Legislature(1993 - 1994)
03/22/1994 03:00 PM House HES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CHAIR BUNDE reconvened at 3:45 p.m. He brought HB 521 to the table and indicated that there would be teleconference testimony. HB 521 - JUDICIAL REVIEW: TEACHER TENURE DECISIONS Number 866 CLAUDIA DOUGLAS, President, National Education Association/Alaska (NEA/AK), testified in Juneau in opposition to HB 521. She stated the legislation would end the right of a dismissed, tenured teacher to obtain a trial de novo, or new trial, before a Superior Court judge and would only be allowed to ask a judge to consider whether the school board afforded the teacher due process. She further indicated that a teacher's right to a jury trial would be precluded. MS. DOUGLAS indicated that in 1975 the Supreme Court stated, "It is well known that the composition of many school boards is not such as to endow them with fact-finding expertise in matters of teacher nonretention." Also in 1977 the court observed that, "There is no question that a judicial body, often further removed from the political pressures involved in teacher nonretention dispute, will provide more objective perspective of the proceedings." MS. DOUGLAS further indicated that the bill would require judges to treat school board decisions in the same manner as judges treat decisions of such neutral, expert agencies as the Workers Compensation Board, the Professional Teaching Practices Commission, the Board of Fisheries and the Board of Game. She said those agencies are specialized bodies which have the "fact-finding expertise" which the Supreme Court has said school boards lack in matters of teacher nonretention. She also asserted that it is nearly impossible to obtain a fair hearing from school boards because they often "rubber stamp" the recommendations of administrators. Number 929 CHAIR BUNDE asked Ms. Douglas to leave her written testimony with the committee secretary. He asked for testimony from Carl Rose. Number 938 CARL ROSE, Executive Director, Association of Alaska School Boards (AASB), testified in Juneau in support of HB 521. He stated that he had provided the committee with a written statement as well as correspondence from member districts. He noted that during this time of financial difficulty the state has to look at how it conducts business and the costs that are incurred as result of decisions made. He stated that dollars targeted for the classroom are being spent in the legal arena regarding nonretention. He felt that if there is any question regarding due process or lack thereof, a Superior Court should examine the case. MR. ROSE further indicated that if an objective review is provided, and also a fair and impartial hearing is provided, there should be no reason for a new trial. A record and a body of knowledge is created at the local level regarding the case. He said if that hearing is unsatisfactory to a teacher, they have the right to request a new trial. The facts of that hearing will be the basis upon which those involved will prepare for a new trial. He felt the process puts the school districts at a disadvantage, expenses increase, and the burden of proof still lies with the school district. MR. ROSE asserted that the right to due process should be protected by law. But, he said he had great concerns if a case has to be retried after the facts have been brought forth by a hearing process. MR. ROSE directed the committee's attention to information included in the bill packets that relate various expenses that some school districts have incurred as a result of de novo trials. He reiterated that dollars should be going into the classrooms and not being diverted to pay for legal fees. Number 014 CHAIR BUNDE asked Mr. Rose if he felt school boards rubber stamp the recommendations of their administrators. MR. ROSE replied that administrators are hired for certain functions, including the recommending of nonretention in appropriate situations, and school boards, more than likely, will heed those recommendations. He further indicated that school districts usually seek legal counsel during the hearing process before problems are created. He also stated that he was aware of recommendations of nonretention that have come forward from administration and subsequently have not been taken under consideration by the local school board. CHAIR BUNDE asked if the issue was more about money than going to trial. He also said if the case is won in the first trial, chances are the facts won't change in the second trial and the district would prevail again. Number 052 MR. ROSE indicated that money is an issue and also that the burden of proof lies with the school district. He said, "the burden of proof is on the school district. And, if you go to two separate trials and you basically lay out your strategy at a hearing level, safe to say that the opposition gets to prepare a case for you and meet you in a separate, new