Chapter 449 Oregon Laws 2001

AN ACT

SB 257

Relating to Fair Dismissal Appeals Board; creating new provisions; amending ORS 342.905 and 342.930; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 342.905 is amended to read:

342.905. (1) If the district school board dismisses the teacher or does not extend the contract of the contract teacher, the teacher or the teacher’s representative may appeal that decision to the Fair Dismissal Appeals Board established under ORS 342.930 by depositing by certified mail addressed to the Superintendent of Public Instruction and a copy to the superintendent of the school district:

(a) In the case of dismissal, within 10 days, as provided in ORS 174.120, after receipt of notice of the district school board’s decision, notice of appeal with a brief statement giving the reasons for the appeal.

(b) In the case of a contract non-extension, within 15 days, as provided in ORS 174.120, after receipt of the written notice of non-extension of a contract, notice of appeal with a brief statement giving the reasons for the appeal.

(2)(a) As soon as practicable after the time the notice of appeal is received by the Superintendent of Public Instruction, the superintendent shall appoint a panel of three members from the Fair Dismissal Appeals Board for the purpose of conducting a hearing. Insofar as practicable, the panel shall be selected from those members of the board serving in positions where the average daily membership as determined in ORS 342.930 most nearly coincides with that of the involved district. The panel shall consist of:

(A) One member from the category representing district school board members;

(B) One member from the category not affiliated with common or union high school districts; and

(C) One member from the category representing teachers or administrators, as follows:

(i) If the appeal is from a contract teacher in a teaching position, the panel shall include the teacher member of the board.

(ii) If the contract teacher is in an administrative position, an administrative member shall sit in place of the teacher member.

(b) The panel may not contain a member who is a resident of the district that is bringing the dismissal or non-extension.

(c) The Department of Education, at the department’s expense, shall provide to the panel appropriate professional and other special assistance reasonably required to conduct a hearing. The panel shall be empowered, on behalf of the contract teacher, the district superintendent and the district school board, to subpoena and swear witnesses and to require witnesses to give testimony and produce relevant evidence at or prior to the hearing.

(d) The executive secretary of the board may issue subpoenas on behalf of a panel. A person subpoenaed under this subsection may move to quash or modify the subpoena if it is oppressive or unreasonable. The motion must be made before the time specified in the subpoena for appearance or production of materials. The motion may be made to the executive secretary or the panel.

[(2)] (3) The Attorney General shall assign an assistant, at no cost to either involved party, to advise the Fair Dismissal Appeals Board, to be present at [the oral argument] any hearing held by [the board] a panel, and to perform those tasks at the request of the board that would normally require legal training.

[(3)] (4) Within [five] 10 days after receipt of the notice of an appeal of contract non-extension, the district shall serve upon the Fair Dismissal Appeals Board and the teacher a written statement of reason for the contract non-extension, which shall include:

(a) A plain and concise statement of the facts relied on to support the statutory grounds for non-extension of the contract;

(b) The statutory grounds upon which the district believes such contract non-extension is justified; and

(c) A list of witnesses and documents upon which the district will rely at hearing.

[(4)(a) The Employment Relations Board shall maintain a list of no fewer than 10 persons who are experienced in public education and employment relations. The Employment Relations Board shall give priority consideration for such list to persons jointly recommended by the Oregon School Boards Association and Oregon Education Association provided that, if there are insufficient joint recommendations from those organizations, the Employment Relations Board may select other persons who the board determines hold the requisite experience and neutrality to resolve disputes.]

[(b) Upon the filing of an appeal of a contract dismissal or non-extension, a hearings officer shall forthwith be mutually selected by the parties from a list maintained by the Employment Relations Board.]

[(c) Alternatively, the teacher and the district superintendent may agree on an individual who is not on the list to serve as the hearings officer.]

[(d) The parties shall mutually share the reasonable costs and charges of the hearings officer.]

(5)(a) At least 10 days prior to the hearing, the teacher shall provide a list of witnesses and exhibits to the [hearings officer] Fair Dismissal Appeals Board panel and the school district.

(b) The [hearings officer] Fair Dismissal Appeals Board panel shall hold a contested case hearing under ORS 183.310 to 183.550 within [30] 100 days of the receipt by the teacher of notice of dismissal[,] or [within 35 days of the receipt by the teacher] of the statement of reasons in the case of contract non-extension. No later than 140 days after the filing of an appeal, consistent with due process, the Fair Dismissal Appeals Board panel shall prepare and send a written decision to the contract teacher, the district superintendent, the district school board and the Superintendent of Public Instruction. [The hearings officer shall be empowered to take all steps reasonably necessary to conduct a hearing, develop and maintain a record of testimony, documents and other exhibits, and to make findings of fact that in the hearings officer’s judgment are pertinent to the dispute. The hearings officer, at the request of the district or teacher, may subpoena and swear in witnesses and require them to give testimony and to produce documents and other records relevant to the issues before the Fair Dismissal Appeals Board.] The hearing shall be private unless the teacher requests a public hearing. At the hearing, the district and the contract teacher shall have the right to be present and be heard, to be represented by counsel, to present evidence and cross-examine adverse witnesses and to offer evidence that in the [hearings officer’s] panel’s judgment is relevant to the dispute. The [hearings officer] panel may take all reasonable steps to require the parties to conclude the hearing in an expeditious manner.

