Matt Russell, ladies and gentlemen
First things first. We are excited to let you know that Matt Russell has joined the KSB team as Office Coordinator. One of the clear themes we heard from clients in our survey this past spring was that you like a REAL PERSON to answer the office phone. Matt will help cover phone calls and will try to help Shari wrangle our unruly attorneys. Matt will also lend a hand in driving us all around the state so that (a) we can be more responsive to client communication when we are on the road and (b) Karen doesn’t kill anyone when she checks Twitter while she is driving.
If you are saying to yourself, “Hmmmm, isn’t Russell Shari’s last name?” you are correct! Matt and Shari are married and have two kiddos, Kelsey and Jax, and the world’s cutest dog, Dozer.
In his free time, Matt enjoys rooting for Notre Dame, flirting with Shari on the daily, and schooling Bobby in darts every morning.
And now...on to the Robinson case.
Very few teacher dismissal cases get appealed in Nebraska, and even fewer make the appellate journey all the way to the Nebraska Supreme Court. That means when we do have the chance to receive the court’s insight into the dismissal process, school board members and administrators alike should take note. Recently, in Robinson v. Morrill Cty. Sch. Dist., the court held that the teacher received all notice and process required by law and agreed with the school board’s finding that the teacher was incompetent, neglectful of his duty, unprofessional, and insubordinate. KSB represented the administration at the school board level, and we’ve watched the case closely on appeal. We encourage every administrator to read the opinion in full (available here), as doing so is an excellent professional development opportunity to better understand the process and law used in personnel matters.
Key definitions
The court reviewed and defined several of the grounds that constitute “just cause” sufficient to support the cancellation of a teacher’s contract, including the following:
Incompetency includes “demonstrated deficiencies or shortcomings in knowledge of subject matter or teaching or administrative skills.” The court noted that incompetency “is not measured in a vacuum or against a standard of perfection but, instead, must be measured against the standard required of others performing the same or similar duties.” Examples of incompetency from the teacher in this case included refusing to attend meetings, refusing to leave his office after being directed to stop secluding himself, and refusing to work collaboratively with staff and administration on curriculum and testing issues.
Neglect of Duty requires evidence of something more than occasional neglect. “Evidence that a particular duty was not competently performed on certain occasions, or evidence of an occasional neglect of some duty or performance, in itself, does not ordinarily establish incompetency or neglect of duty sufficient to constitute just cause for termination.” In this case, the court found that significant discrepancies related to the teacher’s curriculum orders that had to be rectified by others, lying about curriculum orders, and exchanging inappropriate and unprofessional e-mails with a district curriculum vender constituted neglect of duty and incompetency.
Unprofessional conduct is conduct directly related to the fitness of the employee to act in his or her professional capacity.
Insubordination is the “absence of subordination or submission; resistance to or defiance of authority; refusal to obey orders; refractoriness, [or] disobedience.”
Understanding the meaning of these terms and the examples provided by the court will help guide administrators when they are deciding whether to cancel the employment of a poorly performing teacher.
The teacher also alleged several procedural violations including improper notice of the board meeting, improper use of a hearing officer, the failure of the board to be impartial, the board’s use of conduct from a previous contract year. The court rejected all of the teacher’s claims as explained in more detail below.
Notice
The school board historically used two methods to provide notice for its meetings. The court found that about 60% of the time the board published notice in the local newspaper, and about 40% of the time it posted notice at multiple locations within the district. For the teacher’s hearing, the board posted notice at three locations: two grocery stores and the community center. The board used this same method to notice its meetings at least 21 times in the previous two years. The court held that the board gave “reasonable advance publicized notice . . . by a method designated by [the board]” as required by the Open Meetings Act. Even though the designated method of notice may not have been formally set forth in the board’s meeting minutes, the Open Meetings Act requirements were satisfied because the board had established a “customary and consistent method” of notifying the public of its meetings.
Hearing Officer
The school board hired an attorney to act as a “hearing officer” and to preside over the teacher’s personnel hearing. The teacher argued that Bridgeport could not hire a “hearing officer” because state law only allows Class IV and V school districts to do so. The court rejected that argument, noting that the statute applicable to Class IV and V school districts authorizes the hearing officer to conduct the hearing, determine the facts of the case, and make a recommendation to the board. But in this case, the record was clear that while the attorney would assist the board with the hearing by presiding over the hearing, ruling on objections, and receiving evidence to be considered by the board, all factual determinations and the ultimate decision regarding the cancellation of the teacher’s employment remained with the board. The court noted that state law specifically authorizes a school board to hire legal counsel when it deems it “necessary or advisable,” and it would not adopt a rule that would prohibit school boards from retaining an attorney to assist with a personnel hearing.
Impartial Decision-maker
Districts often run into issues of potential bias. News spreads quickly within a community, and school board members often have close ties to the district through their children who are students, or relatives that work for the school. The court is clear that these ties do not by themselves show bias. Decisionmakers, such as school board members, are presumed to be impartial under the law. Board members in this case had prior knowledge of the plaintiff’s misconduct. The plaintiff had requested a meeting with the board to discuss his complaints against the administration. This meeting alone was not considered enough to bias the school board. Additionally, each board member was questioned on the record by the hearing officer and stated that he or she would base a decision “solely on the evidence received as a part of this hearing and exclude anything [he or she] may have heard or read about this matter prior to the hearing.”
Evidence from Prior School Years
The teacher repeatedly objected to any evidence of misconduct that occurred prior to the current contract year. The court found this argument to be without merit, holding that “a school board can consider all relevant conduct when determining whether to cancel a contract.” In this case, the incidents that occurred in prior school years were relevant because they were directly related to the teacher’s conduct thereafter and his deteriorating job performance.
Take Aways
A personnel hearing before the school board is multiple things at once. It is an open meeting of an elected public body subject to the notice requirements and other requirements of the Open Meetings Act. It is also the venue for certificated staff to exercise their due process rights that are established by state law. This means there are multiple legal hoops the district must jump through to conduct the hearing properly. Your school district’s attorney can help find a hearing officer and properly conduct the hearing, but the administration must take steps to properly notice the meeting and avoid disclosing personnel details to the board that could affect a board member’s ability to be impartial. If you have a staff member that engages in any of the misconduct defined above, you should document that misconduct immediately. For any questions on specific cases of misconduct you should contact your school district’s attorney or call Karen, Steve, Bobby, or Tim.