trial. I think there is a disadvantage. The school board is bound, but they can't change the list of particulars. When you state your list of particulars and your reasons for nonretention, you can't change those." MR. ROSE further indicated that there is a "chilling effect" on administrators after a tremendous amount of money has been spent and quite a bit of time has passed due to a de novo trial and the district does not prevail. He stated that administrators are fearful to pursue another nonretention case for fear it will not "stick" over the course of time. Number 082 CHAIR BUNDE asked for teleconference testimony. Number 083 LARRY WIGET, Legislative Liaison, Anchorage School District, testified via teleconference in support of HB 521. He stated that the testimony he was giving was provided by the executive director of Labor Relations, Lee Wilson. He said the current provisions of AS 14.20.205 grant Alaskan teachers a measure of security unheard of in other employment arenas. That security makes it very difficult for the school districts to remove any teachers "whose performance insults public expectations and inhibits student growth." MR. WIGET indicated that teachers who have been judged unfit for duty by school boards, after lengthy and formal evidential hearings, have the option to begin the process all over again in Superior Court. He said the second trial typically occurs more than a year after the hearing before the school board, thus increasing the difficulty and cost of securing testimony from witnesses who may be out of the state or country. He stated that recently the Anchorage school district first spent $20,000 to prevail before a hearing officer and then was forced to expend an additional $100,000 only to achieve the same result in Superior Court. He further explained that all witnesses had to testify again and that all arguments, all discovery, and all briefs were recreated and submitted to the judge. MR. WIGET asserted that HB 521 would protect teachers by giving them access to court review of an administrative judgement. He said in order for a decision made by a hearing officer to be overturned by a court, the appealing party is required to demonstrate that a substantial error in fact or law was made, hence the burden of proof rests clearly on the appellant. He further reiterated that HB 521 will prohibit completely unwarranted second evidentiary proceedings in Superior Court. TAPE 94-59, SIDE B Number 000 CHAIR BUNDE asked if there were any questions for Mr. Wiget. REP. TOOHEY, for clarification, asked Mr. Wiget if there is no other collective bargaining unit in the state that allows for a de novo trial. MR. WIGET said it was his understanding that HB 521 would put teachers on equal footing with other state represented employees. REP. TOOHEY felt that Mr. Wiget's position was reasonable. Number 024 CHAIR BUNDE referred to the scenario Mr. Wiget spoke of where a school district paid an additional $100,000 for a new trial. He asked if the school district prevailed. MR. WIGET said yes. CHAIR BUNDE asked for teleconference testimony from Kenai. Number 038 RICHARD SWARNER, Executive Director, Business Management, Kenai Peninsula Borough School District, testified via teleconference in support of HB 521. He stated that the Kenai school district had recently undergone a de novo trial for nonretention of a tenured teacher at a cost of $74,000. He indicated that the cost is an exorbitant yet "normal price" for the additional process. He asserted if HB 521 had been law at the time of the second trial, the costs would have totaled $20,000 to $25,000. He felt the legislation would be a cost containment measure and would maintain a teacher's right to due process. Mr. Swarner further indicated that there are also additional costs incurred as administrators must devote more time for preparing for and participating in a de novo trial. MR. SWARNER directed the committee's attention to a letter in their bill packets from SHARON RADTKE, Executive Director, Kenai Peninsula Borough School District, to CARL ROSE. He said the correspondence further details the testimony of Mr. Rose and Mr. Wiget. He strongly urged the passage of HB 521. CHAIR BUNDE asked, if the Kenai district had a more effective tenure review process, would it have been necessary to take the teacher to court? MR. SWARNER said that was a difficult question to determine. He said the district does not take teachers to court very often. He indicated the last court case was in the early 1980's and the cost was approximately $50,000. He stated that in the most recent court case, the district did not prevail and asserted that they would take the case to the Supreme Court which will cost another $20,000. CHAIR BUNDE asked for further testimony. Number 131 JIM SIMEROTH, Teacher, Kenai Middle School, testified via teleconference in opposition to HB 521. He stated that the legislation would take away a basic