[(c) The hearings officer shall file proposed findings of fact in the dispute no later than 30 days after the close of the hearing and serve the same on the parties and Fair Dismissal Appeals Board by personal service or certified mail, return receipt requested.]

[(d) Within 10 days of receipt of the hearings officer’s proposed findings of fact, either party may file objections to the proposed findings of fact. However, no new testimony, documents or exhibits will be accepted by the board. If no such objections to the findings of fact are filed, the proposed findings of fact shall be accepted by the Fair Dismissal Appeals Board, which shall proceed to consider the controversy unless the parties inform the Fair Dismissal Appeals Board that the dispute has been resolved.]

[(6) As soon as possible after the time the notice of appeal is received by the Superintendent of Public Instruction, the superintendent shall appoint a panel of three members from the Fair Dismissal Appeals Board. Insofar as practicable the panel shall be selected from those members of the board serving in positions where the average daily membership as determined in ORS 342.930 most nearly coincides with that of the involved district. One member shall be from the category representing board members; one member shall be from the category of persons not affiliated with common or union high school districts; and one member shall be from the category representing teachers or administrators. If the appeal is from a contract teacher in a teaching position, the board shall include the teacher member. If the contract teacher is in an administrative position, the administrative member shall sit in place of the teacher member. No panel shall contain a member who is resident of the district that is bringing the dismissal or non-extension.]

[(7) Upon receipt of the hearings officer’s proposed findings of fact and any objection filed by the parties, the Fair Dismissal Appeals Board panel shall provide the parties with a reasonable opportunity for oral and written argument. The oral argument shall be limited to one-half hour for each party. No later than 140 days after filing of the appeal, consistent with due process, the Fair Dismissal Appeals Board panel shall render its written decision and serve the same on the parties by personal service or certified mail, return receipt requested.]

[(8)] (6) When the Fair Dismissal Appeals Board panel has completed its [review] hearing, it shall prepare a written [report] decision and send it to the contract teacher, the district superintendent, the district school board and the Superintendent of Public Instruction. The Fair Dismissal Appeals Board panel shall determine whether the facts relied upon to support the statutory grounds cited for dismissal or non-extension [and included in the hearings officer’s findings of fact] are true and substantiated. [The panel’s review of the evidence shall be de novo.] If the panel finds these facts true and substantiated, it shall then consider whether such facts, in light of all the circumstances and additional facts [found by the hearings officer] developed at the hearing that are relevant to the statutory standards in ORS 342.865 (1), are adequate to justify the statutory grounds cited. In making such determination, the panel shall consider all reasonable written rules, policies and standards of performance adopted by the school district board unless it finds that such rules, policies and standards have been so inconsistently applied as to amount to arbitrariness. The panel shall not reverse the dismissal or non-extension if it finds the facts relied upon are true and substantiated unless it determines, in light of all the evidence and for reasons stated with specificity in its findings and order, that the dismissal or non-extension was unreasonable, arbitrary or clearly an excessive remedy. [The panel shall prepare the report within 30 days from the date of the oral arguments.]

[(9)(a)] (7)(a) Subject to subsection [(8)] (6) of this section and paragraph (b) of this subsection, if the Fair Dismissal Appeals Board panel finds that the facts relied on to support the recommendation of the district superintendent are untrue or unsubstantiated, or if true and substantiated, are not adequate to justify the statutory grounds cited as reason for the dismissal or non-extension, and so notifies the contract teacher, the district superintendent, the district school board and the Superintendent of Public Instruction, the teacher shall be reinstated and the teacher shall receive such back pay as ordered by the Fair Dismissal Appeals Board panel for the period between the effective date of the dismissal or non-extension and the date of the order reinstating the teacher, or the date when the district actually reinstates the teacher, whichever is later. However, nothing in this section requires a school district to pay the teacher until the reinstatement occurs if the district has other legal grounds for not reinstating the teacher.

(b) So long as the right of the district board under subsection [(11)] (9) of this section and under ORS 183.480 and 183.500 to judicial review of the action of the Fair Dismissal Appeals Board remains unexpired, the district school board may withhold the reinstated teacher from performance of teaching duties, unless otherwise ordered by the court having jurisdiction of the appeal.

(c) Subject to ORS 342.850 (9), if the Fair Dismissal Appeals Board panel determines that the procedures described in ORS 342.850 (2)(b)(A) to (D) have not been substantially complied with, the teacher may be reinstated with back pay as provided in paragraph (a) of this subsection.

