of the full membership of the school board.

 

            2.  Salary.  On discharge, the superintendent’s salary shall cease.

 

            3.  Appeal.  The superintendent may appeal the school board’s decision to the

commissioner.  The commissioner shall hold a hearing as part of the appeal.

 

[3].  “Cause” means the material failure to perform the duties of the position fully and well, in the public interest and to the reasonable satisfaction of the Board.  These “cause” requirements were originally enacted in statutes concerning public officials to protect them from politically motivated discharges.  Frye v. Inhabitants of the Town of Cumberland, 464 A.2d 195 (Me.1983).  Cause is a flexible concept under Maine law and relates to fitness or ability to perform one’s duties affecting the public interest or the failure to perform one’s duties.  Id.; Moreau v. Town of Turner, 661 A.2d 677 (Me.1995); and Chapman v. Rockland, 524 A.2d 46 (Me.1988).