CHAPTER 52
SENATE BILL No. 119
An Act concerning teachers; relating to hearings provided upon
notice of nonrenewal or
termination of contracts of employment; amending K.S.A. 72-5438,
72-5440, 76-11a05,
76-11a06, 76-11a07, 76-11a08, 76-11a09, 76-11a10, 76-11a11,
76-11a12, 76-11a13 and
76-11a14 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 72-5438 is hereby
amended to read as follows: 72-
5438. (a) Whenever a teacher is given written notice of intention
by a
board to not renew or to terminate the contract of the teacher as
provided
in K.S.A. 72-5437, and amendments thereto, the written notice of
the
proposed nonrenewal or termination shall include: (1) A
statement of the
reasons for the proposed nonrenewal or
termination,; and (2) a statement
that the teacher may have the matter heard by a hearing officer
upon
written request filed with the clerk of the board of education or
the board
of control or the secretary of the board of trustees within 15
calendar
days from the date of such notice of nonrenewal or termination.
(b) Upon Within 10
calendar days after the filing of any written re-
quest of a teacher to be heard as provided in subsection (a),
within 10
calendar days thereafter, the board shall notify
the commissioner of ed-
ucation that a list of qualified hearing officers is required. Such
notice
shall contain the mailing address of the teacher. Within 10 days
after
receipt of notification from the board, the commissioner shall
provide to
the board and to the teacher, a list of nine
five randomly selected, qual-
ified hearing officers.
(c) Within 5 five
days after receiving the list from the commissioner,
each party shall eliminate four two names
from the list, and the remaining
individual on the list shall serve as hearing officer. In the
process of elim-
ination, each party shall eliminate no more than one name at a
time, the
parties alternating after each name has been eliminated. The first
name
to be eliminated shall be chosen by the teacher,
within 5 five days after
the teacher receives the list. The process of elimination shall be
com-
pleted within 5 five days thereafter.
(d) Either party may request that one new
list be provided within 5
five days after receiving the list. If such a request is
made, the party
making the request shall notify the commissioner and the other
party,
and the commissioner shall generate a new list and distribute it to
the
parties in the same manner as the original list.
(e) In lieu of using the process provided
in subsections (b) and (c), if
the parties agree, they may make a request to the American
Arbitration
Association for an arbitrator to serve as the hearing officer. Any
party
desiring to use this alternative procedure shall so notify the
other party
in the notice required under subsection (a). If the parties agree
to use
this procedure, the parties shall make a joint request to the
American
Arbitration Association for a hearing officer within 10 days after
the
teacher files a request for a hearing. If the parties choose to use
this
procedure, the parties shall each pay one-half of the cost of the
arbitrator
and of the arbitrator's expenses.
(f) The commissioner of education shall
compile and maintain a list
of hearing officers comprised of residents of this state who are
attorneys
at law. Such list shall include a statement of the qualifications
of each
hearing officer.
(g) Attorneys interested in serving as
hearing officers under the pro-
visions of this act shall submit an application to the commissioner
of ed-
ucation. The commissioner shall determine if the applicant is
eligible to
serve as a hearing officer pursuant to the provisions of subsection
(h).
(h) An attorney shall be eligible for
appointment to the list if the
attorney has: (1) Completed a minimum of 10 hours of continuing
legal
education credit in the area of education law, due process,
administrative
law or employment law within the past five years; or (2) previously
served
as the chairperson of a due process hearing committee prior to the
ef-
fective date of this act. An attorney shall not be eligible for
appointment
to the list if the attorney has been employed to represent a board
or a
teacher in a due process hearing within the past five years.
Sec. 2. K.S.A. 72-5440 is hereby
amended to read as follows: 72-
5440. (a) For appearing before the hearing officer at a hearing,
witnesses
who are subpoenaed shall receive $5 per day and mileage at the
rate
prescribed under K.S.A. 75-3203, and amendments thereto, for
miles
actually traveled in going to and returning from attendance at the
hearing.
The fees and mileage for the attendance of witnesses shall be paid
by the
party calling the witness, except that fees and mileage of
witnesses sub-
poenaed by the hearing officer shall be paid by the board.
Witnesses
voluntarily appearing before the hearing officer shall not receive
fees or
mileage for attendance at the hearing.
(b) The hearing officer shall be paid
$240 per diem compensation,
or a portion thereof, for each day of actual attendance at
the hearing or
for any meeting held for the purpose of performing
compensation for
time spent in actual attendance at the hearing and for time
spent in per-
formance of the hearing officer's official duties. In
addition to compen-
sation, the hearing officer shall be paid subsistence allowances,
mileage,
and other expenses as provided in K.S.A. 75-3223, and
amendments
thereto. The costs for the services of the hearing officer shall be
paid by
the board.