[(10)] (8) Subject to subsection (6) of this section, if the Fair Dismissal Appeals Board panel finds the facts relied on to support the recommendation of the district superintendent true and substantiated, and that those facts justify the statutory grounds cited as reason for the dismissal or non-extension and so notifies the contract teacher, the district superintendent, the district school board and the Superintendent of Public Instruction in writing, the dismissal or non-extension becomes final on the date of the notice.

[(11)] (9) An appeal from action of the Fair Dismissal Appeals Board panel shall be taken in the manner provided in ORS 183.480.

[(12)(a)] (10)(a) If both the district board and the teacher or teacher’s representative agree, arbitration may be used as an alternative to a hearing before [the] a Fair Dismissal Appeals Board panel to determine if the teacher’s dismissal or non-extension of a contract is in compliance with the standards of ORS 342.805 to 342.910. If the teacher or teacher’s representative desires to use the arbitration procedure, the request for arbitration shall be included in the request for appeal that is filed with the Superintendent of Public Instruction under this section. Within 10 days of the time the superintendent of the district is notified of the teacher’s intent to appeal the dismissal or non-extension of a contract, the superintendent of the district shall notify the teacher or teacher’s representative and the Superintendent of Public Instruction as to whether the district has agreed to use the arbitration procedure. If the district determines not to use the arbitration procedure, the hearing procedure shall be continued under this section in the same manner as if no request for arbitration had been made. If the arbitration procedure is used, the teacher has no further rights to a hearing before [the] a Fair Dismissal Appeals Board panel.

(b) The procedures for selection of the arbitrator are those in the applicable collective bargaining agreement. If there is no provision or agreement or if the agreement does not contain a procedure for selection, the parties shall request a list of five arbitrators from the Employment Relations Board and shall choose an arbitrator by alternative striking of names until one name is left. The remaining person shall act as the arbitrator. The Employment Relations Board shall compile a roster of qualified arbitrators from which the lists are to be taken.

(c) In determining whether the district board’s dismissal or non-extension of the teacher should be sustained, the arbitrator shall use the same reasons, rules and levels of evidence as are required for the Fair Dismissal Appeals Board under ORS 342.805 to 342.910.

SECTION 2. ORS 342.930 is amended to read:

342.930. (1) A Fair Dismissal Appeals Board is created, consisting of 20 members appointed by the Governor, subject to confirmation by the Senate as provided in ORS 171.562 and 171.565. Five members shall be administrators in common or union high school districts, five members shall be contract teachers, five members shall be members of common or union high school district boards at the time of their appointment and five members shall not be affiliated with any common or union high school district. At least one member from each category shall be resident of a school district with an average daily membership as defined in ORS 327.006, of less than 1,500 students; one from each category shall be resident of a school district containing from 1,500 to 4,500 students; and one from each category shall be resident of a school district containing over 4,500 students.

(2) Except as provided in subsection (3) of this section, the term of office of each member is four years, but a member serves at the pleasure of the Governor. Before the expiration of the term of a member, the Governor shall appoint a successor whose term begins on July 1 next following. A member is eligible for reappointment. If there is a vacancy for any cause, the Governor shall make an appointment to become immediately effective for the unexpired term.

(3) A member whose term has expired may continue to serve for the following limited purposes:

(a) To conduct a [review] hearing and prepare a [report] written decision if the member was appointed to a panel in accordance with ORS 342.905 [(6)] (2) before the expiration of the member’s term; or

(b) To reconsider a decision if the member served on the panel originally hearing an appeal and a motion for reconsideration is filed prior to an appeal to the Court of Appeals.

(4) The continued service of a member as provided in subsection (3) of this section shall not prevent a successor from taking office at the time prescribed in subsection (2) of this section.

(5) Members shall be entitled to compensation and expenses as provided in ORS 292.495 for each day or part thereof during which they perform duties under ORS 342.805, 342.815, 342.835, 342.850, 342.875, 342.895 to 342.910 and this section, to be paid by the district school board from which the appeal is taken. However, any member of the board who would be entitled to receive a per diem except for being employed in full-time public service may receive the payment if service on the board is performed while the member is not under obligation to perform contractual teaching or administrative duties.

(6) The board shall select one of its members as chairperson and another as vice chairperson, for such terms and with duties and powers necessary for the performance of the functions of such offices as the board determines.

(7) A majority of the members of the board constitutes a quorum for the transaction of business.

(8) In accordance with applicable provisions of ORS 183.310 to 183.550, the board may adopt rules necessary for the administration of this section and ORS 342.905 and 342.910.

SECTION 3. The amendments to ORS 342.905 and 342.930 by sections 1 and 2 of this 2001 Act shall first apply to appeals filed with the Fair Dismissal Appeals Board for which the first hearing is conducted on or after September 1, 2001.

SECTION 4. This 2001 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2001 Act takes effect on its passage.

Approved by the Governor June 19, 2001

Filed in the office of Secretary of State June 19, 2001

Effective date June 19, 2001

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