HB 2237--
Session of 1997
By Committee on Education

8 AN ACT concerning teachers; relating to hearings provided upon notice 9 of nonrenewal or termination of contracts of employment; amending 10 K.S.A. 72-5438, 72-5439, 72-5440, 72-5441, 72-5442, 72-5443, 72- 11 5445 and 72-5446 and repealing the existing sections. 12 13 Be it enacted by the Legislature of the State of Kansas: 14 Section 1. K.S.A. 72-5438 is hereby amended to read as follows: 72- 15 5438. (a) Whenever a teacher is given written notice of intention by a 16 board to not renew or to terminate the contract of the teacher as provided 17 in K.S.A. 72-5437, and amendments thereto, the written notice of the 18 proposed nonrenewal or termination shall include (1) a statement of the 19 reasons for the proposed nonrenewal or termination, and (2) a statement 20 that the teacher may have the matter heard by the board, a committee of 21 the board or a hearing officer appointed by the board upon written re- 22 quest filed with the clerk of the board of education or the board of control 23 or the secretary of the board of trustees within 15 calendar days from the 24 date of such notice of nonrenewal or termination. If the hearing is before 25 the board or a committee of the board, the board shall designate one board 26 member to serve as chairperson for purposes of the hearing. 27 (b) Upon the filing of any written request of a teacher to be heard as 28 provided in subsection (a), and within 10 five calendar days thereafter, 29 the board shall notify the commissioner of education that a list of qualified 30 hearing officers is required. Such notice shall contain the mailing address 31 of the teacher. Within 10 days after receipt of notification from the board, 32 the commissioner shall provide to the board and to the teacher, a list of 33 nine randomly selected, qualified hearing officers teacher of the time and 34 place where the hearing will be held, and the name of the person who will 35 serve as chairperson of the board or committee of the board, or the hearing 36 officer who will hear the matter. 37 (c) Within 5 days after receiving the list from the commissioner, each 38 party shall eliminate four names from the list, and the remaining individ- 39 ual on the list shall serve as hearing officer. In the process of elimination, 40 each party shall eliminate no more than one name at a time, the parties 41 alternating after each name has been eliminated. The first name to be 42 eliminated shall be chosen by the teacher, within 5 days after the teacher HB 2237 2 1 2 -receives the list. The process of elimination shall be completed within 5 3 days thereafter. 4 (d) Either party may request that one new list be provided within 5 5 days after receiving the list. If such a request is made, the party making 6 the request shall notify the commissioner and the other party, and the 7 commissioner shall generate a new list and distribute it to the parties in 8 the same manner as the original list. 9 (e) (c) In lieu of using the process provided in subsections (b) and 10 (c) subsection (b), if the parties agree, they may make a request to the 11 American Arbitration Association for an arbitrator to serve as the hearing 12 officer. Any party desiring to use this alternative procedure shall so notify 13 the other party in the notice required under subsection (a). If the parties 14 agree to use this procedure, the parties shall make a joint request to the 15 American Arbitration Association for a hearing officer within 10 days after 16 the teacher files a request for a hearing. If the parties choose to use this 17 procedure, the parties shall each pay one-half of the cost of the arbitrator 18 and of the arbitrator's expenses. 19 (f) The commissioner of education shall compile and maintain a list 20 of hearing officers comprised of residents of this state who are attorneys 21 at law. Such list shall include a statement of the qualifications of each 22 hearing officer. 23 (g) Attorneys interested in serving as hearing officers under the pro- 24 visions of this act shall submit an application to the commissioner of ed- 25 ucation. The commissioner shall determine if the applicant is eligible to 26 serve as a hearing officer pursuant to the provisions of subsection (h). 27 (h) An attorney shall be eligible for appointment to the list if the 28 attorney has: (1) Completed a minimum of 10 hours of continuing legal 29 education credit in the area of education law, due process, administrative 30 law or employment law within the past five years; or (2) previously served 31 as the chairperson of a due process hearing committee prior to the ef- 32 fective date of this act. An attorney shall not be eligible for appointment 33 to the list if the attorney has been employed to represent a board or a 34 teacher in a due process hearing within the past five years. 35 Sec. 2. K.S.A. 72-5439 is hereby amended to read as follows: 72- 36 5439. The hearing provided for under K.S.A. 72-5438, and amendments 37 thereto, shall commence within 45 60 calendar days after the hearing 38 officer is selected unless the hearing officer grants an extension of time 39 date of the notice of intent to nonrenew or terminate the contract as 40 required by subsection (a) of K.S.A. 72-5438, and amendments thereto. 