(c) Testimony at a hearing shall be
recorded by a certified shorthand
reporter. The cost for the certified shorthand reporter's services
shall be
paid by the board. The transcript testimony
shall be transcribed if the
decision of the hearing officer is appealed to the district court,
or if either
party requests transcription. The appellant or the party making the
re-
quest shall pay for the cost of transcription. If both parties
jointly request
that the transcript testimony be
transcribed at the hearing level, the par-
ties shall each pay one-half of the cost of transcription.
(d) Each party shall be responsible for
the payment of its own attor-
ney fees.
(e) All costs of a hearing which are not
specifically allocated in this
section shall be paid by the board.
Section 3. K.S.A. 76-11a05 is
hereby amended to read as follows: 76-
11a05. All contracts of employment of teachers shall be deemed to
con-
tinue for the next succeeding school year unless written notice of
termi-
nation or nonrenewal is served as provided in this section. Written
notice
to terminate a contract may be served by the state board upon any
teacher
prior to the time the contract has been completed, and written
notice of
intention to nonrenew a contract shall be served by the state board
upon
any teacher on or before April 10 May 1. A
teacher shall give written
notice to the state board that the teacher does not desire
continuation of
the contract on or before May 10 15. Terms
of a contract may be changed
at any time by mutual consent of both the teacher and the state
board.
Sec. 4. K.S.A. 76-11a06 is hereby
amended to read as follows: 76-
11a06. (a) Whenever a teacher is given written notice of
intention by the
state board to nonrenew or to terminate the contract of the teacher
as
provided in K.S.A. 76-11a05, and amendments thereto, the
written notice
of the proposed nonrenewal or termination shall include: (1)
A statement
of the reasons for the proposed nonrenewal or
termination,; and (2) a
statement that the teacher may have the matter heard by a hearing
com-
mittee officer upon written request filed
with the commissioner of edu-
cation within 15 days from the date of such notice of nonrenewal
or
termination.
(b) The Within
10 calendar days after the filing of a written request
of the by any teacher to be heard
shall include therein a designation of
one hearing committee member. Upon the filing of any such
request as
provided in subsection (a), the state board shall
designate, within 15 days
thereafter, one hearing committee member. The two hearing
committee
members shall designate a third hearing committee member
who shall
be the chairperson and who shall in all cases be a resident
of the state of
Kansas. In the event that the two hearing committee members
are unable
to agree upon a third hearing committee member within five
days after
the designation of the second hearing committee member, a
district judge
of the home county of the state school shall appoint, upon
application of
the teacher or either of the first two hearing committee
members, the
third hearing committee member. Such appointment may be
made by
the district judge from a list, which shall be compiled and
maintained by
notify the secretary of human resources, of
impartial persons who are
representative of the public and who are qualified to serve
as hearing
committee members that a list of qualified
hearing officers is required.
Such notice shall contain the mailing address of the teacher.
Within 10
days after receipt of notification from the state board, the
secretary shall
provide to the state board and to the teacher a list of five
randomly se-
lected, qualified hearing officers.
(c) Within five days after receiving
the list from the secretary of hu-
man resources, each party shall eliminate two names from the
list, and
the remaining individual on the list shall serve as hearing
officer. In the
process of elimination, each party shall eliminate no more than
one name
at a time, the parties alternating after each name has been
eliminated.
The first name to be eliminated shall be chosen by the teacher
within five
days after the teacher receives the list. The process of
elimination shall be
completed within five days thereafter.
(d) Either party may request that one
new list be provided within
five days after receiving the original list. If such a request
is made, the
party making the request shall notify the secretary of human
resources
and the other party, and the secretary shall generate a new list
and dis-
tribute it to the parties in the same manner as the original
list.
(e) In lieu of using the process
provided in subsections (b) through
(d), if the parties agree, they may make a request to the
American Arbi-
tration Association for an arbitrator to serve as the hearing
officer. Any
party desiring to use this alternative procedure shall so notify
the other
party at the time written request for a hearing is filed by the
teacher. If
the parties agree to use this procedure, the parties shall make
a joint
request to the American Arbitration Association for a hearing
officer
within 10 days after the teacher files the request for a
hearing. If the
parties choose to use this procedure, the parties shall each pay
1/2 of the
cost of the arbitrator and of the arbitrator's expenses.
