Once Again to the Subject of Grievances (Fall 2004)
Let us return once again to those thrilling days of yesteryear! Oh, wait. No. That was the Lone Ranger.

Instead, let us return to the subject of grievances. Or, as Mary Margaret puts it, “Grrrrr!” There have been recent changes in the law, and you need to be aware of them.

The grievance law is located in your supplement to the Green Law Book on pages 75-76, at A.C.A. §6-17-208. It defines a “grievance” as “any concern related to personnel policy, salary, federal or state laws and regulations, or terms or conditions of employment raised by an employee.” That’s much broader than the previous definition, but it still leaves a bunch of stuff that does not constitute a grievance. Most important, an evaluation or any other performance-related matter is not a grievance.

Gripes about a bad evaluation or writeup are the most popular subject for grievances, but they never should be heard as a grievance, and your administrators always should respond at their grievance levels that way. However, even if a grievance is dismissed as a non-grievance at the administrative level, if the employee requests a hearing at the Board level, the Board must first give the employee a hearing to decide whether the designation as a non-grievance is correct. If so, the hearing ends. If not, then there is a hearing on the grievance.

Whether a grievance is properly brought will depend on how well it fits into the definition of a grievance, as stated above; or, for that matter, how well it fits into your own definition contained in your local grievance policy.

Assuming that the employee has brought a legitimate grievance, the hearing begins. First, you request of the employee whether he wants the hearing to be open or closed to the public. (He probably will want it open. The choice used to belong to the employee or the superintendent, but now that choice is only the employee’s. At a legislative committee on this issue, it was pointed out that the inability of the administration to decide on whether a hearing was to be open would afford some—probably many—grievants an opportunity to lambaste the principal in a public meeting. One legislator assured us that no one would use a grievance for such a purpose. [Suppressed derisive laughter]. He then said that “the public has a right to know.” To know what wasn’t expressed. I expected that the next thing would be an assurance that it was “for the children,” somehow). So, when you are told whether the hearing will be open or closed, proceed to direct the employee (and/or his representative) to proceed. (If the grievant requests a closed hearing, ask all but administrators, the grievant and their representatives to leave.)

Since the employee is bringing the grievance, he has the burden of convincing you that his grievance has some merit. You should direct the employee (and/or his representative) to tell you two things at the beginning: (1) Precisely what he is complaining about; and (2) what he wants you to do about it. If you can get him to do that, it will shorten the hearing a lot, or, at least, help you understand what the heck is going on. (Most grievances are very vague and very, very poorly worded). Good luck with that.

Start the clock. The law requires that a grievant be allowed a minimum of 90 minutes for the presentation of his grievance. Now, there isn’t a legitimate grievance that can’t be explained in 20 or 30 minutes, tops; but we still have to allow a minimum of 90 minutes. That time includes time for questioning of the grievant and his witnesses, also. It would be the extremely unusual grievance which would necessitate increasing the presentation time to beyond that 90 minutes. Tell the grievant that he has ninety minutes from now. Designate someone to keep time.

When the grievant (and any other witness) has completed his statement, the board may question the grievant, as may the administration. But remember: Questions! Not speeches! Questions!

When the grievant has completed his presentation, or when his 90 minutes have expired, the administration begins its presentation. Now, the administration has 90 minutes, just as the grievant does, but let’s hope that your administrators have it together so that they don’t keep you there another hour and a half. (I’ve never seen an administration presentation go much beyond 30 minutes. Usually less.) And, no, if the administration doesn’t use all of its ninety minutes, the grievant does not get the rest of it. He’s done.

The grievant or (not AND) his representative may question each administrator making a statement, followed by the board’s questions. Again, only questions, not statements or speeches. That goes for the grievant and his representative, too. You may put Attila the Hun in charge of enforcing that rule. (In fact, statements or speeches from the Board should be more closely enforced than for the grievant; but, in either case, it extends the meeting, gets nothing done substantively and—here’s the kicker— a Board member might say something that we’ll regret when we go to court.)

Okay. Let’s say that the hearing has concluded. Then what? Well, that depends on whether the hearing has been open or closed. If open (and assuming that the subject of the grievance is not something that falls into one of the executive session categories of the Freedom of Information Act), you sit there and decide whether you wish to discuss the grievance in front of everyone. There is no requirement that a discussion take place before a motion and vote. Usually, it is best to just make a motion and second in that circumstance. (More on that in a minute).

If the hearing has been closed at the request of the grievant, then the board should excuse everyone but the board members (yes, the superintendent, too) and discuss the grievance. Then, when the matter has been decided, go into public session for the motion, second, and vote.

How do you make a motion? Well, that depends on what the grievant is asking for. If you haven’t been able to get a good answer as to what he wants (see above), then you might not have any choice but to deny the grievance. If he has told you clearly what he wants (by the way, you can’t direct anyone to make an apology, okay?), then decide whether the grievance has any merit and whether you want to grant that request. Just make a motion to state what the board wants to do. If you want to deny the grievance, then make a motion saying that. If you want to grant the grievance and the requested relief, make a motion saying so. Also, you may grant the grievance but grant relief different from what the grievant requested. Keep it simple (both the motion and the relief, if any). Then, if you don’t have anything else on the agenda, adjourn. Now.

In addition, I have provided a “script” for conducting your own grievance hearing (school board level, of course) should you decide to conduct a hearing without having a lawyer present. (Warning: Danger, Will Robinson! If the employee is going to be represented, whether by a lawyer or a union representative, consider spending the money for representation. Those can get, well, uncomfortable). That “script” is located on our website at www.arsba.org.

Well, I have to go. Mary Margaret is lobbying for a treat simply because, as she puts it, “I’m wonderful and beautiful.” No, Mary Margaret, I don’t think that’s a reasonable basis for a treat. You have to actually DO something.

What do you mean,’“Grrrrr”?

Previous Article (Summer 2004)- Special ed hearings: protracted, expensive, and not fun
Next Article (Late Fall 2004)- Sexual Harassment: A Refresher Course

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