41 The hearing shall afford procedural due process, including the following: 42 (a) The right of each party to have counsel of such party's own choice 43 present and to receive the advice of such counsel or other person whom 44 such party may select; HB 2237 3 1 2 -(b) the right of each party or such party's counsel to cross-examine 3 any person who provides information for the consideration of at the hear- 4 ing officer, except those persons whose testimony is presented by affi- 5 davit; 6 (c) the right of each party to present such party's own witnesses in 7 person, or their testimony by affidavit or deposition, except that testimony 8 of a witness by affidavit may be presented only if such witness lives more 9 than 100 miles from the location of the unified school district office, area 10 vocational-technical school or community college, or is absent from the 11 state, or is unable to appear because of age, illness, infirmity or impris- 12 onment. When testimony is presented by affidavit the same shall be 13 served upon the clerk of the board of education or the board of control, 14 or the secretary of the board of trustees, or the agent of the board and 15 upon the teacher in person or by first-class mail to the address of the 16 teacher which is on file with the board not less than 10 calendar days 17 prior to presentation to at the hearing officer; 18 (d) the right of the teacher to testify in the teacher's own behalf and 19 give reasons for the teacher's conduct, and the right of the board to pres- 20 ent its testimony through such persons as the board may call to testify in 21 its behalf and to give reasons for its actions, rulings or policies; 22 (e) the right of the parties to have an orderly hearing; and 23 (f) the right of the teacher to a fair and impartial decision based on 24 substantial evidence. 25 Sec. 3. K.S.A. 72-5440 is hereby amended to read as follows: 72- 26 5440. (a) For appearing before the hearing officer at a hearing, witnesses 27 who are subpoenaed shall receive $5 per day and mileage at the rate 28 prescribed under K.S.A. 75-3203, and amendments thereto, for miles 29 actually traveled in going to and returning from attendance at the hearing. 30 The fees and mileage for the attendance of witnesses shall be paid by the 31 party calling the witness, except that. Fees and mileage of witnesses sub- 32 poenaed by the board, committee of the board, or hearing officer shall be 33 paid by the board. Witnesses voluntarily appearing before the hearing 34 officer shall not receive fees or mileage for attendance at the hearing. 35 (b) The If the board appoints a hearing officer shall be paid $240 per 36 diem compensation, or a portion thereof, for each day of actual atten- 37 dance at the hearing or for any meeting held for the purpose of perform- 38 ing the hearing officer's official duties. In addition to compensation, the 39 hearing officer shall be paid subsistence allowances, mileage, and other 40 expenses as provided in K.S.A. 75-3223, and amendments thereto. The 41 to hear the case, the costs for the services of the hearing officer shall be 42 paid by the board. 43 (c) Testimony at a hearing shall be recorded by a certified shorthand 44 reporter. The cost for the certified shorthand reporter's services shall be HB 2237 4 1 2 -paid by the board. If the hearing is before a committee of the board or a 3 hearing officer, the testimony shall be transcribed in order for the board 4 to review the record of the hearing. The transcript testimony also shall be 5 transcribed if the decision of the hearing officer is appealed to the district 6 court, or if either party requests transcription. In such cases, the appellant 7 or the party making the request board shall pay for the cost of such 8 transcription. If either party requests transcription at the hearing level 9 when the hearing is before the entire board, the party requesting such 10 transcription shall pay the cost. If both parties jointly request that the 11 transcript testimony be transcribed at the hearing level, the parties shall 12 each pay one-half of the cost of transcription. 13 (d) Each party shall be responsible for the payment of its own attor- 14 ney fees. 15 (e) All costs of a hearing which are not specifically allocated in this 16 section shall be paid by the board. 17 Sec. 4. K.S.A. 72-5441 is hereby amended to read as follows: 72- 18 5441. When either party desires to present testimony by affidavit or by 19 deposition, that party shall furnish to the board, committee of the board, 20 or hearing officer the date on which the testimony shall be taken. A copy 21 of the affidavit or the deposition shall be furnished to the opposing party 22 within 10 days following the taking of any such testimony, and no such 23 testimony shall be presented at a hearing until the opposite party has had 24 at least 10 days prior to the date upon which the testimony is to be 25 presented to the hearing officer to rebut such testimony by affidavit or 26 deposition or to submit interrogatories to the affiant or deponent to be 27 answered under oath. Such 10 day period, for good cause shown, may be 28 extended by the hearing officer. Neither party shall depose a witness who 29 will be available to testify at the hearing. 30 Sec. 5. K.S.A. 72-5442 is hereby amended to read as follows: 72- 31 5442. The chairperson or hearing officer may: 32 (a) Administer oaths; 33 (b) issue subpoenas for the attendance and testimony of witnesses 34 and the production of books, papers and documents relating to any matter 35 under investigation; 36 (c) authorize depositions to be taken, but only if the witness to be 37 deposed will not be available to testify at the hearing; 38 (d) receive evidence and limit lines of questioning and testimony 39 which are repetitive, cumulative or irrelevant; 40 (e) call and examine witnesses and introduce into the record docu- 41 mentary and other evidence; 42 (f) regulate the course of the hearing and dispose of procedural re- 43 quests, motions and similar matters; and 44 (g) take any other action necessary to make the hearing accord with HB 2237 5 1 2 -administrative due process. 