HB 2237--
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Session of 1997
HOUSE BILL No. 2237
By Committee on Education
2-5
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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
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1 -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 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 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
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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
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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-
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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.