(f) The secretary of human resources
shall compile and maintain a
list of hearing officers comprised of residents of this state
who are attor-
neys at law. Such list shall include a statement of the
qualifications of
each hearing officer.
(g) Attorneys interested in serving as
hearing officers under the pro-
visions of this act shall submit an application to the secretary
of human
resources. The secretary shall determine if the applicant is
eligible to serve
as a hearing officer pursuant to the provisions of subsection
(h).
(h) An attorney shall be eligible for
appointment to the list if the
attorney has: (1) Completed a minimum of 10 hours of continuing
legal
education credit in the area of education law, due process,
administrative
law or employment law within the past five years; or (2)
previously served
as the chairperson of a due process hearing committee prior to
the effec-
tive date of this act. An attorney shall not be eligible for
appointment to
the list if the attorney has been employed to represent the
state board or
a teacher in a due process hearing within the past five
years.
Sec. 5. K.S.A. 76-11a07 is hereby
amended to read as follows: 76-
11a07. The hearing provided for in under
K.S.A. 76-11a06, and amend-
ments thereto, shall commence within 45 calendar days
after the hearing
officer is selected unless the hearing officer grants an
extension of time.
The hearing shall afford procedural due process, including
the following:
(a) The right of each party to have
counsel of such party's own choice
present and to receive the advice of such counsel or other person
whom
such party may select; and
(b) the right of each party or such
party's counsel to cross-examine
any person who provides information for the consideration of the
hearing
committee officer, except those persons
whose testimony is presented by
affidavit; and
(c) the right of each party to present
such party's own witnesses in
person, or their testimony by affidavit or deposition, except that
testimony
of a witness by affidavit may be presented only if such witness
lives more
than 100 miles from the location of the state school, or is absent
from the
state, or is unable to appear because of age, illness, infirmity or
impris-
onment. When testimony is presented by affidavit the same shall
be
served upon the commissioner of education or the agent of the state
board
and upon the teacher in person or by first class mail to the
address of the
teacher which is on file with the state board not less than 10 days
prior
to presentation to the hearing committee
officer; and
(d) the right of the teacher to testify
in the teacher's own behalf and
give reasons for the teacher's conduct, and the right of the state
board to
present its testimony through such persons as it
the state board may call
to testify in its behalf and to give reasons for its actions,
rulings or policies;
and
(e) the right of the parties to have an
orderly hearing; and
(f) the right of the teacher to a fair
and impartial decision based on
substantial evidence.
Sec. 6. K.S.A. 76-11a08 is hereby
amended to read as follows: 76-
11a08. (a) For attending appearing before
the hearing committee officer
at a hearing, witnesses who are subpoenaed shall receive $5 per day
and
mileage at the rate prescribed under K.S.A. 75-3203, and
amendments
thereto, for miles actually traveled in going to and returning from
attend-
ance at the hearing. The fees and mileage for the attendance of
witnesses
shall be borne paid by the party calling
the witness, except that fees and
mileage of witnesses subpoenaed by the hearing
committee officer shall
be borne equally paid by the
parties state board. Witnesses
voluntarily
attending appearing before the hearing
committee officer shall not re-
ceive fees or mileage for attendance at the hearing.
(b) Each member of the hearing
committee shall be paid compen-
sation, subsistence allowances, mileage and other expenses
as provided
in K.S.A. 75-3223, and amendments thereto. The costs for
the services
of members of the hearing committee shall be borne by the
parties as
follows: (1) For each member who is designated by a party,
the party
designating the member; and (2) for the third member, by
the parties
equally.
(c) Testimony at a hearing may,
and upon the request of either party
shall, be taken by a certified shorthand reporter or
electronically re-
corded, and shall be transcribed upon request of either
party or upon
direction by a court.
(b) The hearing officer shall be paid
compensation for each day, or
part thereof, spent in actual attendance at the hearing and for
any day,
or part thereof, spent in performance of the hearing officer's
official duties.
In addition to compensation, the hearing officer shall be paid
subsistence
allowances, mileage, and other expenses as provided in K.S.A.
75-3223,
and amendments thereto. The costs for the services of the
hearing officer
shall be paid by the state board.
(c) Testimony at a hearing shall be
recorded by a certified shorthand
reporter. The cost for the certified shorthand reporter's
services shall be
paid by the state board. The testimony shall be transcribed if
the decision
of the hearing officer is appealed to the district court, or if
either party
requests transcription. The appellant or the party making the
request shall
pay for the cost of transcription. If both parties jointly
request that the
testimony be transcribed at the hearing level, the parties shall
each pay
1/2 of the cost of transcription.