3 Hearings under this section shall not be bound by rules of evidence 4 whether statutory, common law or adopted by the rules of court, except 5 that, the burden of proof shall initially rest upon the board in all instances 6 other than when the allegation is that the teacher's contract has been 7 terminated or nonrenewed by reason of the teacher having exercised a 8 constitutional right. All relevant evidence shall be admissible, except that 9 the chairperson or hearing officer, in the hearing officer's discretion of 10 the chairperson or hearings officer, may exclude any evidence if the chair- 11 person or hearing officer believes that the probative value of such evi- 12 dence is substantially outweighed by the fact that its admission will ne- 13 cessitate undue consumption of time. 14 Sec. 6. K.S.A. 72-5443 is hereby amended to read as follows: 72- 15 5443. (a) Unless otherwise agreed to by both the board and the teacher, 16 the board, committee of the board or hearing officer shall render a written 17 opinion not later than 30 days after the close of the hearing, setting forth 18 the hearing officer's findings of fact and a determination of the issues. If 19 the board has served as the hearing panel, the decision of the hearing 20 officer board shall be submitted to the teacher and to the board. If a 21 committee of the board or a hearing officer or arbitrator has heard the 22 matter, the committee of the board, hearing officer or arbitrator shall 23 submit proposed findings of fact and a recommended resolution of the 24 issue to the board and to the teacher. Within 30 days after receiving the 25 recommendation, the board shall consider the recommendation, review 26 the record of the hearing, hear oral arguments, and/or receive written 27 briefs from the teacher and a representative of the board, and decide 28 whether the contract of the teacher shall be renewed or terminated. Not 29 later than 10 days after the close of oral argument or submission of written 30 briefs, the board shall submit its written opinion, including findings of 31 fact and a determination of the matter to the teacher. 32 (b) The decision of the hearing officer board shall be final, subject 33 to judicial review by appeal directly to the district court by either party 34 as provided in K.S.A. 60-2101, and amendments thereto. of appeals in 35 accordance with the act for judicial review and civil enforcement of 36 agency actions. The standard of review before the court of appeals shall 37 be limited to determining: (1) Whether the board's decision was within 38 the scope of its authority; (2) whether the board's decision was substan- 39 tially supported by the evidence contained in the record as a whole; and 40 (3) whether the board acted fraudulently, arbitrarily, or capriciously. Re- 41 view of the decision of a board shall be conducted and determined by the 42 court of appeals as expeditiously as possible, but in no event shall the final 43 order of the court of appeals be issued later than 120 days after the filing 44 with the clerk of the court of appeals of an application for judicial review HB 2237 6 1 2 -of a board's decision. 3 Sec. 7. K.S.A. 72-5445 is hereby amended to read as follows: 72- 4 5445. (a) Subject to the provisions of K.S.A. 72-5446, and amendments 5 thereto, the provisions of K.S.A. 72-5438 through 72-5443, and amend- 6 ments thereto, apply only to: (1) Full-time teachers who have completed 7 not less than three four consecutive years of employment, and been of- 8 fered a fourth fifth contract, in the school district, area vocational-tech- 9 nical school or community college by which any such teacher is currently 10 employed; and (2) full-time teachers who have completed not less than 11 two consecutive years of employment, and been offered a third contract, 12 in the school district, area vocational-technical school or community col- 13 lege by which any such teacher is currently employed if at any time prior 14 to the current employment the teacher has completed the years of em- 15 ployment requirement of provision (1) in any school district, area voca- 16 tional-technical school or community college in this state. 17 (b) Any board may waive, at any time, the years of employment 18 requirements of subsection (a) for any teachers employed by it. 19 Sec. 8. K.S.A. 72-5446 is hereby amended to read as follows: 72- 20 5446. In the event any teacher, as defined in K.S.A. 72-5436, and amend- 21 ments thereto, alleges that the teacher's contract has been nonrenewed 22 by reason of the teacher having exercised a constitutional right, the fol- 23 lowing procedure shall be implemented: 24 (a) The teacher alleging an abridgment by the board of a constitu- 25 tionally protected right shall notify the board of the allegation within 15 26 days after receiving the notice of intent to not renew or terminate the 27 teacher's contract. Such notice shall specify the nature of the activity 28 protected, and the times, dates, and places of such activity; 29 (b) the board, committee of the board, or hearing officer provided for 30 by K.S.A. 72-5438, and amendments thereto, shall thereupon be selected 31 and shall decide if there is substantial evidence to support the teacher's 32 claim that the teacher's exercise of a constitutionally protected right was 33 the reason for the nonrenewal; 34 (c) if the board, committee of the board, or hearing officer determines 35 that there is no substantial evidence to substantiate the teacher's claim of 36 a violation of a constitutionally protected right, the board's decision to 37 not renew the contract shall stand; 38 (d) if the board, committee of the board, or hearing officer determines 39 that there is substantial evidence to support the teacher's claim, the board 40 shall be required to submit to the hearing officer any reasons which may 41 have been involved in the nonrenewal; 42 (e) if the board presents any substantial evidence to support its rea- 43 sons, the board's decision not to renew the contract shall be upheld. 44 Sec. 9. K.S.A. 72-5438, 72-5439, 72-5440, 72-5441, 72-5442, 72- HB 2237 7 1 2 -5443, 72-5445 and 72-5446 are hereby repealed. 3 Sec. 10. This act shall take effect and be in force from and after its 4 publication in the statute book.