right of a teacher to a fair trial. He asserted that not all school boards are unbiased in their decisions. Due process does not always ensure fair treatment. He said if cost is an issue, it has been his experience that costs incurred by a school district are the result of some type of inadequate administrative procedures. Number 171 CHAIR BUNDE asked for testimony from Sitka. Number 172 JOHN HOLST, Superintendent, Sitka School District, testified via teleconference in support of HB 521. He stated that those who are in opposition presume that there is a lack of due process. He said, "that couldn't be further from the truth." He indicated that there is no intention on the part of any school board or administrator to "do away" with due process provisions. Currently, the system is duplicative and adds unwarranted costs to the process. He asserted that no strength is added to due process by allowing de novo trials. Due process is protected under HB 521 and any teacher can ask a Superior Court judge to determine whether or not their rights have been violated. MR. HOLST said the Sitka School District is currently involved in a case that has been remanded from the Supreme Court back down to the Superior Court. The district thought the case had been decided a few years ago. He indicated that a letter included in the committee bill packets outlines the costs to the district as well as their insurance carrier. MR. HOLST further stated that there are tremendous costs involved in the initial development of a nonretention case and that it can take up to 70% of an administrator's time. He felt the protections afforded to tenure teachers under current statute "are about as iron-clad as they could be without even adding the de novo trial." He strongly urged the passage of HB 521. Number 261 CHAIR BUNDE said he assumed that Mr. Holst is not a teacher. Number 262 MR. HOLST said he is the superintendent of the Sitka School District. CHAIR BUNDE asked for testimony from Barrow. Number 265 TOM EVERITT, Personnel Director, North Slope Borough School District, testified via teleconference in support of HB 521. He stated that he had spent seven years in the Anchorage School District as a director of labor relations handling any type of case having to do with the dismissal of teachers. He said he began a career in collective bargaining in 1965 and understands due process from working "both sides of the fence." He asserted that the legislation in no way takes away teacher due process. He indicated that the hearings held by school boards are very much like legal proceedings where witnesses are sworn under oath and testimony and legal representation is allowed. He said the procedure is conducted exactly as if it were in a court room. He said in the case of a de nova trial it is the exact process again. MR. EVERITT related a case that had just been completed where the board brought a hearing officer to Barrow to oversee the board as to ensure that the proceedings were handled in "a very legal way." He said the hearing officer wrote the decision for the board and the procedure was conducted according to all legal processes. He indicated that the case went to a de novo trial and the district's expense was $126,000. The district is still awaiting the decision. He guessed that whatever the decision will be, the case will go to the Supreme Court. MR. EVERITT supported the concept of a judge reviewing the records of the hearing before the school board and determining whether or not the process was carried out in a proper and legal manner as to avoid the de novo trial completely. He also supported the right to due process. MR. EVERITT related another case where a teacher was terminated for incompetence. He stated that $29,000 in attorneys fees were spent in preparing for the case. He then indicated that the insurance company which represented the district settled with the teacher for just under $60,000. He said the insurance company had just finished paying $126,000 for the previous case and felt it would be easier and cheaper to pay the teacher than to go through another trial. He asserted that the district was fortunate that it had insurance coverage, but indicated they fully expect to be cancelled by the insurance company as a result of two very large claims. He said the district now would be wholly responsible for all legal expenses. Number 389 CHAIR BUNDE asked Mr. Everitt if he was related to John Everitt. MR. EVERITT said no and that he had never met him when he was in the Anchorage school district. Number 390 CHAIR BUNDE asked for further testimony. There was none. He then indicated that there had not been enough testimony from teachers on the issue. He said he would keep the legislation under advisement until he ascertained the general position of teachers. Seeing no further business before the committee CHAIR BUNDE adjourned the meeting at 4:12 p.m.
| Document Name | Date/Time | Subjects |
|---|