(d) Each party shall be responsible
for the payment of its own attor-
ney fees.
(d) (e) All costs
of a hearing which are not specifically allocated in
this section shall be borne equally paid by
the parties state board.
Sec. 7. K.S.A. 76-11a09 is hereby
amended to read as follows: 76-
11a09. When either party desires to present testimony by affidavit
or by
deposition, that party shall furnish to the hearing
committee officer the
date on which the testimony shall be taken. A copy of the affidavit
or the
deposition shall be furnished to the opposing party within 10 days
follow-
ing the taking of any such testimony, and no such testimony shall
be
presented at a hearing until the opposite party has had at least 10
days
prior to the date upon which the testimony is to be presented to
the
hearing committee officer to rebut such
testimony by affidavit or depo-
sition or to submit interrogatories to the affiant or deponent to
be an-
swered under oath. Such 10-day period may be extended, for good
cause
shown, by the chairperson of the hearing
committee officer.
Sec. 8. K.S.A. 76-11a10 is hereby
amended to read as follows: 76-
11a10. (a) At any meeting of a The hearing
committee, when authorized
by a majority of the committee, any member thereof
officer may:
(1) Administer oaths;
(2) issue subpoenas for the attendance
and testimony of witnesses
and the production of books, papers and documents relating to any
matter
under investigation;
(3) authorize depositions to be
taken;
(4) receive evidence and limit lines of
questioning and testimony
which are repetitive, cumulative or irrelevant;
(5) call and examine witnesses and
introduce into the record docu-
mentary and other evidence;
(6) regulate the course of the hearing
and dispose of procedural re-
quests, motions and similar matters; and
(7) take any other action necessary to
make the hearing accord with
administrative due process.
(b) Hearings under this act shall not be
bound by rules of evidence
whether statutory, common law or adopted by the rules of court;
however,
the burden of proof shall initially rest upon the state board in
all instances
other than when the allegation is that the teacher's contract has
been
terminated or nonrenewed by reason of the teacher having exercised
a
constitutional right. All relevant evidence shall be admissible,
except that
the hearing committee officer, at
its the hearing officer's discretion,
may
exclude any evidence if it the hearing
officer believes that its the
probative
value of such evidence is substantially outweighed by the
fact that its
admission will necessitate undue consumption of time.
Sec. 9. K.S.A. 76-11a11 is hereby
amended to read as follows: 76-
11a11. (a) Unless otherwise agreed to by both the state board and
the
teacher, the hearing committee officer
shall render a written opinion de-
cision not later than 30 days after the close of the
hearing, setting forth
its the hearing officer's findings of fact
and recommendation as to the
determination of the issues. The opinion
decision of the hearing com-
mittee officer shall be submitted to the
teacher and to the state board.
(b) If The
members decision of the hearing
committee are unanimous
in their opinion, the state board shall adopt the opinion
as its decision in
the matter and such decision officer shall
be final, subject to appeal to
the district court as provided in K.S.A. 60-2101, and
amendments thereto
review in accordance with the act for judicial review and civil
enforcement
of agency actions.
(c) If the members of the hearing
committee are not unanimous in
their opinion, the state board shall consider the opinion,
hear oral argu-
ments or receive written briefs from the teacher and a
representative of
the state school, and decide whether the contract of the
teacher shall be
renewed or terminated. The decision of the state board
under this sub-
section shall be submitted to the teacher not later than 30
days after the
close of oral argument or submission of written briefs and
such decision
shall be final, subject to appeal to the district court as
provided by K.S.A.
60-2101, and amendments thereto.
Sec. 10. K.S.A. 76-11a12 is hereby
amended to read as follows: 76-
11a12. Nothing in this act, or in any act amendatory thereof or
supple-
mental thereto, shall be construed to create any right, or
to authorize the
creation of any right, which is not subject to amendment or
nullification
by act of the legislature. Nothing in this act and no amendment or
repeal
of this act or any part thereof shall be construed to constitute an
impair-
ment of any existing contractual right.
Sec. 11. K.S.A. 76-11a13 is hereby
amended to read as follows: 76-
11a13. (a) (1) Subject to the provisions of K.S.A.
