Of conferences and hearings (Winter 2007)

Coupla things this time around: Employee conferences between administrators and employees; and lawyers at school board hearings.

First off, Arkansas Code Annotated Section 6-17-210 states: “An employee shall be entitled to and shall be offered the opportunity to have a witness or representative of the employee’s choice present during any disciplinary or grievance matter with any administrator.”

That’s all it says, and it doesn’t give much guidance about how to set about complying. Therefore, I’ll venture out on my limb and suggest a few things.

There is a big difference between a “witness” and a “representative.” Generally, a “witness” is a passive observer, there to ensure that a separate, arguably disinterested or objective person is present to be able to say what went on, without the histrionics or manipulations of the facts that an interested party might be subject to. On the other hand, a “representative” is usually recognized as someone who acts as an advocate for the person involved. That is, rather than being a passive witness of the proceedings, the representative has the ability – and, perhaps, the obligation – to take up the cudgel for the employee. Kinda like lawyers do. In fact, there is nothing in the law which would prevent an employee from bringing his lawyer to a conference where the principal will, for example, tell the employee that further instances of chaining the superintendent’s car to the high school building will not be tolerated.

Therefore, before any disciplinary conference with an employee, the principal or superintendent must tell the employee that he has a right to a witness or representative at the conference which is to take place, say, in the principal’s office at 4 o’clock that afternoon.

Now, sometimes, an employee will say that the person of his choice cannot be there at 4 o’clock. If that happens, I recommend being flexible, trying to set a meeting which is convenient for all concerned. However, if the employee says that he wants his representative to be his wife’s Uncle Bubba, but that Uncle Bubba is vacationing on the French Riviera and can’t be there until next week (or next month), tell the employee to choose another person for his witness or representative. The law says that he has his choice of the witness, etc., but it doesn’t say that it has to be his first choice. The employee can’t, in other words, put off the conference for an unreasonable time because Uncle Bubba can’t be there. Waiting a day or two for
Uncle Bubba to show up would be reasonable; but, if you have to speak with someone about a problem of sufficient seriousness that it requires a witness or representative, and serious enough that you’re going to write up the employee, tell him to find someone else, and fast.

Just don’t forget to tell the employee, when you’re scheduling the conference, about his right to a witness or representative. Interestingly, the law doesn’t say anything about whether the administrator may be represented. However, if you think that a representative would be beneficial, if for no other reason than to put someone between you and the employee’s representative, call the district’s lawyer and ask him to be there. Sometimes, a lawyer or other representative will try to make life extremely difficult for the administrator in these situations. If the administrator is represented as
well, it makes that problem much less likely.

Which leads us to Part Two of this column: lawyers at school board hearings.

As most of you know, I can be retained to assist in school board hearings, whether for employee dismissals or grievances or student expulsion hearings. For many years, I would show up, conduct the hearing with the superintendent taking on the whole responsibility for the presentation of the administration’s recommendation (such as termination or expulsion), and everything was fine. However, in the last several years, for reasons I can’t explain (global warming?),
these hearings have become much more contentious, sometimes adversarial in the extreme.

As a result, I now recommend in almost every circumstance where I know that the employee will be represented by a union rep or a lawyer, or where a student will be represented by a lawyer, that the administration hire its own lawyer (paid for, of course, by the district). The administration’s lawyer will present witnesses to the board, question the employee’s or student’s witnesses and argue the administration’s case to the board, both with regard to the facts and the law.

Since my primary representation is of school boards, I still conduct the hearing, decide objections, and instruct the board on the law and procedure, without becoming an advocate for either side.

So. If you’re having a hearing, plan on paying for two lawyers. It’s aggravating, I know, but the results are a more evenly-balanced presentation to the board, and your superintendent, principal, etc., is not out there alone, twisting slowly, slowly in the wind.

Trust me: That superintendent or principal will appreciate that.

Previous Article (December 2006)- Student discipline for all of you who missed the last conference or dozed off

Next Article (June 2007)- Background checks more than we bargained for

Related Links:
Legal Services
Past Issues of The Reporter
ASBA Model Policy Service
Arkansas Study Circles Project
Texas-Arkansas Purchasing Agreement (TAPS)

Related Downloads (pdf):
ASBA Handbook for Arkansas School Board Members