76-11a14 subsection (b),
the provisions of K.S.A. 76-11a06 through 76-11a11, and
amendments
thereto, apply only to: (1) (A)
Teachers who have completed not less than
two three consecutive years of employment,
prior to the effective date of
this act and been offered a contract for a
fourth year of employment, at
the state school in which the teacher is currently employed; and
(2) (B)
teachers who have completed one year of employment, prior
to the ef-
fective date of this act and, consecutively thereto, one
year of employ-
ment, after the effective date of this act, at the state
school in which the
teacher is currently employed; and (3) teachers who have
completed not
less than three two consecutive years of
employment, after the effective
date of this act and been offered a contract
for a third year of employment,
at the state school in which the teacher is currently
employed; and (4)
teachers who have completed not less than two consecutive
years of em-
ployment, after the effective date of this act, at the
state school in which
the teacher is currently employed if at any time
prior to the current
employment the teacher has completed the years of employment
require-
ment of provision (1), (2) or (3) subpart
(A) at the other state school.
(b) (2) The state
board may waive, at any time, the years of employ-
ment requirements of subsection (a) provision
(1) for any teachers em-
ployed at a state school.
(3) The provisions of this subsection
are subject to the provisions of
K.S.A. 76-11a14, and amendments thereto.
(b) The provisions of K.S.A. 76-11a06
through 76-11a11, and amend-
ments thereto, do not apply to any teacher whose certificate has
been
nonrenewed or revoked by the state board for the reason that the
teacher:
(1) Has been convicted of a felony under the uniform controlled
substances
act; (2) has been convicted of a felony described in any section
of article
34 of chapter 21 of the Kansas Statutes Annotated or an act
described in
K.S.A. 21-3412 and amendments thereto, if the victim is a minor
or stu-
dent; (3) has been convicted of a felony described in any
section of article
35 of chapter 21 of the Kansas Statutes Annotated, or has been
convicted
of an act described in K.S.A. 21-3517 and amendments thereto, if
the
victim is a minor or student; (4) has been convicted of any act
described
in any section of article 36 of chapter 21 of the Kansas
Statutes Annotated;
(5) has been convicted of a felony described in article 37 of
chapter 21 of
the Kansas Statutes Annotated; (6) has been convicted of an
attempt under
K.S.A. 21-3301, and amendments thereto, to commit any act
specified in
this subsection; (7) has been convicted of any act which is
described in
K.S.A. 21-4301, 21-4301a or 21-4301c, and amendments thereto;
(8) has
been convicted in another state or by the federal government of
an act
similar to any act described in this subsection; or (9) has
entered into a
criminal diversion agreement after having been charged with any
offense
described in this subsection.
Sec. 12. K.S.A. 76-11a14 is hereby
amended to read as follows: 76-
11a14. In the event that any teacher alleges that the teacher's
contract
has been nonrenewed or terminated by reason of the teacher
having ex-
ercised a constitutional right, the following procedure shall be
imple-
mented:
(a) The teacher alleging an abridgment by
the state board of a con-
stitutionally protected right shall notify the state board of
the allegation
within 15 days after receiving the notice of intention to
nonrenew or
terminate the teacher's contract. Such notification shall
specify the nature
of the activity protected, and the times, dates, and places of such
activity;
(b) the hearing
committee officer provided for by K.S.A.
76-11a06,
and amendments thereto, shall thereupon be
constituted selected and shall
decide if there is substantial evidence to support the teacher's
claim that
the teacher's exercise of a constitutionally protected right was
the reason
for the nonrenewal or termination;
(c) if the hearing
committee officer determines that there is
no sub-
stantial evidence to substantiate the teacher's claim of a
violation of a
constitutionally protected right, the hearing committee
shall dissolve, and
the state board's decision to nonrenew
or terminate the contract shall
stand;
(d) if the hearing
committee officer determines that there is
substan-
tial evidence to support the teacher's claim, the state board shall
be re-
quired to submit to the committee hearing
officer any reasons which may
have been involved in the nonrenewal or termination;
(e) if the state board
has presents any substantial evidence to
support
its reasons, the state board's decision not to renew or to
terminate the
contract shall be upheld.
New Sec. 13. If any clause,
paragraph, subsection or section of this
act shall be held invalid or unconstitutional, it shall be
conclusively pre-
sumed that the legislature would have enacted the remainder of the
act
without such invalid or unconstitutional clause, paragraph,
subsection or
section.
Sec. 14. K.S.A. 72-5438, 72-5440, 76-11a05,
76-11a06, 76-11a07, 76-
11a08, 76-11a09, 76-11a10, 76-11a11, 76-11a12, 76-11a13 and
76-11a14
are hereby repealed.
Sec. 15. This act shall take effect and be in
force from and after its
publication in the statute book.
Approved April 14, 2003.
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